### IN THE TENTH COURT OF APPEALS
No. 10
- 18
- 00358
- CR
ANTONIO T. TORRES , Appellant v. THE STATE OF TEXAS , Appellee

From the 413th District Court Johnson County, Texas Trial Court No. F50694

MEMORANDUM OPINION
Appellant Antonio T. Torres was convicted by a jury of two counts of aggravated sexual assault of a child and one count of indecency with a child by sexual contact. The jury assessed To rres ’ s punishment at forty

- five years ’ incarceration each on the aggravated sexual assault counts and twenty years ’ incarceration on the indecency count, all to be served concurrently. In four issues, Torres challenges the sufficiency of
the evidence on e ach count and as serts that the trial court erred in the definitions
included in the jury charge. We will affirm.Torres v. State Page 2 Background
Torres was indicted for sex ually abusing one victim, i dentified by the pseudonym Becky Thomas , 1 on three separate occasions. The in dictment charged that the three separate in cidents occurred in January 2014 and December 2014 when Becky was less than fourteen years of age. S everal witnesses testified at trial, including Becky , the girlfriend of Becky ’ s biological father, who was an outcry witness, a foren sic
interview er , and a sexual assault nurse exami ner. Becky ’ s outcry did not occur until over a year after the abuse allegedly occurred. There was no physical evidence of abuse nor any witnesses to the actual abuse other than Becky

. The testimony at trial reflect s that “ Larry , ” Becky ’ s biological father, impregnated Becky ’ s mother “ Evie ” when Evie was thirteen or fourteen years of age

. Evie gave birth to Becky when Evie was fourteen

. Larry has three convictions for aggravated se xual assault of a child under fourteen years o f age, one of which involv ed
Evie , and is a registered sex offender. Evie began a relationship with Torres when Becky was three or four years of age

. Evie and Torres placed Torres ’ s name on Becky ’ s
birth cert ificate eve n though Torres is not Becky ’ s biological father. Evie had two more daughters with Torres before the ir relationship ende d. In 2012, Evie introduced Becky to Larry and allowed her to spend significant time with him. The Department of
Human Ser vi ces rem oved Becky and her sisters from Evie and placed them with

1 We use th is pseudonym and assign ps eudony ms to other in dividua l s to protect the identity of the victim. See Tex. R. App. P. 9.10.Torres v. State Page 3

Torres ’ s parents , who considered Becky one of their grandchildren

. The Department required that all vis i ts with the children by Evie, Torres or Larry be supervised

. When
the children were r eturned to Evie, she allowed Becky to resume visit s with Larry.
There was some indication that Evie allowed Becky to move in with Larry.
After the rela t ionship with Torres ended, Evie began a relationship with

“ Gordon, ” who moved in with her and the gi rls. In 20 15, Evie got into an altercation
with Torres ’ s mother after Evie and Gordon left Becky and her sisters alone while Evie
and Gordon attended a concert . When the police investigated, Becky told the police
that Gordon had threatened Evie with a gu n, that there was marij uana in their house, and that Gordon sold marijuana. As a result of this incident, the Department opened
another inv es tigation into Evie and her children. In the meantime, Torres was in jail for failure t o pay child support. W he n Torres
was released f rom jail , he observed Becky at Larry ’ s house and told Becky that she was not supposed to be there. Shortly thereafter, Becky made an outcry to Larry ’ s girlfriend
that Torres ha d sexually abu sed Becky in the past. Becky was unclea r as to the dates the
abu se had occurred when she testified, but from the surrounding circumstances the
abuse occurred prior to the time Torres was jailed for failure to pay child support

. The incidents Becky de scribed occurred while she was spending the ni ght at Torres ’ s parents ’ house

.Torres v. State Page 4

Torres ’ s defense was th at Evie concocted the allegations against him and persuaded Becky to lie in order to forestall another inves tigation by the Department and so that Becky c ould continue visiting Larry, who was a more l enient parent

. The implication from the questions direc ted at the witnesses was that if any abuse occurred,
it was inflicted by Larry.
Discussion
A. Suff iciency

. In his first three issues, Torres asserts that the evidence was
insufficient on each co unt to sustain a conviction. The Co urt of Criminal A ppe als ha s expressed our standard of review of a sufficiency issue as follows:

Whe n a ddressing a chall enge to the sufficiency of the eviden ce, we consider w h et her, after view ing all of the evidence in th e lig ht most favorable to the verdic t, any rational t rie r of f act could have found the essential elements of the crime beyond a reasona ble doubt. Jac kson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. E d. 2d 560 ( 1979 ); Vi lla v. State , 514 S.W.3d 22 7, 23 2 (Tex. Crim. App. 2017). Thi s standard requir e s t he ap pellate court to defer "to the responsibility of the trier of fact fairly to resolve conf lict s in the testimony, to weigh the evide nce, and to draw r e a sonable inferen ce s from basic facts to ultim at e f a cts." Jackson , 443 U.S. at 3 19 , 99 S.Ct. 2781

