Leonel Fernandez v. the State of Texas

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________

No. 02-25-00158-CR
___________________________

LEONEL FERNANDEZ, Appellant

V.

THE STATE OF TEXAS

On Appeal from Criminal District Court No. 2
Tarrant County, Texas
Trial Court No. 1744737

Before Kerr, Bassel, and Walker, JJ.
Memorandum Opinion by Justice Bassel
MEMORANDUM OPINION

I. Introduction

A jury found Appellant Leonel Fernandez guilty of continuous sexual abuse of

a child under fourteen and indecency with a child by sexual contact. See Tex. Penal

Code Ann. §§ 21.02, 21.11(a)(1). The trial court sentenced Fernandez to thirty years’

confinement on the count of continuous sexual abuse of a child under fourteen and

to ten years’ confinement on the count of indecency with a child by sexual contact,

and it ordered the sentences to run consecutively. In two issues, Fernandez

challenges (1) the sufficiency of the evidence to support his conviction for indecency

with a child by sexual contact and (2) the unpronounced $100 child-abuse-prevention

fine that was assessed in each judgment. Because a rational jury could have concluded

that Fernandez’s touching of the complainant’s breast while showering with her was

done with the intent to arouse or gratify any person’s sexual desire, we affirm his

convictions, including his unchallenged conviction for continuous sexual abuse of a

child. But because the record demonstrates that the child-abuse-prevention fine in

each judgment was not orally pronounced, we modify the judgments to delete the

$100 fines and affirm the judgments as modified.

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II. Factual Background 1

Fernandez dated the complainant’s mother (Mother) and lived with her and her

three children in 2013 and 2014 when the complainant was eight to nine years old.

Fernandez claimed that he could not get a job, so he acted as the children’s caregiver

while Mother worked retail and was the sole provider for the household. Mother

testified that Fernandez was “drawn to” the complainant and that he had described

her as his favorite.

In 2021, the complainant revealed to Mother that Fernandez had made the

complainant perform oral sex on him throughout the time that Mother had dated

him. The complainant told Mother that she had not disclosed the abuse earlier

because Fernandez had threatened to kill Mother and the complainant’s two siblings if

she told anyone.

The complainant was twenty years old at the time of the trial. She testified that

the first incident occurred when Fernandez, the complainant, and her siblings were

watching a movie. Fernandez said that there was no room on the bed, “so somebody

would lay on him.” The complainant and her sister fought over that opportunity

because they thought it was a special thing. On the evening when the first incident

occurred, the complainant lay on Fernandez and felt something from his groin area

poking her on her back. Fernandez made the complainant’s siblings leave the room

Although the jury heard from the complainant’s brother and the forensic
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examiner, we focus on the testimony from Mother and the complainant showing the
circumstances surrounding the indecency conviction that is challenged on appeal.

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and then asked her if she wanted to see what was poking her. He then pulled his

penis out and made her suck on it. He told her that “this is something that family

members do” and that “this is how you show your love.”

The complainant testified that every time Mother was at work, the complainant

and her siblings would watch movies with Fernandez in the bed in the master

bedroom and that he would make her suck his penis while her siblings were in the bed

with them. Fernandez put the complainant under the covers and told her to suck his

penis; he told her siblings that the complainant was giving him a massage.

The complainant also described a time when Fernandez told her not to have

any underwear on and had her lie on top of him in her nightgown so that he could

rub his penis on her vagina. He asked her to play a video game on his phone, and

whichever direction she moved the character, he would rub her vagina in that

direction.

When Mother worked at night,2 Fernandez asked the complainant to shower

with him. She testified that it got to the point where she “thought it was something

normal.” A lot of the times, Fernandez would make the complainant suck on his

penis in the shower.

The complainant testified that during the showers, he touched her, poked her,

touched her chest area, and touched her butt area. She thought that they were

2
The complainant testified that Mother was a manager and that throughout the
time that Fernandez lived with them, she was gone from “morning till whenever the
place closed” and would come home at 9:00 or 10:00 p.m.

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playing; she later described it as “messing around in the shower, tickling each other[,]

and just kind of playful things.” When asked what Fernandez did to her breast, the

complainant said that he would rub on the area and rub her nipples while she was

naked but that her breasts had not developed at that time.

The complainant recalled one occasion when Fernandez had her on her knees

on the floor3 to suck on his penis, and he started jerking it around so that he

ejaculated in her mouth. He told her to swallow so that her teeth would be white.

Fernandez also showed the complainant a video of adults performing anal sex

and said that if she ever wanted him to do that, the possibility was there. The

complainant said that Fernandez never performed anal sex on her.

When Fernandez, Mother, the complainant, and the complainant’s siblings

moved to the complainant’s grandmother’s house, the bulk of the sexual contact

stopped. But Fernandez did a few things like rubbing his groin area on her with his

clothes on when she was standing, “dry-humping” her, and “jerking off” next to her

and her siblings when they were watching movies.

