Miguel Velasco-Herrera v. the State of Texas

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-24-00761-CR

Miguel Velasco-Herrera, Appellant

v.

The State of Texas, Appellee

FROM THE 426TH DISTRICT COURT OF BELL COUNTY
NO. 21DCR84513, THE HONORABLE STEVEN J. DUSKIE, JUDGE PRESIDING

MEMORANDUM OPINION

A jury found Miguel Velasco-Herrera guilty of sexual assault of a child, namely,

his stepdaughter, Jane,1 and the trial court sentenced him to six years’ imprisonment in

accordance with the jury’s verdict. See Tex. Penal Code § 22.011. By a single issue,

Velasco-Herrera contends that the evidence was insufficient to support his conviction.

We affirm.

1
To protect the complainant’s identity, we refer to her using a pseudonym. See Tex.
Const. art. I, § 30(a)(1) (providing that a crime victim has “the right to be treated . . . with respect
for the victim’s dignity and privacy throughout the criminal justice process”); Tex. R. App. P.
9.10(a)(3) (defining “sensitive data” to include “the name of any person who was a minor at the
time the offense was committed”), (b) (providing that court filings in criminal appeals “must not
contain sensitive data”).
I. BACKGROUND

On September 8, 2021, a grand jury indicted Velasco-Herrera for the above-

referenced offense. The indictment alleged that, on or about July 5, 2021, Velasco-Herrera “did

then and there intentionally and knowingly cause the penetration of the mouth of [Jane], a child

who was then . . . younger than 17 years of age, by the defendant’s sexual organ.”

Trial commenced on October 28, 2024. A 911 call from July 5, 2021 was

admitted into evidence. At the beginning of the call, Jane, who was fifteen years old at the time,

states, “My stepfather just raped me.”2

At the time, Velasco-Herrera was employed as a police officer with the Killeen

Police Department (KPD). Shawn Dejournett, a lieutenant for KPD, testified that he was

familiar with Velasco-Herrera, as Lieutenant Dejournett was Velasco-Herrera’s immediate

supervisor at the time. On July 5, 2021, Lieutenant Dejournett “received a message that there

was a call for service from Officer Velasco’s residence from his 15 year-old daughter. That she

was alleging he had sexually assaulted her to the 911 dispatch.” Lieutenant Dejournett knew that

Velasco-Herrera had access to firearms, and so he came up with a ruse “to get him to come out

unguarded” from the home. Lieutenant Dejournett called Velasco-Herrera on his cell phone and

asked him to come outside to see if he could help officers identify a suspect from a recent

burglary in the area. Once Velasco-Herrera exited the home, Lieutenant Dejournett conducted a

pat-down and entreated him to move to the side of the home “to keep him from being able to

retreat back into the house.” Lieutenant Dejournett testified that he “could hear yelling inside the

house as” he was talking to Velasco-Herrera.

2
Several audio and video exhibits were admitted into evidence. We have transcribed
portions of them to the extent necessary to resolve this appeal.
2
Video footage obtained from Dejournett’s body-worn camera was admitted into

evidence. In the video, after meeting with his fellow officers, Velasco-Herrera accompanied

them to his front door. When the door opened, both Jane and Jane’s mother are observed

standing in the entryway of the home, arguing.

Jane’s mother stated, while looking at Velasco-Herrera, “I want to know what

happened,” and, “She’s saying you did something.” Velasco-Herrera replied, “I didn’t do

nothing.” He then asked, “When? When?” Jane responded, “I’m not lying, you did it while

[indecipherable], but I wasn’t asleep.” Jane’s mother then stated, “J[ane], you need to stop

lying.” Jane again protested, “I’m not lying.” Another officer then entered the residence and

stepped in between Jane and Jane’s mother. Jane’s mother shook her head and stated, “This

is bullshit.”

