Jarvis Hardeway v. State

Opinion

Opinion Issued January 10, 2008

Opinion Issued January 10, 2008

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-00841-CR

JARVIS HARDEWAY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 351st District Court

Harris County, Texas

Trial Court Cause No. 988922

MEMORANDUM OPINION

          Appellant Jarvis Hardeway pleaded not guilty to the felony offense of indecency with a child by contact. See Tex. Pen. Code Ann. § 21.11 (Vernon 2005).  The jury found Hardeway guilty and assessed punishment at five years’ confinement with a recommendation for community supervision. In one issue, Hardeway challenges the factual sufficiency of the evidence to establish the identity of Hardeway as the perpetrator of the offense.  We conclude that the evidence is factually sufficient and, therefore, affirm.

Background

          Z.F. was eleven years old when he accompanied his mother and sister to a grocery store on the evening of January 13, 2003.  Z.F. insisted that he needed to use the restroom, and his mother allowed him to go.  The restroom was in the back of the store, connected to the employee break room.  The entrance to the back of the store, where the restroom was located, was visible from the deli counter, where Hardeway was working.  Z.F. was using the urinal when he heard someone enter the restroom.  Z.F. testified that as the person entered the restroom, Z.F. looked up and saw his face.  Z.F. recognized him as an employee of the grocery store, and later identified him both to the police and at trial as Hardeway.  After entering the restroom, Hardeway began flickering the lights on and off, before ultimately turning them off.  Z.F. at first believed that it was the janitor.  Nonetheless, it scared Z.F., and he pulled up his pants.  Although the bathroom was quite dark, Z.F. testified that there was some light entering from the adjoining break room through the grate in the door.  Z.F. heard Hardeway first walk past him towards the stalls, and then turn around and approach Z.F.  Hardeway reached over Z.F.’s shoulder and rubbed Z.F.’s penis over his clothing.  Z.F. began to scream, and Hardeway ran out of the bathroom.  Z.F. testified that the entire incident lasted only a few seconds.  As Hardeway was leaving, the light from the break room illuminated him, and Z.F. saw Hardeway’s back.  The man running from the bathroom was wearing the same clothes as the man whom Z.F. saw enter the restroom a few minutes earlier.

          Z.F. tried to leave the restroom, but according to Z.F., Hardeway held the door shut, even though the door only has a handle on the inside.  After a few seconds, Z.F. managed to open the door and ran to his mother.  He told her that a man had touched him in the restroom and described him as a tall, bald, black man, wearing glasses and a purple jacket.  His mother took Z.F. and his sister to the restroom, but there was no one inside.  His mother continued to search for the offender in the back of the store.  She then realized that Z.F. meant a maroon employee apron or smock when he said purple sweater and asked Z.F. about the clothing.  Z.F. confirmed that he meant an employee apron.  

Z.F.’s mother then took the children to the front of the store to speak with a manager.  As she was speaking to a customer services manager, Reginald Grant, Hardeway approached them claiming that he was not in the bathroom and that “it wasn’t him.”  Upon seeing Hardeway, Z.F. whispered to his mother that Hardeway was the man who had touched him.  Grant testified that Hardeway began denying his involvement before Z.F. or his mother had even finished recounting to Grant what had taken place and before anyone had accused Hardeway.  Grant also attested that only the deli employees wear maroon aprons at work, and the only two people working in the deli on the day of the offense were Hardeway and a female employee.

Houston Police Department Officer Akahoski arrived at the store and interviewed Z.F., his mother, and Hardeway.  When questioned by Officer Akahoski, Hardeway initially denied going to the restroom.  He changed his story after the other deli employee stated that Hardeway told her that he was leaving to use the restroom.  Hardeway then claimed that he originally planned to use the restroom, but stopped to assist a customer and never made it there.  Akahoski checked the bathroom, but did not take any photographs or dust for fingerprints.  He could not recall if the lights were on or off when he entered.

