NO. 07-10-00170-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
MARCH 11, 2011
BERNARDO MARTINEZ SALCIDO, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 287TH DISTRICT COURT OF BAILEY COUNTY;
NO. BC-2597; HONORABLE GORDON HOUSTON GREEN, JUDGE
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Bernardo Martinez Salcido, was convicted of indecency with a child by
sexual contact1 and sentenced to confinement in the Institutional Division of the Texas
Department of Criminal Justice (ID-TDCJ) for seven years. Appellant appeals the
sentence contending that the evidence was not sufficient to sustain the conviction. We
affirm.
1 See TEX. PENAL CODE ANN. § 21.11(a)(1) (West Supp. 2010). Factual and Procedural Background
In the summer of 2009, the victim, K.C., and her younger sister came to
Muleshoe to visit their father, Gary Childers. Childers rented a residence from
appellant. At the time of the incident in question, K.C. was 14 years old. During the
course of K.C.’s stay in Muleshoe, she had met appellant and been inside his home on
several occasions. According to K.C., the house her father lived in did not have a
television and was not air conditioned, and, for these reasons, K.C. and her sister would
go to appellant’s home during the day while her father was at work. The testimony of
K.C. revealed that on July 9, 2009, she and her sister had gone to appellant’s home on
approximately three occasions earlier in the day only to find no one at home. Finally, in
the late afternoon, K.C. went back to appellant’s home again. This time her sister had
declined to go with her. Upon arriving, K.C. saw appellant outside his home in the
driveway. When K.C. pulled up on her bicycle, appellant spoke to her and invited her
into the house. K.C. testified that she followed appellant into the house, through the
living room, through the kitchen, and into a back bedroom. K.C. also testified that, when
she went through the front door, appellant stopped and locked the door. Upon coming
into the back bedroom, K.C. testified that appellant pushed her up against a washer,
started saying he loved her, and pushed his hand down the outside of the front of her
shorts. After appellant slid his hand down the front of her shorts, K.C. was able to push
appellant away and run to the front door. She was able to get the door unlocked and
run out to her bicycle. K.C. went back to her father’s house and told her sister what
happened. They both rode their bicycles to Childers’s job site and told him what had
occurred. The police were called, and, later that evening, K.C. went to the police station 2 and gave a statement. Subsequently, appellant was arrested and indicted for the
offense of indecency with a child by contact. After a jury trial, appellant was convicted
and sentenced to seven years confinement in the ID-TDCJ. He appeals contending that
the evidence is insufficient to support the judgment of the trial court. We disagree with
appellant and affirm the judgment of the trial court.
Evidentiary Sufficiency
As an initial consideration, we observe that appellant’s appeal contends that the
evidence is both legally and factually insufficient. Appellant’s brief was prepared and
filed before the Texas Court of Criminal Appeals issued its opinion in Brooks v. State,
323 S.W.3d 893, 902 (Tex.Crim.App. 2010), wherein the court ruled that there is no
distinction between a claim of legal as opposed to factual insufficiency of the evidence.
Further, the court expressly overruled Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App.
1996), and its purported application to factual sufficiency questions. Id. at 911. What
the court appears to do is to urge the reviewing court to apply a more rigorous
application of the sufficiency test set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979). See id. at 912. Therefore, we will review appellant’s
claims of evidentiary sufficiency under the standard of review set forth in Jackson. See
443 U.S. at 319.
Standard of Review
In assessing the sufficiency of the evidence, we review all the evidence in the
light most favorable to the verdict to determine whether any rational trier of fact could
have found the essential elements of the offense beyond a reasonable doubt. Jackson, 3 443 U.S. at 319; Ross v. State, 133 S.W.3d 618, 620 (Tex.Crim.App. 2004). We
measure the legal sufficiency of the evidence against a hypothetically correct jury
charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). Finally, when
reviewing all of the evidence under the Jackson standard of review, the ultimate
question is whether the jury’s finding of guilt was a rational finding. See Brooks, 323
S.W.3d at 906 (discussing Judge Cochran’s dissent in Watson v. State, 204 S.W.3d
404, 448-50 (Tex.Crim.App. 2006), as outlining the proper application of a single
evidentiary standard of review).2
Analysis
The elements the State must prove in an indecency with a child by contact case
are:
1. Appellant
2. on or about July 9, 2009
3. in Bailey County, Texas
4. with intent to arouse or gratify his sexual desire
5. intentionally and knowingly
6. engaged in sexual contact
7. with K.C.
2 We note that this Court has at times quoted Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988), for the proposition that we had to uphold the verdict of the jury unless it was irrational or unsupported by more than a mere modicum of evidence. We view such a statement, insofar as a modicum of evidence being sufficient evidence, as contrary to a rigorous application of the Jackson standard of review urged by the Court in Brooks. 4 8. by touching the genitals of K.C.