After Jane’s mother and Jane separate, Lieutenant Dejournett spoke briefly with

Jane, who relayed, “My stepfather raped me while he thought I was asleep.” Lieutenant

Dejournett asked when the assault occurred, and Jane responded, “Maybe around—as early as

4:30 . . . this morning.”

Lieutenant Dejournett testified that Jane’s mother “was making statements that

she did not want to be around either party,” meaning Velasco-Herrera and Jane. Lieutenant

Dejournett further testified, “After meeting with the officers on scene and hearing [Jane’s

mother]’s response, I knew [Jane’s mother] would not take [Jane] to the hospital for the exam

which is typical. Typically, the parent would take the child and we would follow on.”

Lieutenant Dejournett explained that because Jane’s mother “did not” want to accompany Jane to

the hospital, one of the officers on the scene escorted Jane and Jane’s older sister to the hospital.

3
Elizabeth Gault Weikel, a nurse practitioner and certified Sexual Assault Nurse

Examiner (SANE), testified that she conducted a SANE exam on Jane on the morning of

July 5, 2021. Medical records from this SANE exam were admitted into evidence.

Weikel read the narrative of the incident that Jane relayed to her into the record:

It started off pretty late maybe like 2 a.m.. We got back inside
maybe 3 a.m.. I was first in the kitchen and my step-dad came up
to me and kept saying are you drunk. Are you drunk, are you
drunk like over and over again, then started touching me in certain
places. Patient touches both upper arms at the same time crossing
arms over chest. Can you feel this, can you feel this over and
over again.

I could tell he was trying to get to my clitoris but then he said go
get in the shower. I went in the shower and I was sitting there
thinking about what I just experienced—tears filled patient’s
eyes—and what my step-dad had done.

....

He comes back up and then he started doing the same thing in the
shower but I am completely naked, saying can you feel this are you
drunk. Then that’s when he told me to get out the shower. He
wouldn’t let me dry off with my towel or anything. He told me to
get back on my bed. That’s when he started to touch me more
down there.

Then from then on he went back down stairs and come back. And
back down and back up and do the same thing and touch me down
there. He did that a few times. You know he had things to do and
help mom cause he was in charge of getting my sister a towel to
keep her warm. So I think that’s why he kept going down so no
one would know what was going on. He came up one last time,
that’s when he started licking on my chest area. I believe he
started licking me vaginally in my coochie.

Then he started rubbing his thing over me, then he put it in my
mouth a few times. Then he would go from my mouth to down
there and from my mouth to down there. After that he just stopped
and left me there naked in my bed. It was probably like 5:30 am.

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Weikel testified that she asked Jane a series of clarifying questions. Jane reported

to Weikel that while she was in the shower, Velasco-Herrera touched her “vagina” on “[t]he

inside,” and “he also kept asking [her] if [she] liked it.” Jane also clarified that by “going from

my mouth to my vagina,” she meant that Velasco-Herrera “kept putting his penis rubbing against

[her] vagina then putting it in [her] mouth.”

Weikel testified that she observed several injuries during the physical examination

of Jane’s person. Specifically, she “observed an irregular shaped red bruise that was painful to

touch” and a “laceration” on Jane’s genitalia. Weikel testified that these injuries were consistent

with Jane’s account. Weikel also testified that she collected several DNA swabs from Jane’s

person. Joseph Andrew Lopez, a forensic scientist for the Department of Public Safety (DPS),

testified that the DNA results from the swabs taken from Jane’s left breast contained a mixture of

two individuals and that it was 10.1 sextillion times more likely that the DNA profile came from

Jane and Velasco-Herrera than that the profile came from Jane and an unknown, unrelated

individual. Similarly, a swab from Jane’s right breast was 9.65 sextillion times more likely to be

from Jane and Velasco-Herrera than from an unknown, unrelated individual.