. W e may not re

- weigh the evidence or substitute our judgment for that of the fac tfi nder. Willia ms v. State , 235 S.W.3d 742, 750 (Tex. Cri m. App. 2007). Th e court conductin g a sufficiency review must n ot en g age in a "divide and con quer" strategy but mus t co nside r the cumulative force of all the evidence. Villa , 514 S.W.3d at 232. A lth ough juries m ay not speculate about the meaning of fact s or evidence, j ur i e s are permitted t o draw any reasonable infer en ces from the facts so long a s eac h inference is su p por ted b y the evidence presented at trial. Cary v. State , 507 S.W.3d 750, 757 (T ex. Crim. App. 2 016) ( citing Jackson , 443 U.S. at 319 , 99 S.Ct. 2781 ); see a l s o Hooper v. Sta te , 214 S.W.3d 9, 16

- 17 (Tex. C rim

. App. 2007). We presume that the factfinder r e sol ved a ny conflicting inferences from the evidence in favor of the verdict, and we defer to that resolution. Merritt v. State , 368 S.W.3d 516, 525 (Tex. Cr i m . App. 2012). Th is is because the jurors ar e the exclusive judges of the facts , the credibility of the w itnesses, and the weight to be given to the testimony. Brooks v. State , 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). Direct eviden ce andTorres v. State Page 5

circumsta nt i a l evidence are eq ually probative, and circum st ant i al evidence alone may be suff icient to uphold a co nvict ion so long as the cumulative force of all the incriminating circumstance s i s sufficient to support the conviction. Ramsey v. Stat e , 473 S.W.3d 80 5, 8 09 (Tex. Crim. Ap p. 2015); Hooper , 214 S.W.3 d at 1 3.
We measure whether the e vidence presented at trial was sufficient to support a conviction by comparing it to "the elements of the offense a s defined by the hypothetically correct ju ry charge for th e c a se." Malik v. St ate , 953 S.W.2d 234, 240 (T ex . C r im. App. 1997). The hyp othet ically correct ju r y c harge is one that "accurately sets out the law, is authorized by the indictmen t, does not unne cessarily increase the State's burden of p roof or unnecess ar i l y restrict the St ate's theories of liability , and adequately describes the part icular offense fo r wh ich t he defendant was tried." Id. ; see also Daugherty v. State , 387 S.W.3d 65 4, 665 (Tex. Cri m. App. 2013). The "law as authorized by the indictment" in c l udes the statut or y elements of the offense a nd th o se elements as modified by th e indictment. Da u ghe rty , 387 S.W.3d at 665. Zuniga v. State , 551 S.W.3d 729, 732

- 33 (Tex. Crim. A pp. 2018).
The elemen ts of aggravated sexual assault of a child are found in § 22.021 of the
Penal Code. See T EX

. P ENAL C O DE A NN

. § 22.021. As relevant to this case, a person commits the offe n se of aggravated sexual assault of a child if the person intentio n a lly or knowingly causes the penetration of the sexual organ of a child b y any means or cau s es the mouth of a child t o contact the sexual organ of another person, including the actor,
and t h e victim is younger than fourteen years of age

. Id

. §§ 22.021(a)(1)(B), (a)(2)(B).
A person commits the offense of indecency with a chi ld by sexual contact if the person intention al ly or knowingly engages in sexual contact with a child younger tha n

seven teen years of ag e or causes the child to engage in sexual contact. Id

. § 21.11(a)(1).
“Sexual contact , ” as relevant to the charges in this case, includes the following acts, if

c om mitted with the intent t o arouse or gratify the sexual desire of any person: (1)Torres v. State Page 6

touching through clothing of any part of the genitals of a child, and (2) touching any part of the body of a child w ith any par t of the genitals of a person. See i d

. § 21 .1 1(c) ; see also Carmona v. State , 610 S.W.3d 611, 615 ( Tex. App.

