James Wesley Howard v. State

• Court: Court of Appeals of Texas
• Decided: February 12, 2009
• Docket: 01-07-00818-CR
• Status: Published

Opinion

Opinion issued February 12, 2009

In The

Court of Appeals

For The

First District of Texas

NO. 01-07-00818-CR

JAMES WESLEY HOWARD, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 239th District Court

Brazoria County, Texas

Trial Court Cause No. 38776

MEMORANDUM OPINION

A jury convicted appellant, James Wesley Howard, of indecency with a child. ⁽¹⁾ After finding one enhancement allegation true, the jury sentenced appellant to life in prison and assessed a $10,000 fine. In two points of error, appellant argues that the evidence is legally and factually insufficient to support his conviction.

We affirm.

Background On February 25, 2000, appellant attended a barbeque at Suzann Hadden's home. Appellant and Ms. Hadden were dating at the time. Ms. Hadden and her three children, including her daughter, A.C., who was eight years old at the time, had recently moved to a new house in Liverpool, Texas. Appellant and Ms. Hadden's father had been drinking together before arriving at Ms. Hadden's house that day.

Following the barbeque, appellant, Ms. Hadden, Ms. Hadden's father, and A.C. went into the house. Around midnight, Ms. Hadden went to sleep in her bedroom. After Ms. Hadden went to sleep, Ms. Hadden's father, A.C.'s grandfather, fell asleep on the sofa. A.C. stated she was scared to sleep alone and asked appellant if she could sleep in her mother's bed with appellant and Ms. Hadden. Appellant gave A.C. permission and went into the bathroom to change into clothes for sleeping. Ms. Hadden was still asleep on the right side of the bed, appellant lay next to her in the middle, and A.C. lay on the left.

A.C., who was 16 years old at the time of trial, testified that after she fell asleep, she awakened on her back with her legs spread. Appellant's hands were up her shorts and touching her vagina. A.C. said appellant had his hand "around . . . the clitoris area," but did not penetrate her vagina with his finger. Appellant took his hand away and put it back several times. A.C. testified that she could not see appellant and did not know what he was doing, but it sounded like he could have been putting his fingers into his mouth. After A.C. rolled away from appellant onto her side, appellant put his hand up her shirt and "fondled" her breasts for a few seconds.

A.C. then left the bedroom and walked into the living room to lie down on a bean bag chair next to her grandfather, who did not wake up during these events. A.C. testified that appellant then came out of the bedroom and asked if she was coming back to bed. A.C. replied that she was going to sleep next to her grandfather on the bean bag chair. Appellant asked A.C. if "she was sure" twice, to which A.C. replied that she was. Appellant returned to the bedroom, where he remained for the rest of the night.

Early the next morning, Ms. Hadden left for work while everyone in the house was still asleep. A.C. stayed home during the day with her grandfather and appellant. When Ms. Hadden arrived home from work, A.C. told her mother what had happened the previous night. Ms. Hadden then confronted appellant, who denied the allegation.

After the confrontation, appellant went inside to help Ms. Hadden's father with a TV. He then left the house, saying he had to make some phone calls. A few hours later, appellant telephoned Ms. Hadden. During the conversation, Ms. Hadden asked appellant to return to the house so they could talk. The telephone call was the last communication between Ms. Hadden and appellant.

Indecency with a Child

In his first point of error, appellant argues that the State's evidence is legally insufficient to support the jury's verdict of guilt. Specifically, appellant claims that the evidence failed to show he engaged in sexual contact with A.C. "with the intent to arouse or gratify his sexual desire."

Legal Sufficiency

We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). Although our analysis considers all the evidence presented at trial, we may not re-weigh the evidence and substitute our judgment for that of the fact finder. King, 29 S.W.3d at 562.

A person commits indecency with a child if he engages in sexual contact with a child younger than 17 years old who is not that person's spouse. Tex. Penal Code Ann. § 21.11(a)(1) (Vernon 2003). "Sexual contact," as defined within this section, means "any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child." Id. § 21.11(c)(1). An essential element of indecency with a child is the requisite mental state that accompanies the conduct: the "intent to arouse or gratify the sexual desire of any person." Id. § 21.11(c); McKenzie v. State, 617 S.W.2d 211, 213 (Tex. Crim. App. 1981).

This requisite specific intent may be inferred from the defendant's conduct, remarks, and all surrounding circumstances. McKenzie, 617 S.W.2d at 216. Furthermore, the uncorroborated testimony of a child victim alone is sufficient to support a conviction for indecency with a child. Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon 2005); Lee v. State, 176 S.W.3d 452, 458 (Tex. App.--Houston [1st Dist.] 2004), aff'd, 206 S.W.3d 620 (Tex. Crim. App. 2006).

A jury could have inferred appellant's intent from A.C.'s testimony alone. A.C. testified that appellant touched her breasts and vagina. This testimony was sufficient for the jury to infer that appellant engaged in sexual contact with the intent to arouse or gratify his sexual desire. See Lee, 176 S.W.3d at 458; see also McKenzie, 617 S.W.2d at 216 (holding that testimony of appellant's conduct was sufficient to permit deduction of intent).

