CROSSOVER: Inconsistent Child-sex-assault outcry and Nonspecific SANE testimony May be Sufficient | Hernandez v. State (2026)

Hernandez v. State, 04-24-00776-CR, July 01, 2026.

On appeal from 290th Judicial District Court, Bexar County, Texas

Synopsis

The Fourth Court of Appeals held that the evidence was legally sufficient to support aggravated sexual assault of a child, even though the child’s statements were not perfectly uniform and the SANE exam was largely nonspecific. But the court also recognized a clean sentencing error: because indecency with a child by contact is a second-degree felony punishable by 2 to 20 years under Penal Code section 12.33, the 35-year sentence on Count II was illegal and had to be reversed and remanded for a new punishment hearing on that count.

Relevance to Family Law

For Texas family lawyers, Hernandez is a useful crossover decision in child-abuse litigation, especially SAPCRs, modifications, emergency orders, and supervised-access disputes built around an outcry, forensic medical testimony, or competing narratives about whether a child’s report is “too vague” to be reliable. The opinion underscores three recurring family-law themes: first, a child’s imperfect or evolving description does not automatically defeat a factfinder’s ability to credit the allegation; second, a SANE exam that is “normal” or nonspecific does not negate abuse; and third, error preservation matters when a court limits cross-examination into alternative stressors, household instability, or competing causation theories. In custody litigation, those points can materially affect temporary orders, credibility findings, and the evidentiary framing of abuse-risk arguments.

Case Summary

Fact Summary

Victor Hernandez worked at a daycare attended by the child complainant, I.G. After approximately two weeks there, I.G. told her mother that Hernandez had touched her private area at daycare. Law enforcement became involved, and at the officer’s recommendation, the mother took I.G. for a SANE examination. During that exam, I.G. reported that Hernandez had touched her vagina with his finger, that it hurt, and that the touching occurred inside her clothes.

Hernandez was tried on two counts: aggravated sexual assault of a child and indecency with a child by contact. The child’s statements were not identical in every telling. The State relied on the child’s outcry, her trial testimony, the SANE nurse’s testimony, and surrounding circumstances. The defense challenged the proof of penetration, emphasized the lack of definitive physical findings, and attempted to cross-examine the mother about instability in the home as an alternative explanation for the child’s symptoms or presentation.

At sentencing, the trial court orally pronounced a single 35-year term without distinguishing between the counts. Separate written judgments were later entered, each imposing 35 years. That created a statutory problem because Count II—indecency with a child by contact—was a second-degree felony.

Issues Decided

• Whether the evidence was legally sufficient to support the aggravated sexual assault conviction, specifically the penetration element.
• Whether the trial court committed reversible Confrontation Clause error by limiting cross-examination of the mother.
• Whether the sentence imposed on Count II for indecency with a child by contact exceeded the lawful punishment range for a second-degree felony.
• Whether the Count II judgment had to be reversed and remanded for a new punishment hearing when the court orally pronounced a single 35-year sentence without differentiating between counts.

Rules Applied

The court applied familiar criminal sufficiency principles under Jackson v. Virginia, requiring review of the evidence in the light most favorable to the verdict and deference to the jury’s credibility determinations. It also relied on Texas cases recognizing that juries may resolve conflicts in a child complainant’s testimony and may draw reasonable inferences from the evidence.

On the penetration element, the court discussed Texas Penal Code section 22.021(a)(1)(B)(i) and authorities such as Cornet v. State and Vernon v. State, which explain that “penetration” does not require deep intrusion and can be established by tactile contact beneath the fold of the external genitalia. The opinion also noted that flesh-to-flesh contact is not required, citing cases holding that penetration can occur through clothing if the contact reaches the requisite anatomical area.

On corroboration, the court cited article 38.07 and the settled principle that the uncorroborated testimony of a child sexual-assault complainant can be sufficient. On preservation, the court relied on Texas Rule of Appellate Procedure 33.1 and preservation authorities requiring a litigant to make the trial court aware of the complaint and obtain a ruling.

For punishment, the controlling rule is straightforward: a sentence outside the statutory range is unauthorized and illegal. As to Count II, indecency with a child by contact is punishable as a second-degree felony, making Penal Code section 12.33’s 2-to-20-year range controlling.

