Gustavo Gonzalez, Jr. v. The State of Texas, 03-24-00338-CR, May 21, 2026.
On appeal from 207th District Court of Comal County
Synopsis
The Third Court of Appeals reaffirmed that penetration under Texas Penal Code § 22.021(a)(2)(B) does not require anatomically technical testimony. A child complainant’s contextual descriptions—using terms like “private” or “butt,” coupled with testimony about entry, pressure, stretching, pain, and the body part used—can be legally sufficient to support aggravated sexual assault findings, and “penetration” need not be specially defined in the jury charge.
Relevance to Family Law
For Texas family-law litigators, this is a meaningful crossover authority in SAPCRs, divorces, modification proceedings, and protective-order litigation involving abuse allegations. The opinion strengthens the proposition that a child’s age-appropriate terminology, especially when corroborated by outcry, SANE documentation, diagrams, or contextual medical testimony, can support serious findings even when the child does not use anatomically precise language. In custody litigation, that matters directly to conservatorship restrictions, supervised possession, emergency relief, endangerment findings, and the evidentiary weight courts may assign to child statements relayed through forensic or medical witnesses.
Case Summary
Fact Summary
The defendant was convicted of three counts of aggravated sexual assault of a child and two counts of indecency with a child arising from allegations made by his ex-girlfriend’s thirteen-year-old daughter. The complainant first disclosed the abuse to a school counselor. According to that outcry, the defendant isolated her, removed or accessed her clothing, touched her stomach and chest, inserted his finger into her “private,” and put his “private” on or in her “private.” She also reported threats, inducements to remain silent, and post-incident admissions by the defendant.
A sexual assault nurse examiner testified that the child preferred to communicate in writing and by marking diagrams. The child wrote that the defendant “put his finger in my private and then put his private in my private.” She also indicated on a body diagram where the touching occurred. With respect to the penile contact, she reported that while he said, “It’s not in,” she felt stretching and pain. The SANE materials reflected that the child’s word for female genitalia was “private” and her word for anus was “butt.”
At trial, the complainant—then older—testified in similar age-appropriate terms. She stated that the defendant put his hand in her “private part,” made her touch his penis, and then tried to stick his penis in her “butt,” which she clarified was the part of the body “with poop.” She testified that she felt hardness and pressure. On cross-examination, she said she wanted to say “it did not go in,” but she did feel pressure. The defendant challenged the sufficiency of the evidence on two aggravated sexual assault counts, arguing that the evidence showed contact rather than penetration, and also complained that the jury charge should have defined “penetration.”
Issues Decided
- Whether the evidence was legally sufficient to prove penetration of the child’s sexual organ by the defendant’s sexual organ under Texas Penal Code § 22.021(a)(2)(B), where the child used nontechnical terms such as “private” and described stretching and pain.
- Whether the evidence was legally sufficient to prove penetration of the child’s anus by the defendant’s sexual organ, where the child described pressure at her “butt” and gave mixed testimony about whether it “went in.”
- Whether the jury charge was required to include a special definition of “penetration” for aggravated sexual assault of a child.
Rules Applied
The court applied the ordinary legal-sufficiency framework: evidence is reviewed in the light most favorable to the verdict, measured against a hypothetically correct jury charge. Under Texas Penal Code § 22.021(a)(2)(B), aggravated sexual assault of a child includes penetration of the anus or sexual organ of a child by any means specified in the statute, including the actor’s sexual organ or finger.
The court relied on settled Texas authority that penetration may be proved by circumstantial evidence and need not be shown through technical anatomical language. Texas appellate courts have long recognized that child complainants often use age-appropriate or nonscientific terminology, and that such testimony is assessed in context rather than parsed in isolation. Penetration, moreover, requires no statutory definition in the jury charge because it is a commonly understood term unless a particular statute assigns it a specialized meaning.
The opinion also reflects the recurring rule that a child complainant’s testimony alone can be sufficient if believed by the factfinder, and that conflicts, ambiguities, or partially inconsistent statements are resolved in favor of the verdict when supported by the record.
Application
The court treated the record as a whole rather than isolating one answer on cross-examination. On the vaginal-penetration count, the complainant’s written statement to the SANE nurse that the defendant “put his private in my private,” her marking of the female genital area on a diagram, and her report that she experienced stretching and pain while he said, “It’s not in,” permitted the jury to infer penetration rather than mere external touching. The court did not require medicalized terminology from a thirteen-year-old complainant; instead, it read her word choices in context, with the nurse’s testimony clarifying what body part the child meant by “private.”
On the anal-penetration count, the evidence was closer because the complainant testified that the defendant “tried” to stick his penis in her “butt” and later said she wanted to say “it did not go in,” though she felt pressure. Even so, the court evaluated that testimony alongside the child’s clarification that “butt” referred to the area used for bowel movements and the broader principle that minimal penetration may suffice and can be inferred from context. The jury was entitled to reconcile the child’s imprecise wording, developmental vocabulary, and sensory description in favor of the verdict.
As to the jury charge, the court rejected the argument that “penetration” required a special definitional instruction. Because the Penal Code does not define the term for this offense and because jurors can apply its common meaning, the trial court did not err by omitting a separate definition.
Holding
The court held that the evidence was legally sufficient to support the conviction for penetration of the child’s sexual organ by the defendant’s sexual organ. The complainant’s use of the term “private,” her written account that he put his “private in my private,” and her description of stretching and pain supplied a legally adequate basis for the jury to find penetration beyond a reasonable doubt.
