Nos. 05-03-00782-CR, 05-03-00783-CR.
Opinion Filed January 13, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F00-16631-Ps and F00-16632-Ps. Affirm.
Before Justices MORRIS, WRIGHT, and RICHTER.
Opinion By Justice RICHTER.
Timothy Charles Buhl entered non-negotiated nolo contendere pleas to two indecency with a child offenses. In cause no. 05-03-00782-CR, the trial court deferred appellant's guilt and placed him on ten years community supervision. In cause no. 05-03-00783-CR, the trial court found appellant guilty and sentenced him to six years' confinement. In two points of error, appellant contends the evidence is factually insufficient to support the trial court's judgments. We affirm.
Background
V.B. and R.B., appellant's daughters, testified appellant sexually molested them when the family lived in Houston and Carrollton, Texas and in Arlington Heights, Illinois. V.B., who was eighteen years old at the time of trial, recounted three incidents of molestation to the court. The first incident occurred when V.B. was five years old. Appellant bathed her one night when her mother, Ivonne Buhl, was not at home. Appellant held V.B. in a squatting position in the tub, lathered V.B.'s vagina area with soap and his hand, and inserted his finger into V.B.'s vagina. V.B. testified to another incident that occurred when she was eight years old. Appellant inserted his finger into V.B.'s vagina during a bath, and V.B. said, "Owh, leave me alone." Appellant became "upset" and left the bathroom. Later, V.B. complained about her "bottom" hurting. Appellant told V.B. he would put cream on the area. Appellant inspected V.B.'s vagina, put cream on the area, then inserted his finger into V.B.'s vagina again. The third incident took place when V.B. was twelve years old. Appellant touched her breasts and rubbed the inside of her thighs on the outside of her bed sheet when he came into her room to pray for her at bedtime. V.B. testified that while the practice of "laying on of hands" for someone in prayer was a part of the family's religion and the family often held hands while praying, they did not touch each other's body parts when they prayed. V.B. testified she did not tell her mother about the molestations because appellant told her not to tell, appellant and her mother argued and fought all the time, and V.B. did not want to be the cause of her parents breaking up. Appellant left the home when V.B. was twelve years old, and he eventually filed for divorce. When V.B. was fifteen years old, she told her mother about the molestations because she did not want to see appellant or spend weekend visitations with him. R.B., who was twelve years old at the time of trial, recounted two incidents of molestation to the court. The first occurred when R.B. was three years old. Appellant came into the bathroom when R.B. was about to get into the bathtub. R.B.'s mother was not at home. Appellant locked the door and held R.B. in a squatting position in the tub. Appellant did not have a washcloth or soap in his hands, but he touched R.B.'s vagina and tried to insert a finger into her vagina. R.B. bit appellant on the arm. Appellant became angry, then he told R.B. not to tell her mother because she would get mad at R.B. and R.B. would be in trouble. R.B. testified she told V.B. what appellant had tried to do, but she did not tell her mother because she was afraid. The second incident happened when R.B. was five years old. Appellant put his hand on R.B.'s vagina and chest on the outside of her sheet when he was praying for her at bedtime. R.B. told her mother about the molestations after V.B. disclosed what appellant had been doing with her. Ivonne Buhl testified V.B. and R.B. told her about the incidents of molestation on July 15, 2000, which was two or three months before appellant filed for divorce. Ivonne reported the allegations to Child Protective Services one week later, but she did not know she needed to report the allegations to the police until she was asked to do so by her civil lawyer, whom she talked to in response to appellant filing for divorce. Ivonne testified she would allow the girls to wash their own bodies beginning at age three. Ivonne bathed the children most of the time, and she did not recall appellant ever going into the bathroom and trying to bathe the girls when she was at home. Ivonne testified V.B. told her appellant touched her "bottom," meaning her vagina, and that the first time appellant put his finger into her vagina, V.B. was four or five years old. V.B. stated appellant molested her continually when they lived in Illinois and Texas, and appellant had done the same things with R.B. Ivonne testified the family court ordered psychological studies for all of her children, herself, and appellant. Ivonne further testified she did not tell her children what to say to the psychologist, she only told them to tell the truth. Carlos Guerrero, Ivonne's brother, testified he supported appellant during appellant's and Ivonne's long separation before the divorce. Guerrero empathized with appellant because Guerrero was recently divorced and had undergone a custody battle for his own children. Guerrero testified appellant told him the arguments between appellant and Ivonne were due