NUMBER 13-08-00157-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
RAFAEL GOMEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 156th District Court of Bee County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Yañez and Benavides
Memorandum Opinion by Justice Yañez
A jury convicted appellant, Rafael Gomez, of one count of aggravated sexual
assault1 and three counts of indecency with a child.2 The jury assessed punishment at (1)
life imprisonment and a $10,000.00 fine for the aggravated sexual assault offense,3 and
(2) twenty years’ imprisonment and a $10,000.00 fine for each of the three indecency
offenses.4 In eight issues, appellant challenges the legal and factual sufficiency of the
evidence supporting his convictions.5 We affirm.
I. Background6
The two female victims in this case are S.F., who was ten years old at the time of
trial, and her sister, J.F., who was fifteen years old at the time of trial.7 In November and
1
See T EX . P EN AL C OD E A N N . § 22.021(a)(1)(B)(i), (a)(2)(B) (Vernon Supp. 2008). Count 1 alleged that
on or about Decem ber 26, 2006, appellant intentionally or knowingly penetrated the sexual organ of S.F., a
child younger than fourteen years of age, with his finger.
2
See id. § 21.11(a)(1) (Vernon 2003). Count 2 alleged that appellant, on or about Novem ber 22,
2006, with the intent to arouse or gratify his sexual desire, intentionally or knowingly engaged in sexual contact
with S.F., a child younger than seventeen years of age and not his spouse, by touching her genitals. Count
3 alleged that appellant, on or about Novem ber 24, 2006, with the intent to arouse or gratify his sexual desire,
intentionally or knowingly engaged in sexual contact with J.F., a child younger than seventeen years of age
and not his spouse, by touching her genitals. Count 4 alleged that appellant, on or about Decem ber 24, 2006,
with the intent to arouse or gratify his sexual desire, intentionally or knowingly engaged in sexual contact with
J.F., a child younger than seventeen years of age and not his spouse, by touching her genitals.
3
See id. § 12.32 (Vernon 2003) (providing punishm ent range for first-degree felony is im prisonm ent
for life or 5 to 99 years, and fine not to exceed $10,000.00).
4
See id. § 12.33 (Vernon 2003) (providing punishm ent for second-degree felony is im prisonm ent for
2 to 20 years, and fine not to exceed $10,000.00). The trial court ordered that counts 1 (life) and 2 shall run
concurrently and counts 3 and 4 shall run concurrently; however, counts 1 and 3 shall run consecutively.
5
In “Sum m ary of the Argum ents,” appellant states his issues as follows: In issues one and two,
appellant challenges the legal and factual sufficiency of the evidence as to count 1; in issues three and four,
he sim ilarly challenges the sufficiency of the evidence as to count 2; in issues five and six, he challenges the
sufficiency of the evidence as to count 3; and, in issues seven and eight, he challenges the sufficiency of the
evidence as to count 4. As discussed later, in the body of his brief, appellant characterizes several issues
differently than stated in his “Sum m ary of the Argum ents.”
6
W e begin by addressing the relevant testim ony of the witnesses.
7
The trial took place on March 18, 2008. (W e note that the reporter’s record is dated “March 18,
2009.” Because the judgm ent is dated March 19, 2008, we assum e the date on the reporter’s record is a
typographical error.) The indictm ents alleged that each of the events on which the indictm ents were based
occurred in Novem ber and Decem ber of 2006.
2
December of 2006, when the alleged offenses occurred, S.F. and J.F. lived with their
grandmother, Loretta, and their aunt, Brandi.8
A. S.F.’s Testimony
S.F. testified that on December 26, 2006, she and J.F. were at Loretta’s house.
Appellant and his two young daughters, R.G. and P.G., were visiting. Loretta was in her
bedroom, and Brandi was at work. S.F. testified that J.F., R.G., and P.G. were outside
playing. S.F. and appellant were in the living room watching television. S.F. testified she
was wearing capri pants, but changed into shorts at appellant’s suggestion. While she was
sitting in a chair, appellant approached S.F., knelt down, pulled aside her shorts and
underwear, and “played with [her] private” with his finger.9 During this incident, Loretta
came into the room, saw what was occurring, and told S.F. to go to her room. After
appellant left, Loretta asked S.F. if it was “the first time it had happened.” S.F. responded
that there had been several prior incidents that occurred when she was visiting her cousins
at appellant’s apartment. According to S.F., one of the prior occasions was in December,
but prior to that incident, similar incidents had occurred “more than a couple of times.”
These incidents occurred during overnight visits with her cousins at appellant’s apartment.
S.F. testified that when the other girls were asleep, appellant would call her to his room and
play with her vagina. On these occasions, appellant touched her skin. According to S.F.,
8
Brandi and appellant lived together for seven years and have two children together, R.G. and P.G.