Amanda Holtzclaw, a detective in the special victim unit of KPD, testified about

three interviews that were conducted with Velasco-Herrera. These interviews were conducted on

July 5, 7, and 13, 2021, and videos of the interviews were admitted into evidence. During the

July 5 interview, Velasco-Herrera generally denied that he engaged in any sexual activity. In the

July 7 interview, Detective Holtzclaw informed Velasco-Herrera that Jane stated that

Velasco-Herrera’s penis penetrated her mouth. In response, Velasco-Herrera queried, “Why

didn’t she bite me?” He further stated, “Obviously, she remembers more than I remember.”

5
The July 13, 2021 interview is approximately four hours long and was conducted

by Texas DPS Special Agent Joel Machost. In the interview, Velasco-Herrera recounted that

after putting Jane to bed, Jane grabbed his penis and put it in her mouth. Velasco-Herrera further

relayed that after this, he repositioned Jane on the bed. Special Agent Machost asked Velasco-

Herrera whether his penis touched Jane’s vagina at this time, and Velasco-Herrera responded, “I

guess.” He later clarified that he fell on top of Jane and his penis made contact with her vagina.

As the interview continued, Velasco-Herrera explained that he taught Jane to fight anyone who

tried to molest her and that if she would have tried to fight him, he would have stopped. At the

conclusion of the interview, Velasco-Herrera agreed to write a letter to his family. The letter was

admitted into evidence and read, in part,

To my beautiful letter [sic], and especially J[ane,]

I’m sitting here writ[]ing this letter, lost and heart[]broken but I
feel like I need to do this.

I want you all to know that I’m very sorry for what happened on
the morning of July 5th. I want to apologize because of the
mistake that was made that night now our lives have change[d]
forever. I hope you all can believe me that I’m not that person and
that was never my intention to hurt anyone[.] I can say sorry many
times but it will not change the outcome of that night. I just want
you all to know that I love you all with all of my heart and
hopefully one day you all can forgive me.

J[ane] I want to tell you that I’m very sorry for what happen[ed]
that night, there is no excuse, but I want you to know that I never
had the intention to hurt you. I always saw you as my beautiful
daughter, even though we used to disagree in many way[s], you
was [sic] always my daughter. I wish I could change things and
take all the bad back, but I can’t girl. I just want you to know that
it’s killing me[,] and I coul[d]n’t protect you. I wish I could tell
you in person so you could see it in my face how much I regret that
morning. I[’]m sorry J[ane], I’m very sorry and I hope someday
you could find the strength to forgive me.

6
....

[To Jane’s mother,] I’m sorry I failed you, I could protect the
[illegible] like I promised. I just want you to know that none of
this is your fault. I want you to know that I never mea[n]t to hurt
anyone. [L]ike you said the Devil was left inside the hou[s]e that
morning and unfortunately destroyed our family.

Esmarelda Simms, a Child Protective Services (CPS) investigator, testified that she met with

Jane and Jane’s mother in July 2021. At that time, Simms explained that Jane’s mother felt “torn

on everything that was going on.” Simms came up with a safety plan that required Jane’s mother

to refrain from allowing Velasco-Herrera into the family’s home.

However, Simms testified that in September 2021, CPS became involved again, as

Jane’s mother “was trying to get the protective order lifted to try to get Mr. Velasco back in the

home.” According to Simms, at that time, Jane’s mother “made it clear, that she wanted J[ane]

out of the house and [Velasco-Herrera] back into the house.” CPS investigators spoke with Jane,

who recanted her outcry. Simms testified that there were concerns about this repudiation, as

“there was a big shift in family dynamic.” Jane’s mother “was unemployed” and “there was that

financial stress of her not having employment and steady income of up-keeping their lifestyle.”

According to Simms, Velasco-Herrera had previously been the family’s sole source of income.

During her testimony, Jane denied being sexually assaulted by Velasco-Herrera.