At trial, Hardeway called a private investigator who had examined the restroom.  He testified that without the lights on, the bathroom was very dark, making it impossible to see anyone.  Grant corroborated this by tesifying that one cannot see anything in the restroom when the lights are off.  The investigator also testified that when he stood at a normal position at the urinal, the partition between the urinal and the door prevented him from seeing anyone enter.

Factual Sufficiency

Hardeway contends that the evidence is factually insufficient to support a guilty verdict because the bathroom was too dark for Z.F. to have seen or identified Hardeway as the offender.

A. Standard of Review

In evaluating factual sufficiency, we consider all the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt.  Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006).  We set aside the verdict only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence.  Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).  Under the first prong of Johnson, we cannot conclude that a verdict is “clearly wrong” or “manifestly unjust” simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury.  Watson, 204 S.W.3d at 417.  Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury’s resolution of that conflict.  Id.  Rather, before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury’s verdict.  Id.  We must also discuss the evidence that most undermines the jury’s verdict.  See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). 

B. Indecency with a Child by Contact

A person commits indecency with a child if, with a child younger than seventeen years and not the person’s spouse, whether the child is of the same or opposite sex, the person engages in sexual contact with the child.  Tex. Pen. Code Ann. § 21.11(a) (1).  “Sexual contact” means any touching by a person, including touching through clothing, of any part of the genitals of a child, if committed with the intent to arouse or gratify the sexual desire of any person.  Id. § 21.11(c) (1).

C. Sufficiency of the Evidence

          Hardeway contends that it was too dark in the restroom for Z.F. to have identified the offender, as proven by the private investigator’s testimony and the testimony by Grant.  However, Z.F. testified that he saw Hardeway in the light when Hardeway first opened the door and again saw his back when Hardeway fled the restroom.  Z.F. described the offender as a tall, baldheaded, black man wearing glasses and a purple sweater or apron, which matched Hardeway’s appearance.  In addition, Z.F. identified Hardeway at trial as the offender.  This testimony supports the verdict.  

In addition to Z.F.’s testimony, there was also testimony from other witnesses that supports Z.F’s account.  Grant, the customer services manager, testified that Hardeway began denying any wrongdoing before anyone had accused him and prior to Z.F.’s mother explaining the situation.  In addition, the female deli worker confirmed that Hardeway had told her that he was leaving the counter to use the restroom and saw him walk in that direction, although she did not see him actually enter the restroom.  Furthermore, Hardeway changed his version of events when questioned by the police.  He first claimed that he did not leave the deli counter at all, and then admitted that he did leave to go to the restroom, but that he never actually went in, because a customer stopped him.

The fact-finder is the exclusive judge of the witnesses’ credibility and the weight to be given to their testimony.  Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996).  As the determiner of the credibility of the witnesses, the fact-finder may choose to believe all, some, or none of the testimony presented.  Cain v. State, 958 S.W.2d 404, 407 n.5 (Tex. Crim. App. 1997).  The jury is free to accept the victim’s testimony over that of other witnesses, including the defendant, and disregard any inconsistencies.  Glockzin v. State, 220 S.W.3d 140, 147 (Tex. App.—Waco 2007, pet. ref’d); see also Perez v. State, 113 S.W.3d 819, 838–39 (Tex. App.—Austin 2003, pet. ref’d).  As an appellate court, we must avoid re-weighing the evidence and substituting our judgment for that of the fact-finder. Johnson v. State, 967 S.W.2d 410, 412 (Tex. Crim. App. 1998); see also Wilson v. State, 863 S.W.2d 59, 65 (Tex. Crim. App. 1993); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000).  We defer to the jury’s findings.  The State’s evidence was not so obviously weak or contrary to the overwhelming weight of the evidence as to be factually insufficient.  We hold that factually sufficient evidence supports the verdict.

Conclusion

          We hold that the evidence is factually sufficient to support the conviction and therefore affirm the judgment of the trial court.

                                                                   Jane Bland

                                                                   Justice

Panel consists of Chief Justice Radack and Justices Alcala and Bland.

Do not publish.  See Tex. R. App. P. 47.4.