OPINION A jury convicted appellant, David Gutierrez, of sexual assault and assessed punishment at two years’ confinement, which the trial court suspended, placing appellant under community supervision for five years. In two issues, appellant contends that (1) the evidence is legally insufficient to support his conviction, and (2) the trial court erred in refusing to admit evidence that appellant contends was necessary to rebut a false impression left with the jury from the admission of other evidence. We affirm. BACKGROUND Appellant met Delilah when he was her math instructor at Houston Community College. After the course ended, the two exchanged phone numbers and became friends. Delilah considered him a mentor. Delilah was also friends with A.S., an 18-year-old woman from Harlingen, Texas. After A.S. left Harlingen because of a dispute with her family, she stayed with Delilah and her family in Houston. On August 19, 2018, Delilah invited A.S. to go out with her and appellant. Appellant picked up the two women from Delilah’s house and took them to his house. On the way to his house, appellant stopped and bought vodka, which they drank while playing video games before leaving to go to a club. At the club, appellant bought drinks for both women, although A.S. was not over the age of 21. A.S. felt that appellant was friendly, but he did not indicate that he was interested in her sexually, and she did not flirt with him. At one point, A.S. grabbed appellant’s hand so that she would not get separated from him as they walked through the club looking for Delilah, who had wandered away to drink and dance with other people. When they found Delilah, she was very intoxicated and arguing with club employees. Appellant and A.S. helped Delilah to appellant’s car and they put her in the back seat. They originally planned for appellant to take the women home, but A.S. asked if they could go to appellant’s house so that Delilah could sleep for a while. A.S. was worried that Delilah would be in trouble with her mother if she went home in her intoxicated state. A.S. was also very intoxicated—she described it as being an eight out of ten on a scale of intoxication—and she vomited on the way to appellant’s house. When they got to appellant’s house, they left Delilah in the back seat of the car where she had passed out; they also left the windows in the car down and the door between the garage and the house open. A.S. said that she needed to sleep too, so she asked if she could lay down on a mattress that appellant had on the floor in his living room. She felt that she would be close enough to check on Delilah, and she set an alarm on her phone for that purpose. When A.S. lay down on the mattress to go to sleep, she was fully dressed. She did not know where appellant went after she lay down. A.S. was partially wakened from sleep when she discovered appellant on top of her. She had not consented to sex, but she found her pants and underwear around her ankles and felt appellant kissing her stomach, touching her breasts and vagina, and penetrating her vagina with his penis. At some point, A.S. was lying on her stomach and the assault continued. A.S. admitted that she did not call out for help because there was no one there to help her; Delilah was still passed out in the car. She was crying as the assault continued. A.S. told appellant that she needed to leave and that the women would get in trouble if they did not return home. A.S. cried in the car but she told appellant that she was crying because her sister was being deployed. After appellant dropped the women at Delilah’s home, A.S. called her sister in Harlingen and got on a bus headed home. When Delilah awoke, she called A.S., who told her that she had left because appellant had sexually assaulted her. Delilah told A.S. to get off the bus, which she did in Victoria, where Delilah picked her up, driving her directly to Memorial Hermann Hospital in Houston. At the hospital, A.S. was examined by an emergency room nurse, who took A.S.’s statement and collected oral, vaginal, and body fluid swabs from her. Appellant was subsequently arrested and charged with sexual assault. At trial, his defense was that A.S. consented to having sexual intercourse. The jury nonetheless found appellant guilty, and the trial court assessed his punishment at two years’ confinement, which the trial court suspended, placing appellant on community supervision for five years. This appeal followed. SUFFICIENCY OF THE EVIDENCE In his first issue, appellant contends that the evidence is insufficient to support his conviction for sexual assault because the State failed to prove that he had the requisite criminal intent. He argues that, based on the evidence presented at trial, the jury could not have rationally concluded that the complainant was unaware that the sexual assault was occurring. Thus, appellant contends that “the State failed to prove beyond a reasonable doubt that the complainant did not consent, and that the appellant knew the complainant was unaware that penetration was occurring.” Standard of Review and Applicable Law We review a challenge to the sufficiency of the evidence under the standard enunciated in Jackson v. Virginia, 443 U.S. 307 (1979). See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). We examine all the evidence in the light most favorable to the jury’s verdict to determine whether any “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319; Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Our role is that of a due process safeguard, and we consider only whether the factfinder reached a rational decision. See Malbrough v. State, 612 S.W.3d 537, 559 (Tex. App.