Jane testified that she first recanted her outcry to her older sister “in the beginning of the school

year” in 2021. She testified that she again recanted when CPS came to her school to interview

her in September 2021, and that she recanted a third time in an email she wrote to law

enforcement in December 2023. Jane further testified that she had not lived in her mother’s

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home since she was either sixteen or seventeen, but that moving out was her choice, as she did

not like following her mother’s “rules.”

The jury found Velasco-Herrera guilty of sexual assault of a child and sentenced

him to six years’ imprisonment. This appeal followed.

II. SUFFICIENCY OF THE EVIDENCE

By his sole issue on appeal, Velasco-Herrera argues that the evidence was legally

and factually3 insufficient to sustain his conviction.

A. Standard of Review & Applicable Law

“The sufficiency of the evidence is measured by comparing the evidence

produced at trial to ‘the essential elements of the offense as defined by the hypothetically correct

jury charge.’” Metcalf v. State, 597 S.W.3d 847, 856 (Tex. Crim. App. 2020) (quoting Malik

v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). “The hypothetically correct jury charge

is one that at least ‘accurately sets out the law, is authorized by the indictment, does not

unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of

liability, and adequately describes the particular offense for which the defendant was tried.’”

Johnson v. State, 364 S.W.3d 292, 294 (Tex. Crim. App. 2012) (quoting Malik, 953 S.W.2d

at 240).

3
Brooks v. State, 323 S.W.3d 893, 910 (Tex. Crim. App. 2010) (plurality op.) generally
abolished the factual-sufficiency review as it applies to criminal convictions. See Butcher
v. State, 454 S.W.3d 13, 20 (Tex. Crim. App. 2015). We now solely assess criminal convictions
for the legally sufficiency of the evidence to support the factfinder’s verdict. Id. Accordingly, to
the extent Velasco-Herrera argues the evidence was factually insufficient to support his
conviction, we overrule this issue.
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When reviewing the sufficiency of the evidence to support a criminal conviction,

“courts consider the evidence in the light most favorable to the verdict and determine whether,

based on the evidence and reasonable inferences therefrom, a rational juror could have found that

the State has proven the essential elements of the crime beyond a reasonable doubt.” Baltimore

v. State, 689 S.W.3d 331, 341 (Tex. Crim. App. 2024). In our sufficiency review, “[d]irect and

circumstantial evidence are treated equally: ‘Circumstantial evidence is as probative as direct

evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient

to establish guilt.’” Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (quoting

Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). Additionally, “[t]he jury is the sole

judge of the credibility of a witness’s testimony and the weight to assign to that testimony.”

Metcalf, 597 S.W.3d at 855. “That means the jury can believe all, some, or none of a witness’s

testimony.” Id.

B. Analysis

A hypothetically correct jury charge as authorized by the indictment in this case

would permit the jury to find Velasco-Herrera guilty of sexual assault if the evidence sufficiently

showed that he: (1) intentionally or knowingly; (2) caused the penetration of Jane’s mouth;

(3) with his sexual organ; and (4) at a time when Jane was younger than seventeen. See Tex.

Penal Code § 22.011(a)(2)(B).

Velasco-Herrera asserts that he “is not unaware that it is well established that the

uncorroborated testimony of a child victim alone can be sufficient to support a conviction of a

sexual offense against a child.” See, e.g., Tex. Code Crim. Proc. art. 38.07(a), (b)(1).

Nevertheless, he argues that “only a mere modicum of evidence was adduced at trial concerning

9
the element of penetration of the victim’s mouth and even that was undermined by [Jane’s]

complete recantation.” See Jackson v. Virginia, 443 U.S. 307, 320 (1979) (“[I]t could not

seriously be argued that . . . a ‘modicum’ of evidence could by itself rationally support a

conviction beyond a reasonable doubt.”). We disagree.

