Victor Manuel Hernandez, Jr v. the State of Texas

• Court: Texas Court of Appeals, 4th District (San Antonio)
• Decided: July 1, 2026
• Docket: 04-24-00776-CR
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION

No. 04-24-00776-CR

Victor Manuel HERNANDEZ, Jr., Appellant

v.

The STATE of Texas, Appellee

From the 290th Judicial District Court, Bexar County, Texas Trial Court No. 2021CR10246 Honorable Jennifer Peña, Judge Presiding

Opinion by: Lori I. Valenzuela, Justice

Sitting: Lori I. Valenzuela, Justice Adrian A. Spears II, Justice H. Todd McCray, Justice

Delivered and Filed: July 1, 2026

AFFIRMED IN PART; REVERSED AND REMANDED IN PART

Appellant Victor Hernandez, Jr. appeals his convictions for aggravated sexual assault of a

child and indecency with a child. Hernandez claims the evidence is insufficient to support the

aggravated sexual assault conviction and that the trial court committed error during the outcry

witness testimony. We affirm the judgment on Count I and reverse and remand the judgment on

Count II on punishment only. 04-24-00776-CR

BACKGROUND

Hernandez worked at Little Treasures daycare where the victim, I.G., attended. 1 After

attending for two weeks, I.G. told her mother, M.T., that Hernandez had been touching her in her

private area at the daycare. M.T. called the San Antonio Police Department and Officer Joel Pavon

was dispatched as the reporting officer. At Pavon’s suggestion, M.T. took I.G. to the hospital for

a SANE (“Sexual Assault Nurse Examiner”) examination. Nurse Julie Vereen performed the

sexual assault exam on I.G. I.G. told Vereen that Hernandez had touched her vagina with his finger,

that it had hurt, and that it was on the inside of her clothes.

Hernandez was convicted of aggravated sexual assault of a child (Count I), a first-degree

felony, and indecency with a child by contact (Count II), a second-degree felony. At the conclusion

of the sentencing hearing, the trial court announced, “I’m going to assess punishment at 35 years

in the Texas Department of Corrections,” and did not differentiate between the two counts. The

trial court signed separate judgments on each count, and each judgment sentenced Hernandez to

thirty-five years’ incarceration. 2 In this appeal, Hernandez challenges the sufficiency of the

evidence to support the verdict for Count I, the aggravated sexual assault of a child charge, and

complains that the trial court erred in rulings made during M.T.’s outcry witness testimony.

ANALYSIS

Evidentiary Sufficiency of Aggravated Sexual Assault

In his first issue, Hernandez claims the evidence from the State’s witnesses was insufficient

to show he penetrated I.G.’s sexual organ. See TEX. PENAL CODE § 22.021(a)(1)(B)(i). He argues

that I.G.’s testimony was “too vague” to support the penetration element required for an aggravated

1 To protect the privacy of the child complainant, this opinion identifies her and her mother by their initials. TEX. R. APP. P. 9.10(a)(3). 2 Neither judgment indicated whether Hernandez’s sentences were to run concurrently or consecutively.

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sexual assault. Hernandez further argues that the SANE examination did not find sufficient

medical evidence of penetration. Finally, he asserts Officer Pavon’s interviews with M.T. and I.G.

did not establish there had been penetration.

Standard of Review and Applicable Law

When reviewing the sufficiency of the evidence, we view 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319

(1979) (emphasis in original); Arroyo v. State, 559 S.W.3d 484, 487 (Tex. Crim. App. 2018). As

the reviewing court, we must “defer to the jury’s credibility and weight determinations because

the jury is the sole judge of the witnesses’ credibility and the weight to be given their testimony.”

Baez v. State, 486 S.W.3d 592, 594 (Tex. App.—San Antonio 2015, pet. ref’d) (citation omitted).

Although juries may not speculate, they may “draw reasonable inferences from basic facts to

ultimate facts.” Jackson, 443 U.S. at 319; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.

