No. 05-04-01747-CR
Opinion Filed June 27, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 15th Judicial District Court, Grayson County, Texas, Trial Court Cause No. 048576. Affirmed.
Before Justices WHITTINGTON, MOSELEY, and LANG-MIERS.
Opinion By Justice MOSELEY.
Leonard Burton Graves waived a jury trial and pleaded not guilty to indecency with a child under seventeen years. The trial court found appellant guilty and assessed punishment at five years' confinement. In two points of error, appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm the trial court's judgment.
Background
J.G. testified that from October 2000 to July 2001, appellant, her biological father, touched her breasts on numerous occasions, beginning when J.G. was twelve years old. During that time, J.G. lived with her mother, appellant, and younger sister K.G. Appellant did not work, but J.G.'s mother worked outside the home. J.G. testified that appellant constantly yelled at her, called her a liar often, and called her names such as "slut, whore, and bitch" from the time she was nine years of age. J.G. testified that appellant would grab her breast and "tweak" her nipples often. J.G. did not tell her mother about appellant touching her breasts because she was intimidated by appellant, who stood six feet ten-inches tall and weighed between 300 and 400 pounds. J.G. testified that appellant said no one would believe her if she said anything about him touching her breasts. J.G. related several specific instances of appellant touching her breasts. On one occasion in October 2000, appellant asked J.G. to lie down and take a nap with him. When J.G. laid down on the bed, appellant reached under her shirt and touched her breasts. J.G. got up and left the room. On another occasion, appellant rubbed cream on J.G.'s breast. When J.G. told him to stop, appellant squeezed and twisted J.G.'s nipple. J.G. testified she finally told her mother after appellant touched her breast one night. Her mother had been on the front porch smoking a cigarette. Appellant was sitting in a recliner in the living room and J.G. sat on the arm of the recliner. Appellant reached under J.G.'s shirt and touched her breast. J.G. told appellant to quit, then yelled to her mother that appellant had touched her breast. J.G.'s mother's came inside, told appellant to quit because it was not funny, then told J.G. to leave the room. J.G. did not hear what her mother and appellant said, but the next morning J.G.'s mother went to work as usual and J.G. was home with appellant and her younger sister. J.G. testified that appellant continued touching her breasts under her clothing almost every day while her mother was at work. On one occasion when she told appellant to stop, appellant said, "I can't help it. You are just so beautiful." Appellant also told J.G. that he came into her bedroom at night and touched her breasts while she was sleeping. In July 2001, appellant and J.G. had an argument one evening when her mother was at home. J.G. ran outside and started throwing rocks at a tree. Her mother came outside and coaxed J.G. into talking with her. J.G. broke down and again told her mother that appellant had been touching her breasts. J.G. testified that during this time, she was seeing a therapist for depression and a sleeping disorder, but she never told the therapist that appellant had been touching her breast because appellant was in the room with her in many of her sessions with the therapist. J.G. further testified that appellant did not accidently touch her breasts on these occasions because appellant's hands "lingered and caressed" her breasts. R.G., who is J.G.'s mother, testified that during the last five or six years of her marriage to appellant, appellant stayed home with their two daughters, J.G. and K.G. Beginning when J.G. was about seven years old, appellant constantly yelled at her and called her a liar. Appellant made J.G. go to counseling at age seven or eight because appellant said J.G. was bad and a liar. R.G. testified that during the summer of 2000, she had a female friend living with them for a few months. The friend told R.G. that she had seen appellant "tweak" J.G.'s breasts. R.G. confronted appellant. Appellant laughed and said he was just playing around. A few months later, R.G. was on the front porch smoking a cigarette when she heard J.G. yelling that appellant touched her breasts. R.G. went inside and talked to appellant. Appellant denied that he had done anything, then he laughed and said he might have accidently touched J.G. breast. R.G. testified she went to work the next morning because she believed appellant. Ten months later, in July 2001, J.G. told R.G. that appellant had been touching her breast on many occasions for several months. Vivian Collins, a psychologist, testified she has counseled J.G. weekly since December 2002. J.G. suffers from severe anxiety and depression. Collins testified she believes J.G. has post traumatic stress disorder related to verbal abuse and sexual molestation. Collins further testified that it is not unusual for a victim of sexual abuse to be angry at the perpetrator. Other than to confirm his decision to exercise his Fifth Amendment rights, appellant did not testify. Applicable Law
In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment, and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003). In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). Under either review, the fact finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). The State was required to prove beyond a reasonable doubt that appellant engaged in sexual contact with J.G., a child younger than seventeen years and not appellant's spouse. See Tex. Pen. Code Ann. § 21.11(a) (Vernon 2003). "Sexual contact" includes any touching of the breasts of another person with intent to arouse or gratify the sexual desire of any person. See id. § 21.01(2). The testimony of a child victim alone is sufficient to support a conviction for indecency with a child. See Tex. Code Crim. Proc. Ann. art. 38.07(a) (Vernon Supp. 2004-05); Tear v. State, 74 S.W.3d 555, 560 (Tex.App.-Dallas 2002, pet. ref'd). Discussion
Appellant argues the evidence is legally and factually insufficient because if any touching occurred at all, it was accidental and not with the intent to arouse or gratify his sexual desires. Appellant contends the evidence shows that J.G. never told her therapist that appellant was molesting her and that J.G. was simply angry with appellant. The State responds that the evidence is legally and factually sufficient to support the conviction. There was conflicting evidence presented in this case about whether appellant touched J.G.'s breast intentionally. J.G. testified appellant "caressed" her breast on numerous occasions, grabbed and twisted her nipples, and on one occasion rubbed cream on her breast. R.G. testified she confronted appellant on at least two separate occasions about touching J.G.'s breast. Each time, appellant denied doing anything wrong and said he might have accidently touched J.G.'s breast. Appellant essentially asks this Court to find that J.G.'s testimony is not credible. However, the trial court, as fact finder in this case, was the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony, and as such, resolved the conflicts in the testimony. See Obigbo v. State, 6 S.W.3d 299, 305 (Tex.App.-Dallas 1999, no pet.). Having reviewed all of the evidence under the proper standards, we conclude it is legally and factually sufficient to support the conviction. See Sanders, 119 S.W.3d at 820; Zuniga, 144 S.W.3d at 484. We overrule appellant's points of error. We affirm the trial court's judgment.