—Houston [1st Dist.] 2020, pet. ref’d); see also Morgan v. State, 501 S.W.3d 84, 89 (Tex. Crim. App. 2016) (observing that reviewing court’s role on appeal “is restricted to guarding against the rare occurrence when a fact finder does not act rationally”) (quoting Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010)). In a sufficiency review, we consider the “combined and cumulative force” of the circumstances pointing toward guilt. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). “Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor,” and “the standard of review on appeal is the same for both direct and circumstantial evidence cases.” Kuciemba v. State, 310 S.W.3d 460, 462 (Tex. Crim. App. 2010) (quoting Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004)). The trier of fact is the sole judge of the weight and credibility of the evidence. See Zuniga v. State, 551 S.W.3d 729, 733 (Tex. Crim. App. 2018); Blea v. State, 483 S.W.3d 29, 33 (Tex. Crim. App. 2016). Thus, when performing an evidentiary sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the factfinder. Limonta-Diaz v. State, 593 S.W.3d 447, 456 (Tex. App.—Austin 2020, pet. ref’d); see Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Instead, we must defer to the weight determinations of the factfinder. Cary v. State, 507 S.W.3d 750, 757 (Tex. Crim. App. 2016); Nowlin v. State, 473 S.W.3d 312, 317 (Tex. Crim. App. 2015). A reviewing court, faced with a record of historical facts supporting conflicting inferences, must presume that the trier of fact resolved any such conflict in favor of the prosecution and must defer to that resolution. Jackson, 443 U.S. at 326. When there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. Evans v. State, 202 S.W.3d 158, 163 (Tex. Crim. App. 2006). A person commits the offense of sexual assault “if . . . the person intentionally or knowingly . . . causes the penetration of the . . . sexual organ of another person by any means, without that person’s consent ” TEX. PENAL CODE § 22.011(a)(1)(A). The Penal Code sets forth several circumstances in which a sexual act is considered to be without a person’s consent. See id. § 22.011(b)(1)–(14). Relevant here, a “sexual assault under Subsection (a)(1) is without the consent of the other person if: . . . the other person has not consented and the actor knows the other person is unaware that the sexual assault is occurring.” Id. § 22.011(b)(5). The jury was charged on this statutory provision. Analysis Appellant contends that the State failed to prove that A.S. did not consent or that appellant knew that A.S. was unaware that a sexual assault was occurring. Specifically, appellant points out that “A.S. was awake and aware of what was happening prior to appellant penetrating her with his penis,” “[s]he did not protest or tell appellant to stop],” and “[w]hen A.S. decided to stand up and end the sexual intercourse, appellant did not stop her.” In contrast, A.S. testified that she never agreed to have sex with appellant. The evidence showed that A.S. had consumed so much alcohol that evening that she vomited on the way home from the club. She estimated that her level of intoxication was an eight out of ten. A.S. testified that she had not flirted with appellant, but only grabbed his hand at one point to keep from getting separated from him while they looked for Delilah at the club. A.S. explained that they went to appellant’s house after leaving the club so that Delilah could sleep for a while before returning home. A.S. did not want Delilah to get in trouble with her mother. Once at appellant’s house, A.S. asked if she too could sleep for a while on a mattress in his living room. She was fully dressed, and she left the door open to the garage so that she could see Delilah, who was asleep in appellant’s car. When she lay down to sleep, A.S. was fully dressed. She described waking up to uninvited touching. Q: And after you fell asleep, can you tell me about when you first started to wake up? What made you start to wake up? A: I felt touching. Q: Felt touching where? A: My stomach and my private area. Q: And what did that touching feel like? Did it feel like it was hands, or did it feel like it was an object? A: It felt like it was hands, and then it felt like it was something else. Q: When you say “something else,” what do