In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-12-00411-CR
ERIC MOLINA, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 137th District Court Lubbock County, Texas Trial Court No. 2011-431,388, Honorable John J. "Trey" McClendon, Presiding
June 27, 2014
MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Appellant Eric Molina appeals from his conviction by jury of the offense of sexual
assault and the trial court’s assessed punishment of twenty years of imprisonment.
Through one issue, appellant argues the evidence was insufficient to support his
conviction. We will affirm the judgment of the trial court. Background
After appellant was indicted for sexual assault of an adult,1 he plead not guilty
and the case was tried before a jury. At trial, the victim, Cory Seth Hamersley, testified
that he drank too much beer and became drunk at a party he hosted. Hamersley left
the party with appellant and two other people, including appellant’s female friend.
Hamersley passed out and awoke at appellant’s house to find that someone was
performing oral sex on him. Initially, he testified, he thought the female was performing
the act. On realizing it was appellant, Hamersley pushed appellant off and punched him
in the head. Appellant did not testify at trial, but his female friend testified to the version
of the events appellant told her.
Analysis
Appellant’s evidentiary sufficiency argument asserts only that the evidence was
insufficient to support a finding the victim did not consent to his oral contact with the
victim’s penis. By his argument, appellant implicitly acknowledges the evidence was
sufficient to establish the other elements of the offense, that he intentionally and
knowingly engaged in the sexual conduct alleged.
Evidence is legally sufficient to support a conviction if, after assessing all the
evidence in the light most favorable to the verdict, any rational trier of fact could find the
essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443
U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Brooks v. State, 323 S.W.3d 893,
1 Tex. Penal Code Ann. § 22.011(a)(1) (West 2012). This is a second degree felony offense, punishable by imprisonment for any term of not less than 2 years or more than 20 years and a fine not to exceed $10,000. Tex. Penal Code Ann. § 12.33 (West 2012).
2 894-95 (Tex. Crim. App. 2010). We review all of the evidence, whether properly or
improperly admitted. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
Direct and circumstantial evidence are equally probative, and circumstantial evidence
alone can be sufficient to establish guilt. Id; Patrick v. State, 906 S.W.2d 481, 488 (Tex.
Crim. App. 1995). The jury is the sole judge of the credibility of evidence and the weight
to be attached to the testimony of witnesses. Jackson, 443 U.S. at 319. When the
record supports conflicting inferences, we presume that the jury resolved the conflicts in
favor of the verdict and defer to that determination. Id.
As charged here, a person commits sexual assault if he: (a) intentionally or
knowingly; (b) causes the sexual organ of another person; (c) without that person’s
consent; (d) to contact or penetrate the mouth of another person, including the actor.
TEX. PENAL CODE ANN. § 22.011(a)(1)(C) (West 2012). Consent is defined as “assent in
fact, whether express or apparent.” TEX. PENAL CODE ANN. § 1.07(a)(11) (West 2012).
Sexual assault is without the consent of the other person if, among other things, the
other person has not consented and the actor knows the other person is unconscious;
or the other person has not consented and the actor knows the other person is unaware
that the sexual assault is occurring. TEX. PENAL CODE ANN. § 22.011(b)(3), (5) (West
2012).
The uncorroborated testimony of the victim alone is sufficient to support a
conviction for sexual assault, as long as the victim tells someone other than the
defendant within a year of the offense. TEX. CODE CRIM. PROC. ANN. art. 38.07(a) (West
2012); Quincy v. State, 304 S.W.3d 489, 497 (Tex. App.—Amarillo 2009, no pet.).
Further, it was the jury’s task to resolve conflicts in the testimony, weigh the evidence,
3 and draw reasonable inferences from the evidence. Jackson, 443 U.S. at 319; Isassi v.
State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
Hamersley testified to his drunken condition, and denied he consented to
appellant’s sexual contact with him. He told the jury that “I remember slightly coming to
-- I was laying [sic] on my back, and I remember slightly coming to at a house. At first I
didn't realize where I was at . . . . I just remember feeling something wet down around
my penis . . . .” He further stated, “I thought it was [appellant’s female friend] was my
first thought, and then I heard [appellant’s] voice . . . . And that's when I like came to
and realized what was going on. I hit him in the top of the head to get him off . . . .” He
further testified to his realization that he was wearing only his socks, and to his demand
that appellant bring him his clothes. He said he called his brother-in-law for a ride
home, told him about the assault on the way, and went to the hospital.