9. a child younger than 17 years and not the spouse of appellant
The sum of appellant’s argument regarding the sufficiency of the evidence is that
the testimony of K.C. never describes appellant touching K.C.’s genitals. K.C.’s
testimony regarding the actual touching is as follows:
Q. And can you tell us – what was the fir thing that happened there? A. He pushed me up against the washer and he started saying that he loved me and he would never hurt me and he was kissing my cheek and he slid his hand down the outside of my shorts. Q. I need you to be really specific when you answer these questions. I’m sorry, but when you say he slid his hand down the front of your shorts, you’ve testified that was on the ouside of your clothes? A. Yes, ma’am. Q. What did you have on that day? A. I had on blue shorts and an orange and white striped T-shirt. Q. And where did his hand- - when he was sliding his hand down the front of your shorts, where did it - - where did he start with his hand? A. What do you mean? Q. Where on your body was his hand when you first felt it? A. The palm of his hand was about at about waist and his fingers were down like below pubic - - where the pubic hair, like. Q.
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NO. 07-10-00170-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
MARCH 11, 2011
BERNARDO MARTINEZ SALCIDO, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 287TH DISTRICT COURT OF BAILEY COUNTY;
NO. BC-2597; HONORABLE GORDON HOUSTON GREEN, JUDGE
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Bernardo Martinez Salcido, was convicted of indecency with a child by
sexual contact1 and sentenced to confinement in the Institutional Division of the Texas
Department of Criminal Justice (ID-TDCJ) for seven years. Appellant appeals the
sentence contending that the evidence was not sufficient to sustain the conviction. We
affirm.
1 See TEX. PENAL CODE ANN. § 21.11(a)(1) (West Supp. 2010). Factual and Procedural Background
In the summer of 2009, the victim, K.C., and her younger sister came to
Muleshoe to visit their father, Gary Childers. Childers rented a residence from
appellant. At the time of the incident in question, K.C. was 14 years old. During the
course of K.C.’s stay in Muleshoe, she had met appellant and been inside his home on
several occasions. According to K.C., the house her father lived in did not have a
television and was not air conditioned, and, for these reasons, K.C. and her sister would
go to appellant’s home during the day while her father was at work. The testimony of
K.C. revealed that on July 9, 2009, she and her sister had gone to appellant’s home on
approximately three occasions earlier in the day only to find no one at home. Finally, in
the late afternoon, K.C. went back to appellant’s home again. This time her sister had
declined to go with her. Upon arriving, K.C. saw appellant outside his home in the
driveway. When K.C. pulled up on her bicycle, appellant spoke to her and invited her
into the house. K.C. testified that she followed appellant into the house, through the
living room, through the kitchen, and into a back bedroom. K.C. also testified that, when
she went through the front door, appellant stopped and locked the door. Upon coming
into the back bedroom, K.C. testified that appellant pushed her up against a washer,
started saying he loved her, and pushed his hand down the outside of the front of her
shorts. After appellant slid his hand down the front of her shorts, K.C. was able to push
appellant away and run to the front door. She was able to get the door unlocked and
run out to her bicycle. K.C. went back to her father’s house and told her sister what
happened. They both rode their bicycles to Childers’s job site and told him what had
occurred. The police were called, and, later that evening, K.C. went to the police station 2 and gave a statement. Subsequently, appellant was arrested and indicted for the
offense of indecency with a child by contact. After a jury trial, appellant was convicted
and sentenced to seven years confinement in the ID-TDCJ. He appeals contending that
the evidence is insufficient to support the judgment of the trial court. We disagree with
appellant and affirm the judgment of the trial court.
Evidentiary Sufficiency
As an initial consideration, we observe that appellant’s appeal contends that the
evidence is both legally and factually insufficient. Appellant’s brief was prepared and
filed before the Texas Court of Criminal Appeals issued its opinion in Brooks v. State,
323 S.W.3d 893, 902 (Tex.Crim.App. 2010), wherein the court ruled that there is no
distinction between a claim of legal as opposed to factual insufficiency of the evidence.
Further, the court expressly overruled Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App.
1996), and its purported application to factual sufficiency questions. Id. at 911. What
the court appears to do is to urge the reviewing court to apply a more rigorous
application of the sufficiency test set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979). See id. at 912. Therefore, we will review appellant’s
claims of evidentiary sufficiency under the standard of review set forth in Jackson. See
443 U.S. at 319.
Standard of Review
In assessing the sufficiency of the evidence, we review all the evidence in the
light most favorable to the verdict to determine whether any rational trier of fact could
have found the essential elements of the offense beyond a reasonable doubt. Jackson, 3 443 U.S. at 319; Ross v. State, 133 S.W.3d 618, 620 (Tex.Crim.App. 2004). We
measure the legal sufficiency of the evidence against a hypothetically correct jury
charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). Finally, when
reviewing all of the evidence under the Jackson standard of review, the ultimate
question is whether the jury’s finding of guilt was a rational finding. See Brooks, 323
S.W.3d at 906 (discussing Judge Cochran’s dissent in Watson v. State, 204 S.W.3d
404, 448-50 (Tex.Crim.App. 2006), as outlining the proper application of a single
evidentiary standard of review).2
Analysis
The elements the State must prove in an indecency with a child by contact case
are:
1. Appellant
2. on or about July 9, 2009
3. in Bailey County, Texas
4. with intent to arouse or gratify his sexual desire
5. intentionally and knowingly
6. engaged in sexual contact
7. with K.C.
