Armando Luna v. State

Opinion

Opinion issued April 7, 2011

In The

Court of Appeals

For The

First District of Texas

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NO. 01-09-00432-CR

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Armando Luna, Appellant

V.

The State of Texas, Appellee

On Appeal from the 182nd District Court

Harris County, Texas

Trial Court Case No. 1166072

MEMORANDUM OPINION

A jury convicted appellant Armando Luna of indecency with a child by contact, and the trial court assessed his punishment at five years’ confinement in prison.  See Tex. Penal Code Ann. § 21.11 (West Supp. 2010).  Luna appeals, claiming the State presented insufficient evidence to support the jury’s verdict.  We affirm.

Background

          On January 28, 2008, the complainant C.L. (then 11 years old), her two younger siblings, and her mother were sleeping together in the children’s bedroom.  C.L.’s mother was awakened around 4:00 a.m. by the sound of C.L.’s father, Armando Luna, returning home.  The mother testified that Luna was drunk.  He approached her while she was sleeping and shook her, calling her “old lady” and swearing when she did not awake.  The mother testified that she believed Luna wanted to have sex with her because he typically would try to do so when he came home drunk.  The mother ignored him and pretended to be asleep.

The mother testified that C.L.’s father then laid down on the edge of the bed next to C.L.  She began to feel the bed move back and forth on the side where C.L. was sleeping.  C.L. testified that she was sleeping when she felt “somebody touching [her] in [her] vagina.”  She testified that she felt a big hand touching her outside of her clothes.  C.L. stated that she knew her father was lying next to her in bed.  She also demonstrated how her father touched her using anatomically correct dolls by touching the doll’s vagina.

The mother testified that she felt Luna’s arm move, so she sat up in the bed and pulled back the covers.  When she pulled back the covers, she saw Luna moving his hand moving away from his daughter’s pelvic area.  C.L.’s mother testified that she asked Luna what he was doing, and that he laughed at her and called her crazy.  The two then began to fight, and Luna punched the mother and pushed her against the headboard.  The next day, the mother moved out of the house with all three children.

The mother took C.L. to see a counselor who made a report of the incident to Child Protective Services and filed a report with the police.  C.L. was also interviewed by A. McAndrew, a forensic interviewer employed by the Children’s Assessment Center.  McAndrew testified that she interviewed C.L. to determine what took place on the night of the incident.  Using anatomically correct dolls, C.L. described and demonstrated Luna’s actions.  McAndrew testified that C.L. seemed credible during the interview and that she knew and was consistent in describing the details of the incident.

After the State rested its case, Luna’s counsel moved for a directed verdict on the grounds that the State had failed to present evidence that Luna had the requisite intent.  The trial court denied the motion.  The jury convicted Luna of indecency with a child, and the court assessed punishment at five years in prison.  Luna timely filed a notice of appeal.

Analysis

In his sole issue, Luna challenges the trial court’s denial of his motion for directed verdict.  We construe a challenge to a trial court’s denial of a motion for directed verdict as a challenge to the legal sufficiency of the evidence.  See Canales v. State, 98 S.W.3d 690, 693 (Tex. Crim. App. 2003).  We review the legal sufficiency of the evidence to support a criminal conviction to determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”  Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); see Hardy v. State, 281 S.W.3d 414, 421 (Tex. Crim. App. 2009).  As the exclusive judge of the facts, the jury may believe or disbelieve all or any part of a witness’s testimony.  Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim. App. 1994).  The jury, which heard testimony from the complainant, was in the best position to weigh the evidence and, on appeal, we will defer to the jury’s assessment of credibility.  See Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.); Watson v. State, 204 S.W.3d 404, 418 (Tex. Crim. App. 2006).

A person is guilty of indecency with a child “if, with a child younger than 17 years of age . . . the person . . . engages in sexual contact with the child or causes the child to engage in sexual contact.”  Tex. Penal Code Ann. § 21.11(a)(1).  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,” if the act was committed “committed with the intent to arouse or gratify the sexual desire of any person.”  Id. § 21.11(c)(1).  The indictment charged that Luna had “unlawfully, intentionally and knowingly engage[d] in sexual contact with [C.L.], a person younger than seventeen years of age and not the spouse of the Defendant, by touching [her genitals] through clothing . . . with the intent to arouse and gratify [his] sexual desire . . . .”

Luna argues that the evidence was not legally sufficient to establish that he acted knowingly or intentionally with the intent to arouse and gratify his sexual desires.  He further contends that the record is devoid of evidence showing that he touched his daughter’s genitals because C.L. testified that she was sleeping and that she felt “someone” touch her.

In evaluating the sufficiency of evidence establishing intent to arouse or gratify a defendant’s sexual desire, the requisite intent 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); see Navarro v. State, 241 S.W.3d 77, 79 (Tex. App.—Houston [1st Dist.] 2007, no pet.).  C.L. testified that she felt a big hand touching her vagina and that her father was lying next to her.  The mother testified that Luna was drunk when he returned home that evening and that he wanted to have sex with her.  After she rebuffed his advances, Luna laid down next to C.L.  The mother testified that she felt the bed moving back and forth and that she saw Luna moving his hand away from C.L.’s pelvic area.

Based on the testimony of C.L. and her mother, a rational jury could have concluded that Luna acted with the intent to arouse or gratify his sexual desire.  See McKenzie, 617 S.W.2d at 216; Navarro, 241 S.W.3d at 79.  At trial, C.L. demonstrated how her father touched her using anatomically correct dolls.  She also testified that she knew that he father was in bed next to her and that she felt a big hand on her vagina while she was sleeping.  Based on her testimony, a rational jury could convict Luna of indecency with a child.  See Navarro, 241 S.W.3d at 79.  Accordingly, we hold that the evidence is legally sufficient to support Luna’s conviction for indecency with a child, and we overrule Luna’s sole issue.  See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789.

Conclusion

          We affirm the trial court’s judgment.

                                                                   Michael Massengale

                                                                   Justice

Panel consists of Justices Keyes, Sharp, and Massengale.

Do not publish.   Tex. R. App. P. 47.2(b).