The sexual assault nurse examiner testified Hamersley told her and a rape
advocate that he was asleep, woke up naked at appellant’s house and discovered
appellant had his genitals in his mouth.
Appellant’s female friend testified that on the night of the incident, she was in
another room of appellant’s house, he came into the room, appeared “giddy” and told
her he had taken Hamersley’s pants off because they had “throw-up” on them. She
further testified appellant later told her of his oral contact with Hamersley’s penis, and
that Hamersley “freaked out” when he woke up. Particularly when coupled with
Hamersley’s testimony, the female friend’s testimony supports a rational conclusion that
appellant was aware Hamersley was unconscious at the time of the initial contact
4 between his mouth and the other man’s penis, and a rational conclusion appellant also
knew at that point Hamersley was unaware the sexual assault was occurring. See
Anderson v. State, No. 02-10-00489-CR, 2012 Tex.App. LEXIS 2898 (Tex. App.—Fort
Worth April 12, 2012, no pet.) (mem. op., not designated for publication); Viera v. State,
No. 08-10-00332-CR, 2012 Tex.App. LEXIS 7934, at *11 (Tex. App.—El Paso Sept. 19,
2012, pet. ref’d) (mem. op., not designated for publication) (both finding evidence of
non-consent to sexual assault sufficient). See also Elliott v. State, 858 S.W.2d 478, 485
(Tex. Crim. App. 1993) (discussing evidence supporting finding of lack of consent
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In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-12-00411-CR
ERIC MOLINA, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 137th District Court Lubbock County, Texas Trial Court No. 2011-431,388, Honorable John J. "Trey" McClendon, Presiding
June 27, 2014
MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Appellant Eric Molina appeals from his conviction by jury of the offense of sexual
assault and the trial court’s assessed punishment of twenty years of imprisonment.
Through one issue, appellant argues the evidence was insufficient to support his
conviction. We will affirm the judgment of the trial court. Background
After appellant was indicted for sexual assault of an adult,1 he plead not guilty
and the case was tried before a jury. At trial, the victim, Cory Seth Hamersley, testified
that he drank too much beer and became drunk at a party he hosted. Hamersley left
the party with appellant and two other people, including appellant’s female friend.
Hamersley passed out and awoke at appellant’s house to find that someone was
performing oral sex on him. Initially, he testified, he thought the female was performing
the act. On realizing it was appellant, Hamersley pushed appellant off and punched him
in the head. Appellant did not testify at trial, but his female friend testified to the version
of the events appellant told her.
Analysis
Appellant’s evidentiary sufficiency argument asserts only that the evidence was
insufficient to support a finding the victim did not consent to his oral contact with the
victim’s penis. By his argument, appellant implicitly acknowledges the evidence was
sufficient to establish the other elements of the offense, that he intentionally and
knowingly engaged in the sexual conduct alleged.
Evidence is legally sufficient to support a conviction if, after assessing all the
evidence in the light most favorable to the verdict, any rational trier of fact could find the
essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443
U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Brooks v. State, 323 S.W.3d 893,
1 Tex. Penal Code Ann. § 22.011(a)(1) (West 2012). This is a second degree felony offense, punishable by imprisonment for any term of not less than 2 years or more than 20 years and a fine not to exceed $10,000. Tex. Penal Code Ann. § 12.33 (West 2012).
2 894-95 (Tex. Crim. App. 2010). We review all of the evidence, whether properly or
improperly admitted. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
Direct and circumstantial evidence are equally probative, and circumstantial evidence
alone can be sufficient to establish guilt. Id; Patrick v. State, 906 S.W.2d 481, 488 (Tex.
Crim. App. 1995). The jury is the sole judge of the credibility of evidence and the weight
to be attached to the testimony of witnesses. Jackson, 443 U.S. at 319. When the
record supports conflicting inferences, we presume that the jury resolved the conflicts in
favor of the verdict and defer to that determination. Id.
As charged here, a person commits sexual assault if he: (a) intentionally or
knowingly; (b) causes the sexual organ of another person; (c) without that person’s
consent; (d) to contact or penetrate the mouth of another person, including the actor.
TEX. PENAL CODE ANN. § 22.011(a)(1)(C) (West 2012). Consent is defined as “assent in
fact, whether express or apparent.” TEX. PENAL CODE ANN. § 1.07(a)(11) (West 2012).
