Opinion issued June 24, 2004
In The
Court of Appeals
For The
First District of Texas
NO. 01-03-00680-CR
WILMER LEO HOLLAND, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Cause No. 945985
MEMORANDUM OPINION
Appellant, Wilmer Leo Holland, was charged with the offense of indecency with a child. He pled not guilty to the charge and “true” to the two punishment enhancement paragraphs. A jury found appellant guilty, and the trial court sentenced him to confinement for 25 years. We affirm.
BACKGROUND
In November 2001, complainant, appellant’s 10-year-old grandniece, lived at her grandmother’s, Juanita Lucky’s, house because complainant’s home had been damaged. Appellant also lived in Lucky’s house. On an evening in February of 2002, complainant, her younger brother Malique, and appellant were in the laundry room. Lucky was in a different part of the house. Appellant tickled Malique on the stomach. Complainant testified that, after appellant had tickled Malique, he came up behind her and started touching her breasts. She testified that appellant did not tickle her and that he applied pressure to her breasts and squeezed and pinched them. Appellant touched complainant for possibly a minute or two.
Later that day, complainant told Lucky about the incident, saying that appellant was tickling her on her breasts. Complainant testified that Lucky told complainant to stay close to her and did not take any further action. Lucky testified that, when complainant told her that appellant was tickling her, she believed it was an accident and appellant meant no harm. Lucky stated that she told complainant not to play with appellant.
Complainant returned to her home in March 2002. April Bostic, complainant’s mother, noticed changes in complainant’s behavior during her stay at Lucky’s house and after her return home. Bostic testified that complainant started becoming more agitated and hot tempered during her stay at Lucky’s house, which was different from her normal behavior. After complainant’s return home, Bostic noticed that complainant was clashing with her older and younger brothers and was being “real sassy at the mouth.” Bostic also noted that complainant no longer wanted to go to Lucky’s house, although she had wanted to go there previously.
Bostic eventually asked complainant why she no longer wanted to go to Lucky’s house. Bostic testified that complainant said that she did not want to go to Lucky’s house because appellant was there and he touched her. Bostic asked complainant to show how appellant had touched her and complainant demonstrated what appellant did to her. Bostic testified that she was able to see complainant’s face and could tell that she was very scared. After complainant had demonstrated how appellant had touched her, Bostic called the police.
Dr. Lawrence Thompson, a clinical psychologist with the Children’s Assessment Center, testified, over objection, regarding “partial outcry” and “delayed outcry.” He stated that his research indicated that it was not common for children to confuse tickling that was not sexual abuse with a sexual act.
SUFFICIENCY OF THE EVIDENCE
Appellant argues that the evidence presented by the State was legally and factually insufficient to establish his guilt because the State failed to prove that appellant had the requisite mental state to commit the offense of indecency with a child.
A person commits the offense of indecency with a child if he engages in sexual
contact with a child under 17 years of age. Tex. Pen. Code Ann. § 21.11(a) (Vernon Supp. 2004). “Sexual contact” is defined as any touching by a person of the anus, breast, or any part of the genitals of a child with the intent to arouse or gratify the sexual desire of any person. Tex. Pen. Code Ann. § 21.11(c)(1) (Vernon 2003). The requisite specific intent for the offense of indecency with a child can be inferred from the defendant’s conduct, his remarks, and all surrounding circumstances. Santos v. State, 961 S.W.2d 304, 308 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d).
In reviewing the evidence on legal sufficiency grounds, 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). In reviewing the evidence on factual sufficiency grounds, all of the evidence as a whole must be reviewed, and not only in the light most favorable to the prosecution. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). The Court of Criminal Appeals has recently stated the following for a factual sufficiency review:
There is only one question to be answered in a factual-sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? However, there are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so [that] the guilty verdict should not stand. This standard acknowledges that evidence of guilt can “preponderate” in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Stated another way, evidence supporting guilt can “outweigh” the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard.
Zuniga v. State, No. 539-02, slip op. at 8, 2004 WL 840786 at 5 (Tex. Crim. App. Apr. 21, 2004)(footnote omitted). In a factual sufficiency review, the appellate court should not substitute its own judgment for that of the fact finder. Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996). Under both legal and factual sufficiency, the jury is the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given to the witnesses’ testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).
Appellant asserts that the surrounding circumstances were not inculpatory because of the presence of other people and because appellant did not threaten complainant, nor was there an allegation that he had threatened her previously.
The testimony of a child victim is sufficient to support a conviction for indecency with a child. See Tear v. State, 74 S.W.3d 555, 560 (Tex. App.—Dallas 2002, pet. ref’d); Tex. Code Crim. Proc. Ann. art. 38.07(a) (Vernon Supp. 2004). Complainant testified that she was standing in the laundry room when appellant came up behind her and started touching her on her breasts, applying pressure to them and squeezing them. Complainant testified that she knew that what appellant was doing was not right, but did not leave the room because she was scared. Complainant’s testimony constitutes some evidence that a reasonable trier of fact could find sufficient to support a conviction for indecency with a child. We overrule appellant’s legal sufficiency point of error.
In regard to his factual sufficiency challenge, appellant asserts that his actions were innocent horseplay and that, since the laundry room was an entrance and exit room to the house, anyone could have entered and seen the incident. Complainant’s testimony that appellant touched and applied pressure to her breasts for one to two minutes constitutes some evidence of appellant’s actions. Appellant was the only adult present in the laundry room and there was no testimony that anyone was expected to enter or leave the house at the time of the incident. Bostic testified that Complainant’s demeanor changed significantly after the incident, becoming more “hot tempered,” “mean,” and “sassy at the mouth.” We do not find that this evidence is so weak as to be clearly wrong and manifestly unjust or that the finding of the trial court is against the great weight and preponderance of the evidence. We overrule appellant’s factual sufficiency point of error.
CONCLUSION
We affirm the judgment of the trial court.
Sam Nuchia
Justice
Panel consists of Justices Nuchia, Jennings, and Keyes.
Do not publish. Tex. R. App. P. 47.2(b).