Brandi testified that she stopped living with appellant in 2005, and at the tim e the offenses occurred, she was
living with her m other, Loretta, and two nieces, S.F. and J.F. Thus, the victim s referred to appellant as their
“uncle” because he was the father of their cousins, R.G. and P.G.
9
S.F. testified that she was referring to her vagina. On direct testim ony, S.F. testified appellant
touched her skin, not her clothing, but touched her private on the “outside.” She was later recalled, and the
prosecutor asked her specifically if appellant touched her inside or outside of her vaginal lips. S.F. responded,
“Inside.”
3
she told appellant to stop, but he did not. The incidents would last “[j]ust for a minute;”
appellant would then tell S.F. to return to the other bedroom and not tell anyone what had
occurred. On these occasions, S.F. did not see any private parts of appellant’s body. S.F.
testified that before the December 26, 2006 incident, she had not told Loretta or anyone
else about the incidents.
B. Loretta’s Testimony
Loretta testified that she is the managing conservator of S.F. and J.F.10 On
December 26, 2006, Loretta spent most of the day in her bedroom because she had a
“touch of the flu.” Appellant and his daughters, P.G. and R.G., were visiting. Loretta
testified that she was watching the children play outside from her bedroom window. At
some point, she noticed that S.F. was not outside. Loretta testified that she walked into
the living room and “saw Rafael leaned over the recliner arm with his hand in [S.F.’s]
vagina, going like this (indicating), and his other hand was holding her shorts back.”
Appellant’s hand was going “back and forth” and was “[i]n between the lips of [S.F.’s]
vagina.” According to Loretta, S.F. was watching television and playing with a game on
appellant’s phone, and “did not act like she was consciously there.” Appellant did not
notice Loretta immediately because “[a]pparently he was distracted.” Loretta “got right in
front of him, and asked him what he was doing.” She also mentioned that S.F. was “only
nine.” Loretta stated that appellant “started sweating like crazy” and responded, “I know,
[Loretta]. I messed up, I messed up. It’s the first time, it’s the first time, [Loretta], I swear
10
The parental rights of S.F. and J.F.’s biological m other were term inated. Their father and step-
m other are separated. The girls were placed with other fam ily m em bers, but S.F. was physically abused by
her step-grandm other. W hen S.F. cam e to live with Loretta, she was already in counseling because of the
physical abuse. The girls’ biological father (Loretta’s son) is disabled and has bipolar disorder.
4
to God.” Loretta told appellant to leave and asked the other three girls to come inside. As
he was leaving, appellant told P.G., “[y]eah, daddy messed up, daddy’s got to go right
now.” In response to questioning by Loretta, J.F. denied that appellant had done anything
to her.
C. J.F.’s Testimony
J.F. testified that on December 26, 2006, she was outside playing with her cousins.
Appellant came outside and told her that “[Loretta] had caught him messing with my sister.”
J.F. stated that when Loretta asked her if appellant had ever touched her inappropriately,
she said ‘”no.” J.F. had also spoken to a counselor and denied that appellant had ever
touched her inappropriately. In March, J.F. told Loretta that appellant had touched her
inappropriately on several occasions. She stated that the first incident occurred in
November or December of 2006. According to J.F., she and appellant were watching
wrestling on television at her home. Appellant began wrestling with her and tickling her,
and moved his hand so it was touching her vagina over her clothing. The second incident
occurred on a different day, but under similar circumstances. Appellant was again visiting,
watching wrestling on television, and began wrestling with J.F. and tickling her. He again
moved his hand “back and forth” over her vagina. On a third occasion, appellant picked
J.F. up and put her on his shoulders. He then started “rocking [his head] back and forth”
against her vagina. J.F. said she told appellant to stop and put her down, and that he did
so. J.F. testified that she thought this last incident occurred on December 26, 2006, the
same day she told Loretta that appellant had not touched her inappropriately. On re-direct
examination, J.F. stated that she did not tell Loretta or anyone what had happened
because she thought if she didn’t say anything, “it [would] all just go away.” When asked
5
why she later changed her mind and told Loretta what had happened, J.F. stated that she
did so because “it will just get worse if they keep on asking and I’ll end up telling later, so
better get it over with, even though I didn’t want to.”
D. Sublett’s Testimony
Debra Sublett, a licensed professional counselor, testified that she had been
counseling S.F. since 2005, when S.F. came to live with Loretta. On December 28, 2006,
Loretta and S.F. came to her office and reported the December 26 incident with appellant.
Sublett called the County Sheriff’s Department and also immediately reported the matter
to Child Protective Services. S.F. continued to attend counseling sessions with Sublett.
Sublett testified that around March, S.F. began pulling out her hair, pulling out her
eyebrows and eyelashes, picking her skin and causing it to bleed, and wetting herself in
school; eventually, S.F. was unable to function in school and was placed in the
“homebound” school program.