you mean? A: His private area. Q: When you say “his private area,” what do you mean? A: His penis. . . . . Q: And where did you feel his penis? A: Inside my vagina. Q: And describe how you’re feeling mentally at this point. Did you feel fully aware of what was happening? A: No, ma’am. Q: Describe how you felt. A: I felt like I couldn’t breathe. I just felt in shock. I didn’t know what was going on. I just felt like I couldn’t move. Q: Did you still feel like you were intoxicated? A: Yes, ma’am. Q: Do you have an idea of how much time it felt like you were asleep? A: It didn’t feel like I was asleep for a long time. Q: And did you ever—did you open your eyes when you started feeling that? A: Yes, ma’am. Q: What did you see? A: I saw the defendant on top of me. Q: Were you on your back still? A: Yes, ma’am. Q: And do you know where your clothes were? A: I know my pants were on my ankles, but I still had my shirt on. Q: Were you wearing a bra? A: Yes. Q: Was your bra still on? A: Yes, ma’am. Q: Was your shirt down or pulled up? A: I recall later he pulled it up. Q: And where were your pants? A: Ankles. . . . . Q: Do you recall your pants being removed at all? A: No, ma’am. Q: Do you recall your underwear being removed at all? A: No, ma’am. Q: When you first started to wake up because you felt something, where did you feel that? A: In my private area. . . . . Q: And when the defendant first placed his penis in your vagina, what did that feel like? A: Like it hurt. Q: Were you awake fully? A: Not fully awake. Q: When you say “not fully awake,” just describe what that feels like. A: I felt like it was a dream. I didn’t know what was happening. Q: You didn’t know if it was real or not? A: Yes, ma’am. Q: Did you feel groggy or foggy? A: I felt foggy. Q: And throughout the process, did you start to wake up more fully? A: Yes, ma’am. Q: But initially, were you aware of what was happening to you? A: No, ma’am. Q: This is going to sound like a silly question, but were you aware of what was happening to you while your pants were being removed? A: No, ma’am. Q: Were you aware of what was happening to you while your underwear was being removed? A: No, ma’am. Q: Were you aware of what was happening to you while your shirt was being lifted? A: No, ma’am. A.S. testified that when she first realized what was really happening and that she was not dreaming, “[appellant] was penetrating [her].” In her statement to the emergency room nurse, A.S. reported as follows: I remember I told him I wanted to go to sleep and he told me to go ahead and sleep on the mattress. I had already been drinking and wanted to go to sleep. Then I woke up when I felt pain and he was already there. My pants and underwear were down around my ankles. I kept telling him to stop and that I had to leave but he just kept going so I just let him. He turned me over and he just kept going and I started crying but he didn’t know I was crying. I froze, I couldn’t move. Then I made an excuse and said I had to go so I pulled up my pants and I went and waited in the car for him to take me home. The definition of lack of consent contained in section 22.011(b)(5) has been applied in cases in which the victim was asleep when sexual contact was initiated. See Jennings v. State, No, 07-09-00047-CR, 2014 WL 2957280, *3 (Tex. App.— Amarillo Dec. 29, 2010, pet. ref’d) (mem. op., not designated for publication) (citing cases in which victim was asleep at time sexual contact was initiated and noting that sleeping victim did not consent to sexual act and was initially unaware that sexual contact was occurring). Even if A.S. became aware that the sexual assault was occurring at the moment appellant penetrated her vagina with his penis, the fact that a sexual assault victim becomes aware that an assault is occurring does not defeat the defendant’s guilt because the assault has already occurred. See Alavian v. State, No. 05-15- 01549-CR, 2017 WL 1245418, at*4 (Tex. App.—Dallas Apr. 5, 2017, pet. ref’d) (mem. op., not designated for publication); see also In re D.G., No. 03-12-00455- CV, 2014 WL 3732930, *2 (Tex. App.—July 23, 2014, no pet.) (mem. op., not designated for publication) (holding same); Mauldin v. State, No. 05-09-00513-CR, 2010 WL 936695, *4 (Tex. App.—Dallas March 17, 2010, pet. ref’d) (not designated for publication) (holding same); Espinoza v. State, No. 07-04-0550-CR, 2005 WL 1047115, at *2 (Tex. App.—Amarillo May 5, 2005, no pet.) (not designated for publication). From the evidence presented at trial, the jury could reasonably find that appellant knew, during the assault, that the complainant was unaware that appellant was engaging in sexual intercourse with her. See Wilson v. State, 473 S.W.3d 889, 899 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d) (holding jury could infer defendant knew complainant was unaware of sexual intercourse and did not consent); Hughes v. State, 194 S.W.3d 649, 654 (Tex. App.