Valdivia, Andrew v. State ( 2006 )

Affirmed and Memorandum Opinion filed January 19, 2006

Affirmed and Memorandum Opinion filed January 19, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-04-00647-CR

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ANDREW VALDIVIA, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 179th District Court

Harris County, Texas

Trial Court Cause No. 963,085

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M E M O R A N D U M    O P I N I O N

Appellant, Andrew Valdivia, appeals a conviction for aggravated sexual assault.  In one issue, appellant contends that the evidence is factually insufficient to support his conviction.  Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm.  See Tex. R. App. P. 47.4.

Background

Appellant lived with his girlfriend, the complainant, and their young son.  In September of 2003, an argument ensued between appellant and complainant.  Appellant pushed the complainant, slapped her in the face, head, and ear, and struck the back of her shoulders, arms, and legs with a belt. 

Appellant then went to the kitchen to get a knife.  He cut the complainant=s thumb and told her to go to the bathroom to clean up the blood. Appellant cursed at the complainant, and told her that she was Adirty@ and a Aslut.@ Appellant ordered the complainant to stick her head in the toilet.  After she complied, he ordered her to sit on the toilet.  He said that he bet he could put a knife inside her and turn it around without her feeling anything.  Appellant then forcibly spread the complainant=s legs apart and moved towards her with the knife.  The complainant felt a prick on the inside of her vagina.  She jumped up, and appellant decided Ait wasn=t worth it@ to proceed.  He rinsed off the knife in the sink and walked away.

Moments later, appellant got another knife from the kitchen and held the dull end of the blade against the complainant=s throat.  He then scraped the knife over her body, causing cuts to her chest, shoulder, and neck. Appellant also tried to insert the apartment key in her anus but gave up when the complainant Asquirmed.@  Appellant eventually left the apartment, but threatened to kill the complainant if she left.  The complainant waited approximately fifteen minutes before she got dressed and got her son. She hid under the stairwell until she spotted a man with a cell phone.  She called the police, her mother, and her friend.  Her friend took her to the hospital.  A jury found appellant guilty of aggravated sexual assault, and assessed punishment at forty years= confinement.

Discussion

In his sole issue, appellant challenges the factual sufficiency of the evidence to support the jury=s verdict.  In reviewing the evidence for factual sufficiency, we must view all of the evidence in a neutral light, and must set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.  Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996).  Evidence may be factually insufficient if (1) the evidence supporting the verdict alone is too weak to justify a finding of guilt beyond a reasonable doubt, or (2) the contrary evidence is so strong that it would prevent a reasonable jury from finding guilt beyond a reasonable doubt.  Zuniga v. State, 144 S.W.3d 477, 484B85 (Tex. Crim. App. 2004).

Section 22.021 of the Texas Penal Code provides in relevant part that a person commits the offense of aggravated sexual assault if he or she intentionally or knowingly causes the penetration of the sexual organ of another person by any means, without the person=s consent, and the person uses or exhibits a deadly weapon in the course of the same criminal episode.  Tex. Penal Code Ann. '' 22.021(a)(1)(A)(I); 22.021(a)(2)(A)(iv) (Vernon Supp. 2005). 

Here, appellant challenges the factual sufficiency of the evidence supporting the jury=s finding that appellant caused penetration of the complainant=s sexual organ.  The terms Afemale sexual organ@ and Apenetration@ are not statutorily defined.  However, courts have held that the Afemale sexual organ@ encompasses the entire female genitalia including the vagina and the vulva. Karnes v. State, 873 S.W.2d 92, 96 (Tex. App.CDallas 1994, no pet.); Everage v. State, 848 S.W.2d 357, 358 (Tex. App.CAustin 1993, no pet.).  APenetration@ has also been defined as touching beneath the fold of the external genitalia. Vernon v. State, 841 S.W.2d 407, 409B10 (Tex. Crim. App. 1992); Karnes, 873 S.W.2d at 96.  Thus, penetration of the vaginal canal is not required to prove Apenetration@ under the Texas Penal Code.  See Vernon, 841 S.W.2d at 409. 

The complainant testified that she felt the knife prick her vagina.  The medical evidence revealed a laceration near her urethra Awith muscosa just deep enough to penetrate through the surface of the vaginal mucosa but not deep enough to penetrate the muscular tissue,@ and the examining doctor testified that the laceration was consistent with an injury inflicted by the tip of a knife blade.  The doctor further testified that the laceration found would be covered by the fold of the external genitalia in the normal position, but would be exposed if the woman=s legs were spread.  Appellant argues that because complainant=s legs were already spread open at the time he cut her with the knife, he did not cause penetration. However, appellant ignores the fact that he forcibly spread the complainant=s legs to expose the area.  See Vernon, 841 S.W.2d at 409B10 (holding that Apushing aside and reaching beneath a natural fold of skin into an area of the body not usually exposed to view@ amounts to Apenetration@).

Therefore, we find that the evidence supporting the verdict is not too weak to justify a finding of guilt beyond a reasonable doubt.  Nor is the contrary evidence so strong that it would prevent a reasonable jury from finding guilt beyond a reasonable doubt.  Accordingly, we overrule appellant=s sole issue and affirm the judgment of the trial court. 

/s/        Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed January 19, 2006.

Panel consists of Justices Hudson, Frost, and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).