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Opinion filed October 2, 2008
In The
Eleventh Court of Appeals
__________
No. 11-07-00099-CR
________
ADAM FLORES HERNANDEZ, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 238th District Court
Midland County, Texas
Trial Court Cause No. CR31015
M E M O R A N D U M O P I N I O N
Adam Flores Hernandez was convicted by a jury of the offenses of aggravated sexual assault of a child and indecency with a child. The trial court assessed his punishment for each offense at thirty-five years in the Texas Department of Criminal Justice, Institutional Division, to be served concurrently. He contends in three issues that (1) the evidence is legally insufficient to support his conviction for the offense of indecency with a child by contact, (2) the amended indictment with respect to the offense of indecency with a child by contact is fundamentally defective because it fails to allege a culpable mental state, and (3) the evidence is factually insufficient to support his conviction for aggravated sexual assault of a child. We affirm.
Hernandez contends in issue one that the evidence is legally insufficient to support his conviction for the offense of indecency with a child by contact. The indictment alleges that Hernandez, with the intent to arouse and gratify his sexual desire, engaged in sexual contact with the complainant, a child younger than seventeen years of age, by then and there touching a part of her genitals. In order to determine if the evidence is legally sufficient, the appellate court reviews all of the evidence in the light most favorable to the verdict and determines whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979).
The complainant=s mother testified that the complainant was thirteen years old at the time of trial. The complainant testified that on numerous occasions Hernandez, her uncle, would come into the room where she was sleeping with her sister and touch her both under and over her clothes. She related that, on occasion, he would put his finger inside her private part. She said he never said anything to her, and she never said anything to him. She insisted that she was afraid to cry out for fear she or her father would get in trouble as a result. She indicated that she finally confided to her mother what had been happening. The complainant=s mother verified her daughter=s testimony concerning her outcry. We hold that the evidence is legally sufficient to support Hernandez=s conviction for indecency with a child.
Hernandez contends that the evidence is insufficient because there is nothing from which a rational jury could infer that Hernandez touched the complainant with the intent to arouse and gratify his sexual desire. As acknowledged by Hernandez, the specific intent to arouse or gratify the sexual desire of a person can be inferred from conduct, remarks, or all of the surrounding circumstances. See Couchman v. State, 3 S.W.3d 155, 163 (Tex. App.CFort Worth 1999, pet. ref=d). We believe a rational jury could infer from Hernandez=s conduct of repeatedly coming in and touching the complainant on and in her private parts while she slept that he did so with the intent to gratify and arouse his sexual desire.
Hernandez states that to make such an inference is not clearly guided by reason, fairness, principle, or logic, relying on Jackson, 443 U.S. at 319. There is nothing in Jackson supporting his contention that the jury=s inference from Hernandez=s conduct that he was touching the complainant in order to satisfy his sexual desire was not clearly guided by reason, fairness, principle, or logic. We overrule issue one.
Hernandez asserts in issue three that the evidence is factually insufficient to support his conviction for aggravated sexual assault of a child. The indictment alleges that Hernandez intentionally and knowingly caused the penetration of the complainant=s female sexual organ by his finger and that the complainant was a child younger than fourteen. To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11.
Based upon all of the evidence, including the evidence that we have previously described, we hold that the evidence is factually sufficient to support Hernandez=s conviction for aggravated sexual assault of a child. Hernandez argues that the evidence is factually insufficient, referring us to evidence that no ASANE@ exam was conducted on the complainant; that Hernandez had no memory of the events; that the complainant told her mother about what had occurred in March or April 2005; that the incidents occurred while the complainant was asleep in her bedroom with a younger sister asleep in the same bed with her; and that, before these things happened, the complainant got along pretty well with Hernandez when he was sober.
We would first note additional evidence contained in the record. Detective Kay Therwhanger of the Midland Police Department testified that the purpose of a ASANE@ test is to look for evidence. She indicated that she did not order such a test in this case because a thirteen-day delay between the last event and the outcry meant that it would be unlikely to find something, based upon the description of what had happened, and the fact that such an exam is traumatic to a child. According to Detective Therwhanger, when confronted with what the complainant had alleged, Hernandez said that he could not remember and that he said he was sorry to the complainant and to the family. As previously noted, the complainant testified she delayed her outcry because she was afraid that otherwise either she or her father would get in trouble. She testified that her sister was Areally pretty sleepy.@ The complainant testified that she did not like being around Hernandez when he had been drinking too much and was not sober. Considering all of the testimony, we hold that the evidence supporting the verdict is not so weak that the verdict is clearly wrong or manifestly unjust and that the verdict is not against the great weight and preponderance of the conflicting evidence. We overrule issue three.
Hernandez argues in issue two that the amended indictment for the offense of indecency with a child is fundamentally defective because it fails to allege a culpable mental state. The indictment includes the allegation that Hernandez committed the offense with the intent to arouse and gratify his sexual desire. Hernandez presents his complaint concerning the indictment for the first time on appeal. By failing to object to the alleged defect in the indictment prior to the day of trial, Hernandez forfeited his contention on appeal. Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 2005). Hernandez contends that, if the indictment is fundamentally defective, a complaint about its defective nature may be raised at any time. He relies on Ex parte Patterson, 902 S.W.2d 487 (Tex. Crim. App. 1995). We find that decision to be distinguishable. In Patterson, the court held that the relator could complain in a postconviction writ of habeas corpus that the purported indictment in his burglary case failed to name the person accused because, in the absence of the name of the person charged, it was not an indictment within the meaning of the term under Article V, section 12(b) of the Texas Constitution. 902 S.W.2d at 487-88. In the case at bar, the indictment names Hernandez as the person charged.
Hernandez contends that the rule in Patterson should extend to the failure to allege a culpable mental state. However, the Texas Court of Criminal Appeals has held that the language in Article V, section 12(b) of the Texas Constitution, Acharg[ing] a person with the commission of an offense,@ does not mean that each element of the offense must be alleged in order to have an indictment or information as contemplated by Article V, section 12(b). Studer v. State, 799 S.W.2d 263, 272 (Tex. Crim. App. 1990). Consequently, even if the indictment fails to allege an appropriate culpable mental state, it is still an indictment within the meaning of Article V, section 12(b). Therefore, as we have previously noted, by failing to make an objection prior to the day of trial, Hernandez has forfeited such an objection on appeal. We overrule issue two.
The judgment is affirmed.
PER CURIAM
October 2, 2008
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Hill, J.[1]
[1]John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth sitting by assignment.