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Date: 08-15-2019

Case Style:

Magdiel Valencia, Jr. v. The State of Texas

Case Number: 02-18-00162-CR

Judge: Dana Womack

Court: Court of Appeals Second Appellate District of Texas

Plaintiff's Attorney: Andrea Simmons
Matthew J. Whitten

Defendant's Attorney: Tyler Carleton
Niles Illich


On November 12, 2015, Detective Trevor Taylor of the Frisco Police
Department began an investigation into a reported sexual assault by Valencia on
Jacqueline1 at Massage Envy in Frisco, Denton County, Texas. As a result of that
investigation, Taylor identified and contacted other Massage Envy clients, including
Kimberly and Julie.
On February 16, 2016, Taylor called and spoke with Kimberly about her
experience at Massage Envy. Kimberly, who was in the presence of her husband
during the call, immediately “broke down.” Kimberly subsequently spoke several
times with Taylor by telephone, and those conversations were recorded. Although
Jacqueline’s report of sexual assault triggered the investigation, Valencia was

1We have replaced the names of the clients with pseudonyms.
eventually indicted for committing the offense of attempted sexual assault on
B. Trial
1. Kimberly’s Testimony
On October 17, 2015, a few weeks after her father had died, Kimberly visited
Massage Envy in Frisco. Kimberly had received only one other massage and that was
approximately two years earlier.
Valencia was Kimberly’s massage therapist and was the first male from whom
she had received a massage. Kimberly completed forms and specified problem areas
including her neck and upper back and noted that she had varicose veins in her legs.
After Valencia led Kimberly to the massage room, they discussed her
paperwork, and Valencia informed Kimberly that he would be unable to massage her
legs due to her varicose veins. After Valencia left the room, Kimberly undressed
down to her thong underwear and laid face-down on the massage table under a sheet
that covered her body up to her armpits.
Valencia reentered the room and began massaging the head area of Kimberly’s
upper back and shoulder area and then moved to her left side and began caressing her
hand by interlocking fingers in a very sensual way, which Kimberly demonstrated at
trial. Valencia took Kimberly’s hand, repeatedly rubbed it against the crotch of his
pants, and began breathing audibly. According to Kimberly, although she could feel
Valencia’s erection, she thought to herself, “[T]his can’t be happening[,]” and said
nothing at the moment because she was “frozen.”
As he began massaging Kimberly’s back, Valencia’s body was touching the top
of her head. Kimberly was unable to see whether it was Valencia’s crotch touching
her head. Valencia moved to Kimberly’s right side and began rubbing her right hand
against his crotch. Valencia began massaging Kimberly’s upper thigh in a kneading
motion, which caused Kimberly’s underwear to go “in between” and expose her
vagina and “butt.” Using a mannequin, Kimberly demonstrated how Valencia had
repeatedly used his finger, made skin-to-skin contact, and touched her labia for a
period “much longer” than “a few seconds.”2 Kimberly “[could not] believe this
[was] happening[]” and admitted that there were portions of her experience that she
could not remember. However, she remembered that while she was on her back,
Valencia repeated the same contact of her leg and labia, making skin-to-skin contact
and remaining within an inch of her labia when not making contact. Kimberly
noticed Valencia’s breathing had become audible.
At the end of the session, Valencia left the room, and Kimberly dressed.
Valencia returned and asked Kimberly whether she “was okay.” Kimberly paid,
entered her car, and cried. She left without reporting her experiences to Massage

