Opinion
05-22-00671-CR
01-24-2024
YADER MANZANAREZ, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from the 199th Judicial District Court Collin County, Texas Trial Court Cause No. 199-82085-2019
Before Justices Partida-Kipness, Reichek, and Garcia
MEMORANDUM OPINION
ROBBIE PARTIDA-KIPNESS, JUSTICE
A jury found Appellant Yader Manzanarez guilty of aggravated sexual assault of a child. Tex. Penal Code § 22.021(a)(1)(B)(i), (a)(2)(B). The trial court sentenced him to twenty years' imprisonment. In this appeal, Manzanarez contends the evidence was legally insufficient to support that he penetrated the sexual organ of the complainant as required by the statute. We affirm.
BACKGROUND
Florisa Esquivel and her daughter S.T. lived with Manzanarez and his roommate from September to November 2018. S.T. was seven years old at the time. Manzanarez would sometimes babysit S.T. while Esquivel was at work. S.T. alleged that during one of the times Manzanarez was babysitting her, he began massaging her back. S.T. said Manzanarez's hand then went inside her underwear and touched her "private areas," including her buttock and vagina.
We provide additional details of the assault in our discussion of Mazanarez's sufficiency challenge.
Shortly after they moved out, S.T. told Esquivel something bad had happened with Manzanarez at the apartment. Esquivel filed a complaint to start an investigation. S.T. gave an interview to Rachel McConnell, a forensic examiner with the Children's Advocacy Center of Collin County. Police later arrested Manzanarez, and he was indicted for aggravated sexual assault of a child. See Tex. Penal Code § 22.021(a)(1)(B)(i), (a)(2)(B).
The indictment included a charge of indecency with a child, but the State abandoned that count at trial.
At trial, the jury heard S.T.'s testimony about the alleged assault. Forensic examiner McConnell, the State's outcry witness, provided details about the assault which S.T. relayed during the forensic interview. State witness Dr. Kristen Reeder gave medical testimony regarding sexual abuse examinations and female anatomy. Manzanarez and his roommate testified for the defense. Manzanarez said he never touched S.T. sexually or anywhere inappropriate.
The jury found Manzanarez guilty of aggravated sexual assault of a child as charged in the indictment. The trial judge sentenced Manzanarez to twenty years' confinement. This appeal followed.
STANDARD OF REVIEW
In determining whether the evidence is legally sufficient to support Manzanarez's conviction, we must consider all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational fact-finder could have found the essential elements of the crime beyond a reasonable doubt. Whatley v. State, 445 S.W.3d 159, 166 (Tex. Crim. App. 2014). This "familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). When facts support conflicting inferences, the reviewing court must presume the trier of fact resolved any such conflicts in favor of the prosecution and must defer to that resolution. Id. (citations omitted).
We are guided by several additional principles when reviewing a sufficiency-of-the-evidence challenge in a case involving a child's testimony. A child may testify using language appropriate for her age to describe the sexual assault, including the element of penetration. Karnes v. State, 873 S.W.2d 92, 96 (Tex. App.-Dallas 1994, no pet.) (citing Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990)). We keep in mind a child's lack of technical knowledge in accurately describing the parts of the body when reviewing the child's testimony. Id. The child need not directly and explicitly testify as to contact or penetration with the same clarity and ability of an adult witness to prove these facts beyond a reasonable doubt. See Villalon, 791 S.W.2d at 133-35. And we do not sit as a thirteenth juror to evaluate the weight to be given a witness's testimony based on her use of unsophisticated language or limited vocabulary. Karnes, 873 S.W.2d at 96 (citing Villalon, 791 S.W.2d at 134).
ANALYSIS
In his sole issue, Manzanarez asserts the evidence is legally insufficient to support the penetration element of the crime of aggravated sexual assault of a child.
A defendant commits aggravated sexual assault of a child if he intentionally or knowingly causes the penetration of the sexual organ of a child younger than fourteen years of age by any means. Tex. Penal Code § 22.021(a)(1)(B)(i), (a)(2)(B). The Penal Code does not define the term "penetration." Words not specially defined by the legislature are to be understood as ordinary usage allows, and jurors may thus freely read statutory language to have any meaning which is acceptable in common parlance. Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992).
In common parlance, mere contact with the outside of an object does not amount to a penetration of it. Id. However, "pushing aside and reaching beneath a natural fold of skin into an area of the body not usually exposed to view, even in nakedness, is a significant intrusion beyond mere external contact." Id. The statute does not require vaginal penetration. Id. Instead, penetration occurs so long as contact with the female sexual organ "could reasonably be regarded by ordinary English speakers as more intrusive than contact with outer vaginal lips." Carmond v. State, No. 05-16-01316-CR, 2018 WL 3135098, at *1 (Tex. App.-Dallas June 27, 2018, no pet.) (mem. op., not designated for publication) (quoting Vernon, 841 S.W.2d at 409-10); Karnes, 873 S.W.2d at 96 ("Touching beneath the fold of the external genitalia amounts to penetration within the meaning of the aggravated sexual assault statute.").