Application

The court treated the sufficiency issue as a classic credibility-and-inference case. Hernandez argued that I.G.’s descriptions were too vague and internally inconsistent to prove penetration, particularly because at trial she also said his hand did not go “inside.” The court declined to reweigh that testimony. Instead, it emphasized that during the SANE examination I.G. reported touching “inside” from where she pees, described finger contact inside her underwear, and said the touching hurt. In the court’s view, those statements, coupled with the trial testimony and the governing definition of penetration, gave the jury a legally sufficient basis to find more than mere external touching.

The defense also pressed the absence of physical findings. That argument did not carry the day because the SANE nurse explained that most pediatric sexual-abuse exams are normal or nonspecific regardless of the type of abuse alleged. The nurse documented mild redness but could not say whether it was traumatic or nontraumatic. The court accepted that this did not undermine the verdict because physical corroboration was not required, and the jury was entitled to credit the child’s account despite a nondiagnostic exam.

On the Confrontation Clause issue, the defense tried to explore the mother’s romantic relationship, an alleged assault, and her bills as part of a theory that instability in the household could explain the child’s issues. The trial court repeatedly instructed counsel to move on. But the appellate record did not show a preserved complaint: counsel did not clearly object, did not articulate the constitutional basis with precision at the time, and did not make an offer showing what further testimony the defense sought to elicit. That omission proved fatal on appeal.

The sentencing issue was different. There the error was objective and apparent on the face of the record. The trial court orally imposed one 35-year sentence without differentiating between Count I and Count II, and the written judgments imposed 35 years on both. While that punishment was within range for the first-degree aggravated sexual assault count, it exceeded the lawful maximum for the second-degree indecency count. Because a sentence beyond the statutory range is void or unauthorized, the court reversed Count II as to punishment and remanded for a new punishment hearing on that count.

Holding

The court held that the evidence was legally sufficient to support the aggravated sexual assault conviction. In doing so, it reaffirmed that a child complainant’s testimony need not be perfectly consistent, that penetration may be proved without dramatic medical findings, and that a jury may resolve conflicts between outcry statements and trial testimony in favor of the verdict.

The court also held that the complaint about restricted cross-examination was not preserved for appellate review. Because defense counsel did not adequately inform the trial court of the constitutional complaint or create a record showing the excluded line of inquiry, no Confrontation Clause relief was available.

Finally, the court held that the 35-year sentence imposed on Count II was illegal because indecency with a child by contact is a second-degree felony punishable by 2 to 20 years under Penal Code section 12.33. The judgment on Count I was affirmed, and the judgment on Count II was reversed and remanded for a new punishment hearing.

Practical Application

For family-law litigators, Hernandez has real utility in abuse-centered custody cases because it provides a disciplined appellate answer to two common defense themes: “the child’s story changed” and “the medical exam was normal.” In temporary-orders hearings and final SAPCR trials, those arguments are often deployed to blunt protective restrictions, supervised possession, or therapist-driven safety planning. Hernandez supports the proposition that variation in a child’s phrasing is not, by itself, disqualifying, and that a normal or equivocal SANE exam does not foreclose a factfinder from crediting the child’s report.

The opinion is especially useful where one parent argues that the child’s report is unreliable because the child used age-limited language, gave different levels of detail to different adults, or denied an “inside” touch at one point while describing anatomically intrusive contact elsewhere. Family courts regularly confront that evidentiary posture. Hernandez helps frame the response: those tensions ordinarily go to weight and credibility, not automatic exclusion or legal insufficiency.

The preservation discussion is equally important. In family court, when opposing counsel attempts to suggest that a child’s behavior stems from household instability, a parent’s dating life, finances, or other stressors rather than abuse, the trial court may limit the inquiry under relevance, Rule 403, or cumulative-evidence principles. If you are the party seeking that line of proof, Hernandez is a reminder to preserve error meticulously. State the purpose of the testimony, tie it to bias, motive, alternative causation, or impeachment, and make an offer of proof. Otherwise, any appellate complaint may disappear.

The sentencing holding, while criminal, also has crossover value at a systems level. Family lawyers often interface with criminal protective orders, plea terms, community supervision conditions, and parallel CPS or criminal proceedings. Hernandez is a clean reminder to examine the actual judgment and oral pronouncement with precision. In family cases, the analogous lesson is to scrutinize every order for statutory conformity—geographic restrictions, possession terms, injunctive relief, fees, and firearm-related provisions included.

