NO. 07-05-0352-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL C AUGUST 28, 2006

______________________________ RUDY P. VALLEJO, APPELLANT

V. THE STATE OF TEXAS, APPELLE E

_________________________________ FROM THE 137 TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2005- 408528; HONORABL E CECIL G. PURYE AR, JUDG E

_______________________________ Before QUINN, C.J., and REAVIS and HANCOCK, JJ.
MEMORAND UM OPINION Appella nt, Rudy Vallejo, appeals his conviction for the offense of aggravated sexual assault of a child and life sentence . We affi rm.

Background Appellant

worked at the City Water Department where he met Jennifer Moore. After dating Moore for seve ra l years, a ppellan t moved i n with Mo ore and h er daugh ter from a previous marriage. In February of 2005, Moore observed an inc ident between appellant2

with her daughter that caused Moore to becom e concerned about appellant’s interaction with her daughter. Moore asked her stepfather to install a security ca mera above her daughter’s sleepin g area. M oore’s stepfather installe d a syste m t ha t would record the sleeping area and send thevideo to Moore’s computer. Moore would then review the video while appellant was at work. Soon after Moore began reviewing the video, Moore observed
a recording of appellant fondling Moore’s daug hter while she slept. Moore reported the incidentto the police and surrendered her computer to the police as evidence. Based on the digital recording, appellant was charged with two cou nts of indecency with a child and
one coun t of aggra vated sex ual assa ult of a c hild.
At trial, appellant pled guilty to the two cou nts of indecency with a child, but pled not guilty to the aggravated sexual assaul t of a child charge. During the trial, Moore, her daug ht er, and a police officer testified to observing on the digital recording appellant placing his mouth on Moore’s daughter’s vaginal area. Further, a condensed version of the digital recording showing the alleged improper contact was i ntroduced into evidence and shown to the jury. The jury returned a guilty verdictand the trial cou rt sentenced appel lant to l ife in the Institutional Division of the Texas Department of Criminal Justice. Appellant

raises two issues on appeal cont ending that the trial court should have entered d irected v erdicts b ased on l egally a nd factua lly insu fficient evidence

. Applicable Law and Analysis
The standard of review applicable to the denial of a motion for directed verdict is the
same as that app lied in reviewing thesufficie ncy of theevidenc e. Williams v. State , 9371 Appellant was charged wit h aggravate d sexu al as sault by “intentionally and knowingly

caus[ing] the sexual organ of . . . [the] child who was then and there younger 3 S.W.2d 479, 482 (Tex.Cri m.App. 19 96); Madden v. State , 799 S.W.2d 683, 6 86 (Tex.Crim.App. 1990) ( challenge to the trial judge's ruling on a motion for an instructed verdict is a cha llenge to the suff i cie ncy of theevidenc e). When reviewin g challe nges to both the legal and factual sufficiency of the evid ence to s upport the verdict, we first review the legal s ufficien cy chall enge. See Clewis v. State , 922 S.W.2d 126, 133 (Tex.Crim.App. 1996). If the evidence is legally sufficie nt to supp ortthe verdict, we then review the factual sufficie ncy chal lenge if

one is p roperly r

aised. See id . at 133.
In reviewing the legal sufficiency of the evidence, we review all the evidence in the lightmost favorabl e to the v erdict todetermine whether any rational trier of fact could have found the essential elements of the offense beyond a reason able doub t. J ackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560, 573 (1979); Ross v. S tate , 133 S.W.3d 618, 620 (Tex.Crim.App. 2004). The jury is the so le jud ge of the we ight and credibil ity

of the ev idence. Jackson , 443 U.S . at 319. Circumstantial evidence is a s probative as direct evidence in establishing the guilt of an actor

. Guevara v . State , 152 S.W.3d 45, 49 (Tex.Crim.App. 2004). Furthermore, the standard of review is the same for both dire ct and ci rcumstanti al evide nce. Id