When asked to estimate how many times “stuff like this happen[ed] with him,”

the complainant said, “Too many times to count. It happened over a course of

several months, and it happened in [multiple] households that [she had] lived in . . . .”

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She testified about this incident in the middle of her testimony about the
shower incidents, but it is unclear whether this incident occurred in the shower. The
location is not relevant for purposes of Fernandez’s sufficiency challenge to the
indecency count, which involved touching her breast.

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III. Sufficient Evidence Supports Indecency Conviction

In his first issue, Fernandez argues that the evidence is insufficient to support

his conviction for indecency with a child by sexual contact. Specifically, he argues

that the evidence does not show intent—that he touched the complainant’s breast

with the intent to arouse or gratify his sexual desire. Applying the sufficiency standard

of review and the applicable law set forth below, we hold that the jury could have

reasonably concluded that Fernandez’s touching of the complainant’s breast while he

was showering with her was done with the intent to arouse or gratify his sexual desire.

A. Standard of Review

In our 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 v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); 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; Harrell v. State, 620 S.W.3d 910, 914 (Tex. Crim. App. 2021).

In other words, the factfinder alone judges the evidence’s weight and

credibility. See Tex. Code Crim. Proc. Ann. art. 38.04; Martin v. State, 635 S.W.3d 672,

679 (Tex. Crim. App. 2021). 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

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622. Instead, we determine whether the factfinder’s necessary inferences are

reasonable based on the evidence’s cumulative force when viewed in the light most

favorable to the verdict. Braughton v. State, 569 S.W.3d 592, 608 (Tex. Crim. App.

2018); 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 as long as it is reasonable. Braughton, 569 S.W.3d at 608.

B. Applicable Law

A person commits the offense of indecency with a child if the person engages

in sexual contact with a child younger than seventeen years of age. Tex. Penal Code

Ann. § 21.11(a)(1). “Sexual contact” includes “any touching by a person, including

touching through clothing, of the . . . breast . . . of a child” with “the intent to arouse

or gratify the sexual desire of any person.” Id. § 21.11(c)(1).

“[T]he requisite specific intent to arouse or gratify the sexual desire of any

person can be inferred from the defendant’s conduct, his remarks[,] and all

surrounding circumstances.” Stephenson v. State, 673 S.W.3d 370, 384 (Tex. App.—

Fort Worth 2023, pet. ref’d) (quoting McKenzie v. State, 617 S.W.2d 211, 216 (Tex.

Crim. App. [Panel Op.] 1981)). Moreover, this court has repeatedly held that intent

can be inferred from conduct alone; no oral expression of intent or visible evidence of

sexual arousal is necessary. See id.; Weaver v. State, No. 02-21-00081-CR, 2022 WL

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2978730, at *8 (Tex. App.—Fort Worth July 28, 2022, pet. ref’d) (mem. op., not

designated for publication); Garner v. State, No. 02-15-00171-CR, 2016 WL 4247970, at

*3 (Tex. App.—Fort Worth Aug. 11, 2016, pet. ref’d) (mem. op., not designated for

publication); Connell v. State, 233 S.W.3d 460, 467 (Tex. App.—Fort Worth 2007, no

pet.) (mem. op.). Further, a child victim’s testimony, standing alone, can sufficiently

support a conviction for indecency with a child. Benge v. State, No. 02-23-00207-CR,

2024 WL 3195086, at *4 (Tex. App.—Fort Worth June 27, 2024, no pet.) (mem. op.,

not designated for publication).

C. Analysis

Here, Fernandez claims that his touching of the complainant’s breast “occurred

only in the shower, did not lead to anything more or sexual, and was done in a playful

manner with tickling.” Fernandez’s argument not only ignores the circumstances

surrounding his touching of the complainant’s breast—including that he had groomed

her to believe that showering together was normal—but also attempts to conflate her

eight-or-nine-year-old naiveté of what was actually happening with his innocence in

the touching.

The jury had before it the complainant’s testimony describing how Fernandez

had asked her to shower with him and had then used that opportunity while they were

both naked to rub her breast area, including her nipples. The jury was not required to

look at the shower testimony in a vacuum but instead could consider how Fernandez

had taught the complainant to equate sucking his penis with showing love to family

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members and had required that sexual act from her every time that they watched a

movie. The jury could reasonably infer from Fernandez’s conduct and all the

surrounding circumstances that his touching of the complainant’s breast area while

showering with her was not merely tickling or an accidental touching while playing

but was instead another opportunity to arouse or gratify his sexual desires.

