Opinion issued January 16, 2003.
In The
Court of Appeals
For The
First District of Texas
NO. 01-02-00096-CR
TONY DEASE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court
Harris County, Texas
Trial Court Cause No. 890700
MEMORANDUM OPINION
Appellant, Tony Dease, was indicted on one felony count of indecency with a child and one felony count of aggravated sexual assault of a child, the two offenses alleged to have occurred on different occasions. A jury found him guilty of felony indecency with a child but acquitted him on the charge of felony aggravated sexual assault of a child. The trial court assessed punishment at 45 years imprisonment. Appellant challenges his conviction by claiming that (1) the evidence presented at trial was legally insufficient to support his conviction, (2) the evidence presented at trial was factually insufficient to support his conviction, and (3) the trial judge committed reversible error by incorrectly issuing an Allen charge to the jury when it informed the court that it had reached a unanimous verdict on one indictment but was deadlocked on the other. We affirm the judgment of the trial court.
Background
Appellant is the uncle by marriage of the victim, N.S., who was seven at the time of the events at issue. The evidence presented at trial established that, on the afternoon of February 10, 2001, N.S. went to a rodeo parade with her aunt, who is appellant’s wife, and several cousins. After the parade, N.S. returned with her aunt to the apartment in which her aunt and appellant lived. While her aunt dropped the other children off at their homes, N.S. remained alone in the apartment with appellant. At trial, the State presented N.S.’s testimony that she was sitting on the apartment’s living room floor when appellant called her over to where he was sitting on the couch. Appellant told her to sit on his lap and asked N.S. questions about her “college life.” Using anatomically correct dolls as aids during her testimony, N.S. described what occurred while she sat on appellant’s lap. N.S. stated that appellant touched her with his hand, through her pants and underwear, on her “private part,” a term she used to identify her vagina. N.S. also stated that appellant touched her on her “bootie,” a term she used to identify her anus. Appellant stopped touching N.S. when her aunt returned to the apartment, and he told N.S. not to tell anyone what had happened.
The State also presented testimony from Dr. Sheela Laholi, who had examined N.S. in March 2001, shortly after the allegations of sexual abuse had been reported to the police. Dr. Laholi testified that the exam results were “normal,” meaning that the exam results could neither support nor refute the charge of sexual abuse.
After the conclusion of closing arguments, the jury deliberated for approximately seven and one-half hours before sending a note to the trial judge stating that it had reached a unanimous verdict on the charge of aggravated sexual assault of a child, but that it was deadlocked on the charge of indecency with a child. In response, the trial judge issued the following charge:
Members of the Jury: If this jury finds itself unable to arrive at a unanimous verdict, it will be necessary for the Court to declare a mistrial and discharge the jury. The indictment will still be pending, and it is reasonable to assume that the case will be tried again before another jury at some future time. Any such future jury will be empaneled in the same way this jury has been empaneled and will likely hear the same evidence which has been presented to this jury. The questions to be determined by that jury will be the same questions confronting you, and there is no reason to hope the next jury will find these questions any easier to decide than you have found them.
With this additional instruction, you are requested to continue deliberations in an effort to arrive at a verdict that is acceptable to all members of this jury, if you can do so without doing violence to your conscience. Do not do violence to your conscience, but continue deliberating.
Appellant made a timely objection to the jury charge, claiming that the charge was an impermissible comment on the evidence and an invasion of the province of the jury. The court overruled the objection and presented the charge to the jury. The jury deliberated for two more hours, and it then returned a verdict of guilty on the charge of felony indecency with a child and a verdict of not guilty on the charge of felony aggravated sexual assault of a child.Discussion
Appellant challenges his conviction by claiming that (1) the evidence presented at trial was legally insufficient to convict him of felony indecency with a child, (2) the evidence presented at trial was factually insufficient to convict him of felony indecency with a child, and (3) the trial court committed reversible error by incorrectly issuing an Allen charge to the jury.
Legal and Factual Sufficiency
To support appellant’s conviction for felony indecency with a child as alleged in the indictment, the State was required to produce evidence at trial that showed appellant “unlawfully, intentionally and knowingly engage[d] in sexual contact with N.S., a child under the age of seventeen years and not the spouse of [appellant], by touching the genitals of N.S., with the intent to arouse and gratify [his] sexual desire.”
