Juan Boaerge Rivera v. State

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-13-00769-CR

Juan Boaerge RIVERA, Appellant

v. The State of The STATE of Texas, Appellee

From the Criminal District Court 4, Tarrant County, Texas Trial Court No. 1197727D The Honorable Michael Thomas, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Catherine Stone, Chief Justice Sandee Bryan Marion, Justice Marialyn Barnard, Justice

Delivered and Filed: July 9, 2014

AFFIRMED

Appellant, Juan Boaerge Rivera, appeals the trial court’s judgment adjudicating his guilt

and revoking his community supervision. We affirm.

BACKGROUND

Appellant pled guilty to possession of a controlled substance and was placed on deferred

adjudication. Subsequently, Tarrant County police officers responded to a sexual assault alleged

to have been committed by appellant at a gym where he worked. The State filed a motion to

adjudicate guilt alleging appellant violated a condition of his community supervision, “to commit 04-13-00769-CR

no offense against the laws of this State or any other State or the United States.” Specifically, the

State alleged appellant “intentionally or knowingly cause[d] the penetration of the female sexual

organ of Briana Spivey, a pseudonym, by inserting [appellant’s] penis in Spivey’s female sexual

organ without the consent of Spivey by compelling Spivey to submit or participate by the use of

physical force or violence or by threatening to use force or violence against Spivey and Spivey

believed that [appellant] had the present ability to execute said threat.” Based on the testimony

presented, the trial court found appellant violated the condition of his community supervision,

adjudicated his guilt, and sentenced him to ten years’ confinement.

1. Standard of Review

We review the trial court’s judgment revoking community supervision under an abuse of

discretion standard. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). On a motion

to revoke community supervision, the State bears the burden to prove its allegations by a

preponderance of the evidence. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993);

Reasor v. State, 281 S.W.3d 129, 131–32 (Tex. App.—San Antonio 2008, pet. ref’d). The trial

court is the “sole judge of the credibility of the witnesses and the weight to be given to their

testimony.” Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013). We view the evidence

in the light most favorable to the trial court’s ruling. Cardona v. State, 665 S.W.2d 492, 493 (Tex.

Crim. App. 1984).

2. Analysis

In his sole issue on appeal, appellant contends the trial court abused its discretion in

revoking his community supervision because the State failed to prove by a preponderance of the

evidence that appellant sexually assaulted Spivey.

A person commits the offense of sexual assault if the person intentionally or knowingly

causes the penetration of the anus or sexual organ of another person by any means, without that -2- 04-13-00769-CR

person’s consent. TEX. PENAL CODE ANN. § 22.011(a)(1)(A) (West 2011). Sexual assault is

without consent if the actor compels the other person to submit or participate by the use of physical

force or violence, or if the actor compels the other person to submit or to participate by threatening

to use force or violence against the other person, and the other person believes that the actor has

the present ability to execute the threat. Id. § 22.011(b)(1), (2).

In this case, Spivey testified at the hearing on the motion to proceed to adjudication of

guilt. She stated she worked in the business located next to the gym where appellant worked, and

that she met appellant approximately one month before the sexual assault occurred. Appellant

would frequent her place of employment and invite her to work out with him. Spivey stated

appellant was aware she had back problems and was going to show her exercises that would

strengthen her back muscles and reduce her pain. Once she arrived at the gym, appellant escorted

her into a tanning room where he handed her a towel to cover her breasts so that he could massage

her back muscles before she began working out. Spivey testified that during the massage, appellant

began to massage her legs and inserted his fingers into her vagina. After telling appellant to stop,

Spivey testified he apologized and resumed massaging her back. Spivey stated she did not

immediately leave because she was scared and embarrassed to leave the tanning room because she

was partially naked. Appellant then told Spivey to lay on the ground where he would continue to

massage her back. When she complied, appellant mounted her and prevented her from moving by

physically overpowering her. Appellant then slid her underwear aside and inserted his penis into

her vagina. In addition to Spivey’s testimony, the State also presented the DNA results of her

sexual assault examination. The forensic report confirmed the presence of appellant’s semen

inside Spivey’s vagina.

On appeal, appellant argues the evidence is equally consistent with a finding that Spivey

engaged in consensual sex with him. However, as the sole judge of the weight and credibility to -3- 04-13-00769-CR

give witness testimony, the trial court was free to believe or disbelieve Spivey’s version of events.

See Hacker, 389 S.W.3d at 865. Accordingly, we conclude the State proved its allegation by a

preponderance of the evidence.

CONCLUSION

The trial court did not abuse its discretion in adjudicating appellant’s guilt and revoking

his community supervision because the record contains sufficient evidence to support the trial

court’s finding that appellant violated at least one of the conditions of his community supervision.

Sandee Bryan Marion, Justice

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