2Overruling defense counsel’s objections, the trial court permitted the State to question Kimberly while using demonstrative evidence, including a table, a mannequin, and a sheet.
Envy, the police, or her husband because she was ashamed and was dealing with her
father’s death. The recorded telephone conversations between Taylor and Kimberly
arising from Taylor’s initial investigation of the case were admitted into evidence, and
portions were later published to the jury.
2. Evidence of Intent or Absence of Mistake or Accident
The trial court allowed the State to offer through Julie and Jacqueline evidence
that Valencia may have committed wrongful acts other than those charged in the
indictment and repeatedly instructed the jury (1) that such evidence was to be
considered only for the limited purpose of showing Valencia’s intent or absence of
mistake or accident with respect to the charged offense and (2) that consideration of
the evidence for any other purpose would be improper.
a. Julie’s Testimony
During Julie’s massage at Massage Envy in Frisco on November 11, 2015,
Valencia massaged her upper thigh area in an up-and-down and then side-to-side
motion and began massaging beneath her underwear, which made Julie
uncomfortable. Valencia continued, placed his hand close to Julie’s vaginal opening,
made skin-to-skin contact, and then over five or six minutes touched but did not
penetrate her vaginal opening several times. Julie “kind of froze and . . . was
embarrassed” but did not say anything to Valencia. While Julie was on her back,
Valencia again massaged her beneath her underwear and did “[t]he same thing.” Julie
knew this was wrong but did not know what to say and did not speak up. Although
Julie pulled her sheet up repeatedly, Valencia pushed the sheet down and massaged
Julie’s breasts inappropriately, skin-to-skin, below the sheet. Julie did not say anything
but began to cry. Although Julie had specified before her massage began that she did
not want her face touched, for several minutes Valencia nevertheless caressed Julie’s
lips and ear sensually and pulled on her ear. Julie did not speak up and waited “for it
to be over.” After she dressed, Julie complained to the front office and filed a
complaint against Valencia.
b. Jacqueline’s testimony
On November 12, 2015, Jacqueline went to Massage Envy in Frisco with her
mother and sister. On a form completed prior to her massage, Jacqueline specified
that it was acceptable for her face, scalp, and gluteus maximus area to be massaged.
Jacqueline noticed that Valencia was focusing the massage high on her inner, upper
thighs in the area where the thigh muscle meets the crotch, about one inch from
Jacqueline’s vagina. Jacqueline was in denial and did not want to think anything
terrible was happening to her. While on her back, Valencia used a lot of painful
pressure to massage Jacqueline’s inner groin area and “basically touch[ed]” her vagina,
touched her genitals with his hand, rubbed her “clitoris and outside,” and then placed
his finger inside Jacqueline’s vagina. Valencia’s breathing was “rather hard,” and
when she opened her eyes, Valencia’s face was inches from Jacqueline’s with his
mouth open and his tongue sticking out as if to kiss her. When Jacqueline asked,
“[W]hat are you doing?,” Valencia responded, “Okay.” Jacqueline believed that she
was sexually assaulted although she initially tried to convince herself during the
massage that it was not happening. Jacqueline described herself as “frozen in my
head” while she thought of what she should do, and Valencia then said, “[O]kay,
we’re finished with this session.” Jacqueline informed a manager about Valencia’s
acts and then waited for and spoke with police and informed them that Valencia had
placed his finger inside her vagina.
A. Sufficiency of the Evidence
In a single issue, Valencia contends that the evidence was not sufficient to
convict him of attempted sexual assault. We disagree.
1. Standard of Review
Federal due process requires that the State prove beyond a reasonable doubt
every element of the crime charged. Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct.
2781, 2787 (1979); see U.S. Const. amend. XIV. In our due-process evidentiary
sufficiency review, we view all the evidence in the light most favorable to the verdict
to determine whether any rational factfinder could have found the crime’s essential
elements beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;
Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017). This standard gives full
play to the factfinder’s responsibility to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts. See
Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Queeman, 520 S.W.3d at 622.