to appellant seeing prostitutes and having pornography. Guerrero and appellant spoke regularly on the telephone as Guerrero tried to encourage Ivonne to seek a reconciliation. Guerrero testified that during a telephone conversation with appellant in March 2001, appellant said he was giving V.B. a bath and she complained of burning in her vagina. Appellant thought he did not rinse all the soap away, so he looked at V.B.'s vagina to determine why her vagina was burning. Appellant said, "I think when I screwed up is when I told her not to tell her Mom." Guerrero testified he severed all support for appellant after that call. Dr. Barbara Rila testified as an expert for the defense. Rila was appointed by the family court to conduct an investigation during the child custody phase of appellant's divorce. Rila's report and summaries were admitted into evidence. Rila testified she believed Ivonne was vindictive, the children were "coached" by Ivonne, and the children were not lying in the sense of truth or untruth, but they were not in fact probably accurately reporting events as they may have occurred. Rila also testified appellant was highly defensive about his sexuality, and such behavior was usually manifested by someone who had committed sexual acts against children. Appellant also admitted to Rila that he gets aroused in the context of adults introducing a young person to sexuality. Robert Payne testified appellant and Ivonne were members of his church. Payne and his wife provided marriage counseling or "ministering" to appellant and Ivonne. Payne testified the church does believe that when you pray, the practice of "laying on of hands" is very useful in church services, his home-based ministry, and in a family context. Payne testified the church teaches that before you lay hands on someone, you should ask their permission, and there are areas on the body you do not touch. Applicable Law
When a defendant pleads guilty or nolo contendere, the State must introduce sufficient evidence into the record to support the plea and show the defendant is guilty, and said evidence shall be accepted by the court as the basis for its judgment. Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon Supp. 2004); see also Ex parte Martin, 747 S.W.2d 789, 792-93 (Tex.Crim.App. 1988). We do not apply the Jackson "rationality" test in reviewing the sufficiency of the evidence when a defendant voluntarily enters a plea of guilty or nolo contendere. See Ex parte Martin, 747 S.W.2d at 791. Rather, we affirm the trial court's judgment if the evidence introduced embraces every essential element of the offense charged and is sufficient to establish a defendant's guilt. See Stone v. State, 919 S.W.2d 424, 427 (Tex.Crim.App. 1996). Assuming a factual sufficiency review applies, we determine whether a neutral review of all the evidence demonstrates the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim. App. 2000). The reviewing court must be appropriately deferential to avoid substituting its judgment for the fact finder's, and any evaluation should not substantially intrude on the fact finder's role as the sole judge of the weight and credibility given to witness testimony. Id. at 7. A person commits the offense of indecency with a child if, with a child younger than seventeen years of age and not the person's spouse, he engages in sexual contact with the child. See Tex. Pen. Code Ann. § 21.11(a) (Vernon 2003). "Sexual contact" includes any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child with the intent to arouse or gratify the sexual desire of the person. See id. § 21.11(c)(1). Discussion
Appellant argues the evidence is factually insufficient in each case because the source of the allegations is appellant's ex-wife, who acted to gain an advantage in divorce proceedings. Appellant argues the evidence shows his ex-wife coached his daughters to make the allegations, as pointed out by the testimony of the psychologist, and that when he practiced the "laying on of hands" when he prayed for his children, he did not touch them in a manner for his own sexual arousal. The State responds the evidence is sufficient to support appellant's convictions because it shows appellant engaged in various forms of sexual molestation of his daughters. We agree with the State. Both V.B. and R.B. testified appellant repeatedly inserted his finger into their vaginas when he bathed them during times when their mother was not at home, and appellant fondled them during bedtime prayers. Rila testified Ivonne was vengeful and probably coached V.B. and R.B., and she acknowledged appellant's sexual dysfunction. Ivonne testified she did not tell the children what to say to the psychologist, but only to tell the truth. It is the fact finder's role to weigh the credibility of witnesses and to reconcile conflicts in the evidence. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003); Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001). Having reviewed all the evidence under the appropriate standards, we conclude it is factually sufficient to support the conviction. See Stone, 919 S.W.2d at 427; Johnson, 23 S.W.3d at 11. Accordingly, we overrule appellant's two points of error. We affirm the trial court's judgments.