2007). When the record supports conflicting inferences, we presume the jury resolved the conflicts

in favor of the verdict and we defer to that determination. Jackson, 443 U.S. at 319; Clayton, 235

S.W.3d at 778.

Hernandez was convicted of two offenses under—aggravated sexual assault and indecency

with a child by contact. Section 22.021(a)(1)(B), aggravated sexual assault states a person commits

an offense by “intentionally or knowingly” causing “the penetration of the anus or sexual organ of

a child by any means[.]” TEX. PENAL CODE § 22.021(a)(1)(B)(i). A person commits indecency

with a child by contact under Texas Penal Code section 21.11 by engaging in sexual contact with

a child, meaning touching the anus, breast, or any part of the genitals with the intent to arouse or

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gratify the sexual desire of any person, including touching through clothing. 3 TEX. PENAL CODE §

21.11.

“[P]enetration occurs when there is tactile contact beneath the fold of complainant’s

external genitalia[.] . . . [I]t is not inaccurate to describe conduct as a penetration, so long as the

contact with the complainant’s anatomy could reasonably be regarded by ordinary English

speakers as more intrusive than contact with her outer vaginal lips.” Cornet v. State, 359 S.W.3d

217, 226 (Tex. Crim. App. 2012) (internal quotation marks, alterations, and footnote omitted).

However, “pushing aside and reaching beneath a natural fold of skin into an area of the body not

usually exposed to view, even in nakedness, is a significant intrusion beyond mere external

contact.” Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992). Furthermore, “the statute

does not require flesh-to-flesh contact[.]” IslasMartinez v. State, 452 S.W.3d 874, 877 (Tex.

App.—Dallas 2014, pet. ref’d); see also Rodda v. State, 926 S.W.2d 375, 378 (Tex. App.—Fort

Worth 1996, pet. ref’d) (“[P]enetration of the vaginal lips with his hand or fingers outside her

clothing would, nonetheless, constitute penetration. . . . It does not matter whether his hand

was . . . between her panties and her shorts or outside her shorts so long as his hand accomplished

the penetration.”).

Application

Hernandez complains that inconsistent and vague statements made by I.G. were

insufficient to show penetration and at most showed indecent contact with a child. During I.G.’s

SANE examination, she stated that Hernandez had touched her vagina with his finger inside her

3 Hernandez was also convicted of one count of indecency with a child by contact, but he only challenges the sufficiency of the evidence of the first count of aggravated sexual assault. While “indecency with a child is a lesser- included offense of aggravated sexual assault of a child when both offenses are predicated on the same act,” Evans v. State, 299 S.W.3d 138, 143 (Tex. Crim. App. 2009), I.G. testified to multiple incidents of touching, thus supporting the two counts.

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underwear and inside from where she pees. I.G. also stated that Hernandez would rub his fingers

back and forth over her genital area and that it hurt. At trial, she reiterated these facts, but also

testified that Hernandez’s hand did not go “inside.” However, any apparent conflicts in I.G.’s

earlier statements during the examination about penetration and her testimony at trial were a

credibility issue for the jury to resolve. Jackson, 443 U.S. at 319; Bledsoe v. State, 479 S.W.3d

491, 494–95 (Tex. App.—Fort Worth 2015, pet. ref’d) (holding evidence was sufficient to support

aggravated sexual assault of a child where the outcry testimony and trial testimony differed

regarding penetration).

Hernandez further complains there is insufficient evidence to support his conviction

because there was no physical evidence of penetration. Vereen testified, however, that the

“[m]ajority of the examinations of sexually abused children are normal or nonspecific regardless

of the type of sexual abuse.” She further testified that her “findings can be attributed to both

traumatic and nontraumatic causes” and that “[h]istory supports sexual contact or abuse/assault.”

Vereen also noted mild redness to the labia majora which she was unable to say was caused by

traumatic or nontraumatic events. While Hernandez complains this lack of physical evidence is

insufficient to show there was penetration, “uncorroborated testimony of a sexual assault victim

alone is sufficient to support a conviction for aggravated sexual assault of a child.” Tavarez v.

