Opinion issued November 2, 2006
In The
Court of Appeals
For The
First District of Texas
NO. 01-05-01019-CR
MARTIN RAY PERALES, APPELLANTv.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 337th District Court
Harris County, Texas
Trial Court Cause No. 1017094
MEMORANDUM OPINION
A jury convicted appellant, Martin Ray Perales, of indecency with a child, and the trial court assessed punishment at two years in prison. See Tex. Pen. Code Ann. § 21.11 (Vernon 2005). We determine whether the evidence was factually sufficient to show that appellant was guilty of indecency with a child and whether the trial court erred in refusing to grant funds to appellant for the purpose of hiring an expert witness. We affirm.FactsBecause this case involves a challenge to the factual sufficiency of the evidence, all relevant facts are set out herein.
April Ybarra married appellant in 1996, and they had two children, L.P. and B.P. April and appellant divorced in 2001. After the divorce, April retained custody of the children, and appellant was allowed visitation on alternate weekends. April married Adam Ybarra in 2002. April, Adam, L.P., B.P., and Robert Nieto, April’s grandfather, all resided in an apartment in Pasadena, Texas. L.P. and B.P. referred to Adam Ybarra as “Dad” or “Daddy” and to appellant as their “other father.” Adam and April had spoken about Adam’s adopting the girls, but in order for him to adopt them, appellant would have had to terminate his parental rights voluntarily, which he was unwilling to do.
In January of 2005, L.P., who was seven, and B.P., who was five, returned home from a visit with appellant, and L.P. began shaking and crying. L.P. told her mother nothing was wrong and eventually calmed down and went to bed. The next evening, when April was at a nighttime college class, L.P. approached Adam and told him that appellant had touched her on her chest and genitals. Adam called April, and she left class and returned home. April then questioned L.P. and B.P. about the incident with appellant. L.P. repeated to April what she had told Adam; B.P. did not say anything. L.P. also said that appellant had told her not to tell, but appellant later denied that allegation. Soon afterward, L.P. began to be afraid to go to the bathroom alone, she started having nightmares and trouble sleeping, and she was anxious.
The day after L.P. had told April and Adam that appellant had touched her, April and Adam contacted the police. They were instructed to file a report with Child Protective Services (“CPS”), which they did. Afterwards, a forensic interviewer affiliated with CPS interviewed L.P. alone. Police officers then spoke with L.P., April, and Adam. On March 2, 2005, L.P., April, and Adam visited psychotherapist Jennifer Pinotti-Sanders to have L.P. evaluated and treated for nightmares and anxiety. L.P. slept through most of the 45-minute session because she was ill with a cold. Thus, Pinotti-Sanders obtained most of her information about L.P.’s allegation and symptoms from April and Adam. Based on that information, Pinotti-Sanders diagnosed L.P. with post-traumatic stress disorder. After the initial evaluation, L.P. had one other appointment with Pinotti-Sanders. Additionally, L.P. saw a psychiatrist, Dr. Daniel Koppersmith, who corroborated Pinotti-Sanders’s diagnosis and prescribed medicine to help L.P. sleep. L.P. had two visits with Koppersmith.
Meanwhile, police contacted appellant and asked him to come to the police station to discuss the allegation of sexual abuse. The precise reason for the meeting was not discussed on the telephone. Appellant went to the police station voluntarily and spoke with police in an effort to resolve the case. When he arrived, appellant found out for the first time that L.P. had claimed that he had touched her inappropriately. Police conducted two separate interviews with appellant. During the first interview, Detective Tim Brinson interviewed appellant for about 45 minutes. During the second interview, Officer Jerry Wright and Detective Brinson both spoke to appellant for approximately two and one half hours. At the beginning of the meetings with police, appellant vehemently denied that he had touched L.P. After a while, he admitted that he and L.P. had been playing on the bed, that she had begun to fall, and that he had “used [his] hand to catch her and held her vagina.” After continued questioning, appellant finally stated that he had touched L.P. and that he knew that it was wrong.
L.P. was questioned about the sexual abuse by at least five different persons on separate occasions, and certain details of her story were inconsistent. At different times, L.P. said that she was at home, that she was at the house of a “Grandma Alice,” that she and appellant had been playing, or that she had been reading a book. However, L.P. maintained every time that it was appellant who had touched her on her chest and genitals.
Factual Sufficiency
We address appellant’s second point of error first. In his second point of error, appellant claims that the evidence was factually insufficient to prove indecency with a child, specifically, that the jury could not infer intent from the evidence offered.
A. The Standard of Review
When conducting a factual-sufficiency review, we view all of the evidence in a neutral light. Cain v. State, 958 S.W.2d 404, 408 (Tex Crim. App. 1997). We will set the verdict aside 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 conviction 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 v. State, No. PD-469-05, 2006 WL 2956272, at *10 (Tex. Crim. App. Oct. 18, 2006). 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. 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. In conducting a factual-sufficiency review, we must also discuss the evidence that, according to the appellant, most undermines the jury’s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
We may not re-weigh the evidence and substitute our judgment for that of the fact-finder. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The fact-finder alone determines what weight to place on contradictory testimonial evidence because that determination depends on the fact-finder’s evaluation of credibility and demeanor. Cain, 958 S.W.2d at 408–09. As the determiner of the credibility of the witnesses, the fact-finder may choose to believe all, some, or none of the testimony presented. Id. at 407 n.5.
B. The Law
A person commits indecency with a child if that person has sexual contact with a child younger than 17 who is not that person’s spouse. Tex. Pen. Code Ann. § 21.11(a)(1) (Vernon 2005). Sexual contact means any touching, including touching through clothing, of the anus, breast, or any part of the genitals of the child, if the act is committed with the intent to arouse or to gratify the sexual desire of any person. Id. § 21.11(c)(1) (Vernon 2005). Intent to arouse or to gratify the sexual desire of any person can be inferred from the defendant’s conduct, his remarks, and all surrounding circumstances. McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. 1981).
C. Inference of Intent
Appellant argues that there is no evidence of intent to arouse or to gratify anyone’s sexual desire because one cannot infer intent from appellant’s statement to police. However, such intent may be inferred from the defendant’s conduct, his remarks, and all surrounding circumstances. See id.
The jury could have inferred intent from appellant’s statements. When appellant began talking to police, he denied ever having touched L.P. at all. Gradually, the denials grew weaker, and he offered an explanation: he and L.P. had been playing, she started to fall, and he had caught her and held her vagina. After continued questioning, he stated that he had touched her and knew it was wrong. Appellant was concerned that he could “go to jail for it”; he agreed that thinking sexual thoughts about his daughter and having sexual contact with her was wrong. He admitted that he had started to get an erection as he held her vagina, but realized that it was wrong and stopped. When detectives asked appellant what he would say to L.P. if she were there, appellant expressed a desire to tell L.P. that he was sorry, that he loved her, and that the inappropriate touching would never happen again.
The jury could also have inferred intent from the surrounding circumstances. L.P. testified that she told appellant to stop touching her, although appellant told the police that L.P. had not said anything. L.P. also testified that appellant had told her not to tell, although he denied it.
Appellant attempts to distinguish this case from others in which intent could be more easily inferred from unusual or lascivious behavior, such as when a stranger, instead of a parent or caregiver, touches a child’s genitals. However, the jury was the judge of the weight of the evidence and of the credibility of the witnesses. See Cain, 958 S.W.2d at 407. A rational jury could have found beyond a reasonable doubt that appellant touched L.P. with the intent to arouse or to gratify his sexual desire, based on appellant’s conduct, remarks, and the surrounding circumstances. Simply because cases exist in which more extreme conduct occurred—that is, in which intent to arouse or to gratify sexual desire could be more easily inferred—does not mean that a jury could not have inferred intent from the facts of this case.
We overrule appellant’s second point of error.
Denial of Request for Expert Witness
In his first point of error, appellant contends that he was harmed by the trial court’s denial of funds for an expert witness.
Prior to trial, defense counsel submitted a request for expert-witness funds. The request alleged that appellant was indigent because he had expended his resources for employment of trial counsel. However, the request did not allege, and appellant did not prove, that he had incurred any investigative expenses. The Court of Criminal Appeals has held that when a defendant neither alleges nor shows that he has incurred any investigative expenses, it is not error for the trial court to refuse a request for expert-witness funds. Green v. State, 682 S.W.2d 271, 291 (Tex. Crim. App. 1984). Therefore, the trial court’s denial of funds for an expert witness was not error.
We overrule appellant’s first point of error.
Conclusion
We affirm the judgment of the trial court.
Tim Taft
Justice
Panel consists of Justices Taft, Keyes, and Hanks.
Do not publish. See Tex. R. App. P. 47.2(b).