Viewing the evidence in the light most favorable to the jury’s verdict, a rational

jury could have found beyond a reasonable doubt the essential elements of the

indecency-by-contact offense;4 specifically, it could have found that Fernandez’s

touching of the complainant’s breast was done with the intent to arouse or gratify any

person’s sexual desire. See Fetterolf v. State, 782 S.W.2d 927, 933 (Tex. App.—Houston

[14th Dist.] 1989, pet. ref’d) (holding that complainant’s testimony—that appellant’s

hand had “circled her breast”—was sufficient evidence that he had touched her with

the intent to arouse his sexual desire); see also Urdaneta v. State, Nos. 02-23-00338-CR

to 02-23-00340-CR, 2024 WL 4377442, at *4 (Tex. App.—Fort Worth Oct. 3, 2024,

no pet.) (mem. op., not designated for publication) (holding evidence sufficient to

support indecency-by-contact conviction when the record showed that appellant had

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Count Five of the indictment alleged the indecency-by-contact offense as
follows:

And it is further presented in and to said court that [Fernandez] in the
County of Tarrant and State aforesaid on or about the 29th day of June
2013, did intentionally, with the intent to arouse or gratify the sexual
desire of any person, engage in sexual contact by touching the breast of
[the complainant], a child younger than 17 years of age. [Capitalization
altered for ease of reading.]

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grabbed the complainant’s left breast over her clothing, that his hand was on her

breast for ten seconds, and that he had “squeez[ed]” her “whole breast” during that

contact).

We overrule Fernandez’s first issue.

IV. Unpronounced Fines Must Be Deleted

In his second issue, Fernandez argues that the judgments should be modified

to delete the $100 child-abuse-prevention fines because the fines were not orally

pronounced. The State concedes error, and we agree.

When the trial court pronounced Fernandez’s sentences, it did not mention a

$100 child-abuse-prevention fine—only imprisonment for each offense with the

sentences to run consecutively.5 The judgments for both convictions, however, have

the box checked beside the “Child[-]Abuse[-]Prevention Fine (Art. 102.0186, Code

Crim. Proc.)” and have the amount of $100.00 noted. Each judgment also has the

following special finding: “CHILD ABUSE PREVENTION FINE IN THE

AMOUNT OF $100.00.” And the first page of each judgment also states, “Fines:

$100.00”

As this court has recently noted,

The $100 child-abuse-prevention fine is authorized by Article 102.0186
of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc.

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The trial court stated, “It is, therefore, the order, judgment[,] and decree of
this [c]ourt that [Fernandez] is hereby sentenced to 30 years[’] confinement on Count
One and 10 years with no fine -- 10 years[’] confinement with no fine on Count Five,
and again, those sentences are to run consecutively.”

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Ann. art. 102.0186. Although this statutorily authorized fee was
previously classified as a court cost, under the current version of Article
102.0186—which applies in this case, see Bradshaw v. State, 707 S.W.3d
412, 418 (Tex. Crim. App. 2024)—it is classified as a fine. See Rhodes v.
State, 712 S.W.3d 226, 234 (Tex. App.—Eastland 2025, no pet.).

A fine is part of a defendant’s sentence and must be orally
pronounced. See Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim.
App. 2011).

Flores v. State, No. 02-24-00413-CR, 2025 WL 3039149, at *8 (Tex. App.—Fort Worth

Oct. 30, 2025, pet. filed) (mem. op., not designated for publication).

We have the authority to modify a judgment to make it speak the truth.

Alejandro v. State, No. 02-24-00390-CR, 2025 WL 2736515, at *2 (Tex. App.—Fort

Worth Sept. 25, 2025, no pet.) (mem. op., not designated for publication).

We therefore sustain Fernandez’s second issue and modify the judgments to

delete the $100 fines that were not orally pronounced during sentencing by

(1) deleting the $100 fine from the first page of each judgment, (2) unchecking the

box next to the “Child[-]Abuse[-]Prevention Fine (Art. 102.0186, Code Crim. Proc.)”

and deleting the $100 notation that was added to each judgment, and (3) deleting

“CHILD[-]ABUSE[-]PREVENTION FINE IN THE AMOUNT OF $100.00” from

the special findings on the last page of each judgment. 6 See id.

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No withholding orders or bills of cost appear in the record, and none were
requested to be included in the clerk’s record. Fernandez notes that “[t]here is no
need to modify an order of withholding in this case as the trial court credited
Fernandez time in custody to all monies owed.”

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V. Conclusion

Having overruled Fernandez’s first issue challenging the sufficiency of the

evidence to support his indecency-with-a-child conviction—the only conviction he

challenged on appeal—we affirm his convictions. But having sustained his second

issue challenging the unpronounced child-abuse-prevention fines, we modify the

judgments to delete the $100 fines and affirm the judgments as modified.

/s/ Dabney Bassel

Dabney Bassel
Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: February 12, 2026

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