The court also held that the evidence was legally sufficient to support the conviction for penetration of the child’s anus by the defendant’s sexual organ. Although the complainant’s testimony was not anatomically technical and included some hesitation, the jury could rely on the contextual meaning of “butt,” her description of pressure, and the totality of the record in determining that the statutory element was met.
Finally, the court held that the jury charge did not need to define “penetration.” The word carries an ordinary meaning, and absent a statutory definition or unusual need for clarification, the trial court was not required to include a specialized instruction.
Practical Application
For family-law practitioners, the strategic lesson is straightforward: do not undervalue child statements simply because the child uses nonscientific language. In conservatorship and possession litigation, the phrase “he touched my private,” standing alone, may be too thin; but when paired with contextual facts—where the child pointed on a diagram, whether the child described pressure, pain, stretching, insertion, body positioning, clothing removal, or post-event admissions—the evidentiary picture can become substantially more powerful. That is especially true when the child’s terminology is translated through a SANE nurse, forensic interviewer, pediatric provider, school counselor, or CPS investigator.
This case is also useful in evidentiary fights over credibility and specificity. Defense themes in custody cases often center on “the child never said penetration,” “the child used the wrong body part,” or “the story lacked anatomical precision.” This opinion gives trial counsel a principled response: Texas courts do not require clinical vocabulary from children, and contextual testimony may carry the element. In emergency temporary orders, temporary restraining orders, protective orders, and final conservatorship trials, that framing may materially affect risk assessment and the court’s willingness to impose supervised access or no access.
The case also has implications for witness preparation and proof structure. Family lawyers should develop the record through careful, nonleading testimony that ties the child’s chosen words to identifiable anatomy and sensory experience. The better practice is to build corroboration through outcry chronology, medical records, diagrams, text messages, admissions, behavioral changes, and any evidence of threats or inducements to remain silent. This opinion rewards contextual completeness.
Checklists
Building Child-Statement Proof in a Custody Case
- Identify the exact words the child used for body parts.
- Clarify, through an appropriate witness, what the child meant by those terms.
- Preserve any drawings, diagrams, writings, or body maps used by the child.
- Elicit contextual details: pain, pressure, stretching, entry, position, clothing removal, duration, and defendant statements.
- Develop outcry chronology from first disclosure forward.
- Obtain SANE, pediatric, counseling, school, CPS, and forensic interview records where available.
- Tie the child’s terminology to the pleaded relief sought: endangerment, supervised possession, no overnight access, geographic restrictions, or protective relief.
Presenting Medical and Forensic Witnesses
- Use the SANE or other medical witness to explain how the child communicated.
- Ask whether the child marked diagrams or wrote descriptions.
- Establish the child’s age-appropriate terminology for anatomy.
- Introduce statements describing pain, stretching, or insertion.
- Connect medical treatment decisions, if relevant, to the reported mechanism of abuse.
- Avoid overstating medical findings where physical corroboration is absent or limited.
- Frame the medical witness as a translator of terminology and context, not as a credibility surrogate.
Defending Against “Lack of Precision” Attacks
- Emphasize that Texas law does not require anatomically technical vocabulary from a child.
- Argue the testimony must be read in context, not by isolated snippets from cross-examination.
- Highlight that minimal penetration may satisfy the statute.
- Use corroborating circumstances: threats, admissions, bribes, changed behavior, prompt outcry, and diagram identification.
- Distinguish between uncertainty about wording and uncertainty about the event itself.
- Resist defense invitations to equate child imprecision with legal insufficiency.
Avoiding the Non-Prevailing Party’s Problems
- Do not rely on selective excerpts from a child’s testimony while ignoring the full record.
- Do not assume that “tried to” or “it’s not in” defeats a penetration finding when the child also described pain, pressure, or stretching.
- Do not overlook written statements, diagrams, or medical-history entries that clarify ambiguous testimony.
- Do not expect a special jury definition for common terms unless the statute requires one or the record presents a genuine interpretive problem.
- Do not ignore the significance of post-incident threats, bribes, or partial admissions in credibility assessments.
Using the Case in Temporary Orders and Final Trial
- Cite the case when opposing counsel argues the child’s wording is too vague to matter.
- Use it to support restrictions on possession where the child’s terminology is imprecise but context is strong.
- Pair it with Family Code best-interest and endangerment arguments.
- Use it in briefing on admissibility and weight of SANE or outcry testimony.
- Argue that the absence of anatomical precision goes to weight, not automatic exclusion or legal failure.
- Build a record that allows the trial court to make detailed safety findings.
Citation
Gustavo Gonzalez, Jr. v. State of Texas, No. 03-24-00338-CR, 2026 WL ___ (Tex. App.—Austin May 21, 2026, no pet. h.) (mem. op.).
Full Opinion
Family Law Crossover
This opinion can be weaponized in Texas divorce and custody litigation in two distinct ways. For the party seeking protective restrictions, it supports the argument that a child’s use of words like “private” and “butt” is not a weakness if the record supplies context, anatomy by reference, and sensory detail. That can help sustain emergency relief, supervised visitation, injunctions against contact, or sole managing conservatorship arguments even where no witness can offer a clinically precise narrative from the child.
For the responding party, the opinion is a warning that attacking child terminology alone is usually a losing strategy. The more effective defense in family court will be to challenge context, reliability, timing, suggestiveness, motive, inconsistent accounts, and the absence of corroborating circumstances—not merely the child’s vocabulary. In short, this case shifts the battleground away from anatomical semantics and toward record construction, corroboration, and credibility.
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