Castellonv.State

Court of Appeals of Texas, Fourteenth District, HoustonMay 27, 2004
No. 14-03-00736-CR (Tex. App. May. 27, 2004)

No. 14-03-00736-CR

Opinion filed May 27, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).

On Appeal from the 262nd District Court, Harris County, Texas, Trial Court Cause No. 935,983. Affirmed.

Panel consists of Chief Justice HEDGES and Justices FROST and GUZMAN.


MEMORANDUM OPINION


ADELE HEDGES, Chief Justice.

Appellant, Felipe Pedro Castellon, appeals from his conviction for indecency with a child. After a jury found appellant guilty, the trial court sentenced him to fifteen years' imprisonment. In a single issue, appellant contends that the trial court erred in refusing his request for an instructed verdict and in submitting an issue to the jury when there was no evidence to support it. Because all dispositive issues are well settled in law, we issue this memorandum opinion. See TEX. R. APP. P. 47.4. We affirm.

Background

Appellant was charged with indecency with a child. See TEX. PEN. CODE ANN. § 21.11 (Vernon 2003). The indictment contained three operative paragraphs regarding indecency: the first alleged appellant had the complainant touch his genitals, the second alleged appellant touched the complainant's buttocks through her clothes with his penis, and the third alleged appellant exposed his genitals to the complainant. At the close of evidence, defense counsel moved for an instructed verdict regarding paragraph one of the indictment, contending that there was no evidence that the appellant had the complainant touch his genitals. The trial court denied the request. In the charge, the court authorized the jury to find appellant guilty of either indecency by touching or indecency by exposure. The jury was further permitted to find appellant guilty of indecency by touching if it found either that appellant had the complainant touch his genitals or that appellant touched the complainant's buttocks through her clothes with his penis. Appellant objected to the charge on the basis that there was no evidence supporting the conclusion that he had the complainant touch him. The trial court overruled the objection. The jury subsequently found appellant guilty of indecency by touching.

Analysis

On appeal, appellant contends that the trial court erred (1) in denying the motion for an instructed verdict and (2) in submitting a charge that permitted a general finding of guilt under multiple alternative allegations. Taking the latter argument first, it is the law of Texas that when a general verdict is returned and the evidence is sufficient to support a finding of guilt under any of the paragraph allegations submitted, the verdict will be upheld. McDuff v. State, 939 S.W.2d 607, 614 (Tex.Crim.App. 1997). Appellant concedes that the law on general verdicts is as expressed in the McDuff case and that the evidence is sufficient to prove his guilt of indecency under the allegation that he inappropriately touched the complainant. Appellant contends, however, that the Texas rule regarding general verdicts is wrong. As an intermediate appellate court, we are bound to follow precedent established by the Court of Criminal Appeals. See McGlothlin v. State, 896 S.W.2d 183, 188-89 (Tex.Crim.App. 1995); Barstow v. State, 742 S.W.2d 495, 501 n. 2 (Tex. App.-Austin 1987, writ denied). Accordingly, appellant's second argument is without merit. Appellant's first argument, that the court erred in denying the motion for an instructed verdict, attacks the legal sufficiency of the evidence to support the verdict. See Williams v. State, 937 S.W.2d 479, 482 (Tex.Crim.App. 1996). Because appellant concedes that the evidence was sufficient under one of the indecency — by — touching paragraphs, appellant's instructed verdict argument is moot. Furthermore, even if the argument was not moot, the evidence was legally sufficient to support submission of the alternate indecency — by — touching allegation. We utilize the normal standards of review in considering this legal sufficiency challenge. See King v. State, 29 S.W.3d 556, 562 (Tex.Crim. App. 2000). Appellant contends that although the evidence was legally sufficient to show he touched the complainant's buttocks through her clothes with his penis, the evidence was insufficient to show he had the complainant touch his genitals. The complainant testified that appellant grabbed her from behind and pulled her to him so that his penis touched the back of her bare legs and her buttocks through her shorts. This testimony was legally sufficient to demonstrate appellant had the complainant touch his genitals. Accordingly, we overrule appellant's sole issue. The trial court's judgment is affirmed.