Sublett also testified that she began counseling J.F. During these sessions, J.F. told
her that on three occasions while watching television at her home, appellant had “held her
onto the floor with one of his legs and touched her in the crotch area outside of her
clothing.” When Sublett asked why J.F. had not reported these incidents earlier, J.F.
stated she “had been fearful to tell because she believed that no one would believe her.”
Sublett also stated that J.F. told her about the December 26 incident when appellant put
her on his shoulders and rubbed his head into the crotch area of her pants. On re-direct
examination, Sublett testified that it is “not unusual” for a child or teenager to fail to report
sexual abuse.
E. Gonzales’s Testimony
6
Anestacia Gonzales testified that in December 2006, she was an investigator for
Child Protective Services. On December 28, 2006, appellant came to her office voluntarily
because he wanted to tell “his side of the story” regarding the December 26 incident.
Appellant told her that on Christmas day, he was visiting his nieces. He stated that while
playing a game on his cell phone, S.F. pulled her shorts to the side, exposing herself to
him, and “told him to play with her like he played with [J.F.].” According to appellant, he
did touch S.F. on the “skin of her private area,” but “denied that he touched her inside or
went inside her private area.” He also told Gonzales that Loretta walked into the living
room “as he was pulling his hand away from her.” After appellant left her office, Gonzales
contacted law enforcement authorities.
F. Jimenez’s Testimony
Ricardo Jimenez, the lead forensic interviewer for the Children’s Advocacy Center,
testified regarding his experience in interviewing child victims of sexual abuse. He testified
that of the children he has interviewed, approximately ten percent “outcry,” or report the
abuse, immediately. Approximately ninety percent experience a “delayed outcry,” in which
the victim fails to report the abuse right away, or denies that it occurred, and only later
admits that it occurred. Jimenez interviewed S.F. and J.F., and noted that J.F.’s conduct
fits within the “delayed outcry” category.
The State presented several other witnesses, including: (1) the County Sheriff’s
Office investigator that interviewed Loretta and arrested appellant; (2) the manager of the
apartment where appellant lived; and (3) the sexual assault nurse examiner that conducted
an examination on S.F.
The only witness presented by the defense was Brandi, who testified that while she
7
was living with appellant, she did not observe any inappropriate behavior between
appellant and J.F. Appellant did not testify.
II. Standard of Review and Applicable Law
In conducting a legal sufficiency review, we view the relevant evidence in the light
most favorable to the verdict to determine whether a rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.11 The trier of fact is the
sole judge of the facts, the credibility of the witnesses, and the weight given to testimony.12
We do not reevaluate the weight and credibility of the evidence, and we do not substitute
our own judgment for the trier of fact.13 Instead, we consider whether the jury reached a
rational decision.14
When conducting a factual sufficiency review, we view all of the evidence in a
neutral light to determine whether a jury was rationally justified in finding guilt beyond a
reasonable doubt.15 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.16 “Although authorized to disagree with the
jury’s determination even if probative evidence exists which supports the verdict, a
11
Hooper v. State, 214 S.W .3d 9, 13 (Tex. Crim . App. 2007) (citing Jackson v. Virginia, 443 U.S. 307,
318-19 (1979)); Escamilla v. State, 143 S.W .3d 814, 817 (Tex. Crim . App. 2004).
12
See T EX . C OD E C R IM . P R O C . A N N . art. 38.04 (Vernon 1979); Beckham v. State, 29 S.W .3d 148, 151
(Tex. App.–Houston [14th Dist.] 2000, pet. ref’d).
13
King v. State, 29 S.W .3d 556, 562 (Tex. Crim . App. 2000); Beckham, 29 S.W .3d at 151.
14
Beckham, 29 S.W .3d at 151.
15
W atson v. State, 204 S.W .3d 404, 414-15 (Tex. Crim . App. 2006).
16
Johnson v. State, 23 S.W .3d 1, 11 (Tex. Crim . App. 2000).
8
reviewing court must give due deference to the fact finder’s determinations concerning the
weight and credibility of the evidence and will reverse the fact finder’s determination only
to arrest the occurrence of a manifest injustice.”17 Unless we can say with some objective
basis in the record that the great weight and preponderance of the evidence contradicts
the jury’s verdict, we will not reverse the judgment as factually insufficient.18 In conducting
a factual sufficiency review, we must also discuss the evidence that, according to the
appellant, most undermines the jury’s verdict.19
A person commits aggravated sexual assault if he intentionally or knowingly causes
the penetration of the anus or sexual organ of a child by any means.20 The testimony of
a child sexual assault victim alone is sufficient to support a conviction.21 Additionally, we
do not require a child victim’s description of the incident to be precise, and she is not
expected to express herself at the same level of sophistication as an adult.22 There is no
requirement that the victim’s testimony be corroborated by medical or physical evidence.23
Further, intent can be inferred from the acts, words, and conduct of the accused.24
17
Swearingen v. State, 101 S.W .3d 89, 97 (Tex. Crim . App. 2003).
