Opinion
No. 05-14-01362-CR
04-27-2016
JOSE JESUS YANEZ-TREJO, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 283rd Judicial District Court Dallas County, Texas
Trial Court Cause No. F13-39647-T
MEMORANDUM OPINION
Before Justices Bridges, Lang-Miers, and Schenck
Opinion by Justice Lang-Miers
A jury found appellant Jose Jesus Yanez-Trejo guilty of continuous sexual abuse of a young child. Pursuant to the terms of an agreement between appellant and the State as to punishment, the trial court sentenced appellant to 33 years in prison. On appeal appellant argues that the evidence is insufficient to support his conviction. We resolve appellant's issue against him and affirm.
BACKGROUND
Appellant was indicted for the continuous sexual abuse of his girlfriend's daughter, T.B. The State's witnesses at appellant's trial included T.B., three of T.B.'s relatives (her mother, father, and stepmother), the forensic interviewer who interviewed T.B. at Dallas Children's Advocacy Center, and the physician who performed T.B.'s sexual assault examination.
T.B. was eleven years old and in the sixth grade at the time of appellant's trial. T.B. testified that appellant was her mother's boyfriend and lived with T.B. and her family for several years starting when T.B. was four or five years old. T.B. liked appellant and called him "Chito." T.B. was five or six years old when the sexual abuse started. The first time, T.B.'s mom was working late and her sisters were watching television. T.B. went to the kitchen to get water before going to bed and appellant saw her and asked her to "go lay down with him" on the bed. While they were on the bed together appellant used his hand to rub the outside of T.B.'s "middle area"—meaning her vagina—first outside, and later inside, her underwear. T.B. described it as "really awkward" and told the jury she "didn't like it." Appellant touched T.B.'s vagina at least twice when they lived together in Lancaster, including one time at the kitchen table. T.B. does not remember how many times because "[i]t just felt like it was going on and on." While they were living in Lancaster, T.B. told her mother about the abuse. T.B. thought her mother "was going to handle it." But the abuse continued.
During her testimony, T.B.'s mother told the jury that she was under indictment for felony endangerment of a child for not reporting appellant's sexual abuse of T.B. --------
Appellant continued to touch T.B.'s vagina when they moved to a trailer home. Later, when T.B. was in third grade, they moved to an apartment in Mesquite. At that apartment the abuse escalated and appellant put his finger inside T.B.'s vagina while she played a game on appellant's tablet computer. With respect to the incident in Mesquite, T.B. testified,
I was going to ask Chito if I can use his tablet. And he said, "Only if you lay down with me." I said, "Okay." So my sister left the room and I went to lay down with him and I was playing on the tablet. And he put his hands in my pants and he put his fingers in my middle part and it hurt.The abuse stopped after that because appellant moved out and went to live with his brother.
When T.B. was in the fifth grade and living with her father and stepmother, she was caught looking at pornography on the internet. T.B.'s father and stepmother met with T.B. and her sisters and talked to them about appropriate behavior and internet safety. T.B. started crying and said she needed to tell them something. After her sisters were excused from the room, T.B. told her father and stepmother about the abuse.
Appellant testified in his defense. He acknowledged that he sometimes drank heavily during the time period in question. But he repeatedly denied ever touching T.B. In his closing argument, appellant's counsel argued that "kids can lie." He also noted that appellant never exposed himself to T.B. and argued that there was no evidence of any intent to arouse or gratify appellant's sexual desire.
ISSUE ON APPEAL
Appellant argues that the evidence is insufficient to support the intent element of indecency with a child, one of the predicate offenses in this case. More specifically, appellant argues that the State failed to prove beyond a reasonable doubt that appellant intended to arouse or gratify his sexual desire when he touched T.B.'s genitals.
We review the sufficiency of the evidence under the standard of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). Under the Jackson standard, we review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). In conducting a sufficiency review, we defer to the jury's role as the sole judge of the witnesses' credibility and the weight their testimony is to be afforded. Brooks, 323 S.W.3d at 899. This standard accounts for the factfinder's duty to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). When the record supports conflicting inferences, we presume the factfinder resolved the conflicts in favor of the prosecution and defer to that determination. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.
Under section 21.02 of the Texas Penal Code, a person commits the offense of continuous sexual abuse of a young child if the person engages in two or more acts of sexual abuse against the child during a period of 30 days or more. TEX. PENAL CODE ANN. § 21.02(b)(1) (West Supp. 2015). With respect to the specific nature of the sexual abuse in this case, the State alleged two predicate offenses: (1) aggravated sexual assault under penal code section 22.021 (intentionally or knowingly causing the penetration of T.B.'s sexual organ with appellant's finger), and (2) indecency with a child under penal code section 21.11 (contact between appellant's hand and T.B.'s genitals with intent to arouse or gratify appellant's sexual desire).
Appellant does not challenge the sufficiency of the evidence concerning the aggravated sexual assault, nor does he challenge the evidence that he touched T.B.'s genitals with his hand. Appellant argues only that there is no evidence that when he touched T.B.'s genitals with his hand, he did so with the intent to arouse or gratify his sexual desire. We disagree.
In a prosecution for indecency with a child, a defendant's specific intent to arouse or gratify his sexual desire can be inferred from his conduct, his remarks, and all surrounding circumstances. See McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. [Panel Op.] 1981); Moore v. State, 397 S.W.3d 751, 754 (Tex. App.—San Antonio 2013, no pet.). Intent can be inferred from conduct alone, and no oral expression of intent or visible evidence of sexual arousal is necessary. Scott v. State, 202 S.W.3d 405, 408 (Tex. App.—Texarkana 2006, pet. ref'd).
In this case there was no other nonsexual explanation for the fondling. Moreover, the repeated and escalating nature of appellant's conduct, and the fact that it occurred only when T.B.'s mother was not present, suggests that it was not accidental or inadvertent. After reviewing all of the evidence in the light most favorable to the verdict, we conclude that a rational jury could have found beyond a reasonable doubt that appellant touched T.B.'s genitals with the intent to arouse or gratify his sexual desire. See, e.g., Martinez v. State, No. 11-13-00091-CR, 2015 WL 1778989, at *5 (Tex. App.—Eastland Apr. 16, 2015, no pet.) (mem. op., not designated for publication) (rejecting complaint that evidence was insufficient to show intent to arouse or gratify defendant's sexual desire because, among other things, one complainant testified the sexual abuse occurred three times). As a result, the evidence is sufficient to support appellant's conviction for continuous sexual abuse of a young child based, in part, on the predicate offense of indecency with a child.
CONCLUSION
We resolve appellant's issue against him and affirm.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE 141362F.U05
JUDGMENT
On Appeal from the 283rd Judicial District Court, Dallas County, Texas
Trial Court Cause No. F13-39647-T.
Opinion delivered by Justice Lang-Miers. Justices Bridges and Schenck participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 27th day of April, 2016.