NO. 07-03-0452-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
APRIL 16, 2004
______________________________
JEFFERY THOMAS PARADISE,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 411TH DISTRICT COURT OF POLK COUNTY;
NO. 17,149; HON. ROBERT HILL TRAPP, PRESIDING
_______________________________
Memorandum Opinion
________________________________
Before QUINN and REAVIS, JJ., and BOYD, S.J.1
Appellant Jeffery Thomas Paradise appeals his conviction for indecency with a child.
After a jury trial, appellant was found guilty and sentenced to 12 years imprisonment. He
timely filed a notice of appeal, and counsel was appointed to represent him. The latter has
1
John T. Boyd, Chief Justice (Re t.), Seventh C ourt of Appeals, sitting by assignment. Tex. Gov’t Code
Ann. §75.00 2(a)(1) (V erno n Su pp. 2004 ).
moved to withdraw after filing a brief pursuant to Anders v. California, 386 U.S. 738, 87
S.Ct. 1396, 18 L.Ed.2d 493 (1967), and representing that he has searched the record and
found no arguable grounds for reversal. The brief illustrates that appellant was informed
of his right to review the record and file his own brief. So too did we inform appellant that
any brief he cared to file had to be filed by March 11, 2004. Upon request by appellant,
that deadline was extended to April 12, 2004. To date, appellant has neither filed a pro se
response nor moved for an additional extension of time.
We will proceed to address the validity of the issues raised by appointed counsel.
The first is the legal and factual sufficiency of the evidence to sustain the conviction which
counsel explains is sustainable on the testimony of the child victim alone. TEX . CODE CRIM .
PROC . ANN . art. 38.07 (Vernon Supp. 2004); Perez v. State, 113 S.W.3d 819, 838 (Tex.
App.--Austin 2003, pet. ref’d). Further, the intent to arouse or gratify appellant’s sexual
desire can be inferred from appellant’s conduct without an oral expression of intent.
McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. 1981); Wallace v. State, 52
S.W.3d 231, 234 (Tex. App.--El Paso 2001, no pet.). Thus, the victim’s testimony that
appellant pulled down her panties, touched her on her private parts, put his finger inside
of her, and rubbed her was sufficient to uphold the conviction even though appellant
denied having performed any of those acts.
The second issue concerns the effective assistance of appellant’s trial counsel.
Appellate counsel points out that trial counsel had a grasp of the facts and the applicable
law, adequately cross-examined the State’s witnesses, presented a witness on appellant’s
behalf at the punishment hearing, objected to improper questioning and successfully
2
challenged potential jurors during voir dire. No evidence of record illustrates that counsel
failed to provide a vigorous defense.
Next, counsel discusses the challenge of a potential juror for cause. The trial court
overruled appellant’s challenge for cause to potential juror DeWayne Oates who knew the
family of the victim and also had an adopted sister who had been sexually assaulted.
Nevertheless, Oates stated he could be fair and impartial. The trial court does not abuse
its discretion in refusing to grant a challenge for cause if the record shows as a whole that
the juror can set aside his preconceptions. Freeman v. State, 74 S.W.3d 913, 915 (Tex.
App.--Amarillo 2002, pet. ref’d).
Finally, the trial court also admitted the testimony of Lieutenant Darryl Hartless over
appellant’s objection. Hartless testified that he had visited appellant in jail after appellant
had invoked his right to counsel in order to warn appellant that he was making statements
that might cause him to be harmed by other prisoners in jail. As he was doing so, appellant
asked him, “How much time do you think I’m going to get for this offense?” A voluntary oral
statement made by an accused while in custody is admissible if it is not the result of
custodial interrogation. TEX . CODE CRIM . PROC . ANN . art. 38.22 §5 (Vernon Supp. 2004);
Griffith v. State, 55 S.W.3d 598, 603 (Tex. Crim. App. 2001) (holding there is no Fifth
Amendment right to counsel if there is no interrogation). Custodial interrogation includes
not only express questioning but any words or actions on the part of police that they know
are reasonably likely to elicit an incriminating response. Jones v. State, 795 S.W.2d 171,
174 (Tex. Crim. App. 1990). In this instance, the officer did not question appellant but
provided a warning for his own safety. There was no reason for him to know that appellant
3
would pose the question that he did. For this reason, the trial court did not abuse its
discretion.
We have also conducted our own review of the record pursuant to Stafford v. State,
813 S.W.2d 503 (Tex. Crim. App. 1991) and have found no arguable issue warranting
reversal.
Accordingly, counsel’s motion to withdraw is granted, and the judgment of the trial
court is affirmed.
Per Curiam
Do not publish.
4