. Appellant’s sole contention is that, as t here was no testimony of actual contact of appellant’s mouth with Moore’s daught er’s vaginal area nor direct digitally recorded evidence clearly showing contact, the evidence was i nsufficient to prove each element of the offen se of aggravated sexual assault of a chil d. 1 However, the police officer whothan 14 years of age, and not the spouse of the sa id defe ndant, to contact the mouth of

the said defenda nt.” See T EX . P ENAL C ODE A NN . § 22.02 11 (Verno n Supp. 2 005). 4 reviewed the tape, Moore, and the victim all testified that it appeare d that ap pellant’ s mouth contacted the victim’s vagina. Further, the jury also had the opportunity to viewthe digital recording. Though the evid ence is c ircumstan tial, theState presented evidenc e to the ju ry coveri ng all the elementsof the of fense. V iewing the evid ence in light mos t favorabl e to the verdict, any rational trier of fact could have found the essen tial elements of the offense beyond a reaso na ble doubt. We conclude that the verdict is based on legally sufficient evidence.
When an appellant challenges the factual sufficien cy of his conviction, the reviewing court must determine whether, considering all the evidence in a neutral light, the jury was rationallyjustifie d in fi n ding def endant g uilty be yond a re asonabl e doubt. See Zuniga v. State , 144 S.W.3d 477, 484 (Tex.Crim.App. 200 4 ). There are two ways in which the evidence may be fa ctually insuffic ient. Fi rst, when conside red by itself, evid ence supporting the verdictmay be too weak to support the finding of guilt beyond a reasonable doubt. Id . Second, considering all of the evidence , both for and against the verdict, the contrary evidenc e may be so strong that the beyond-a-reasonable-doubt standard could not have bee n met. Id . at 484-85. In performing a factual sufficiency review, we are to give deference to the fact finder’s determinations involving the credibil ity and demeanor of witnesses. Id . at 481. We may not substitute our judgment for that of the fact finder unless the verdict is clearly

wrong or

manifest ly unjust

. See id . at 481-82. An opinion addressing factual sufficiency must include a discussion of the most i mportant and relevantevidence5

that appella nt claims

undermin es the jur

y’s verdi ct. Sims v. S tate , 99 S.W.3d 600, 603 (Tex.Cri m.App. 20 03).
M oore testi fied that her suspicions were raised by appell ant’s interaction with her daughter and thatthe camera recorded appellant touching her daughter during the middle of the night. Further, the jury was able to review the condensed recording and were able to evaluate appellant’s actions and intentions. Appellant contends that the evidence is too weakto prove beyond areasonab le doubt that hismouth cam e in contact with the victim’s vagina

. Specifically, appellant points to cross ex amination where the witnesses testified that they could not ac tually see appellant’s mouth coming into contact with Moore’s daughter’s vaginal area. Appellant further contends that the digital recording fail s to clearly showhis mouth on Moore’s daughter’s vagina, and thereby concludes that the State failed to sufficie ntly prov e all the elements

of the of fense. Although the digital recording which recorded from above the victim’s bed did not have an a ngle that cou ld clearly show appellant’s mouth contacting the victim’s vagina, the recording did show appellant moving aside the victim’s shorts before moving his head toward thevictim’s midsection. Viewing the recording of appellant’s actions at night whi le the victim was asleep, the jury could have concluded that his actions w ere consist ent with the alleged offense. Since the jury’s judgment is not clearly wrong or manifestly unjust, we will defer to the jury’s determination and conc lude that the evidence is not so weak as to fail to support the verdict beyond a reasonable doubt. See Zuniga , 144 S.W.3d at 481. After reviewing all the evidence in a neutral light, and giving deference to the jury’s determinations involving the credibility and demeanor

of witne sses, see id . at 481, we conclude that the jury was rationally justified in6

finding defenda nt guilty beyond areasonab le doubt

. See id . at 484. We conclude that the trial court did not err in denying app ellant’s request for a directed verdict for insufficient evidence.
Conclusion
For the fo regoing reasons, we affirm.
Mackey K. Hancock Justice

Do not pu blish.