Opinion
No. 11-05-00112-CR
Opinion filed March 9, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 42nd District Court, Taylor County, Texas, Trial Court Cause No. 21,509-A.
Panel consists of: WRIGHT, C.J., and McCALL, J., and STRANGE, J.
OPINION
The jury convicted Jessie Martinez Cruz of indecency with a child. The jury assessed punishment at eighteen years confinement and a $5,000 fine, and the trial court sentenced appellant accordingly. We affirm. The Charged Offense TEX. PEN. CODE ANN. § 21.11(a)(1) (Vernon 2003) provides that a person commits the offense of indecency with a child by engaging in sexual contact with a child. TEX. PEN. CODE ANN. § 21.11(c)(1) (Vernon 2003) defines "sexual contact" as any touching, including touching through clothing, by a person of the breast of a child with the intent to arouse or gratify the sexual desire of any person. The indictment alleged that, on or about December 13, 2003, appellant intentionally and knowingly engaged in sexual contact with K.J., a child younger than 17 years of age and not the spouse of appellant, by touching her breast with his hand with the intent to arouse and gratify his sexual desire. Issues on Appeal In two appellate issues, appellant contends that the evidence was legally and factually insufficient to prove that he intended to arouse or gratify a sexual desire. We affirm. Standards of Review In order to determine if the evidence is legally sufficient, we must review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Crim.App. 2000). In order to determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak that the verdict is clearly wrong and manifestly unjust or whether the evidence contrary to the verdict is so strong that the beyond-a-reasonable-doubt burden of proof could not have been met. Zuniga v. State, 144 S.W.3d 477 (Tex.Crim.App. 2004); Ross v. State, 133 S.W.3d 618 (Tex.Crim.App. 2004); Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim.App. 2002); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000); Cain v. State, 958 S.W.2d 404 (Tex.Crim.App. 1997); Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App. 1996). The jury is the sole judge of the weight and credibility of the witnesses' testimony, and due deference must be given to the jury's determination. TEX. Code CRIM. PROC. Ann. art. 36.13 (Vernon 1981), art. 38.04 (Vernon 1979); Johnson, 23 S.W.3d at 8-9. The Evidence On December 13, 2003, K.J. and her parents Ceasar and Sylvia Gonzales and her younger brother Armondo Gonzales went to appellant's house for a barbecue. Appellant lived at the house with Margie Acosta and her children Amy and Gilbert Acosta. Margie and Amy were present at the house on December 13, 2003; and K.J.'s cousin, David Montelongo, was also present at the house. Gilbert was not present at the house. Sylvia and Margie went to the grocery store to get meat for the barbecue. Ceasar and David went to another store to get beer. Appellant, K.J., Amy, and Armondo remained at the house. K.J. testified that she was twelve years old on the date of the incident. K.J. said that she was sitting on a bed in Gilbert's room while her younger brother Armondo was outside playing. K.J. was listening to music and watching Armondo through a screen door in Gilbert's room. Amy was watching television in the living room. K.J. testified that appellant came into Gilbert's room and touched her breasts. K.J. pushed appellant's hands off of her, but appellant started touching her breasts again. K.J. told appellant to stop, but appellant touched her breasts five or six times. K.J. said that she was shocked and scared. She said that appellant told her he was going to rape her and that she was not to tell anybody. K.J. said that appellant stopped touching her when he saw her dad's vehicle approaching the house. K.J. also testified that appellant was not carrying anything in his hands when he came into the room and that it was possible appellant tripped when he came into the room. K.J. said that she did not tell her mother or her father that appellant had touched her. When she went to school the following week, K.J. told one of her friends what had happened. Later, Sylvia found out about the incident and reported it to the police. K.J. gave a written statement to the police. Brian Trail, a detective with the Abilene Police Department, investigated the incident. Detective Trail interviewed K.J. on December 16, 2003. He said that it was not uncommon for a victim to wait several days to tell the police what had