Opinion
No. 10-05-00076-CR
Opinion delivered and filed February 8, 2006. DO NOT PUBLISH.
Appeal fromthe Criminal District Court No. 3, Tarrant County, Texas, Trial Court No. 0851299D. Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA (Justice VANCE concurs without a separate opinion)
MEMORANDUM OPINION
Howard appeals his convictions for indecency with a child by sexual contact by "touching any part of the genitals" and "touching the breast" of S.H. See Act of May 29, 1993, 73d Leg., R.S., ch. 900, art. 1, § 1.01, sec. 21.11, 1993 Tex. Gen. Laws 3586, 3616 (amended 1999 2001) (current version at TEX. PENAL CODE ANN. § 21.11 (Vernon 2003)). We affirm. In Howard's first issue, he contends that the evidence was legally insufficient, specifically "that the State failed to prove that a sexual act occurred with the intent to arouse the Appellant," see Act of May 29, 1993, 73d Leg., R.S., ch. 900, art. 1, § 1.01, sec. 21.11(a)(2), 1993 Tex. Gen. Laws at 3616 (amended 2001) (current version at Tex. Penal Code Ann. § 21.11(a)(2)), "and/or that [the victim] had been sexually assaulted." (Howard Br. at 18.) "In evaluating the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt." Russeau v. State, 171 S.W.3d 871, 877 (Tex.Crim.App. 2005); accord Jackson v. Virginia, 443 U.S. 307, 319 (1979); Wilhoit v. State, 638 S.W.2d 489, 494 (Tex.Crim.App. [Panel Op.] 1982); Griffin v. State, 614 S.W.2d 155, 158-59 (Tex.Crim.App. [Panel Op.] 1981). "[I]n a prosecution under [Penal Code] § 21.11(a)(1) as well as one pursuant to § 21.11(a)(2), the requisite specific intent to arouse or gratify the sexual desire of any person may be inferred from the defendant's conduct, his remarks and all surrounding circumstances." McKenzie v. State, 617 S.W.2d 211, 216 (Tex.Crim.App. [Panel Op.] 1981); accord Murray v. State, 24 S.W.3d 881, 886 (Tex.App.-Waco 2000, pet. ref'd). "[T]he mere interposition of a layer of fabric between a person's hand and the genitals of another d[oes] not prevent the occurrence of sexual contact. . . ." Guia v. State, 723 S.W.2d 763, 766 (Tex.App.-Dallas 1986, pet. ref'd); accord Resnick v. State, 574 S.W.2d 558, 560 (Tex.Crim.App. [Panel Op.] 1978); Fletcher v. State, 852 S.W.2d 271, 274 (Tex.App.-Dallas 1993, pet. ref'd). Howard argues that his touching of S.H. occurred in "playtime." Howard points to the testimony of S.H.'s sister that Howard did not touch the sister "in a sexual manner"; to S.H.'s testimony that Howard's hands did not go inside her panties and that Howard "did not exhibit signs of arousal"; and to the absence of "medical records regarding any sexual assault findings." The State points primarily to S.H.'s testimony that Howard attempted but failed to put his hand inside her panties, and touched her vagina through her panties and licked her breast. Sexual assault is not an element of indecency with a child. Cf. Act of May 29, 1993, 73d Leg., R.S., ch. 900, art. 1, § 1.01, sec. 21.11(a), 1993 Tex. Gen. Laws at 3616 (amended 2001). Viewing this evidence in the light most favorable to the verdict, we hold that a rational trier of fact could have found beyond a reasonable doubt that Howard indecently touched S.H. with the intent to arouse or gratify his sexual desire. The evidence was thus legally sufficient. We overrule Howard's first issue. In Howard's second issue, he contends that the trial court erred in overruling Howard's relevancy objection to evidence of Howard's flight. See TEX. R. EVID. 401-402. "The standard of review for a trial court's ruling under the Rules of Evidence is abuse of discretion." Martin v. State, 173 S.W.3d 463, 467 (Tex.Crim.App. 2005) (quoting Sauceda v. State, 129 S.W.3d 116, 120 (Tex.Crim.App. 2004)); accord Montgomery v. State, 810 S.W.2d 372, 390-92 (Tex.Crim.App. 1991) (op. on reh'g). "A trial judge abuses his discretion when his decision is so clearly wrong as to lie outside the zone within which reasonable persons might disagree." Howell v. State, 175 S.W.3d 786, 790 (Tex.Crim.App. 2005); accord Montgomery at 391. "Evidence of flight or escape is admissible as a circumstance from which an inference of guilt may be drawn." Bigby v. State, 892 S.W.2d 864, 883 (Tex.Crim.App. 1994); accord Johnson v. State, 23 S.W.3d 1, 4-5 (Tex.Crim.App. 2000) (citing Rumbaugh v. State, 629 S.W.2d 747, 752 (Tex.Crim.App. 1982)). Howard argues that when he left Texas there were no charges pending against him. The State points to evidence that Howard left after being informed of S.H.'s allegations against him. The trial court did not abuse its discretion in overruling Howard's objection. We overrule Howard's second issue. Having overruled Howard's issues, we affirm.