Opinion issued October 16, 2003
In The
Court of Appeals
For The
First District of Texas
NO. 01-02-00594-CR
TAVARES DESHON JOHNSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 182nd District Court
Harris County, Texas
Trial Court Cause No. 896294
MEMORANDUM OPINION
A jury convicted appellant, Tavares Deshon Johnson, of indecency with a child. The trial court assessed punishment at confinement for three years. On appeal, appellant contends (1) the evidence was legally and factually insufficient to convict him because the complainant’s testimony was not credible; and (2) the evidence was legally and factually insufficient to convict him because the State did not show that appellant’s actions were done to arouse or gratify his sexual desire.
We affirm.
FACTS
A. The State’s Version of the Facts
The State’s case centered around the testimony of the complainant, E.J., and her cousin, A.D. These witnesses both testified that, on November 19, 2001, 15-year- old E.J. and 14-year-old A.D. were walking home from school in Houston. At around 4:00 or 4:30 p.m., as the girls walked side-by-side down Heatherbloom Street, appellant passed them in a maroon and grey car. After passing E.J. and A.D., appellant circled back and pulled up along the left side of the girls. E.J. and A.D. continued to walk, but appellant drove slowly beside them with his passenger-side window down.
Through the open passenger-side window, appellant asked the girls how old they were and if they wanted a ride. When the girls looked through the open window, they saw appellant smiling and masturbating his exposed penis. E.J. and A.D. quickened their pace; however, appellant continued to follow them, repeatedly asking the girls’ ages and whether they wanted a ride. Appellant followed alongside E.J. and A.D. for two to five minutes, until E.J. saw some boys she knew and called to the boys. When E.J. called to the boys, appellant sped away. As appellant sped away, the girls noted the license plate number of the car he was driving.
Houston Police Department juvenile sex crimes investigator, Steven Hein, determined that the license plate number noted by the girls belonged to a maroon and grey car registered to appellant’s wife, Pamela Brown Johnson. Officer Hein compiled a photo spread that included a picture of appellant and five other similar looking men. Officer Hein then met separately with E.J. and A.D. at their school. At these meetings, both E.J. and A.D. positively identified appellant from the photo spread as the man who had exposed himself to them. During these meetings, Officer Hein also showed E.J. and A.D. photos of the car registered to appellant’s wife. Both
E.J. and A.D. identified the car as the same car driven by the man who had exposed himself. At trial, E.J. and A.D. testified outside of each other’s presence. Both girls identified appellant as the man who exposed himself to them on November 19, 2001.
B. Appellant’s Version of the Facts
Appellant admitted to driving his wife’s maroon and grey car on November 19, 2001; however, appellant denied ever exposing himself to E.J. and A.D.
Appellant claimed that he ran several errands on November 19, 2001, none of which required him to drive on Heatherbloom. Specifically, appellant testified that, on November 19, 2001, he had been at his sister-in-law’s apartment from 11:00 a.m. to 3:30 p.m. At 3:30 p.m., appellant drove another sister-in-law, Tasharra Brown, to a high school, to her grandmother’s house, and then back to the apartment where appellant had stayed earlier in the day. Appellant then picked up his wife from work. Appellant’s wife “punched out” of work at 5:17 p.m. Appellant’s testimony was corroborated by his wife and Tasharra Brown, both of whom testified at trial.
INDECENCY WITH A CHILD
A person commits the offense of indecency with a child if that person (1) exposes the person’s anus or any part of the person’s genitals knowing that a child is present, (2) with the intent to arouse or gratify the sexual desire of any person, and (3) the child is younger than 17 years and not the person’s spouse. Tex. Pen. Code Ann. § 21.11(a)(2)(A) (Vernon 2003). Indecency with a child requires the specific intent to arouse or gratify the sexual desire of any person. Id.; Santos v. State, 961 S.W.2d 304, 308 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d). The specific intent to gratify the sexual desire of any person may be inferred from a person’s conduct, a person’s remarks, and all surrounding circumstances. Santos, 961 S.W.2d at 308.
SUFFICIENCY OF THE EVIDENCE
In his first and second points of error, appellant contends that the evidence was legally and factually insufficient to support the verdict because E.J.’s testimony was not credible. In his third and fourth points of error, appellant contends that the evidence was legally and factually insufficient to support the verdict because the State failed to show that appellant exposed himself with the intent to gratify his own sexual desire.
A. Standards of Review
In a legal-sufficiency review, we view the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000); Howley v. State, 943 S.W.2d 152, 155 (Tex. App.—Houston [1st Dist.] 1997, no pet.). If there is evidence to establish that the defendant is guilty beyond a reasonable doubt, and the trier of fact believes that evidence, we cannot reverse the judgment on sufficiency of the evidence grounds. Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988).
Furthermore, although a legal-sufficiency analysis entails a consideration of all evidence presented at trial, we may neither re-weigh the evidence nor substitute our judgment for the jury’s. King, 29 S.W.3d at 562. The jury, as the trier of fact, is the sole judge of the credibility of the witnesses. Obigbo v. State, 6 S.W.3d 299, 304 (Tex. App.—Dallas 1999, pet. ref’d). The jury may choose to believe or disbelieve any portion of a witness’s testimony or may believe one witness and not another. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When conflicting evidence is presented at trial, we presume the trier of fact resolved all conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993).