At trial, S.T. testified Manzanarez touched "the line in the middle" of her vagina with his fingers. S.T. said this touching was uncomfortable and hurt. Manzanarez's fingers were "on the line" but they were not just on the outside. She was "pretty sure [they] went in," but not completely sure. She also stated he "did not put [his fingers] inside, exactly," but he rubbed.
Anatomically, the vagina is the interior portion of the female genitalia, "the genital canal in the female, extending from the uterus to the vulva." Creech v. State, No. 05-09-00762-CR, 2011 WL 1663040, at *3 (Tex. App.-Dallas May 4, 2011, pet. ref'd) (not designated for publication). The record reflects the State's and S.T.'s use of "vagina" at trial referred to the general exterior portion of the female genitalia, or vulva. See id.
S.T. provided more detail during her forensic interview, according to forensic examiner McConnell. That interview occurred closer in time to the alleged assault. McConnell testified S.T. told her Manzanarez's finger was "smooshing" the "thing in the middle," what S.T. referred to as "the flippy floppies." When asked to describe the "flippy floppies," S.T. said "it is kind of long and it sticks out, and you can see it when you shower." McConnell believed S.T. was describing her clitoris as the body part Appellant "smooshed."
The State also introduced testimony from child abuse pediatrician Dr. Kristen Reeder. Dr Reeder gave testimony on the anatomy of female genitalia. She testified that, for purposes of sexual abuse examinations, "penetration" is breaking the plane or line in the middle where the labia majora come together.
The evidence presented to the jury, viewed in the light most favorable to the guilty verdict, was sufficient for a rational jury to find Manzanarez penetrated S.T.'s sexual organ with his finger. The jury could have found Manzanarez's pushing or "smooshing" broke the plane of the labia majora. It is proper to describe Manzanarez's touching of S.T. in this case as penetration, as contact with her clitoris or the area below the plane of her labia majora could reasonably be regarded as more intrusive than just contact with her outer vaginal lips. See Vernon, 841 S.W.2d at 409. While S.T. was not completely sure as to whether Manzanarez's fingers "went in," the State was not required to prove vaginal penetration. Vernon, 841 S.W.2d at 409-10; Carmond, 2018 WL 3135098, at *3 (evidence sufficient to support that defendant penetrated child's sexual organ, where child testified defendant's hand rubbed her private area on the outside but did "not always stay on the outside," and despite child's denial that defendant "stuck his finger in her private part").
In his briefing, Manzanarez concedes the testimony supports he pressed or "smooshed" on S.T.'s clitoris. The jury heard testimony from Dr. Reeder that the labia majora "come together in the middle and cover everything else underneath them," including the clitoris. (emphasis ours). Based on this description and testimony from S.T. and McConnell, the jury could have concluded Manzanarez's contact with S.T.'s clitoris constituted penetration. Frans v. State, No. 07-10-00384-CR, 2011 WL 2672746, at *1 (Tex. App.-Amarillo July 8, 2011, no pet.) (mem. op., not designated for publication) (where defendant admitted he rubbed child's clitoris, a rational jury could deduce beyond a reasonable doubt that defendant penetrated the child's sexual organ).
Manzanarez cites Woodall v. State, 376 S.W.3d 134 (Tex. App.-Texarkana 2012, no pet.) and Prestiano v. State 581 S.W.3d 935 (Tex. App.-Houston [1st Dist.] 2019, pet ref'd) to support that the State did not prove "penetration." The Woodall court held there was legally insufficient evidence to support Woodall's conviction for aggravated sexual assault of a child. Id. at 140. However, the child complainant denied Woodall touched her on the "inside of her private." Id. at 139. Woodall admitted to touching the child outside her underwear. Id. He said he could feel the contours or the ridges of the child's exterior genitalia and pushed down on it. Id. However, there was no testimony Woodall's fingers went inside the child's labia or that penetration occurred. And in Prestiano, when asked whether Prestiano's sexual organ went inside the child's mouth, the child testified only that it touched her mouth "a little bit." Prestiano, 581 S.W.3d at 941. Thus, the court of appeals concluded a fact-finder could do no more than speculate as to whether penetration or mere contact occurred. Id. at 942.
In contrast, S.T. stated Manzanarez's fingers were not just on the outside. S.T. further testified she was "pretty sure," though not completely sure, Manzanarez's finger went inside. And, the level of pressure or intrusion described here by S.T. exceeds that described in Woodall and Prestiano. Again, we do not require a child such as S.T. to explicitly testify as to penetration with the same clarity of an adult witness to prove penetration beyond a reasonable doubt. See Villalon, 791 S.W.2d at 133-35. We do not sit as a thirteenth juror to evaluate the weight of S.T.'s testimony based on her use of unsophisticated language. See Karnes, 873 S.W.2d at 96 (citing Villalon, 791 S.W.2d at 134). Based on the record, a rational trier of fact could have found beyond a reasonable doubt that Manzanarez penetrated S.T.'s sexual organ. Carmond, 2018 WL 3135098, at *3; Frans, 2011 WL 2672746, at *1. We conclude there is legally sufficient evidence to support Manzanarez's conviction for aggravated sexual assault of a child. We overrule Manzanarez's sole issue.
CONCLUSION
There is legally sufficient evidence to support the penetration element of the charge of aggravated sexual assault of a child.
Accordingly, we affirm the judgment.
JUDGMENT
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered.