No. 05-04-00314-CR
Opinion issued November 29, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 15th Judicial District Court, Grayson County, Texas, Trial Court Cause No. 048527. Affirmed.
Before Justices MOSELEY, FRANCIS, and MAZZANT.
Opinion By Justice MAZZANT.
James Alvin Glover, III waived a jury trial and pleaded not guilty before the court to indecency with a child. The trial court found appellant guilty and sentenced him to ten 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
H.O., who was fourteen years old at the time of trial, testified appellant was married to her grandmother. In March 2001, when H.O. was eleven years old, she spent the night with Grandmother and appellant. H.O. was sitting on the couch watching television; Grandmother was asleep in the bedroom. Appellant sat close to H.O. and put his arm around her shoulder. Then appellant started touching H.O.'s breasts on the outside of her pajamas. H.O. testified appellant "rubbed" her breasts for about six or seven minutes. H.O. did not say anything because she was afraid. Grandmother walked into the room and appellant stopped. H.O. testified she did not tell anyone because she was afraid her father would be mad at her. She also thought appellant might "go after my sisters." H.O. testified that appellant began making comments about sexual subjects to her when she was eleven years old. Appellant would say, "I could teach you everything about sex," and "You should have sex before you are married so you could have practice." H.O. testified about an incident in which appellant stuck his tongue in her mouth. H.O. had been on a swing outside and appellant was talking to her. Appellant stated he could teach H.O. how to "French kiss." Appellant leaned over and stuck his tongue in H.O.'s mouth. H.O. testified she began to be afraid of appellant, but she did not tell her parents what appellant had said or done. A few months after appellant touched H.O.'s breasts, H.O. told her best friend that appellant was making comments about sex to her and trying to "French kiss" her. A student overheard their conversation and told a teacher, who in turn called H.O.'s mother. H.O.'s mother testified that H.O. had a good relationship with Grandmother, who had died before the trial. H.O. had visited Grandmother and appellant often, but she stayed overnight with them only on two occasions. According to Mother, after the first time H.O. returned home from an overnight visit, she was happy and said she had a great time. The second time H.O. returned from spending the night, she was quiet and did not want to talk about anything. Mother testified she noticed changes in H.O.'s behavior after the second overnight visit. H.O. had shoved all the clothing that appellant bought for her to the back of the closet. She also broke all of the music CD's and tore all of the posters that appellant had given to her. Sometime later, H.O.'s best friend stayed overnight with H.O. The friend encouraged H.O. to tell Mother what appellant had done. Mother testified she talked with H.O.'s father the next week because he worked nights and she worked days. Father testified he picked H.O. up from school one day in April or May 2001 and she was very upset. H.O. was trembling, holding back tears, and did not want to tell him anything. When they got home, Father talked to Mother and found out about what appellant had done. Father notified Child Protective Services. Deidra Farris, an investigator for Child Protective Services, testified she interviewed appellant on July 30, 2001 about the allegations H.O. made. Farris talked to appellant about the allegations that he kissed H.O. and put his tongue in her mouth. Appellant told Farris he had several lung conditions that were serious. He went to kiss H.O. on the lips and he had some sort of coughing attack, causing his tongue to end up in H.O.'s mouth. Appellant also told Farris that when H.O. spent the night, he did sit next to her while watching television. Deputy Sheriff Kelly Davidson testified he interviewed appellant at appellant's home. Appellant denied he ever stuck his tongue in H.O.'s mouth. Appellant stated that when H.O. spent the night, he sat on the end of the couch. H.O. sat next to appellant and rubbed against him. H.O. whispered to appellant that they could be boyfriend and girlfriend. Appellant stated he could not remember if he touched H.O.'s breasts, but he did not believe he had. Two days after interviewing appellant, Davidson returned to appellant's home to get a written statement because appellant had stated earlier he had an attorney. Appellant wrote out a statement. During the first interview, Davidson also talked with Grandmother, who had since passed away. Grandmother stated she had gone to bed. She heard a noise, got up, and went to living room. She found appellant and H.O. sitting on the couch close together, and she could not see appellant's hands. Grandmother stated appellant's arm was around H.O. and he was turned toward H.O. Grandmother told H.O. to go to bed, but appellant said H.O. did not have to go. Appellant denied touching H.O.'s breasts and that he talked to H.O. about sex. Appellant testified H.O. spent the night at his mobile home once during spring break in 2001. According to appellant, each time he saw H.O., she would raise the topic of sex, but he did not talk to H.O. about sex. On the evening H.O. stayed overnight, he and Grandmother were in the living room watching movies with H.O. At one point in the evening, appellant sat next to H.O. on the couch only because H.O. kept whispering to him and he could not hear what she was saying. When appellant sat next to her, H.O. whispered that she wanted to watch X-rated movies. Appellant told her no. Then H.O. said she wanted to play a game with appellant. She wanted appellant to tickle her while he was blindfolded. Appellant testified he agreed, but he only touched H.O.'s rib cage and did not touch H.O.'s breasts. Appellant testified he and Grandmother went to bed after H.O. fell asleep. Appellant denied he tried to "French kiss" H.O. or that he put his tongue in H.O.'s mouth. During cross-examination, appellant admitted that his written statement did not state he was blindfolded and playing a tickling game with H.O. Appellant also admitted he did not tell Davidson that he and H.O. were playing a game. Appellant testified that Grandmother had gone to the bathroom when H.O. blindfolded him. Grandmother returned to the room after appellant had tickled H.O. Appellant admitted that at the time he was interviewed by Davidson, Grandmother had told Davidson that she had gone to bed, but was awakened by a noise. When she went into the living room, Grandmother found appellant sitting on the couch next to H.O. and she could not tell where appellant's hands were. 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, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). We must determine whether a neutral review of all the evidence, both supporting and against the finding, demonstrates that the fact finder was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). Evidence can be factually insufficient when: (1) considered by itself, the evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt; or (2) contrary evidence exists that is strong enough such that the beyond-a-reasonable-doubt standard could not have been met. See id. at 484-85. The State was required to prove beyond a reasonable doubt that appellant engaged in sexual contact with H.O., a child younger than seventeen years and not appellant's spouse. See Tex. Pen. Code Ann. §§ 21.01(2), 21.11(a) (Vernon 2003). "Sexual contact" includes touching through clothing if committed with the intent to arouse or gratify the sexual desire of any person. See id. § 21.11(c). 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); 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 no direct evidence shows his actions were done with the intent to arouse or gratify his sexual desires. Appellant contends the complainant's changed demeanor could be due to many factors relating to children her age and that no evidence shows he touched the complainant's breasts. H.O. testified that when she was watching television, appellant sat close to her, put his arm around her shoulder, and "rubbed" her breasts for several minutes. Appellant stopped because Grandmother, who had previously been in bed, came into the room. H.O. related how appellant made comments to her about sex, and complained to her best friend that appellant was always trying to "French kiss" her. Appellant testified it was H.O. who continually brought up the subject of sex whenever she saw appellant. Appellant claimed it was H.O. who sat close to him and rubbed against him, told appellant she wanted to watch X-rated movies, and invited appellant to tickle her. Appellant testified that Grandmother was in the bathroom when he "tickled" H.O.'s rib cage. However, appellant acknowledged that Grandmother told Davidson that after she awoke and went into the living room, she found appellant and H.O. sitting close together on the couch and she could not see where appellant's hands were. Appellant essentially asks this Court to find his version of events to be more credible and reliable than H.O.'s version. 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.). Viewed under the proper standards, we conclude the evidence is sufficient to show appellant had sexual contact with H.O., a child younger than seventeen years and not his spouse. See Sanders, 119 S.W.3d at 820. After conducting a neutral review of the record, we conclude the evidence of guilt is not too weak to support a finding of guilt beyond a reasonable doubt, nor is the contrary evidence so strong that the beyond-a-reasonable-doubt standard could not have been met. See Zuniga, 144 S.W.3d at 484-85. Thus, the evidence is legally and factually sufficient to support the conviction. We affirm the trial court's judgment.