Opinion
No. 12-04-00054-CR
Opinion delivered June 30, 2005. DO NOT PUBLISH.
Appeal from the 173rd Judicial District Court of Henderson County, Texas.
Panel consisted of WORTHEN, C.J., GRIFFITH, J., and DeVASTO, J.
MEMORANDUM OPINION
Appellant William Daniel Webb appeals his convictions for indecency with a child by sexual contact and indecency with a child by exposure. In three issues, Appellant complains that the trial court failed to grant his motion for a directed verdict and that the evidence is both legally and factually insufficient to support his convictions. We affirm.
BACKGROUND
Appellant was charged in a two-count indictment with indecency with a child by sexual contact and indecency with a child by exposure. A.L., a female, was named as the victim in both counts. The indictment included an enhancement paragraph for a prior felony conviction. Appellant pleaded "not guilty" and elected to have the court assess his punishment. The matter proceeded to jury trial. According to the evidence at trial, Appellant and A.L. lived in the same neighborhood in the town of Log Cabin. A.L. lived with her mother, father, and brother in a mobile home three lots from Appellant's home. Appellant was introduced to the family through a brother-in-law of A.L.'s mother, Pearl, who testified that she allowed both of her children to go over to Appellant's house because she believed him to be polite and the children liked him. Pearl was the outcry witness who testified about the allegations A.L. made against Appellant. Pearl testified that in September 2000, Appellant came to the family's home for a visit. Pearl, Pearl's stepsister, and A.L were present at the time. After Appellant left, a little boy came by and asked Pearl where A.L. was. Pearl answered that she was outside playing, but Pearl's stepsister stated that A.L. was underneath the porch. Pearl then saw A.L. crawl from underneath the porch of the family's mobile home. She asked A.L. why she was under the porch, and A.L. replied that "she didn't want to speak with Dan [Appellant]." Pearl considered this a strange response because she thought A.L. liked Appellant. She testified that a "warning bell" went off, and she began questioning A.L. about why she did not want to be around Appellant. She asked A.L. if Appellant had done anything to her, to which A.L. responded "I don't like him" and "he's not a nice man." In response to further questions, A.L. told Pearl that Appellant had called her to his car to show her his "horse" and that he was wanting her to "touch it." She told Pearl she had refused to touch it and demonstrated by gesturing that Appellant was masturbating at the time. Pearl stated that A.L. told her Appellant tried to touch her private area. Pearl first testified that A.L. said this had happened two or three times, but later in her testimony she said A.L. told her that Appellant had tried to touch her "lots." When asked about the time frame for these events, Pearl testified that she tried to narrow the dates and believed it was around or right after Christmas of 1999. Pearl contacted the Log Cabin police department after she had questioned A.L. Officer Billy Jack Valentine came to the home and spoke with both A.L. and Pearl. Valentine testified that A.L. told him about a time that she was in Appellant's white car without a top on it. Valentine also stated that according to A.L., Appellant asked her to remove her pants and panties and then reached over and touched her. Valentine also related that A.L. told him Appellant asked her to "play with his penis and balls." A.L. testified that she went with her brother to Appellant's house because her brother was her babysitter and she had to go with him. She testified about a trip with Appellant in a white car to get candy. She related that on the way back from the store, Appellant stopped the car on Ambush Lane and tried to touch her private between her legs and on top of her clothes. She also testified that Appellant tried to get her to touch "his," referring to between his legs. A.L. testified that she was at Appellant's house on many occasions and stated that Appellant "did things" to her "kind of around ten times." The jury found Appellant guilty of both offenses charged. After hearing punishment evidence, the court found that the enhancement paragraph was true and sentenced Appellant to twenty-eight years of imprisonment on count one of the indictment and ten years of imprisonment on count two of the indictment. This appeal followed.LEGAL SUFFICIENCY OF THE EVIDENCE
In his first issue, Appellant complains that the trial court erred by denying his motion for directed verdict on both charges. In his second issue, Appellant argues that the evidence is legally insufficient to support his convictions. A challenge to the denial of a motion for an instructed verdict is actually a challenge to the legal sufficiency of the evidence. Jackson v. State, 50 S.W.3d 579, 597 (Tex.App.-Fort Worth 2001, pet. ref'd). Therefore, we address issues one and two together. Standard of Review Legal sufficiency is the constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal conviction. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2786-87, 61 L. Ed. 2d 560 (1979); see also Escobedo v. State, 6 S.W.3d 1, 6 (Tex.App.-San Antonio 1999, no pet.). The standard for reviewing the legal sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the jury's verdict, any rational trier of fact could have found beyond a reasonable doubt the essential elements of the offense charged. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; see also Johnson v. State, 871 S.W.2d 183, 186 (Tex.Crim.App. 1993). The evidence is examined in the light most favorable to the jury's verdict. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; Johnson, 871 S.W.2d at 186. A successful legal sufficiency challenge will result in rendition of an acquittal by the reviewing court. See Tibbs v. Florida, 457 U.S. 31, 41-42, 102 S. Ct. 2211, 2217-18, 72 L. Ed. 2d 652 (1982). Indecency with a Child by Contact A person commits indecency with a child if, with a child younger than seventeen years and not the person's spouse, the person engages in sexual contact with the child or causes the child to engage in sexual contact. TEX. PEN. CODE ANN. § 21.11(a)(1) (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. Id. at § 21.11(c)(1). Appellant contends the testimony in this case was not sufficiently descriptive to show that he engaged in sexual contact as defined in section 21.11(c)(1). As a matter of public policy, child victims of crimes are not expected to testify with the same clarity and ability as expected of mature and capable adults. Villalon v. State, 791 S.W.2d 130, 134 (Tex.Crim.App. 1990). In Clark v. State, 558 S.W.2d 887 (Tex.Crim.App. 1977), the court of criminal appeals examined the testimony of a six-year-old child victim who stated that the accused in that case had touched her "front butt." Id. at 888. The appellant argued that this testimony was insufficient to show that he had touched the child's genitals or anus. The court affirmed the conviction, stating thatwhere the child has sufficiently communicated to the trier of fact that the touching occurred to a part of the body within the definition of [sexual contact], the evidence will be sufficient to support a conviction regardless of the unsophisticated language that the child uses. For this court to hold otherwise would be to frustrate the intent of the statute.Id. at 889. Here, A.L. testified that Appellant had tried to touch her and put his hand "there." She testified that this meant on her "private" between her legs. She also stated that he touched her "there" on top of her clothes. A videotaped interview of A.L. conducted at the Henderson County Child Advocacy Center was also introduced. During the interview, A.L. was questioned about the contact between A.L. and Appellant. In answer to direct questions from the interviewer, A.L. stated that Appellant touched her on her "pee-pee" and that this happened on numerous occasions. A.L. also pointed between her legs when the interviewer asked her to show where Appellant touched her. Additionally, Pearl testified that A.L. told her Appellant had touched her on her "tee-tee" and pointed with her finger where Appellant touched her. Pearl stated that when A.L. was referring to her private parts, she meant between her legs or her "tee-tee." Upon further questioning, Pearl testified that this meant A.L.'s "genitalia area." Examining this evidence in the light most favorable to the jury's verdict, we conclude that the jury could have reasonably found beyond a reasonable doubt that Appellant engaged in sexual contact with A.L., a child younger than seventeen years and not the spouse of Appellant. Therefore, we hold that the evidence was legally sufficient to support the jury's verdict. Appellant's first and second issues, as each pertains to indecency with a child by sexual contact, are overruled. Indecency with a Child by Exposure A person is guilty of indecency with a child by exposure if, with a child younger than seventeen years and not the person's spouse, the person exposes his anus or any part of his genitals, knowing the child is present, with intent to arouse or gratify the sexual desire of any person. TEX. PEN. CODE ANN. § 21.11(a)(2)(A) (Vernon 2003). Appellant contends that the testimony is not sufficiently descriptive to show that he exposed any part of his genitals to A.L. A.L. testified that while she and Appellant were stopped on Ambush Lane in the white convertible, Appellant tried to get her to touch "his" privates between his legs. She testified on redirect examination that Appellant showed her his privates between his legs. In the videotaped interview at the Child Advocacy Center, A.L. stated that Appellant pulled his pants down so that she could see his privates and told her to "touch it." Pearl testified about an incident where Appellant called A.L. to his car to show her his "horse" and asked her to touch it. When Pearl asked what A.L. meant when she referred to "riding a horse," A.L. put her hands into a fist down between her legs and started jerking back and forth. Pearl understood these gestures to depict masturbation and asked A.L. if anything came out while Appellant was "riding his horse." A.L. answered "no." Examining this evidence in the light most favorable to the jury's verdict, we conclude that the jury could have reasonably found beyond a reasonable doubt that Appellant exposed his genitals to A.L., a child younger than seventeen years and not the spouse of Appellant. Therefore, we hold that the evidence was legally sufficient to support the jury's verdict. Appellant's first and second issues, as each pertains to indecency with a child by exposure, are overruled.