Simon v. State

743 S.W.2d 318, 1987 Tex. App. LEXIS 8991, 1987 WL 201
CourtCourt of Appeals of Texas
DecidedDecember 10, 1987
Docket01-85-00512-CR
StatusPublished
Cited by19 cases

This text of 743 S.W.2d 318 (Simon v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Simon v. State, 743 S.W.2d 318, 1987 Tex. App. LEXIS 8991, 1987 WL 201 (Tex. Ct. App. 1987).

Opinions

EVANS, Chief Justice.

A jury convicted appellants, Armando Simon and his wife Angela H. Simon, of sexual assault of a child. The jury assessed Armando Simon’s punishment at nine years confinement and Angela Simon’s punishment at three years confinement, probated for five years. Both appellants bring this appeal from their respective convictions. We affirm both convictions.

Armando Simon does not challenge the sufficiency of the evidence to support his conviction. But Angela Simon does contest the sufficiency of the evidence, arguing that there is insufficient evidence to show that she, while “acting with intent to promote or assist the commission of the offense,” solicited, encouraged, directed, aided, or attempted to aid either Armando or the complainant to commit the offense. See Tex.Penal Code Ann. sec. 7.02(a)(2) (Vernon 1974).

Angela Simon first contends that there is insufficient evidence to prove that she committed any “acts” of culpable conduct and second, that there is insufficient evidence, under the law of parties, to show that culpable intent attached to the proscribed act at the time the act was per-, formed. In support of these arguments, she cites Herring v. State, 659 S.W.2d 391, 392 (Tex.Crim.App.1983), which involved a conviction for public lewdness based upon the defendant’s “act” in allowing his genitals to be touched by complainant. In that case, the Court of Criminal Appeals reversed the conviction, holding that the State failed to meet its statutory obligation to prove an affirmative act of touching. See Tex.Penal Code Ann. sec. 6.01 (Vernon 1974 and Supp.1987).

In considering the sufficiency of the evidence, we are required to view the record in the light most favorable to the verdict, and we must sustain the conviction if we conclude that a rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Sutherlin v. [320]*320State, 682 S.W.2d 546, 549 (Tex.Crim.App.1984). Applying this standard of review, we hold that the jury could reasonably have decided beyond a reasonable doubt that Angela Simon actively encouraged sexual contact between the complainant and the appellant’s husband, Armando Simon.

Appellants resided in Angleton, Texas, where Armando Simon was employed as a psychologist with the Texas Department of Corrections. In February 1983, the complainant, then 15 years old, was introduced to the Simons by mutual friends who shared an interest in a game called “Dungeons and Dragons.” The complainant thereafter often babysat at the Simons’ and joined the Simons’ social circle, whose members ranged in age from middle teens to early twenties, except Armando, who was in his early thirties. The group gathered frequently to play “Dungeons and Dragons” and other games, and also met to go swimming, crabbing, and on shopping trips. In May 1983, some of the group, on several occasions, attended “The Rocky Horror Picture Show” movie, a satire on horror movies shown at Houston theaters at midnight on weekends. When the group went swimming, a certain amount of “horseplay” generally took place in which the males, including Armando, threatened removal of the females’ bathing suit tops and tube tops. In the summer of 1983, the Simons moved to another apartment in An-gleton, and in the course of that move, some of the family photograph albums, which contained nude pictures, were displayed to the complainant and another member of the group. After that time, Armando’s attentions to the complainant began to take on a more distinctly sexual character, starting with kissing and petting. About that same time, Angela Simon told the complainant that she, Angela, had an “open marriage” and that she wished to give Armando a “gift” of a virgin. She also commented about Armando’s sexual activities and prowess.

There was testimony that Angela engaged in a continuing course of conversation with the complainant involving sexuality. On one occasion, after the trio engaged in a “strip blackjack” game, Angela openly invited the complainant to engage in sexual contact with Armando, placed the complainant’s hand on Armando's penis, and then left the room. After Angela left the room, Armando continued to fondle the complainant until he reached a sexual climax; On a subsequent occasion, Armando performed cunnilingus on the complainant while the two were in an automobile, and during that episode, Armando was unable to achieve an erection. After returning to the Simons’ apartment, Angela massaged Armando to an erection, and invited the complainant to have intercourse with him. When the complainant refused this invitation, the two Simons left the room and engaged in an argument. Angela then returned and informed the complainant that she would have to make a decision about having intercourse with Armando.

About two months later, in November 1983, Armando and the complainant engaged in their first act of sexual intercourse. Thereafter, Armando and the complainant engaged in intercourse on some 17 to 20 occasions at various locations. The last occasion was on June 6, 1984, the date of the offense upon which both convictions are based. Angela Simon was not present on any of the occasions when Armando had intercourse with the complainant.

There was testimony that tended to show that Angela Simon continuously discussed sexual activities with the complainant, particularly in respect to the complainant’s sexual involvement with Armando Simon, and that Angela actively encouraged the complainant to have a sexual relationship with Armando. There was also testimony from another witness, an acquaintance of the Simons, that the Simons had admitted Armando’s sexual relationship with the complainant, and that Angela later told the witness that the complainant was a “gift” to Armando.

Although Angela Simon denied any knowledge of an affair between her husband and the complainant and denied that the three had participated in the sexual activities described by the complainant, the jury was not bound to accept her testimo[321]*321ny. Viewing the evidence in the light most favorable to the jury’s verdict, we conclude that the evidence is sufficient to prove affirmative conduct on the part of Angela Simon that constitutes a culpable act of aiding in the commission of the offense. Moreover, the evidence is sufficient to support the inference of her participation in the offense as a party. See Freeman v. State, 654 S.W.2d 450, 453-54 (Tex.Crim.App.1983); Ex parte Prior, 540 S.W.2d 723, 727-28 (Tex.Crim.App.1976). We also conclude that the testimony supports an inference that the culpable intent was attached to the proscribed act at the time the conduct was performed. See Ely v. State, 582 S.W.2d 416, 420 (Tex.Crim.App.1979); Tex.Penal Code Ann. sec. 7.02(a)(2).

Tex.Penal Code Ann. sec. 6.03(a) (Vernon 1974) provides:

A person acts intentionally, or with intent, with respect to the nature of his conduct or as a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.

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Simon v. State
743 S.W.2d 318 (Court of Appeals of Texas, 1987)

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Bluebook (online)
743 S.W.2d 318, 1987 Tex. App. LEXIS 8991, 1987 WL 201, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simon-v-state-texapp-1987.