Checklists

Using Outcry and Child Statements Effectively

• Identify each disclosure separately: parent, forensic interviewer, SANE nurse, therapist, CPS investigator, law enforcement.
• Track the child’s exact language rather than paraphrasing broad conclusions.
• Distinguish between differences in wording and actual contradictions.
• Frame developmental limitations in vocabulary as an explanatory factor, not a weakness to ignore.
• Tie the child’s statements to the legal element at issue, especially intrusive contact versus mere touching.
• Prepare the record to show that any inconsistencies go to weight and credibility, not admissibility.

Working with SANE and Medical Evidence

• Do not overstate a normal or nonspecific exam as disproving abuse.
• Elicit testimony explaining that many pediatric sexual-abuse exams are normal.
• Separate the historical account from the physical findings and use both carefully.
• Clarify whether the medical provider can testify that the history is consistent with sexual contact or abuse.
• Anticipate defense arguments that the absence of injury defeats the claim, and be ready with case support.
• In custody litigation, connect the medical evidence to risk assessment and best-interest factors rather than insisting on criminal-level corroboration.

Preserving Error When Cross-Examination Is Limited

• Make a timely, specific objection.
• State the legal basis: confrontation, due process, bias, motive, alternative causation, impeachment, or relevance.
• Explain why the excluded inquiry matters to a material issue.
• If instructed to “move on,” ask to approach or request a running objection if appropriate.
• Make an offer of proof showing the questions you would ask and the answers you expect to elicit.
• Ensure the record reflects how the excluded testimony affects credibility, reliability, or causation.
• Obtain a clear ruling.

Defending Against “Household Instability” Alternative-Causation Theories

• Require specificity rather than broad insinuations about chaos, finances, or relationships.
• Challenge relevance where the theory is speculative.
• Use Rule 403 where the inquiry is prejudicial, distracting, or cumulative.
• Distinguish evidence of actual alternative stressors from character attacks on the reporting parent.
• Recenter the court on the child’s disclosures, timing, and corroborating circumstances.
• Where appropriate, use trauma-informed expert testimony to explain symptom overlap without conceding unreliability.

Reviewing Orders and Judgments for Statutory Compliance

• Compare each ruling against the governing statute before entry.
• Check oral pronouncements against written orders or judgments.
• Confirm that multi-count or multi-issue rulings are differentiated with precision.
• Verify punishment ranges, fee authority, injunctive terms, and mandatory findings.
• Correct obvious errors promptly through post-judgment motions or requests for nunc pro tunc relief where applicable.
• In parallel family/criminal matters, confirm that criminal orders cited in family proceedings are facially valid.

Citation

Hernandez v. State, No. 04-24-00776-CR, 2026 WL ___ (Tex. App.—San Antonio July 1, 2026, no pet. h.) (mem. op.).

Full Opinion

Read the full opinion here

Family Law Crossover

Although this is a criminal appeal, family lawyers can absolutely weaponize it in Texas divorce and custody litigation. If you represent the protective parent, Hernandez is a strong response to the recurrent claim that abuse allegations collapse unless the child gives a perfectly linear narrative backed by definitive medical findings. The opinion supports a more realistic evidentiary position: children may describe abuse differently over time, and a normal SANE exam does not neutralize the allegation. That can be strategically deployed in emergency temporary restraining orders, temporary conservatorship hearings, requests for supervised possession, and final trials where the court must assess safety risk under imperfect proof.

If you represent the accused parent, the opinion is still useful—but in a different way. It signals that credibility battles must be developed carefully and preserved correctly. You cannot rely on broad appellate complaints that the child’s story was vague, or that the court cut off your alternative-causation theory, unless you built a precise record. In practice, that means disciplined offers of proof, targeted impeachment, and a clear explanation of why inquiries into household instability, third-party influence, or other stressors bear on reliability. So the crossover lesson is two-sided: for one side, Hernandez strengthens the argument that imperfect child disclosures can still support serious protective relief; for the other, it is a warning that if you want to dismantle that theory, your evidentiary record must be sharper than the one made here.

~~d171a1ab-7a4f-4c0e-97f9-289bec677813~~