Antonio Jesus Flores v. the State of Texas ( 2024 )

NUMBER 13-23-00260-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ANTONIO JESUS FLORES, Appellant,
v.
THE STATE OF TEXAS, Appellee.
ON APPEAL FROM THE 377TH DISTRICT COURT
OF VICTORIA COUNTY, TEXAS
MEMORANDUM OPINION
Before Justices Benavides, Tijerina, and Silva
Memorandum Opinion by Justice Tijerina
Appellant Antonio Jesus Flores challenges his conviction of indecency with a child
by contact. See TEX. PENAL CODE ANN. § 21.11. Appellant received a sentence of four and
one-half years’ imprisonment. By one issue, appellant contends that the trial court erred
by finding that a jury could determine beyond a reasonable doubt that he committed the
extraneous offense of aggravated sexual assault. We affirm.
I. BACKGROUND
The State charged appellant with the offense of indecency with a child by contact
by engaging in sexual contact with M.L., a child younger than seventeen years of age, by
touching her breast with the intent to arouse or gratify appellant’s sexual desire.1 See id.
At trial, M.L. testified that when she was fifteen years old, appellant cuddled up with her
while she sat watching television. According to M.L., appellant attempted to put his hand
in her pants, but she “stiffed up,” so he was unable to get his hands into her pants. M.L.
testified that appellant then lifted her shirt with his left hand and caressed her breasts over
and underneath her bra. M.L. reported the incident, and appellant was arrested.
Prior to trial, the State notified appellant that it would introduce extraneous
evidence that appellant had sexually assaulted K.G. when she was nine years old. K.G.,
who was fourteen years old at the time of appellant’s trial, testified outside the presence
of the jury that when she was nine, appellant touched her “in” her “private part,” which
she specified is “the part you pee out of?” According to K.G., she felt appellant touching
the skin of her vagina with his hand as she slept, and she “kept moving” so that he would
stop. K.G. said that she was lying on her backside and moved to her stomach and then
side, but “he wouldn’t stop.”
On cross-examination, K.G. stated she told her mother about the incident when
she was thirteen, but she also said she “didn’t want to go forward with anything.” K.G.
1 We identify the complainant by her initials to protect her privacy. See TEX. CONST. art. 1, § 30(a)(1)
(providing that a crime victim has “the right to be treated . . . with respect for the victim’s dignity and privacy
throughout the criminal justice process”).
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testified that the prosecution “made” her change her mind, so she decided to testify
against appellant in this case. Appellant argued that the trial court should exclude K.G.’s
testimony because the police report of the incident contradicted her testimony.
Specifically, appellant stated, “Not once did she say [to the police officer] that [appellant]
was touching [her]. . . . She was in a deep sleep. And then she woke up, and she saw
him at the door.” Appellant continued, “Never does she say, [appellant] was touching me.”
Appellant argued that K.G. missed several scheduled advocacy center appointments, and
the case was eventually dismissed. The trial court allowed K.G. to testify at appellant’s
trial. At trial, K.G. relayed the incident to the jury. This appeal followed.
II. STANDARD OF REVIEW AND APPLICABLE LAW
We review the trial court’s admission of extraneous offense evidence for an abuse
of discretion. Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011) (citing Prible
v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005)). “Unless the trial judge’s decision
[is] outside the ‘zone of reasonable disagreement,’ an appellate court should uphold the
ruling.” Oprean v. State, 201 S.W.3d 724, 726 (Tex. Crim. App. 2006). If there are no
written or oral findings of fact, we “view the evidence in the light most favorable to the trial
court’s ruling and assume that the trial court made implicit findings of fact that support its
ruling as long as those findings are supported by the record.” Id. A trial court’s evidentiary
ruling is not an abuse of discretion if it is supported by the record and by any theory of
law. Bezerra v. State, 485 S.W.3d 133, 138 (Tex. App.—Amarillo 2016, pet. ref’d) (citing
Osbourn v. State, 92 S.W.3d 531, 538 (Tex. Crim. App. 2002)).
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In cases involving sexual offenses against children, including indecency with a
child, article 38.17 of the Texas Code of Criminal Procedure authorizes the admission of
extraneous offense evidence concerning a defendant’s prior sexual offense, including
aggravated sexual assault of a child and indecency with a child, “for any bearing the
evidence has on relevant matters, including the character of the defendant and acts
performed in conformity with the character of the defendant.” TEX. CODE CRIM. PROC. ANN.
art. 38.37 § 2(b). However, prior to admission of such evidence, the trial court must
conduct a hearing outside the presence of the jury to “determine that the evidence likely
to be admitted at trial will be adequate to support a finding by the jury that the defendant
committed the separate offense beyond a reasonable doubt.” Id. art. 38.37
§§ 1(a)(1)(A), 2(b), 2-a.
