AFFIRM; and Opinion Filed April 26, 2017.
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-16-00331-CR
BENITO PENA JR., Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 416th Judicial District Court Collin County, Texas Trial Court Cause No. 416-81691-2015
MEMORANDUM OPINION Before Justices Francis, Lang-Miers, and Whitehill Opinion by Justice Lang-Miers Appellant Benito Pena Jr. appeals convictions for four counts of sexual assault of a child
and two counts of indecency with a child. He contends the evidence is insufficient to support the
convictions. We affirm the trial court’s judgments.
BACKGROUND
The complainant, MC, was 16 years old when her mother began a relationship with
appellant in late 2013. Soon thereafter appellant and Mother began living together in Mother’s
mother’s (Grandmother’s) house. Grandmother did not approve of the way in which appellant
behaved toward Mother, which Grandmother characterized as physical, verbal, and emotional
abuse. Grandmother asked appellant to leave about four months later. He did, but Mother and the
children left with him and together they rented a home in another small town. Around August 2014, appellant made a “weird” request of MC. He asked her to wear
pantyhose to school under her clothes, without underwear, so he could sell them. Appellant told
MC he wanted her “extremity juices [to] get all over them” and that if she wore them with
underwear she would get a yeast infection. She wore the pantyhose under her jeans or leggings.
When she got home from school, appellant wanted to see the pantyhose. He made her take her
pants off and sit on the couch. He spread her legs and said the pantyhose were “wet” and made
her take them off and give them to him. The next time this happened, MC said there was more
“touching.” Appellant rubbed his fingers on her vagina over the pantyhose. Then he ripped the
pantyhose and put his fingers inside her vagina. She said his fingers were cold and it was
“awkward” and she was “disgusted.” She said he then “got oral,” meaning “[h]e went down there
[in her vagina] with his mouth.” She said it felt “[g]ross.” Then appellant got on top of her and
had sex with her. MC described other incidents involving pantyhose and sexual assaults. At
different times, appellant made her give him a “blow job,” made her rub his penis, touched her
vagina with his fingers, and had sex with her. Each time they smoked marijuana and sometimes
drank alcohol, which MC described as “[b]ad decisions.” MC said that from the beginning
appellant took pictures of her wearing just the pantyhose and a shirt; he said he needed the
pictures in order to sell the pantyhose. She never saw the pictures. Appellant told her she should
not tell anyone because “it would ruin our lives” and “it would be [her] fault.”
MC testified that the abuse stopped in January 2015 because appellant and Mother broke
up. About three months later, she decided to tell Mother what happened because she “figured
they were done,” in other words, they “weren’t getting back together at all” and she knew
appellant “wasn’t coming back” and she felt “safe enough to say something then.” Mother took
MC to Grandmother’s house, and MC told Mother and Grandmother that appellant raped her.
Grandmother called the police.
–2– Officer Joshua Devore responded to the call. He took MC out on the porch away from
Mother and Grandmother and talked to MC. He described MC’s demeanor as “very frightened
and physically crying, emotional.” MC gave him “specific details about what happened to her.”
He testified that he was “surprised at the amount of details that she gave” him. MC “seemed very
authentic, she was very emotional like it was traumatizing. She was reliving it when she was
telling me about it.”
MC also went to the Children’s Advocacy Center where Lisa Martinez interviewed her
for about an hour and a half. Martinez described the process of interviewing children and
testified that she looked “for sensory details. What they felt, what they saw, what they heard,
things like that. . . . I’m also looking for chronology within the incident that took place. . . . I’m
looking for general details. Where did it happen? Who was the person that did it? Where was
everyone else around? I’m also watching her demeanor and just how she’s communicating with
me through her body language.” Martinez testified that MC gave her “many” general details
about what happened and a chronology/date range, “multiple instances of things happening” with
the ability to distinguish between those incidents, and she was able to keep those incidents
straight when questioned about them later.
Sgt. Russell Driver, the lead investigator on the case, testified that he learned MC had
kept some of the pantyhose. He collected the pantyhose as evidence and submitted a pair with a
ripped crotch for DNA testing. The lab results showed the pantyhose contained skin cells
belonging to MC and semen cells belonging to appellant. The probability of selecting an
unrelated person who matched the skin cells or the semen cells was one in over the population of
Earth.
The jury convicted appellant and sentenced him respectively to 16, 10, 14, and 10 years
in prison on the sexual assault convictions, and 5 years on each indecency with a child
–3– conviction. 1 The jury also assessed one $10,000 fine. In two issues on appeal, appellant argues
that the evidence is insufficient to support the convictions.