In a factual-sufficiency review, we take a neutral view of the evidence, both for and against the finding, to determine (1) if the proof of guilt is so obviously weak as to undermine confidence in the jury’s determination, or (2) if the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. King, 29 S.W.3d at 563. In our review, we must consider the most important evidence that the appellant claims undermines the jury’s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
It is within the exclusive purview of the jury to determine the credibility of witnesses and the weight to be given witness testimony. Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000); In re L.R., 84 S.W.3d 701, 705 (Tex. App.—Houston [1st Dist.] 2002, no pet.). Moreover, when conflicts of evidence appear, it is within the exclusive purview of the jury to reconcile such conflicts. Margraves, 34 S.W.3d at 919 (quoting Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986)). The jury’s determination may be reversed only upon a finding that a manifest injustice has occurred. King, 29 S.W.3d at 563.
B. E.J.’s Testimony
In his first and second points of error, appellant argues that the lack of corroborating physical evidence along with the contradicting testimony of himself, his wife, and his sister-in-law undermine E.J.’s testimony to such an extent that “a reviewing court cannot have confidence in a verdict supported by the witness’s testimony.”
1. Legal Sufficiency
E.J. testified that appellant exposed himself to her and A.D., smiled at them, asked if they needed a ride, inquired as to their age, and continued to follow them as they walked faster to avoid him. E.J. also testified that she was only 15 years old on the day in question. Conversely, appellant presented evidence that he was running errands that afternoon and that he neither drove down Heatherbloom nor exposed himself to E.J. and A.D.
The jury, as the exclusive judge of witness credibility, was entitled to believe E.J. and not believe appellant or his witnesses. Margraves, 34 S.W.3d at 919. We presume that the jury reconciled the conflicting evidence in favor of the State. Further, although many sex offenses would necessarily produce corroborating physical evidence, some sex offenses do not. Lopez v. State, 18 S.W.3d 220, 224 (Tex. Crim. App. 2000). Indeed, considering the conduct alleged, it is not surprising that no corroborating physical evidence was introduced in this case. Viewing the evidence in the light most favorable to the jury’s verdict, a rational jury could have found the evidence sufficient beyond a reasonable doubt to convict appellant of indecency with a child.
2. Factual Sufficiency
E.J.’s testimony concerning the events of November 19, 2001 was corroborated by A.D. Furthermore, at the school meetings with Officer Hein, both E.J. and A.D. positively identified appellant’s photograph as that of the man who exposed himself to them. At the same meetings, both girls identified appellant’s wife’s car as the car driven by the man who had exposed himself. Also, both girls identified appellant at trial as the man who had exposed himself. Moreover, the license plate number noted by the girls matched that of appellant’s wife’s car—the same car appellant admitted driving on the day of the incident.
Although appellant presented evidence that he was running errands on the day in question and never drove down Heatherbloom Street, it was the exclusive purview of the jury to reconcile the conflicting testimony. We will not second guess the jury’s determination of the witnesses’ credibility. We conclude that the evidence of guilt was not so obviously weak as to undermine confidence in the jury’s determination and was not greatly outweighed by contrary proof.
Having found the evidence presented by the State to be both legally and factually sufficient to support appellant’s conviction, we overrule appellant’s first and second points of error.
C. Appellant’s Intent
In his third and fourth points of error, appellant argues that, since E.J. could only see his exposed penis by looking through the open passenger-side window of the car, the State did not prove his intent to arouse or gratify himself. However, the State never alleged that appellant intended to arouse his own sexual desire. Rather, the State alleged that appellant intended to arouse the sexual desire of E.J.
1. Legal Sufficiency
Appellant followed E.J. and A.D., even as they quickened their pace in an effort to avoid him. Also, appellant smiled at the girls and repeatedly asked the girls how old they were and if they needed a ride. Further, both E.J. and A.D. testified that they could see appellant masturbating his exposed penis when they looked through the open passenger-side window of appellant’s car. Moreover, when E.J. saw boys she knew and called out to them, appellant quickly sped away.
It was reasonable for the jury to infer from appellant’s conduct, his remarks, and the surrounding circumstances that he intended to arouse or gratify E.J.’s sexual desire. Viewing the evidence in the light most favorable to the jury’s verdict, we conclude that a rational jury could have found the evidence sufficient beyond a reasonable doubt to prove that appellant had the requisite intent to arouse or gratify E.J.’s sexual desire.
2. Factual Sufficiency
Appellant followed along side E.J. and A.D. for two to five minutes with the window closest to the girls open. Through this window, appellant attempted to engage E.J. and A.D. in conversation, offering the girls a ride and smiling at them. In such a situation, appellant should have anticipated that E.J. would look through the open window to respond to him. Indeed, an open window is certainly not indicative of an effort to conceal one’s actions.
It was reasonable for the jury to conclude that appellant’s actions were meant to arouse or gratify E.J.’s sexual desire. Therefore, we conclude that the evidence regarding appellant’s intent to arouse or gratify the sexual desire of E.J. was not so obviously weak as to undermine confidence in the jury’s determination and was not greatly outweighed by contrary proof.
Having found the evidence concerning appellant’s intent to be both legally and factually sufficient to support appellant’s conviction, we overrule appellant’s third and fourth points of error.
CONCLUSION
We affirm the trial court’s judgment.
Laura Carter Higley
Justice
Panel consists of Justices Hedges, Nuchia, and Higley.
Do not publish. Tex. R. App. P. 47.2.