—Tyler 2006, pet. ref’d) (concluding jury could infer defendant knew he did not have complainant’s consent because he began sexually assaulting her while she slept); see also Jackson, 443 U.S. at 319 (noting jury’s task is to draw “reasonable inferences” from evidence). Accordingly, we overrule issue one. REFUSAL TO ADMIT EVIDENCE TO REBUT FALSE IMPRESSION In his second issue, appellant contends that “[t]he trial court abused its discretion in denying [his] request to admit evidence that he tested negative for a sexually transmitted disease.” Specifically, appellant contends that “[t]his evidence was necessary to clear up a false impression that appellant transmitted the disease to the complainant, thus depriving appellant of his due process right to present a complete defense.” Standard of Review We review a trial court’s ruling on the admission of evidence for an abuse of discretion. Colone v. State, 573 S.W.3d 249, 263–64 (Tex. Crim. App. 2019). A trial court “abuses its discretion when it acts without reference to any guiding rules and principles or acts arbitrarily or unreasonably.” Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019); see Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010) (stating that trial court does not abuse discretion unless decision “lies outside the zone of reasonable disagreement”). We uphold the trial court’s ruling if it is reasonably supported by the record and correct under any theory of law applicable to the case. See Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002). Analysis At trial, appellant sought, and was granted permission, to introduce A.S.’s medical records to show that, at the time she was examined at the hospital, she tested positive for chlamydia. The trial court agreed with appellant that, even though A.S.’s chlamydia diagnosis was evidence of her prior sexual history, it was nonetheless admissible to show that the “sharp pain and burning” that A.S. reported to the emergency room nurse could have been caused by either a sexual assault or chlamydia, or both. Having successfully argued that A.S.’s medical records were admissible to show that A.S. tested positive for chlamydia, appellant further sought to introduce his own medical records to show that he tested negative for chlamydia and could not have given it to her. The State argued that evidence regarding the source of A.S.’s chlamydia was irrelevant. The trial court agreed and denied appellant’s request. The trial court did not abuse its discretion in concluding that the evidence appellant sought to admit was irrelevant. Evidence of a sexually transmitted disease may be relevant in a sex offense if the evidence makes it more or less probable that the defendant had sexual contact with the victim. See Steadman v. State, 280 S.W.3d 242, 246 (Tex. Crim. App. 2009) (holding that evidence defendant and victim had same venereal disease was probative of defendant’s guilt for aggravated sexual assault); Anderson v. State, 8 S.W.3d 387, 393 (Tex. App.—Amarillo 1999, pet. ref’d) (holding that defendant’s negative test for chlamydia relevant, but not dispositive, to show he was not assailant because child-victim was infected with disease and he was not). In both Steadman and Anderson, there was a question about whether the appellant and the victim had sexual intercourse, thus making the sexually- transmitted-disease evidence potentially relevant. Here, the evidence was undisputed that appellant had sexual intercourse with A.S.—the only issue was whether she consented to sexual intercourse. Whether appellant infected A.S. with chlamydia was irrelevant to the sole issue in the case, i.e, consent. In fact, evidence of A.S.’s chlamydia was only admitted as a possible explanation for her reported “sharp pain and burning.” Allowing appellant to prove that he did not give A.S. chlamydia would do nothing more than establish that, in the past, she had had other sexual partners, which Texas law permits only in limited circumstances not present here. See TEX. R. EVID. 412(b). Appellant nevertheless contends that his own medical records were necessary to rebut a false impression that he infected A.S. with chlamydia. However, there was no evidence suggesting that appellant was the source of A.S.’s chlamydia. And, even if we assume that such a “false impression” existed, appellant, by requesting admittance of A.S.’s medical records, was the source of that “false impression.” A defendant is not entitled to correct a false impression of his own making. See Hayden v. State, 296 S.W.3d 549, 554 (Tex. Crim. App. 2009) (“A party opens the door by leaving a false impression with the jury that invites the other side to respond.”); see Ramirez v. State, 802 S.W.2d 674, 676 (Tex. Crim. App. 1990) (“[W]hen the witness leave a false impression concerning a matter . . . the opposing party is allowed to correct that false impression.”). We overrule issue two. CONCLUSION We affirm the trial court’s judgment. Sherry Radack Chief Justice Panel consists of Chief Justice Radack and Justices Landau and Hightower. Publish. TEX. R. APP. P. 47.2(b).