STANDARD OF REVIEW
We review a challenge to the sufficiency of the evidence under the well-established
standards set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Wilson v. State, 448 S.W.3d 418,
425 (Tex. Crim. App. 2014). We view the evidence in the light most favorable to the verdict and
determine whether a rational factfinder could have found all the elements of the offense beyond a
reasonable doubt. Id. “We will uphold the verdict unless a rational factfinder must have had
reasonable doubt with respect to any essential element of the offense.” Id. In our review, we are
mindful that the jury is the sole judge of the credibility and weight of the evidence. Montgomery
v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012).
DISCUSSION
Appellant was convicted of four counts of sexual assault of a child under penal code
section 22.011(a)(2)(A) and two counts of indecency with a child under penal code section
21.11(a)(1). See TEX. PENAL CODE ANN. §§ 21.11(a)(1), 22.011(a)(2)(A) (West 2011). Appellant
does not challenge the evidence as to any specific element of these offenses. Instead, he argues
that no rational jury could have convicted him beyond a reasonable doubt because, in essence,
the evidence of his guilt was not credible.
For example, appellant cites evidence that Grandmother offered to pay MC to make false
allegations against appellant. He argues Grandmother “was unsuccessful in her attempts to
payoff MC until March 31, 2015” because Mother and appellant had an ongoing relationship and
they “were all relying on Appellant in many, many way[s] and for many, many things[.]” Once
1 The jury found appellant not guilty on one count of sexual performance by a child. See TEX.
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AFFIRM; and Opinion Filed April 26, 2017.
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-16-00331-CR
BENITO PENA JR., Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 416th Judicial District Court Collin County, Texas Trial Court Cause No. 416-81691-2015
MEMORANDUM OPINION Before Justices Francis, Lang-Miers, and Whitehill Opinion by Justice Lang-Miers Appellant Benito Pena Jr. appeals convictions for four counts of sexual assault of a child
and two counts of indecency with a child. He contends the evidence is insufficient to support the
convictions. We affirm the trial court’s judgments.
BACKGROUND
The complainant, MC, was 16 years old when her mother began a relationship with
appellant in late 2013. Soon thereafter appellant and Mother began living together in Mother’s
mother’s (Grandmother’s) house. Grandmother did not approve of the way in which appellant
behaved toward Mother, which Grandmother characterized as physical, verbal, and emotional
abuse. Grandmother asked appellant to leave about four months later. He did, but Mother and the
children left with him and together they rented a home in another small town. Around August 2014, appellant made a “weird” request of MC. He asked her to wear
pantyhose to school under her clothes, without underwear, so he could sell them. Appellant told
MC he wanted her “extremity juices [to] get all over them” and that if she wore them with
underwear she would get a yeast infection. She wore the pantyhose under her jeans or leggings.
When she got home from school, appellant wanted to see the pantyhose. He made her take her
pants off and sit on the couch. He spread her legs and said the pantyhose were “wet” and made
her take them off and give them to him. The next time this happened, MC said there was more
“touching.” Appellant rubbed his fingers on her vagina over the pantyhose. Then he ripped the
pantyhose and put his fingers inside her vagina. She said his fingers were cold and it was
“awkward” and she was “disgusted.” She said he then “got oral,” meaning “[h]e went down there
[in her vagina] with his mouth.” She said it felt “[g]ross.” Then appellant got on top of her and
had sex with her. MC described other incidents involving pantyhose and sexual assaults. At
different times, appellant made her give him a “blow job,” made her rub his penis, touched her
vagina with his fingers, and had sex with her. Each time they smoked marijuana and sometimes
drank alcohol, which MC described as “[b]ad decisions.” MC said that from the beginning
appellant took pictures of her wearing just the pantyhose and a shirt; he said he needed the
pictures in order to sell the pantyhose. She never saw the pictures. Appellant told her she should
not tell anyone because “it would ruin our lives” and “it would be [her] fault.”
MC testified that the abuse stopped in January 2015 because appellant and Mother broke
up. About three months later, she decided to tell Mother what happened because she “figured
they were done,” in other words, they “weren’t getting back together at all” and she knew
appellant “wasn’t coming back” and she felt “safe enough to say something then.” Mother took
MC to Grandmother’s house, and MC told Mother and Grandmother that appellant raped her.
Grandmother called the police.
–2– Officer Joshua Devore responded to the call. He took MC out on the porch away from
Mother and Grandmother and talked to MC. He described MC’s demeanor as “very frightened
and physically crying, emotional.” MC gave him “specific details about what happened to her.”
He testified that he was “surprised at the amount of details that she gave” him. MC “seemed very
authentic, she was very emotional like it was traumatizing. She was reliving it when she was
telling me about it.”