— Houston [14th Dist.] 2020 , no pet. )

. Torres asserts that the evidence is insufficient to support his conviction on any of
the counts of the indict ment because “ all the evidence presented at tr ial was either the

tes t i mony of [ Becky ] or statements previously made t o others by [ Becky ]. There were no other witnesses to the alleged criminal conduct, no physic a l evidence, no medical evidence, or any othe r evidence to support [ Becky ’ s] allegations. ” Tor res further n otes,

“ The only direct evidence prese nted is the testimony of [ Becky ] which is uncorroborated, inconsistent, and contradictory. The confl i cting statements and shifting stories made by [ Becky ] about the alleged criminal conduct combined wi th the
ill ogi cal idea that this type of offense occurr ed in a small room with two other children present in the same small room and two adults in the n ext room makes her tes t i mo ny void of any credibility. ”

The uncorroborated testimony of a child vict im can b e sufficient to support a conviction. See T EX

. C ODE C RIM

. P ROC

. art. 38.07; see also Garcia v. State , 563 S.W.2d 925, 928 (Tex. Crim. App. 1978) (holding victim's t estimony of penetration by defendant, s tanding alone, was sufficient). Furthermore , the Stat e has no burden to produce physical, medical, or other corroborating evidence. See Jones v. State , 428 S.W.3d 163, 169 (Tex. App.

— Houston [1st Dist.] 2014, no pet.)

. To the extent the lack of this or other evidence could serve to undermine the al leged vict i m's or any other witness's credibility, it was the jury's duty as the sole factfinder to assess the alleged victim's credibility and to resol ve any conflicts in th e evidence or testimony. See Zuniga , 551 S.W.3d at 729. We presume that the ju ry resolved an y conflicting inferences in favor of the v erdict and defer to that resolution. See Jackson , 443 U.S. at 326. The jury determines the credi bilityTorres v. State Page 7

of the witnesses an d may believe all, some, or none of the testimony. Sharp v. State , 707 S.W. 2d 611, 614 (Tex. Crim. App. 1986). Petty v. State , No. 10

- 18

- 00243

- CR, 2020 WL 7085287, at *5 (Tex. App.

— Waco Dec. 2,
2020 , pet . ref ’ d ) (mem op. , not designated for publication )

. Bas ed on its verdict, the jury was not persuaded by Torres ’ s arguments and apparently found the victim ’ s testimony to be credible. The victim testified about
To rres committing each of the offenses in the ma nner alleged in the indictment , and
Torres does not argue that she did not as to any one specific offense. The outcry
witn e ss , the SANE examiner , and the forensic interviewer testified that the victim told
the m how Torre s committed each of the offenses alleged. After reviewing all of the evidence in the light most favorable to the jury ’ s verdict, and giving due deference to

t he j ury ’ s weight and credibili ty determinations, we conclude that, on the evidence
pre sented, a rational trier of fact could ha ve found the essential elemen ts of each of the
offenses beyond a reasonable doubt. See Jackson , 443 U.S. at 318

- 19. We overrul e
Tor res ’ s first three issues. B. Jury Instructions . In his fourth issue, Torres arg ues that the trial court erred
in failing to l imit the definitions of the terms “ intentionally ” and “ knowingly ” in th e jury charge. Specifically, Torres argues that the defi nit ions of “ intentionally ” and

“ knowingly ” in the abstract portion of the jury cha rge “ contained both the nature

- of

conduct language and result

- of

- conduct language as defined in the penal code, ” whic h

erroneou s ly permitted the jury to apply inappropri a te p ortions of the definitions to the facts presented at trial. Torres did not object to the charge at trial.Torres v. State Page 8

In reviewing a jury

- charge issue, an appellate court's first duty is to determine
whether error exists in the jury charge. Middleton v. State , 125 S.W.3d 450, 453 (Tex. Crim. App. 2003)

. If error is found, the appellate c ourt must a nalyze that error for
harm. Id

. If an error was pro perly preserved by objection, reversal will be necessary i f
the error is not harmles s. Almanza v. State , 686 S. W .2d 157, 171 (Tex. Crim. Ap p. 198 4 ). Conversely, if error was not preserved at trial by a proper objection, as was the case here, a reversal w ill be granted only if the error caused egregious harm , me aning Torres
did not recei ve a fair and impartial tria l

. Id

. “ Jury

- charge error i s egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuab le right, or
vital ly affects a defensive theory. ” Stuh ler v. State , 218 S.W. 3d 706, 719 (Tex. Crim. Ap p. 2007)

. The actual degr e e of harm must be assayed in light of the whole record,

“ including the jury charge, contested issues, weight of the probative evidence, arguments of counsel , and other relevant information. ” Jordan v. State , 593 S.W.3d 340,
347 (Tex. Crim. App. 2020); se e also Rogers v. State , 550 S.W.3d 190, 19 2 (Tex. Crim. App. 2018) ; Riggs v . State , 482 S.W.3d 270, 273

- 74 (Tex. A pp. — Waco 2015, pet. ref ’ d). T o ob tain a reversal for jury

- charge error, Torres must have suffered a ctual harm and n ot just merely theo retical harm. Sanchez v. State , 376 S.W.3d 767, 775 (Tex. Crim. App. 2012)

. The State conced es that the trial court erred in failing to limit the definitions of