Appellant challenges the legal and factual sufficiency of the evidence produced at trial by arguing that the evidence was legally insufficient to establish that he touched N.S. “with the intent to arouse and gratify [his] sexual desire,” and that the evidence was factually insufficient to show that appellant touched N.S.’s genitals or that he did so with the intent to arouse or sexually gratify himself.
When evaluating the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the verdict and 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). We accord great deference “to the responsibility of the trier of fact [to fairly] resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). We presume that any conflicting inferences from the evidence were resolved by the jury in favor of the prosecution, and we defer to that resolution. Id. Our review of the factual sufficiency of the evidence requires us to ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury’s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). When both the legal and factual sufficiency of the evidence are challenged, we first review the legal sufficiency of the evidence. Harmond v. State, 960 S.W.2d 404, 406 (Tex. App.Houston [1st Dist.] 1998, no pet.).
We hold the evidence presented here was legally sufficient to establish that appellant touched N.S. with the intent to arouse or sexually gratify himself. In evaluating the sufficiency of evidence establishing an intent to arouse or gratify a defendant’s sexual desires, the requisite specific intent can be inferred from “defendant’s conduct, his remarks, and all surrounding circumstances.” Ranson v. State, 707 S.W.2d 96, 97 (Tex. Crim. App. 1986); McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. 1981). N.S. testified that, after appellant touched her, he told her not to tell anyone about it. This supports an inference that appellant touched N.S. with the requisite intent for his conviction of indecency with a childthat he touched her with the intent to arouse or sexually gratify himself. See Branson v. State, 825 S.W.2d 162, 168 (Tex. App.Dallas 1992, no pet.) (holding evidence sufficient to support conviction for indecency with child where defendant told victim not to tell anyone what had happened); Shane v. State, 685 S.W.2d 89, 91 (Tex. App.Beaumont 1984, no pet.) (holding evidence that defendant told victim not to tell anyone about abuse supported inference that defendant knew act was wrong, and that act was committed with intent to arouse or gratify defendant’s sexual desire). Viewed in the light most favorable to the verdict, we believe the evidence was sufficient to enable a rational trier of fact to find beyond a reasonable doubt that appellant touched N.S.’s genitals with the intent to arouse or gratify his sexual desires. Appellant’s first issue, the legal sufficiency of the evidence, is overruled.
Similarly, we conclude the evidence was factually sufficient to establish that appellant touched N.S.’s genitals, and that he did so with the intent to arouse or sexually gratify himself. First, appellant argues that the evidence was factually insufficient to establish that he touched N.S.’s genitals because the medical examination of N.S. did not reveal any evidence of sexual abuse, and no physical evidence substantiated her allegations of sexual abuse, and N.S.’s testimony about the incident in the living room was inconsistent and equivocal. What weight to give contradictory testimonial evidence is within the sole province of the jury, because it turns on an evaluation of credibility and demeanor. Cain v. State, 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997). Thus, a jury is free to believe or disbelieve all or any part of a witness’s testimony. A court of appeals must show deference to such a jury finding. Id. at 409. This traditional deference extends to a jury’s determination of what weight to give the testimony of child victims of sexual abuse. Wallace v. State, 52 S.W.3d 231, 235 (Tex. App.El Paso 2001, no pet.). Although somewhat disjointed, N.S.’s testimony described the abuse in sufficient detail for the jury to find enough evidence to convict appellant: N.S. testified that appellant touched her genital area and buttocks through her clothing, and that after doing so, he told her not to tell anyone about it.