2 We note that this Court has at times quoted Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988), for the proposition that we had to uphold the verdict of the jury unless it was irrational or unsupported by more than a mere modicum of evidence. We view such a statement, insofar as a modicum of evidence being sufficient evidence, as contrary to a rigorous application of the Jackson standard of review urged by the Court in Brooks. 4 8. by touching the genitals of K.C.
9. a child younger than 17 years and not the spouse of appellant
The sum of appellant’s argument regarding the sufficiency of the evidence is that
the testimony of K.C. never describes appellant touching K.C.’s genitals. K.C.’s
testimony regarding the actual touching is as follows:
Q. And can you tell us – what was the fir thing that happened there? A. He pushed me up against the washer and he started saying that he loved me and he would never hurt me and he was kissing my cheek and he slid his hand down the outside of my shorts. Q. I need you to be really specific when you answer these questions. I’m sorry, but when you say he slid his hand down the front of your shorts, you’ve testified that was on the ouside of your clothes? A. Yes, ma’am. Q. What did you have on that day? A. I had on blue shorts and an orange and white striped T-shirt. Q. And where did his hand- - when he was sliding his hand down the front of your shorts, where did it - - where did he start with his hand? A. What do you mean? Q. Where on your body was his hand when you first felt it? A. The palm of his hand was about at about waist and his fingers were down like below pubic - - where the pubic hair, like. Q. And where did his hand go? A. It just slid down a little further, and then I pushed him. Q. How far - - how far down did the palm part of his hand go? A. To the beginning of where pubic hair would be, and then that was it. Q. Did his hands go between your legs? A. No.
5 Q. How many times did that happen? A. Just once.
According to appellant, this testimony does not sufficiently describe a contact with the
genitals of K.C. to support the jury’s decision to convict.
The Texas Court of Criminal Appeals has addressed this issue in Clark v. State,
558 S.W.2d 887, 889 (Tex.Crim.App. 1977), when it held that “[t]he definition of ‘sexual
contact’ under the statute includes the touching of ‘any part of the genitals’ of a person.3
Thus, the statute includes more than just the vagina in its definition; the definition of
‘genitals’ includes the vulva which immediately surrounds the vagina.” This holding has
recently been applied by the Fort Worth Court of Appeals to find the evidence sufficient
when the testimony revealed the defendant had touched the victim’s pubic hair. See
Carmell v. State, No. 02-97-197-CR, 2010 Tex. App. LEXIS 8035 at *24-*25
(Tex.App.—Forth Worth Sep. 30, 2010, no pet.).
Both appellant and the State have cited the Court to Gray’s Anatomy of the
Human Body for a description of the female genital area. Gray’s describes the female
genital area as being comprised of:
The external genital organs of the female are: the mons pubis, the labia majora et minora pudendi, the clitoris, the vestibule of the vagina, the bulb of the vestibule, and the greater vestibular glands. The term pudendum or vulva, as generally applied, includes all these parts.
3 Current section 21.11(c)(1) defines “sexual contact” as any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child, if such touching was committed with the intent to arouse or gratify the sexual desire of any person. See TEX. PENAL CODE ANN. § 21.11(c)(1) (West Supp. 2010). 6 The Mons Pubis (commissural labiorum anterior; mons Veneris), the rounded eminence in front of the pubic symphysis, is formed by a collection of fatty tissue beneath the integument. It becomes covered with hair at the time of puberty. Henry Gray, ANATOMY OF THE HUMAN BODY, § 3d.5. (Warren H. Lewis ed., Lea & Febiger 20th ed. 1918), available at http://www.bartleby.com/107/270.html.
The testimony of K.C. is that appellant’s palm went down to her pubic hair area.
Even though appellant’s fingers did not go between her legs, it is apparent that the palm
did in fact make contact with K.C.’s genital area. The pubic area is part of the vulva,
which the courts in Texas have determined to be part of the genital area of a female.
Clark, 558 S.W.2d at 889. Therefore, the jury was acting rationally when it found
appellant guilty beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Ross, 133
S.W.3d at 620. Appellant’s issue is overruled.
Conclusion
Having overruled appellant’s single issue, we affirm the judgment of the trial
court.
Mackey K. Hancock Justice
Do not publish.