happened to them. He said that K.J. was quiet, shy, and embarrassed during the interview. Detective Trail spoke with appellant on the same day. Detective Trail told appellant his rights and told appellant that he was accused of touching appellant on her chest. Appellant gave a written statement to Detective Trail. Appellant told Detective Trail that he had tripped and that his hands had ended up on K.J.'s chest. Appellant did not say that he had tripped as a result of the floor in the house not being level. Detective Trail did not believe that the incident could have occurred in the manner that appellant described it. Detective Trail said that he was told Amy was in the living room when the incident occurred. Amy told him that she did not see anything. Appellant testified that he came inside the house to get the last beer in the refrigerator. Appellant said that he came into the house through the door in Gilbert's room, walked through Gilbert's room, and went into the kitchen. Appellant said that K.J. was sitting on a bed in Gilbert's room. Appellant testified that he got the last beer, a spatula, and some paper towels or a wash rag from the kitchen. Appellant said that he was going to go back outside but that, as he was coming back through the kitchen door, he tripped. He said that the house was not level in that area. Appellant said that he dropped everything that he was carrying so that he could break his fall. He said that he accidentally grabbed K.J.'s breasts during the fall. Appellant testified that he pushed himself off of K.J. and got back up. Appellant said that, as he was walking away from K.J., Ceasar and David were getting back to the house. Appellant testified that he touched K.J.'s breasts by accident, that he did not have a sexual intent when he touched K.J.'s breasts, and that he only touched K.J.'s breasts one time. Appellant presented testimony from four other witnesses that the house was not level in the area in question. David Johnson testified that he was a contractor in the business of house leveling and foundation repairs. He said that the house needed leveling in the area in question. Margie testified that the house was not level in the kitchen and in Gilbert's bedroom. She also said that the kitchen and Gilbert's room had humps in them. Amy testified that problems with floor conditions existed throughout the house. Jerry Martinez, a private investigator, testified that he stumbled when he stepped into Gilbert's bedroom. Margie also testified that, on the date of the incident, when she and Sylvia got back from the store, neither Amy nor K.J. gave any indication that anything wrong had happened. Amy also testified that, on the date of the incident, she was watching television in the living room. She said that she did not hear any yelling, screaming, loud conversation, or anything out of the ordinary coming from Gilbert's room. Analysis The specific intent to arouse or gratify the sexual desire of a person as an element of the offense of indecency with a child can be inferred from conduct, remarks, or all the surrounding circumstances. McKenzie v. State, 617 S.W.2d 211, 216 (Tex.Crim.App. [Panel Op.] 1981); Couchman v. State, 3 S.W.3d 155, 163 (Tex.App.-Fort Worth 1999 pet. ref'd); Nelson v. State, 893 S.W.2d 699, 705 (Tex.App.-El Paso 1995, no pet.). An oral expression of intent is not required, and a defendant's conduct alone is sufficient to infer intent. Tyler v. State, 950 S.W.2d 787, 789 (Tex.App.-Fort Worth 1997, no pet.). The uncorroborated testimony of a child victim is sufficient to support a conviction for indecency with a child. TEX. CODE CRIM. PROC. ANN. art. 38.07 (Vernon 2005). K.J. testified that appellant touched her on her breasts five or six times and told her that he was going to rape her. Appellant testified that he only touched K.J. on the breasts one time and that the touching was an accident. The jury, as the sole judge of the credibility of the witnesses and of the weight to be given their testimony, was entitled to accept K.J.'s testimony and to reject appellant's testimony. Articles 36.13, 38.04; Penagraph v. State, 623 S.W.2d 341, 343 (Tex.Crim.App. [Panel Op.] 1981). The jury could have inferred appellant's specific intent by his touching of K.J.'s breasts. We hold that the evidence was legally and factually sufficient to prove that appellant intended to arouse or gratify a sexual desire. Appellant's first and second issues are overruled. This Court's Ruling The judgment of the trial court is affirmed.