Nos. 14-10-00949-CR, 14-10-00950-CR
Opinion filed May 10, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On Appeal from the 268th District Court Fort Bend County, Texas, Trial Court Cause Nos. 08-DCR-050119; 08-DCR-050120.
Panel consists of Chief Justice HEDGES and Justices SEYMORE and BOYCE.
CHARLES W. SEYMORE, Justice.
A jury convicted appellant, James Richmond Barley, Jr., of two counts of indecency with a child by contact and assessed punishment of twenty years' confinement and a fine for each offense. The trial court ordered that the sentences run concurrently. In his sole issue, appellant contends the evidence is legally insufficient to support the convictions. We affirm.
BACKGROUND
The State accused appellant of committing the offenses on or about October 15, 1997 by touching a breast and the genitals of R.M., his then sixteen-year-old daughter. R.M., who was twenty-eight years old at the time of trial, testified as follows. She was raised by her grandmother but maintained a good relationship with appellant. Although R.M. did not recall the exact day, there was an occasion in the fall of 1997 when appellant drove her home after they ran at a track. During the ride, appellant asked, "can I suck your titty?" R.M. replied, "hell no." When he asked "why?," she responded, "that's nasty . . . you're my daddy." R.M. was wearing shorts and a sports bra. With his hand, appellant touched R.M.'s breast over her clothing before she pushed him away. Appellant then caressed R.M.'s leg until reaching her vaginal area which he rubbed over her clothing. During this incident, he looked at R.M. as though she was "a good woman he could sleep with" and no longer his daughter because she had fully developed. When R.M. went home, she immediately told her grandmother about the incident. The next day, her grandmother summoned appellant, who was "very agitated" and had an "attitude" when he arrived. R.M. also told her mother and twin sister about the incident but did not report it to the police because she doubted they would believe her. R.M. also testified she resisted appellant's subsequent attempts at a father-daughter relationship and did not see him again for five years except when he would come to her grandmother's home trying to communicate with R.M. During one such visit, he apologized for "all this stuff I've done." While R.M. was still in high school, he sent her various gifts, including red roses on Valentine's Day, which she considered inappropriate and typically reserved for a romantic relationship. In her mid-twenties, R.M. reported the incident to police because she discovered that her two minor female cousins would be living with appellant and sought to protect them from similar conduct. According to the testimony of R.M.'s grandmother, Linda Harris, on one occasion when R.M. was about sixteen-years old, appellant did not enter the house after driving her home from the track, which was contrary to his usual actions, and R.M. went directly to her room. The next day, R.M. tearfully told Harris about an incident during the run with appellant. At trial, Harris did not relay the substance of this conversation but expressed that she was shocked and called appellant to her home. When he arrived, appellant was angry and immediately asked, "what is she lying about now?," which Harris perceived as odd because she had not yet mentioned the reason he was summoned. At trial, R.M.'s sister confirmed that there was a time during high school when the sisters' previously good relationship with appellant ended although she did not remember the exact date or explain the reasons. Another witness, Terry Escobar, testified that during a conversation, appellant admitted he asked his daughter, R.M., if he could "suck [her] titty?" and he felt "bad." Detective Jay Belton of the Katy Police Department interviewed R.M. when investigating her report. Although, at trial, he did not reveal the contents of her statement, Detective Belton testified she was visibly upset and it was painful for her to recount the incident. Detective Belton also confirmed with Harris that R.M. had made an outcry about sexual abuse by her father. Finally, Detective Belton interviewed appellant who first denied the accusation but then admitted that he asked R.M. if he could "suck on [her] titties" and touched her breast and "private area." Appellant presented the testimony of his sister, Veronica Keys, who explained she confronted R.M. about the alleged incident. R.M. demonstrated that appellant had accidently pinched her breast when trying to pinch her arm. Keys further testified that R.M. was not upset when relaying this information and continued to maintain a good relationship with appellant. Appellant also recalled R.M. as a witness during his case-in-chief and presented pictures showing them together at various family events, milestones in her life, and a vacation during the years after the incident when she claimed they had no relationship. R.M. also admitted that they drove alone together on a cross-country trip during this period. However, R.M. testified that these occasions were seldom, she may have "blocked" appellant's presence from her memory, and she felt "conflicted" about him. ANALYSIS
When reviewing a legal-sufficiency challenge, we view all evidence in the light most favorable to the verdict to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. See Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). We may not sit as a thirteenth juror and substitute our judgment for that of the fact finder by reevaluating weight and credibility of the evidence. Id. at 899, 901; Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); see also Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986) (expressing that jury may choose to believe or disbelieve any portion of the testimony). We defer to the fact finder's resolution of conflicting evidence unless the resolution is not rational. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Our duty as reviewing court is to ensure the evidence presented actually supports a conclusion that the defendant committed the crime. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). A person commits an offense if he engages in sexual contact with a child younger than seventeen. Tex. Penal Code Ann. § 21.11(a)(1) (West Supp. 2009). "Sexual contact" includes "touching through clothing, of the . . . breast, or any part of the genitals of a child" if the act is "committed with the intent to arouse or gratify the sexual desire of any person." Id. § 21.11(c)(1). To support his legal-sufficiency challenge, appellant primarily attacks R.M.'s credibility, emphasizing the alleged internal inconsistencies regarding her relationship with appellant after the incident, her purportedly conflicting statement to Keys, and the delay of many years in making a police report. However, the jury was free to resolve any conflicts and believe R.M.'s testimony, including her explanation for the delay. Moreover, the jury could have reasonably considered the following as corroborating R.M.'s account: Harris's testimony that R.M. revealed "shocking information" within a day of the incident; appellant's demeanor and immediate protest to Harris that R.M. was lying before Harris even confronted him; confirmation by R.M.'s sister regarding their changed relationship with appellant; his admissions to Escobar and Detective Belton; and R.M.'s painful recollection when interviewed by Detective Belton. Appellant also attacks the credibility of this other evidence. He notes that R.M. claimed she reported the incident to Harris on the day thereof whereas Harris testified their conversation occurred the next day. Nevertheless, the jury could have determined this discrepancy was insignificant, attributed it to one witness's memory lapse, and concluded that R.M. indeed reported the incident to Harris. Appellant also notes that Detective Belton possessed no writing confirming appellant's admission. However, Detective Belton explained that appellant refused to provide a written statement. Additionally, although Detective Belton indicated his written report did not reflect appellant's admission, he explained that it was videotaped. Any lack of a written report reflecting appellant's oral statement was merely a fact the jury was free to consider when evaluating Detective Belton's credibility. Finally, based on the type of physical contact and appellant's question, "can I suck your titty?," the jury could have concluded beyond a reasonable doubt that he touched R.M.'s breast and genitals with "intent to arouse or gratify [his] sexual desire." See McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. [Panel Op.] 1981) (recognizing that, under Penal Code section 21.11, requisite specific intent to arouse or gratify the sexual desire of any person can be inferred from defendant's conduct, his remarks, and surrounding circumstances). We overrule appellant's sole issue and affirm the trial court's judgment.