During the July 13, 2021 interview, Velasco-Herrera stated that Jane grabbed his

penis and put it in her mouth. Velasco-Herrera argues that this statement does not “implicate

him as the perpetrator of the offense charged.” He contends that any incriminating statements

made during the interrogations were merely “desperate attempts to please his interrogators by

telling them what they wanted to hear.” While this may be one way to view the evidence, it is

not the only way. The jury was also permitted to view the statement that Jane grabbed

Velasco-Herrera’s penis and put it in her mouth as an admission of guilt, especially in light of

Velasco-Herrera’s frequent attempts to blame the events of the evening on Jane’s failure to fight

him off. Cf. Cornet v. State, 359 S.W.3d 217, 227 (Tex. Crim. App. 2012) (jury could view

defendant’s statement that he touched child’s sexual organ as admission of guilt, despite

defendant’s qualifier that doing so was solely for medical treatment).

And, in any event, Jane relayed to the SANE examiner that Velasco-Herrera

penetrated her mouth with his penis when he thought she was sleeping. She also told law

enforcement officers multiple times that her “stepfather raped” her. A child victim’s outcry

statement alone is sufficient to sustain a conviction for sexual assault. See Rodriguez v. State,

819 S.W.2d 871, 874 (Tex. Crim. App. 1991). Citing no authority, Velasco-Herrera argues that

“[t]he sworn testimony of the party who made hearsay statements to a sexual assault

nurse examiner should carry at least as much probative value as those original, unsworn

statements.” However, the jury is entitled to assign credibility and weight determinations to the

10
evidence as it chooses, and we may not usurp the jury’s role as factfinder. See Braughton

v. State, 569 S.W.3d 592, 608 (Tex. Crim. App. 2018).

Almost immediately after Jane outcried and despite her protestations that she was

being truthful, Jane’s mother told her to “stop lying.” While the investigation was still

underway, and after Velasco-Herrera admitted to having sexual contact with Jane, Jane’s mother

contacted Detective Holtzclaw and requested that she be permitted to have contact with

Velasco-Herrera. The evidence shows that Jane’s mother wanted Jane to leave the home and for

Velasco-Herrera to return home as early as September 2021. The evidence also shows that Jane

did leave home shortly after her outcry and while she was still a minor. The jury would have

been within its discretion in finding that Jane recanted, not because Velasco-Herrera did not

sexually assault her, but because she lost all familial support in the immediate aftermath of her

outcry and believed that recanting might restore that support. See Saldana v. State, 287 S.W.3d 43,

60 (Tex. App.—Corpus Christi–Edinburg 2008, pet. ref’d) (“A fact finder is fully entitled to

disbelieve a witness’s recantation.”); see also Keeter v. State, 74 S.W.3d 31, 38 (Tex. Crim. App.

2002) (explaining that “evidence that recanting witness was subject to pressure by family

members” provides basis for disbelieving witness’s recantation).

In the letter written on July 13, 2021, Velasco-Herrera apologized to his family

for his actions. A defendant’s apology may be probative of his guilty conscience. Perales

v. State, 622 S.W.3d 575, 582 (Tex. App.—Houston [14th Dist.] 2021, pet. ref’d); see Chasco

v. State, 568 S.W.3d 254, 261 (Tex. App.—Amarillo 2019, pet. ref’d) (“That appellant

apologized to D.M. is evidence of a consciousness of guilt of his indecent conduct toward

her . . . .”). And “consciousness of guilt is perhaps one of the strongest kinds of evidence of

11
guilt.” Harmel v. State, 597 S.W.3d 943, 955 (Tex. App.—Austin 2020, no pet.) (quoting Harris

v. State, 645 S.W.2d 447, 456 (Tex. Crim. App. 1983)).

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

conclude that the evidence is legally sufficient to sustain Velasco-Herrera’s conviction.

Accordingly, we overrule his sole issue on appeal.

III. CONCLUSION

We affirm the trial court’s judgment of conviction.

__________________________________________
Maggie Ellis, Justice

Before Chief Justice Byrne, Justices Kelly and Ellis

Affirmed

Filed: August 28, 2025

Do Not Publish

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