State, 714 S.W.3d 64, 70 (Tex. App.—El Paso 2023, pet. ref’d) (citing TEX. CODE CRIM. PROC.

art. 38.07(a)). As noted above, I.G. testified that Hernandez touched her vagina inside her clothes.

From I.G.’s testimony and the medical evidence from the SANE examination, the jury could have

rationally concluded beyond a reasonable doubt that penetration had occurred. Jackson, 443 U.S.

at 319; see Vernon, 841 S.W.2d at 409 (“Consequently, it is not ungrammatical to describe

Appellant’s touching of complainant in this case as a penetration, so long as contact with the

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injured part of her anatomy could reasonably be regarded by ordinary English speakers as more

intrusive than contact with her outer vaginal lips.”).

Finally, Hernandez argues that Officer Pavon testified that during his interview with M.T.,

she was not certain if there was penetration. While his report included I.G.’s statements about

kissing and touching, it did not reflect an outcry of penetration. We agree with Hernandez.

However, viewing the evidence in the light most favorable to the jury verdict, the evidence was

sufficient to support Hernandez’s conviction for aggravated sexual assault of a child. We overrule

Hernandez’s first issue.

Trial Errors-Confrontation Clause

Hernandez argues his Confrontation Clause rights were violated when the trial court

limited the subject matter on which Hernandez’s attorney was able to cross-examine M.T.

Confrontation Clause issues must be preserved for appellate review. TEX. R. APP. P.

33.1(a)(1)(A); Davis v. State, 313 S.W.3d 317, 347 (Tex. Crim. App. 2010). Generally, before

presenting a complaint for appellate review, the complaint must have been timely made to the trial

court with specificity and ruled on. TEX. R. APP. P. 33.1(a)(1)(A). “[A]ll a party has to do to avoid

the forfeiture of a complaint on appeal is to let the trial judge know what he wants, why he thinks

himself entitled to it, and to do so clearly enough for the judge to understand him at a time when

the trial court is in a proper position to do something about it.” Lankston v. State, 827 S.W.2d 907,

909 (Tex. Crim. App. 1992).

In an effort to address how “instability in the household can account for a lot of [I.G.’s]

issues,” defense counsel asked M.T. a series of questions about M.T.’s romantic relationship, an

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alleged assault, and M.T.’s bills. The trial court repeatedly instructed Hernandez’s counsel to

“move on” after the questions. Counsel continued questioning M.T. without objecting to the

court’s limitation. Thus, Hernandez “made no attempt to inform the trial court what line of

questioning he would have pursued or what answers he would have sought to elicit upon further

cross-examination.” Dollins v. State, 460 S.W.3d 696, 698 (Tex. App.—Texarkana 2015, no pet.).

He therefore did not preserve this issue for our review. Accordingly, Hernandez’s second issue is

overruled.

Trial Errors-Testimony on PTSD

Finally, Hernandez argues M.T. gave improper testimony concerning I.G.’s PTSD

diagnosis because she was a non-expert. M.T. initially offered the testimony at issue in response

to questioning from Hernandez. Specifically, M.T. was asked if I.G. had been diagnosed with any

disabilities other than dyslexia. On redirect, the State asked M.T. about “the source of the PTSD

that [the doctor] gave her and the diagnosis and what caused it.” Hernandez objected on hearsay

grounds, which the court initially sustained. The State argued that Hernandez had opened the door

to the testimony concerning the source of the PTSD by asking about the diagnosis under the rule

of optional completeness. Hernandez then argued that M.T. was not qualified to discuss the source

of the diagnosis. The trial court overruled the hearsay objection. Ultimately, the State elicited the

single response, “It [PTSD] was the result of the sexual abuse from Victor [Hernandez].”

We review a trial court’s decision to admit evidence over objection under an abuse of

discretion standard. Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim. App. 2005). “The trial

court abuses its discretion when the decision lies outside the zone of reasonable disagreement.” Id.