Under § 22.021 of the Texas Penal Code, a person commits the offense of
aggravated sexual assault of a child if the person intentionally or knowingly causes the
penetration of the sexual organ of a victim younger than fourteen years of age. TEX. PENAL
CODE ANN. § 22.021(a)(1)(B), (a)(2)(B). A person commits the offense of indecency with
a child under § 21.11 of the penal code if that person engages in sexual contact with the
child or causes the child to engage in sexual contact with that person and the child is
younger than “17 years of age, whether the child is of the same or opposite sex and
regardless of whether the person knows the age of the child at the time of the offense.”
Id. § 21.11.
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III. DISCUSSION
By his sole issue, appellant contends “[t]he trial court erred by finding that the
alleged extraneous act of aggravated sexual assault upon witness K.G. was committed
beyond a reasonable doubt.” Specifically, appellant argues that there is no evidence of
penetration therefore, the trial court should have excluded K.G.’s testimony.
“A child victim’s testimony alone is sufficient to support a conviction for aggravated
sexual assault of a child or indecency with a child.” Keller v. State, 604 S.W.3d 214, 226
(Tex. App.—Dallas 2020, pet. ref’d). Evidence that the slightest penetration occurred is
sufficient to uphold a conviction, so long as it has been shown beyond a reasonable doubt.
Luna v. State, 515 S.W.2d 271, 273 (Tex. Crim. App. 1974); see also Bates v. State, No.
13-18-00493-CR, 2020 WL 2079094, at *5 (Tex. App.—Corpus Christi–Edinburg Apr. 30,
2020, pet. ref’d) (mem. op., not designated for publication).
Here, the State asked, “When you were at your [aunt’s] house, is that when
[appellant] touched you?” K.G. replied, “Yes, ma’am.” The State asked, “And how did he
touch you?” K.G. said, “In my private part.” (emphasis added). K.G. explained that her
private part is the “part” that she uses to pee and that she felt appellant touch the skin of
her “private part.” From this evidence, the trial court could have reasonably inferred that
appellant penetrated K.G.’s sexual organ. See Cantu v. State, 678 S.W.3d 331, 358 (Tex.
App.—San Antonio 2023, no pet.) (“‘Any penetration, no matter how slight, is sufficient to
satisfy the requirements’ of the aggravated sexual assault statute.”); see also In, Merriam-
Webster.com, https://www.merriam-webster.com/dictionary/in (last visited on April 15,
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2024) (defining “in” as “that is located inside or within”). Thus, we conclude that the State
met its burden of producing sufficient evidence from which the trial court could have
determined that the evidence that was likely to be admitted at trial would be adequate to
support a finding by the jury that appellant committed the separate offense of aggravated
sexual assault of a child beyond a reasonable doubt. See TEX. CODE CRIM. PROC. ANN.
art. 38.37 § 2-a(1); Cantu, 678 S.W.3d at 359 (“We conclude A.C.’s testimony that Cantu
put his tongue in her ‘butt’ is legally sufficient evidence of penetration.”).
Moreover, the trial court stated: “The court also finds that the State has proven the
elements of the offense of indecency with a child . . . .” We can affirm the trial court’s
ruling to admit or exclude evidence on any legal theory supported by the evidence. Ramos
v. State, 245 S.W.3d 410, 417–18 (Tex. Crim. App. 2008). Thus, we further conclude that
the State met its burden of producing sufficient evidence from which the trial court could
have determined that the evidence that was likely to be admitted at trial would be
adequate to support a finding by the jury that appellant committed the separate offense
of indecency with a child beyond a reasonable doubt.2 See id.; see also TEX. PENAL CODE
ANN. § 21.11 (defining sexual contact as being “any touching by a person, including
touching through clothing, of the anus, breast, or any part of the genitals of a child” with
the intent to gratify the actor’s sexual desires). We overrule appellant’s sole issue.3
2 Appellant does not challenge this finding on appeal.
3 To the extent that appellant complains that the charges against him concerning K.G. were
dismissed, we note that a defendant does not have to have been charged with, tried for, or convicted of the
separate offense for the extraneous offense evidence to be admissible. See Castillo v. State, 573 S.W.3d
869, 880–81 (Tex. App.—Houston [1st Dist.] 2019, pet. ref’d) (citing TEX. CODE CRIM. PROC. ANN. art. 38.37,
§§ 2(b), 2-a) (noting that “Texas appellate courts have affirmed the admission of or reliance on evidence
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IV. CONCLUSION
We affirm the trial court’s judgment.
JAIME TIJERINA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed on the
25th day of April, 2024.
that the defendant committed a separate sexual offense against another child under article [38.37] despite
the dismissal of charges concerning those separate offenses”).
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