“ intentionally ” and “ kn owingly ” but argues that the error was harmless. A ssuming without deciding t h at the trial court erred, a review of the record as a who le , “ including
the jury charge, contested issues, weight of the probative evidence, arguments ofTorres v. State Page 9

counsel , and other relevant information , ” does not re flect that Torres suff ered egr eg ious
harm. Jord a n , 593 S.W.3d 347. Weighing against Torres ’ s argument is that the application paragraphs of the charge included the correct mental state required to find Torre s guilty. The application paragraphs for each count spe cifically not ed:

Now bearing in mind t h e foregoing instructions, if you believe from the evidence beyond a reasonable doubt that the Defendant, Antonio T. Torres, on or ab out the 1st day of January, 2014, in the County of Johnson and State of Texas, did t hen and there intenti onally or knowingl y cause the penetration of the sexual organ of Becky T homas, a child who was then and there yo unger than 14 years of age, by the Defe ndant ’ s finger, you will fin d the Defendant guilty of the offense of Aggrav a ted Sexu al Assau lt of a Ch ild as char ged in Cou n t One of the indictment and so say by your verdict, . . . . With regard to Count Two and bearing in mind the fo regoing instruction s, if you believe from the e vidence beyond a reasonable doubt that the Defendant Ant onio T. Torre s on or about the 1st day o f December, 2014, in the County of Johnson, State of Texas, intentionally or knowingly caus ed the mouth of Becky Thomas , a child who was then and there younger than 14 years of age, to contact the sexual organ of sai d Defendant, you will find the Defendan t guilty of the offense of Aggravated Sexual Assault of a Child as charged in Count Two of t he indictment and so s ay by your verdict,

. . . . With regard to Co unt Three and bearing in mind the foregoing instructions , if you beli eve from the evidence beyo n d a reasonable doubt that the Defendant, Antonio T. Torres, on or about the 1st day of January, 2014, in the Coun ty of Johnson and S tate of Texas, did then and there with the intent to arouse or gratify the sexual de sire of the s aid Defendant, cause Becky Thomas , a child younger than 17 years of age, to engage in sexual contact by causing Becky Thomas to touch the ge nitals of said Defe ndant then you will find the Defendant guilty of the offense of Indecency with a Chi ld by Sexual Contact as alleged in Coun t Three of the indictment and so say by your verdict, . . .

.Torres v. State Page 10

“ When the application paragraph correctly instructs the jury on the law applicable to the case, thi s mitigates against a findi ng of egregious harm. ” Reed v. State , 421 S .W.3d 24, 30 (Tex. App

. — Waco 2013, pet. ref ’ d) (citing Patrick v. State , 906 S.W.2d 481, 49 3 (Tex. Crim. App. 1995)). As in Reed , “ this i s not a case in whi ch intent was a
contested is sue at trial. ” Id . Torres ’ s defense was not that he ac ci dentally to uched Becky or that he l a cked the requi site mens rea to commit the charged offense s, but that
he did not commit the offenses at all

. Instea d, appellant denied that the incident even occu rred, and his theory during the trial was that the child 's outcry was fabricated. Consequentl y , throughout trial and during closing arguments, the parties focused on the credibility of the child victim, not on whether appellant possessed the culpable menta l states required to commit the offense.
Id

. Torres ra ised the issu e of Becky ’ s credibility in his opening statement and repeated the same in his closing argument

. In both, Torres pointed out the discrepanc ies and inconsisten cies in the statements made by Becky to the outcry witness, the SANE examiner, and t he forensic i nterviewe r, as well as i n her testimony at
trial

. Accordingly, on this record, we cannot conclude that the alleged charge error
affected the very basis of th e case, deprived Torres of a valuable right, vitally affected
Torres ’ s defensive the ory, or made a case for con viction cl e arly and significantly more persuasive. See Saldivar v. State , 783 S.W.2d 265, 26 8 (T e x. App.

— Corpus Christi 1989, no pet.) (“Wher e no defense is presented wh ich would directly affect an assessment of mental culpab ility, there is no harm in submitting er r oneous definitions ofTorres v. State Page 11

‘intentionally’ and ‘knowingly.’ ”); see also Jones v. State , 229 S.W.3d 489, 494 (Tex. App.

— T exarkana 2007, n o pet.) (“[T]he intent of Jo nes in touching B.S.S., while it was part of the State's required pro of, was not a contested iss u e and consequently Jones could not be egre giously harmed by the definition of the intentional and knowing state
of mind.”). We ov errule Torres ’ s fourth issue

. Conclusion Having overruled all of Torres ’ s issues on appeal, we a ffirm the judgments of t he

t rial court.

MATT JOHNSON Justice Before Chief Ju stice Gray, Justice Neill , and Justice Johnson Affirmed Opinion d elivered and f iled Ma y 26, 2021 Do not publish [CRPM]