No. 13-06-210-CR
Opinion delivered and filed August 23, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On appeal from the 94th District Court of Nueces County, Texas.
Before Justices YAÑEZ, RODRIGUEZ, and GARZA.
DORI CONTRERAS GARZA, Justice.
A jury found appellant, Rodney Aric Wood, guilty of two counts of the offense of indecency with a child. See Tex. Penal Code Ann. § 21.11 (Vernon 2003). Punishment was assessed at five years' community supervision. By two issues, appellant claims the evidence is legally and factually insufficient to support his conviction. We affirm.
I. Factual and Procedural Background
Appellant, his wife, Cynthia, and their son Ethan, traveled from Sugar Land to visit family in Corpus Christi. Once there, they decided to visit the home of James Lucas and Margarita ("Maggie") Galvan. Cynthia and James had been friends for several years. After an evening of socializing, James invited appellant, Cynthia, and Ethan, to spend the night because he believed appellant and Cynthia were too intoxicated to drive. Maggie's daughters, S.C. and J.C., each have their own bedrooms. James put the girls to bed in J.C.'s room, and appellant went to sleep in S.C.'s room. Cynthia and Ethan slept in the living room. At approximately 3:00 a.m., appellant woke up to go to the restroom and subsequently went into the room where the girls were sleeping. What occurred after he went into the room is hotly contested. Appellant claims that he stumbled into the wrong room because he was confused. When the girls awoke, they appeared "startled" by his presence, J.C. in particular. Appellant attempted to calm them. Appellant testified, "I was just trying to tell her, you know, I'm sorry, you know things happen, it was an accident, I came in the wrong room." S.C. got up and went into her bedroom and J.C. followed her. Appellant claimed, "[he] knew they were still kind of startled so [he] followed them and [he] said, 'you know, I'm sorry, it was an accident. I didn't mean anything.'" Appellant testified he was wearing underwear and khaki shorts but did not have a shirt on. At that point, James came into the room and asked what he was doing. James became upset and asked appellant to leave his home. "He kept telling me to get out and get out, and when he pushed me, and I fell down, that was an indication to me that I needed to leave." Appellant left the home, leaving his wife and son behind. James testified he was awakened by the sound of crying at approximately 3:00 a.m. He got up and walked over to S.C.'s room. James could hear faint crying and appellant talking; he thought it was appellant's wife that was crying. He looked into the room and saw "about three and a half inches of the crack of [appellant's] rear end sticking out." He looked into J.C.'s room and saw that the girls were not there and he became scared. He called out their names and they came running out of S.C.'s room. James woke Cynthia up and asked her to check on her husband because he wanted to know if appellant was naked. After a few minutes, he saw appellant "popping out without a shirt pulling up his shorts" yelling, "nothing happened, nothing happened." James asked Maggie to call the police. Upon hearing this, appellant left the home. S.C. testified that appellant came into the room while she was sleeping. He climbed into bed with her and J.C. He was totally naked. She heard J.C. crying and they both left the room and went to her room. Appellant followed them into her room and got on the bed with them. She saw appellant naked and saw his "private parts" which are located "between his legs." J.C. testified she woke up and appellant was kneeling on the bed, "kind of on top of me." He did not have any clothes on and she could see his "private, his body, his legs." She crawled onto her night stand and appellant said, "things happen." She followed her sister to the other room and they went to the left corner of the bed. Appellant followed them, still naked, and went to the other side of the bed and covered himself with the covers. That is when her dad came looking for them. Later that day, J.C. made an entry into her diary documenting the events that had occurred. The seven-page entry was introduced into evidence. Maggie testified that she was awakened by the sound of crying. Thinking it was appellant and his wife having an argument, she asked James to go check it out. When she heard yelling, she went out to see what was going on. James was upset and asking appellant to get out of the house. Maggie asked J.C. whether she had seen appellant's "private parts." J.C. replied that she had and that it was "sticking up." A couple of days later, they found a shirt and underwear in S.C.'s room. Maggie testified the clothes did not belong to James. Ricardo Jimenez, the lead forensic interviewer at the Nueces County Children's Advocacy Center, interviewed J.C. The recorded interview was introduced into evidence and shown to the jury. Jimenez testified that J.C. was graphic, age appropriate and did not appear to be coached. J.C. stated to Jimenez that she had seen appellant's penis. II. Legal Factual Sufficiency
