Opinion
No. 4-04-00870-CR
Delivered and Filed: October 19, 2005. DO NOT PUBLISH.
Appeal from the 290th Judicial District Court, Bexar County, Texas, Trial Court No. 2003-CR-0176, Honorable Pat Priest, Judge Presiding. Affirmed.
Sitting: Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
A jury found defendant, Walter Alvarez, guilty of indecency with a child. The trial court assessed punishment at three years' confinement, probated. In a single issue on appeal, defendant asserts the evidence is factually insufficient to support the verdict. We review the factual sufficiency of the evidence under the appropriate standard of review. See Zuniga v. State, 144 S.W.3d 477, 481 (Tex.Crim.App. 2004). A person is guilty of indecency with a child by exposure if, with a child younger than seventeen years and not the person's spouse, the person exposes his anus or any part of his genitals, knowing the child is present, with intent to arouse or gratify the sexual desire of any person. Tex. Pen. Code Ann. § 21.11(a)(2)(A) (Vernon 2003). Here, the complainant, J.M.B., was thirteen years old at the time of the offense, and she lived with her mother and the defendant, who was her step-father. According to J.M.B., one morning while she was still in bed, she awoke to hear moaning. When she turned over in bed, she saw defendant "playing with" his penis, and then, he quickly zipped up his pants. J.M.B. told defendant to get out of her room; he told her not to tell her mother; and she pushed him out of the room. J.M.B. then called her grandmother. When her grandmother arrived, she called the police. Both the grandmother and the responding police officer said J.M.B. was upset when they spoke with her, and each testified that J.M.B. told them defendant was standing by her bed with his penis in his hands. Defendant testified he had gone into J.M.B.'s bedroom to get her up for a doctor's appointment and, when she saw him, he was merely scratching himself. While defendant presented his own testimony as to what occurred, the jury was free to decide which version of the facts to believe. See Cain v. State, 958 S.W.2d 404, 408-09 (Tex.Crim.App. 1997). Based on our review of the record, we find the evidence is factually sufficient. We overrule defendant's issue on appeal and affirm the trial court's judgment.