The factfinder alone judges the evidence’s weight and credibility. See Tex. Code
Crim. Proc. Ann. art. 38.04; Queeman, 520 S.W.3d at 622. Thus, when performing an
evidentiary-sufficiency review, we may not re-evaluate the evidence’s weight and
credibility and substitute our judgment for the factfinder’s. Queeman, 520 S.W.3d at
622. Instead, we determine whether the necessary inferences are reasonable based on
the evidence’s cumulative force when viewed in the light most favorable to the
verdict. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015); see Villa v. State,
514 S.W.3d 227, 232 (Tex. Crim. App. 2017) (“The court conducting a sufficiency
review must not engage in a ‘divide and conquer’ strategy but must consider the
cumulative force of all the evidence.”). We must presume that the factfinder resolved
any conflicting inferences in favor of the verdict, and we must defer to that resolution.
Murray, 457 S.W.3d at 448–49.
The standard of review is the same for direct and circumstantial evidence cases;
circumstantial evidence is as probative as direct evidence in establishing guilt. Jenkins
v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016). We must scrutinize
circumstantial evidence of intent as we do other elements of an offense. Laster v. State,
275 S.W.3d 512, 519–20 (Tex. Crim. App. 2009). But when a record supports
conflicting inferences, we “must presume—even if it does not affirmatively appear in
the record—that the trier of fact resolved any such conflict in favor of the
prosecution, and must defer to that resolution.” Matson v. State, 819 S.W.2d 839, 846
(Tex. Crim. App. 1991).
2. Applicable Law
A person commits the offense of sexual assault if he intentionally or knowingly,
without the complainant’s consent, causes the penetration of the anus or sexual organ
of another person by any means.3 Tex. Penal Code Ann. § 22.011(a)(1)(A). A person
acts intentionally, or with intent, with respect to the nature of his conduct or to a
result of his conduct when it is his conscious objective or desire to engage in the
conduct or cause the result. Id. § 6.03(a). A person acts knowingly, or with
knowledge, with respect to the nature of his conduct or to circumstances surrounding
his conduct when he is aware of the nature of his conduct or that the circumstances
exist. Id. § 6.03(b). A person acts knowingly, or with knowledge, with respect to a
result of his conduct when he is aware that his conduct is reasonably certain to cause
the result. Id.
To attempt to commit sexual assault, the actor must have specific intent to
commit the offense, which is established when the person does an act amounting to
more than mere preparation that tends but fails to affect the commission of the
intended offense. Id. § 15.01(a). The element “with specific intent to commit an
offense” has traditionally been interpreted to mean that the actor must have the intent
to bring about the desired result. See, e.g., Flanagan v. State, 675 S.W.2d 734, 741 (Tex.
Crim. App. [Panel Op.] 1982). Generally, a person’s intent to commit an offense
3Because they are not relevant to our analysis in this case, we have omitted the other means by which the offense of sexual assault may be committed.
must be established by circumstantial evidence and may be inferred from the person’s
acts, words, and conduct, as well as the surrounding circumstances. See Hernandez v.
State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991); Romo v. State, 568 S.W.2d 298, 304
(Tex. Crim. App. 1977) (stating that actor’s intent to complete the offense may be
inferred from his acts). To prove that Valencia committed attempted sexual assault,
the State was required to show that Valencia, with specific intent to commit sexual
assault against Kimberly, performed an act—touching the sexual organ of Kimberly
with Valencia’s finger—that amounted to more than mere preparation that tended,
but failed, to effect the commission of the offense. See Tex. Penal Code Ann.
§§ 15.01(a), 22.011(a)(1)(A).
B. Analysis
1. Terminology
Valencia’s challenge to the sufficiency of the evidence to support his conviction
is founded in part on his assertion that the State was required to prove that he had
attempted but had failed to touch a specifically identified portion of Kimberly’s sexual
organ and that the State’s witnesses’ testimony was general and non-specific. Valencia
specifically complains that the State’s witnesses failed to use specific terms to
differentiate the component parts of “the female sexual organ” and instead used
general terms, which rendered it impossible for a rational jury to find that he
knowingly or intentionally attempted to penetrate Kimberly’s sexual organ.
