Opinion
No. 04-16-00500-CR
04-12-2017
Nicholas LOPEZ, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 81st Judicial District Court, Atascosa County, Texas
Trial Court No. 15-01-0025-CRA
Honorable Donna S. Rayes, Judge Presiding Opinion by: Irene Rios, Justice Sitting: Karen Angelini, Justice Luz Elena D. Chapa, Justice Irene Rios, Justice AFFIRMED
A jury found Nicholas Lopez guilty of the offense of indecency with a child, and the trial court assessed punishment at twenty years' imprisonment. On appeal, Lopez argues the evidence presented at trial is insufficient to support his conviction. We affirm.
BACKGROUND
On July 13, 2014, the complainant J.F. gave her mother, Julia, a note and extracted a promise from Julia not to open the note until the following day. The next day, Julia read the note, which stated: "Dear Mom, Popo touched me. I was scared to tell you. It happened a long time ago but not that long ago." According to Julia, Popo is what her children called Lopez, who was married to Julia's mother.
Julia spoke with J.F. about the note's contents. According to Julia, J.F. told her that when she and her brother visited their grandmother and Lopez, she climbed onto the bed with Lopez when the children tired of playing a game and her brother went to another room. J.F. told Julia that Lopez put his hands under J.F.'s panties and touched J.F.'s private area, but did not put any fingers inside her private area.
Julia did not immediately report the incident. Julia testified she was concerned with her husband's response and how it would affect her relationship with her mother. Julia believed she needed to pray about how to move forward, and several months later in October 2014, she contacted Catholic Charities Counsel for counseling. Julia was informed by Catholic Charities Counsel employees that they were required to report sexual assault incidents to law enforcement if Julia did not. Julia contacted CPS and ultimately gave her statement to Sergeant Albert Garza of the Atascosa County Sheriff's Office. Garza coordinated with CPS for J.F. to meet with a forensic interviewer at the children's advocacy center in Floresville.
A grand jury indicted Lopez for the offense of indecency with a child. Following his conviction, Lopez perfected this appeal.
ANALYSIS
Standard of Review
When examining the sufficiency of the evidence, an appellate court considers all the evidence in the light most favorable to the conviction to determine whether, based on the evidence and reasonable inferences therefrom, a rational trier of fact could have found each element of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012).
As the factfinder, the jury is the exclusive judge of witness credibility and the weight of the evidence. Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015). The jury is permitted to draw any reasonable inferences from the evidence so long as the inference is supported by the record. Id. Further, the reconciliation of conflicts in the evidence is within the factfinder's exclusive province. Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000). If a record supports conflicting inferences, the appellate court presumes the factfinder resolved the conflicts in favor of the prevailing party and therefore defers to that determination. Jackson, 443 U.S. at 319; Hooper v. State, 214 S.W.3d 9, 12 (Tex. Crim. App. 2007). Direct evidence and circumstantial evidence are equally probative, and circumstantial evidence alone may be sufficient to uphold a conviction so long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction. Winfrey v. State, 393 S.W.3d 763, 771 (Tex. Crim. App. 2013); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); see also Canida v. State, 446 S.W.3d 601, 605 (Tex. App.—Texarkana 2014, no pet.).
Application
A person commits an offense if, with a child younger than seventeen and not the person's spouse, the person engages in sexual contact with the child or causes the child to engage in sexual contact. See TEX. PENAL CODE ANN. § 21.11(a)(1) (West 2015). "Sexual contact" means the following acts, if committed with the intent to arouse or gratify the sexual desire of any person:
(1) any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child; orId. at § 21.11(c). A person acts intentionally with respect to the nature of the conduct or result when it is the person's conscious objective or desire to engage in the conduct or cause the result. Id. at § 6.03(a). The offense of indecency with a child requires proof of the accused's intent to engage in the proscribed conduct, rather than intent to bring about a particular result. Rodriguez v. State, 24 S.W.3d 499, 502 (Tex. App.—Corpus Christi 2000, pet. ref'd).
(2) any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person.
Intent to Arouse or Gratify
In his sole issue on review, Lopez contends the State failed to prove beyond a reasonable doubt the evidence established he touched J.F. with the intent to arouse or gratify the sexual desire of any person. Lopez argues that the mere touching by itself is not sufficient to establish that intent. We disagree.
In cases charging indecency with a child by contact, there will rarely be direct evidence of what an accused intended at the time of the sexual contact. Scott v. State, 202 S.W.3d 405, 408 (Tex. App.—Texarkana 2006, pet. ref'd). Thus, the trier of fact must generally infer intent from circumstantial evidence. Id. Accordingly, courts have held that in the context of indecency with a child, the intent component of the offense can be inferred from the accused's conduct and remarks and all surrounding circumstances. Id.; see Bazanes v. State, 310 S.W.3d 32, 40 (Tex. App.—Fort Worth 2010, pet ref'd). Importantly, intent to arouse or gratify sexual desire can be inferred from the accused's conduct alone, no oral expression of intent or visible evidence of sexual arousal is necessary. Scott, 202 S.W.3d at 408. Moreover, the testimony of a child victim alone is sufficient to support a conviction for indecency with a child. Id.
In this case, the State presented evidence from J.F., the child victim. J.F. testified that when she and her brother were finished playing a game at her grandmother's house, she laid down on the bed in her grandmother's room with Lopez. J.F. further testified Lopez put his hand under her shorts and underwear. J.F. testified Lopez touched her "on my private." J.F. identified her "private" as where "you go pee." J.F. stated she was scared because she had been told people shouldn't touch her like that. J.F. testified she told her brother what happened and asked him to tell their mother.
J.F.'s brother testified that when J.F. told him what happened, she was upset but not crying. J.F.'s brother corroborated that J.F. asked him to tell their mother, but testified he did not. According to J.F.'s brother, he believed the incident must have been an accident because Lopez would never do something like that.
J.F. testified she told her mother herself via the note when it became obvious her brother had not told their mother what happened. J.F. testified she was afraid people would be mad at her and she would not be able to see her grandmother. J.F. stated she was also worried what Lopez might do.
J.F.'s grandmother also testified. During a phone call with Lopez, he told the grandmother, "Tell [J.F.] to say it's lies and I didn't do anything." During the same phone conversation, Lopez told the grandmother, "The only way they would let me out is if [J.F.] said it was a lie. Then maybe I have a chance." The grandmother confirmed that J.F. never stated the incident did not happen. Additionally, Julia testified J.F.'s description of the incident did not change. Finally, the State elicited testimony from Garza that a delayed outcry is common among child victims.
Viewing the evidence in a light most favorable to the verdict, we conclude the evidence is legally sufficient to support the jury's verdict. Deferring to the jury's determination and evaluation of witness credibility, we conclude the State presented legally sufficient evidence from which the jury could have found Lopez acted with the intent to arouse or gratify his sexual desire when he touched J.F.'s genitals. Accordingly, as this is the only element of the offense challenged by Lopez, we overrule Lopez's complaint on appeal.
CONCLUSION
Based on the forgoing reasons, the judgment of the trial court is affirmed.
Irene Rios, Justice DO NOT PUBLISH