Appellant contends the only evidence allowing an inference of intent was A.C.'s testimony, and because that testimony did not prove he was aware or conscious, it failed to show intent. However, evidence of appellant's conduct after the offense also constitutes evidence of his intent. See Perales v. State, 226 S.W.3d 531, 535 (Tex. App.--Houston [1st Dist.] 2006, pet. ref'd). A.C. testified that appellant followed her into the living room after she left the bedroom and repeatedly asked her if she wanted to return to bed. Appellant's conduct could have led a jury to infer that appellant was awake during the offense and that appellant attempted to continue his assault on A.C. See Lewis v. State, 676 S.W.2d 136, 139 (Tex. Crim. App. 1984) ("[E]vidence is admissible if it establishes . . . unnatural attention, or . . . lascivious intent toward the victim."). Additionally, after being confronted by the victim's mother, appellant left and never returned. The jury could have inferred that appellant's sudden flight was an attempt to escape guilt. Lee, 176 S.W.3d at 462 ("Evidence of flight . . . is admissible as a circumstance from which an inference of guilt may be drawn."). We conclude that the evidence of appellant's conduct during and after the offense presented by the State was sufficient for the jury to infer intent.

Appellant also argues that, because the State presented no evidence of inculpatory statements or extraneous sexually suggestive behavior by appellant, the jury could not have found the requisite intent beyond a reasonable doubt. By pointing out behavior that appellant did not exhibit, along with scenarios in which appellant could have assaulted A.C. more conveniently, appellant contends that the State failed to show sufficient proof of intent. However, "[s]imply because cases exist in which more extreme conduct occurred--that is, in which intent to arouse or to gratify sexual desire could be more easily inferred--does not mean that a jury could not have inferred intent from the facts of this case." Perales, 226 S.W.3d at 535. Therefore, we conclude that the evidence is legally sufficient to show intent.

We overrule appellant's first point of error.

Factual Sufficiency

In his second point of error, appellant argues that proof of intent was so weak that a rational trier of fact could not have found him guilty. In point of error one, appellant argued there was a lack of evidence to prove the element of intent because there was no proof he was awake or aware during the offense. Appellant returns to this argument for additional support under point of error two.

A factual sufficiency review requires us to view all of the evidence in a neutral light and to ask whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). Evidence is factually insufficient (1) when the evidence supporting the conviction is so weak that the verdict seems clearly wrong and manifestly unjust or (2) when the evidence supporting the conviction is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007); see Sanchez v. State, 243 S.W.3d 57, 72 (Tex. App.--Houston [1st Dist.] 2007, pet. ref'd).

We cannot reverse when the greater weight and preponderance of the evidence actually favors conviction. Roberts, 220 S.W.3d at 524. And we may not substitute our judgment for that of the jury merely because we would have reached a different result. Watson, 204 S.W.3d at 414. Instead, the record must show some objective basis for concluding that the great weight and preponderance of the evidence contradicts the jury's verdict. See id. at 417.

In conducting a factual-sufficiency review, we must discuss the evidence that, according to the appellant, most undermines the jury's verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

In Jones v. State, a child victim's testimony was found legally and factually sufficient to support the jury's guilty verdict for attempted indecency with a child. 229 S.W.3d 489, 498 (Tex. App.--Texarkana 2007, no pet.). The child victim in Jones testified that the appellant inappropriately touched her while she was trying to sleep. Id. at 496. The appellant denied that he had an intent to touch the child, claiming he was not awake when the touching occurred. Id. at 497. In that case, the court deferred to the trial court's decision, giving "deference to the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Id. at 495.

On appeal, appellant does not dispute A.C.'s testimony that he touched her. Here, just as in Jones, appellant argues that A.C.'s testimony was insufficient for a rational finding of intent because it does not prove that he was awake or conscious during the offense. Appellant attempts to disprove intent by offering other explanations for the conduct set forth as evidence by the State. In this case, the jury is the sole judge of conflicting arguments and may draw their own conclusions after weighing all of the evidence. See id. at 497; see also Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). The jury's verdict of guilt was a reasonable deduction from the evidence presented at trial.

Appellant additionally argues that the jury was swayed by the emotional testimony of a young child instead of considering all the evidence in a neutral light. As discussed above, the fact finder is the sole judge of credibility accorded to any witness's testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). Thus, the jury was entitled to infer intent through the victim's testimony of appellant's conduct. See Lee, 176 S.W.3d at 458. We hold that the evidence is factually sufficient to show that appellant acted with the intent to arouse or gratify his sexual desire.

We overrule appellant's second point of error.

Conclusion

We affirm the judgment of the trial court.

Evelyn V. Keyes

Justice

Panel consists of Justices Jennings, Keyes, and Higley.

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

1.

Tex. Penal Code Ann. § 21.11(a)(1) (Vernon 2003).