By two issues, appellant claims the evidence is legally and factually insufficient to support his conviction. Specifically, appellant claims there is no evidence of his intent to arouse or gratify the sexual desire of any person. See Tex. Penal Code Ann. § 21.11(a)(2). In a legal sufficiency review, we consider all of the properly or improperly admitted evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational jury could have found the accused guilty of the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003) (en banc). In a factual sufficiency review, we view the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. See Watson v. State, 204 S.W.3d 404, 414-17 (Tex.Crim.App. 2006). We then determine whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Id. at 415. We will not reverse a case on a factual sufficiency challenge unless we can say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. at 417. Under both legal and factual sufficiency standards, the fact-finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. See Swearingen, 101 S.W.3d at 97; Cain v. State, 958 S.W.2d 404, 408-09 (Tex.Crim.App. 1997). The jury is in the best position to evaluate the credibility of the witnesses, and our factual-sufficiency jurisprudence still requires an appellate court to afford "due deference" to the jury's determinations. Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006). Although the reviewing court is permitted "to substitute its judgment for the jury's" when considering credibility and weight determinations, it may do so only "to a very limited degree." Marshall, 210 S.W.3d at 625 (citing Watson, 204 S.W.3d at 417). We measure the sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). A hypothetically correct jury charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or restrict its theories of liability, and adequately describes the particular offense for which the defendant was tried. Id. Appellant argues the evidence is insufficient to show intent to arouse or gratify sexual desire because, looking at the evidence in a light most favorable to the prosecution, the only factors militating toward a conviction include evidence that: appellant's penis was exposed; appellant was in a room with two girls who saw his penis; the girls stated he followed them to another room; he told them "things happen"; and, the mother stated that when she asked one of the girls about the penis, the girl stated it was sticking up. Intent is a question of fact and may be inferred from the acts, words, and conduct of the accused. Wallace v. State, 52 S.W.3d 231, 234 (Tex.App.-El Paso 2001, no pet.) (citing Manrique v. State, 994 S.W.2d 640, 649 (Tex.Crim.App. 1999)). Under section 21.11(a), "the requisite specific intent to arouse or gratify the sexual desire of any person can 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. 1981) (citing Bowles v. State, 550 S.W.2d 84, 85-86 (Tex.Crim.App. 1977); Turner v. State, 600 S.W.2d 927 (Tex.Crim.App. 1980)); see Lewis v. State, 676 S.W.2d 136, 139 (Tex.Crim.App. 1984) ("The intent element in this case can only be proved by inferences from the evidence presented."); Gregory v. State, 56 S.W.3d 164, 171-72 (Tex.App.-Houston [14th Dist.] 2001, pet. dism'd). No oral expression of intent is necessary, nor is visible evidence of sexual arousal required. McKenzie, 617 S.W.2d at 216; Gregory, 56 S.W.3d at 172. Nor is there a requirement that a male offender's penis be erect. Gregory, 56 S.W.3d at 172. After reviewing all the evidence in the light most favorable to the verdict, we conclude that any rational trier of fact could have found that appellant had the intent to arouse or gratify his sexual desire beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Young, 14 S.W.3d at 753; see also Malik, 953 S.W.2d at 240. From the testimony adduced at trial, specifically, that appellant stated, "things happen," and that his penis was "sticking up," the jury could have inferred that appellant exposed himself for his own sexual gratification or arousal. Gregory, 56 S.W.3d at 172 (citing Brown v. State, 871 S.W.2d 852, 856 (Tex.App.-Corpus Christi 1994, pet. ref'd)). In addition, after a neutral review of the evidence, we conclude the evidence is not so weak as to be clearly wrong and manifestly unjust, nor is there contrary evidence that makes the finding of guilt against the great weight and preponderance of the evidence. See Watson, 204 S.W.3d at 414; Johnson, 23 S.W.3d at 11; Malik, 953 S.W.2d at 240. Accordingly, we hold the evidence is legally and factually sufficient to support appellant's conviction for the offense of indecency with a child. Appellant's first and second issues are overruled. III. Conclusion
The judgment of the trial court is affirmed.