MC also went to the Children’s Advocacy Center where Lisa Martinez interviewed her
for about an hour and a half. Martinez described the process of interviewing children and
testified that she looked “for sensory details. What they felt, what they saw, what they heard,
things like that. . . . I’m also looking for chronology within the incident that took place. . . . I’m
looking for general details. Where did it happen? Who was the person that did it? Where was
everyone else around? I’m also watching her demeanor and just how she’s communicating with
me through her body language.” Martinez testified that MC gave her “many” general details
about what happened and a chronology/date range, “multiple instances of things happening” with
the ability to distinguish between those incidents, and she was able to keep those incidents
straight when questioned about them later.
Sgt. Russell Driver, the lead investigator on the case, testified that he learned MC had
kept some of the pantyhose. He collected the pantyhose as evidence and submitted a pair with a
ripped crotch for DNA testing. The lab results showed the pantyhose contained skin cells
belonging to MC and semen cells belonging to appellant. The probability of selecting an
unrelated person who matched the skin cells or the semen cells was one in over the population of
Earth.
The jury convicted appellant and sentenced him respectively to 16, 10, 14, and 10 years
in prison on the sexual assault convictions, and 5 years on each indecency with a child
–3– conviction. 1 The jury also assessed one $10,000 fine. In two issues on appeal, appellant argues
that the evidence is insufficient to support the convictions.
STANDARD OF REVIEW
We review a challenge to the sufficiency of the evidence under the well-established
standards set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Wilson v. State, 448 S.W.3d 418,
425 (Tex. Crim. App. 2014). We view the evidence in the light most favorable to the verdict and
determine whether a rational factfinder could have found all the elements of the offense beyond a
reasonable doubt. Id. “We will uphold the verdict unless a rational factfinder must have had
reasonable doubt with respect to any essential element of the offense.” Id. In our review, we are
mindful that the jury is the sole judge of the credibility and weight of the evidence. Montgomery
v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012).
DISCUSSION
Appellant was convicted of four counts of sexual assault of a child under penal code
section 22.011(a)(2)(A) and two counts of indecency with a child under penal code section
21.11(a)(1). See TEX. PENAL CODE ANN. §§ 21.11(a)(1), 22.011(a)(2)(A) (West 2011). Appellant
does not challenge the evidence as to any specific element of these offenses. Instead, he argues
that no rational jury could have convicted him beyond a reasonable doubt because, in essence,
the evidence of his guilt was not credible.
For example, appellant cites evidence that Grandmother offered to pay MC to make false
allegations against appellant. He argues Grandmother “was unsuccessful in her attempts to
payoff MC until March 31, 2015” because Mother and appellant had an ongoing relationship and
they “were all relying on Appellant in many, many way[s] and for many, many things[.]” Once
1 The jury found appellant not guilty on one count of sexual performance by a child. See TEX. PENAL CODE ANN. § 43.25(d) (West 2016).
–4– Mother and appellant were no longer together, however, he argues suddenly he was “a long-time
rapist.”
Appellant acknowledges that the jury is the sole judge of the credibility of the evidence,
but he argues that this case is “quite uncommon” in that it involves “multiple and unrelated
parties, reporting at different times about different events, that all share one glaring and troubling
detail” and that is, that Grandmother hated appellant “so much that she had in the past and
continued to the then current day encouraged MC to report false allegations of sexual abuse
against her by Appellant so Appellant could be kicked out of the picture.”
The jury heard the testimony and reviewed the evidence. The evidence was conflicting
about what Grandmother did or said with regard to asking MC to falsely accuse appellant of
sexually assaulting MC, and at the time MC told Mother and Grandmother about what appellant
did to her, appellant was already “out of the picture.” The jury obviously believed MC’s
testimony and the physical evidence and resolved the conflict in favor of the State. We will not
second guess that decision as it turns on the credibility and weight of the evidence. See
Montgomery, 369 S.W.3d at 192. We resolve appellant’s two issues against him.
CONCLUSION
We affirm the judgments.
/Elizabeth Lang-Miers/ ELIZABETH LANG-MIERS JUSTICE
Do Not Publish TEX. R. APP. P. 47.2(b)
160331F.U05
–5– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
BENITO PENA JR., Appellant On Appeal from the 416th Judicial District Court, Collin County, Texas No. 05-16-00331-CR V. Trial Court Cause No. 416-81691-2015. Opinion delivered by Justice Lang-Miers. THE STATE OF TEXAS, Appellee Justices Francis and Whitehill participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 26th day of April, 2017.
–6–