Sexual assault is without the consent of the other person if, among other things, the
other person has not consented and the actor knows the other person is unconscious;
or the other person has not consented and the actor knows the other person is unaware
that the sexual assault is occurring. TEX. PENAL CODE ANN. § 22.011(b)(3), (5) (West
2012).
The uncorroborated testimony of the victim alone is sufficient to support a
conviction for sexual assault, as long as the victim tells someone other than the
defendant within a year of the offense. TEX. CODE CRIM. PROC. ANN. art. 38.07(a) (West
2012); Quincy v. State, 304 S.W.3d 489, 497 (Tex. App.—Amarillo 2009, no pet.).
Further, it was the jury’s task to resolve conflicts in the testimony, weigh the evidence,
3 and draw reasonable inferences from the evidence. Jackson, 443 U.S. at 319; Isassi v.
State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
Hamersley testified to his drunken condition, and denied he consented to
appellant’s sexual contact with him. He told the jury that “I remember slightly coming to
-- I was laying [sic] on my back, and I remember slightly coming to at a house. At first I
didn't realize where I was at . . . . I just remember feeling something wet down around
my penis . . . .” He further stated, “I thought it was [appellant’s female friend] was my
first thought, and then I heard [appellant’s] voice . . . . And that's when I like came to
and realized what was going on. I hit him in the top of the head to get him off . . . .” He
further testified to his realization that he was wearing only his socks, and to his demand
that appellant bring him his clothes. He said he called his brother-in-law for a ride
home, told him about the assault on the way, and went to the hospital.
The sexual assault nurse examiner testified Hamersley told her and a rape
advocate that he was asleep, woke up naked at appellant’s house and discovered
appellant had his genitals in his mouth.
Appellant’s female friend testified that on the night of the incident, she was in
another room of appellant’s house, he came into the room, appeared “giddy” and told
her he had taken Hamersley’s pants off because they had “throw-up” on them. She
further testified appellant later told her of his oral contact with Hamersley’s penis, and
that Hamersley “freaked out” when he woke up. Particularly when coupled with
Hamersley’s testimony, the female friend’s testimony supports a rational conclusion that
appellant was aware Hamersley was unconscious at the time of the initial contact
4 between his mouth and the other man’s penis, and a rational conclusion appellant also
knew at that point Hamersley was unaware the sexual assault was occurring. See
Anderson v. State, No. 02-10-00489-CR, 2012 Tex.App. LEXIS 2898 (Tex. App.—Fort
Worth April 12, 2012, no pet.) (mem. op., not designated for publication); Viera v. State,
No. 08-10-00332-CR, 2012 Tex.App. LEXIS 7934, at *11 (Tex. App.—El Paso Sept. 19,
2012, pet. ref’d) (mem. op., not designated for publication) (both finding evidence of
non-consent to sexual assault sufficient). See also Elliott v. State, 858 S.W.2d 478, 485
(Tex. Crim. App. 1993) (discussing evidence supporting finding of lack of consent
“where assent in fact has not been given”); Jennings v. State, No. 07-09-00047-CR,
2010 Tex. App. LEXIS 10241, at *9 (Tex. App.—Amarillo Dec. 29, 2010) (mem. op., not
designated for publication) (collecting cases finding lack of consent when the victim was
asleep at time sexual contact was initiated).
Appellant points to other circumstantial evidence the jury could have seen as
indicating Hamersley’s consent to oral sex with him. He notes Hamersley’s testimony
that he considered appellant to be “effeminate,” and his acknowledgement that he
invited appellant to his party and voluntarily left the party when appellant and the others
left for a fast food restaurant. Appellant also emphasizes Hamersley’s failure to react in
protest immediately when he realized he was receiving oral sex. He also points to
earlier text and FaceBook messages between the two as indicating a friendly
relationship between the two men.
In the exercise of its role as fact-finder, the jury was entitled to believe
Hamersley’s testimony that he is not attracted to men, was interested in appellant’s
female friend, and did not consent to appellant’s performance of oral sex on him.
5 Recognizing the jury’s role, we defer to its resolution of the conflicting inferences that
might be drawn from the evidence. Jackson, 443 U.S. at 319.
Viewing the evidence in the light most favorable to the verdict, the jury’s
conclusion Hamersley did not consent to the sexual act by appellant was rational. The
evidence is legally sufficient to support appellant’s conviction. We overrule his sole
issue on appeal and affirm the judgment of the trial court.
James T. Campbell Justice
Do not publish.