Essentially, Valencia asserts that the jury could properly reach its verdict only by
concluding that he had attempted but failed to touch Kimberly’s sexual organ beyond
the labia majora and argues that because the testimonial evidence at trial only generally
referred to “labia”—rather than specifically to the terms “labia majora,” “labia
minora,” or to a particular labium—and to the vernacular term “vagina,” the evidence
is insufficient to permit a rational juror to deduce that he tried but failed to penetrate
Kimberly’s female sexual organ.
The attempted sexual assault offense alleged in this case did not require an act
of penetration, and the State’s burden was not to prove penetration of Kimberly’s
female sexual organ. See Steadman v. State, 280 S.W.3d 242, 247–48 (Tex. Crim. App.
2009) (explaining that vaginal penetration is not required; only penetration of the
female sexual organ). Rather, the State was required to prove that with the specific
intent to commit sexual assault, Valencia performed an act, alleged to have been the
touching of Kimberly’s female sexual organ with Valencia’s finger, that amounted to
more than mere preparation that tended, but failed, to effect the commission of
sexual assault. The court of criminal appeals has observed that “female sexual organ”
is a common term that has not acquired a technical meaning, and jurors are permitted
to interpret the term according to common usage. Green v. State, 476 S.W.3d 440, 445
(Tex. Crim. App. 2015) (holding that court of appeals correctly determined that trial
court’s inclusion of non-statutory definitions of terms “penetration” and “female
sexual organ” in jury charge was improper because they are common terms that have
not acquired a technical meaning).
In the application section of his brief, Valencia attempts to rely on Justice
Dauphinot’s dissent in Rushton v. State, No. 02-11-00419-CR, 2013 WL 709060, at *8
(Tex. App.—Fort Worth Feb. 28, 2013, no pet.) (mem. op., not designated for
publication) (Dauphinot, J. dissenting) (discussing the use or misuse of specific
terminology relating to the female sexual organ). Rushton is distinguishable in part
because the indictment in that case alleged multiple offenses—none of which
involved attempt as this case does—and unlike this case, the appellant in Rushton
challenged the jury charge for its failure to specify the manner of contact. 2013 WL
709060, at *1.
2. Sufficient Evidence
Valencia posits that although Julie’s and Jacqueline’s testimony was offered as
evidence that he had acted intentionally and knowingly when touching Kimberly, that
evidence bears no connection to Kimberly’s claim of attempted sexual assault and did
not permit the jury to conclude that he had attempted but failed to penetrate
Kimberly’s sexual organ. However, as the trial court repeatedly cautioned the jury
during trial, Julie’s and Jacqueline’s testimony was admitted for the limited purpose of
showing Valencia’s intent or absence of mistake or accident in relation to the
commission of the offense. See Tex. R. Evid. 404(b)(2) (stating that evidence of a
crime, wrong, or other act may be admissible for purposes of proving motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack
of accident).
Moreover, the jury was permitted to infer Valencia’s intent from his acts,
words, and conduct, as well as the circumstances surrounding those acts, words, and
conduct. See Hernandez, 819 S.W.2d at 810; Romo, 568 S.W.2d at 304. The acts and
conduct that support the jury’s inference of intent were established by Kimberly’s
testimony that Valencia had massaged her hands sensually, had placed her hands on
his erect penis, had “kneaded” her upper thighs near her buttocks so as to expose her
vaginal area, had touched or grazed her labia with his finger or hand repeatedly while
Kimberly was on her stomach and back and had rubbed her within one inch of her
labia, and had begun breathing audibly as the massage therapy session progressed.
After viewing the record in the light most favorable to the verdict, we conclude
that a rational juror could have found that Valencia, with specific intent to commit
sexual assault, performed an act—touching Kimberly’s female sexual organ with
Valencia’s finger—that amounted to more than mere preparation that tended, but
failed, to effect the commission of the offense. See Tex. Penal Code Ann. §§ 15.01(a),
22.011(a)(1)(A). Because the evidence is sufficient to support Valencia’s conviction
for the offense of attempted sexual assault beyond a reasonable doubt, we overrule
Valencia’s sole issue.

Outcome: Having overruled Valencia’s sole issue, we affirm the trial court’s judgment.

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