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Hearsay is an out-of-court statement offered into evidence “to prove the truth of the matter

asserted in the statement.” TEX. R. EVID. 801(d). Statements falling within this definition, and not

exempted by one of the hearsay exemptions, are excluded from evidence. TEX. R. EVID. 802. “Any

[non-constitutional] error, defect, irregularity, or variance that does not affect substantial rights

must be disregarded.” TEX. R. APP. P. 44.2(b). “The admission of inadmissible hearsay testimony

is non-constitutional error, and it will be considered harmless if, after examining the record as a

whole, this court is reasonably assured the error did not influence the jury’s verdict or had but a

slight effect.” Fields v. State, 515 S.W.3d 47, 55 (Tex. App.—San Antonio 2016, no pet.). When

assessing harm, the reviewing court considers “everything in the record, including any testimony

or physical evidence admitted for the jury’s consideration, the nature of the evidence supporting

the verdict, the character of the alleged error and how it might be considered in connection with

other evidence in the case.” Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000).

We will assume without deciding that the PTSD testimony about which Hernandez

complains was inadmissible hearsay. We must consider everything in the record to determine if

the sentence elicited by the State was harmful. See id. We conclude M.T.’s testimony regarding

I.G.’s PTSD diagnosis was not harmful. See TEX. R. APP. P. 44.2(b). I.G.’s testimony at trial

described the actions by Hernandez and explained it happened on several occasions. Vereen

testified that I.G. told her Hernandez’s fingers were inside where she peed, that it hurt, and that it

happened several times. The testimony of M.T. described a sufficient change in I.G.’s behavior

before the PTSD diagnosis was discussed. Whether or not I.G. was diagnosed with PTSD because

of the incidents did not influence the jury’s verdict or had but a slight effect. Hernandez’s third

issue is overruled.

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Void Judgment-Count II

While we overrule Hernandez’s issues and uphold the guilty verdicts and the punishment

in Count I, we must reverse and remand on Count II for a new trial on punishment only. The

judgment on Count II assesses punishment at thirty-five years’ incarceration. However, the charge,

indecency with a child by contact, is punishable as a second-degree felony. See TEX. PENAL CODE

§ 21.11(a)(1), (d). A second-degree felony is punishable “by imprisonment in the Texas

Department of Criminal Justice for any term of not more than 20 years or less than 2 years.” TEX.

PENAL CODE § 12.33(a). Thus, the punishment as noted in the judgment is outside the maximum

range of punishment.

“A sentence that is outside the maximum or minimum range of punishment is unauthorized

by law and therefore illegal.” Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003). “As a

result, a sentence outside the statutory punishment range for an offense is void and must be

reversed.” Farias v. State, 426 S.W.3d 198, 200 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d).

While Hernandez does not present the issue in his appeal, a void sentence cannot be waived. See

id.; Barton v. State, 962 S.W.2d 132, 139 (Tex. App.—Beaumont 1997, pet. ref’d) (raising sua

sponte issue of judgment assessing punishment below punishment range); O’Reilly v. State, 501

S.W.3d 722, 729 (Tex. App.—Dallas 2016, no pet.) (“An illegal sentence cannot be waived and

may be challenged at any time.”); Harris v. State, 670 S.W.2d 284, 285 (Tex. App.—Houston [1st

Dist.] 1983, no pet.) (although not raised by defendant, court of appeals can take notice of illegal

sentence which exceeds statutory maximum and “has the power to reform and correct judgments

and hereby does so by striking the requirement that appellant pay a fine as part of his punishment

in this case.”). Moreover, our court can “always take notice of an illegal sentence when the

defendant appealed on any basis.” Mizell, 119 S.W.3d at 807.

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Because there is a void sentence in the judgment of the trial court, we must reverse

judgment. However, because the basis of the reversal is predicated on a sentencing error, the court

shall commence the new trial as if a finding of guilt had been made and proceed to punishment.

TEX. CODE CRIM. PROC. art. 44.29(b).

CONCLUSION

The judgment for Count I is affirmed. The judgment in Count II is reversed in part and

remanded to the trial court for a new trial on punishment. See id.

Lori I. Valenzuela, Justice

DO NOT PUBLISH

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