Second, appellant argues that N.S.’s testimony was factually insufficient to establish that appellant touched N.S.’s genitals because she testified that he touched her over her clothes. At trial, N.S. testified that appellant touched her genitals and buttocks, but that he did so without removing her pants or underwear. Sexual contact sufficient to support a conviction for indecency with a child may occur even when the child remains clothed. Resnick v. State, 54 S.W.2d 558, 570 (Tex. Crim. App. 1978); Miles v. State, 247 S.W.2d 898, 899 (Tex. Crim. App. 1952) (holding flesh to flesh contact not required in offense of fondling); Guia v. State, 723 S.W.2d 763, 764 (Tex. App.Dallas 1986, pet. ref’d) (“The mere imposition of a layer of fabric between a person’s hand and the genitals of another did not prevent the occurrence of sexual contact.”); . Accordingly, we hold the evidence was factually sufficient to support the jury’s finding that appellant touched N.S.’s genitals.
Third, appellant further argues that the evidence was factually insufficient to establish that he touched N.S. with the intent to arouse or gratify himself. As we stated above, a fact finder may infer a defendant’s intent to arouse or sexually gratify himself from “all surrounding circumstances.” Ranson, 707 S.W.2d at 97; McKenzie, 617 S.W.2d at 216. The jury’s finding that appellant touched N.S. with an intent to arouse or gratify his sexual desire is not against the great weight of the evidence. In light of all the evidence presented at trial, we cannot say that the evidence presented was factually insufficient to support appellant’s conviction. Appellant’s second issue, the factual sufficiency of the evidence, is overruled.
Trial Court’s Allen Charge
Finally, appellant complains that the trial court committed reversible error when it gave the jury an Allen charge on the second day of jury deliberations. An Allen charge attempts to break a deadlocked jury by instructing jurors that the result of a hung jury is a mistrial, and that jurors at a retrial would be faced with essentially the same decision, and it encourages the jurors to attempt to resolve their differences without coercing one another or violating their individual consciences. Allen v. United States, 164 U.S. 492, 501, 17 S. Ct. 154, 157 (1896); Torres v. State, 961 S.W.2d 391, 396 n.1 (Tex. App.Houston [1st Dist.] 1997, pet. ref’d).
Appellant argues that the Allen charge given to the deadlocked jury was an attempt by the trial judge to coerce the jury into resolving the case. Appellant contends that this charge impermissibly commented on the evidence and thus violated Tex. Code Crim. Proc. art. 38.05 (Vernon 2001). Article 38.05 states:
In ruling upon the admissibility of evidence, the judge shall not discuss or comment upon the weight of the same or its bearing in the case, but shall simply decide whether or not it is admissible; nor shall he, at any stage of the proceeding previous to the return of the verdict, make any remark calculated to convey to the jury his opinion of the case.
Id.
Appellant points to a decision by this Court in which an Allen charge was held to be improperly coercive. See Griffith v. State, 686 S.W.2d 331, 333 (Tex. App.Houston [1st Dist.] 1985, no pet.). In Griffith, however, this Court found that the Allen charge was deficient because it urged the jury to “follow the oath [it] took,” but lacked cautionary language that “it was proper for [the jurors] to steadfastly adhere to their individual convictions.” Id. Unlike the charge in Griffith, the Allen charge in this case contained two reminders from the trial court that the jurors should “not do violence to [their] conscience[s].” We conclude the Allen charge at issue in this case was not coercive.
The Allen charge given here is virtually identical to the one upheld by the Court of Criminal Appeals in Arrevalo v. State, 489 S.W.2d 569, 571 (Tex. Crim. App. 1973). In Arrevalo, the trial court issued a charge to a jury that had notified the court that it was deadlocked. In language similar to that used here, the trial court in Arrevalo informed the jury that the consequences of a hung jury were a mistrial and a probable retrial in which a future jury would be presented with the same evidence. Id. at 571. The Arrevalo charge then requested the jurors to continue deliberating “in an effort to arrive at a verdict which is acceptable to all members of the jury.” Id. The Court of Criminal Appeals overruled a challenge to the Arrevalo charge, stating, “We have carefully considered the [charge] and find in it nothing conveying the court’s opinion of the case or commenting on the weight of the evidence. As to the appellant’s contention [that the charge was coercive] . . . we find nothing in it of a coercive nature.” Id. at 572. Accordingly, appellant’s third issue is overruled.
Conclusion
We affirm the judgment of the trial court.
Frank C. Price
Justice
Panel consists of Justices Taft, Alcala, and Price.
Do not publish. Tex. R. App. P. 47.2 (b).