18
W atson, 204 S.W .3d at 417.
19
See Sims v. State, 99 S.W .3d 600, 603 (Tex. Crim . App. 2003).
20
See T EX . P EN AL C OD E A N N . § 22.021(a)(1)(B)(i), (a)(2)(B) (Vernon Supp. 2008).
21
See T EX . C OD E C R IM . P R O C . A N N . art. 38.07 (Vernon 2005); see Garcia v. State, 563 S.W .2d 925,
928 (Tex. Crim . App. 1978); Soto v. State, 267 S.W .3d 327, 332 (Tex. App.–Corpus Christi 2008, no pet.);
Ketchum v. State, 199 S.W .3d 581, 590 (Tex. App.–Corpus Christi 2006, pet. ref’d).
22
Soto, 267 S.W .3d at 332; Ketchum, 199 S.W .3d at 590; see Villalon v. State, 791 S.W .2d 130, 134
(Tex. Crim . App. 1990).
23
Soto, 267 S.W .3d at 332.
24
Id. (citing Gottlich v. State, 822 S.W .2d 734, 741 (Tex. App.–Fort W orth 1992, pet. ref'd) (finding
requisite intent to arouse and gratify sexual desire when defendant placed his hand inside com plainant’s
panties and played with her “private”), abrogated on other grounds by Arevalo v. State, 943 S.W .2d 887,
9
“Penetration, within the meaning of section 22.021 of the penal code, occurs so long
as contact with the female sexual organ could reasonably be regarded by ordinary English
speakers as more intrusive than contact with outer vaginal lips.”25 “Penetration of the
vaginal canal is not required to prove penetration.”26 “‘Female sexual organ’ is a more
general term than ‘vagina’ and refers to the entire female genitalia, including both vagina
and the vulva.”27 “Touching beneath the fold of the external genitalia amounts to
penetration within the meaning of the aggravated sexual assault statute.”28 Penetration
may be proved by circumstantial evidence, and there is no requirement that the child victim
be able to testify as to penetration.29 Moreover, the slightest penetration is sufficient to
uphold a conviction if it is proven beyond a reasonable doubt.30
Both legal and factual sufficiency are measured by the elements of the offense as
defined by a hypothetically correct jury charge.31 Such a charge is one that accurately sets
out the law, is authorized by the indictment, does not unnecessarily restrict the State’s
theories of liability, and adequately describes the particular offense for which the defendant
888-90 (Tex. Crim . App. 1997)).
25
Karnes v. State, 873 S.W .2d 92, 96 (Tex. App.–Dallas 1994, no pet.) (citing Vernon v. State, 841
S.W .2d 407, 409 (Tex. Crim . App. 1992)).
26
Id.
27
Id.
28
Id.; see also Cramer v. State, No. 13-06-587-CR, 2008 Tex. App. LEXIS 8951, at *7 (Tex.
App.–Corpus Christi Nov. 20, 2008, no pet.) (m em . op., not designated for publication).
29
Villalon, 791 S.W .2d at 133.
30
Sherbert v. State, 531 S.W .2d 636, 637 (Tex. Crim . App. 1976).
31
Malik v. State, 953 S.W .2d 234, 240 (Tex. Crim. App. 1997); Hernandez v. State, 190 S.W .3d 856,
863 (Tex. App.–Corpus Christi 2006, no pet.); Adi v. State, 94 S.W .3d 124, 131 (Tex. App.–Corpus Christi
2002, pet. ref’d).
10
was tried.32
To establish appellant’s guilt as to Count 1 (aggravated sexual assault), the State
was required to prove that appellant (1) on or about December 26, 2006; (2) intentionally
or knowingly; (3) caused his finger to penetrate S.F.’s sexual organ; and (4) S.F. was a
child under fourteen years old.33 As to Count 2 (indecency with a child by contact), the
State was required to prove that appellant (1) on or about November 22, 2006; (2)
intentionally or knowingly; (3) engaged in sexual contact with S.F. by touching her genitals;
(4) with the intent to arouse or gratify his sexual desire; and (5) S.F. was a child younger
than seventeen years old and not appellant’s spouse.34 As to Count 3 (indecency with a
child by contact), the State was required to prove that appellant, (1) on or about November
24, 2006; (2) intentionally or knowingly; (3) engaged in sexual contact with J.F. by touching
her genitals; (4) with the intent to arouse or gratify his sexual desire; and (5) J.F. was a
child younger than seventeen years old and not his spouse.35 As to Count 4, the State was
required to prove that appellant (1) on or about December 24, 2006; (2) intentionally or
knowingly; (3) engaged in sexual contact with J.F. by touching her genitals; (4) with the
intent to arouse or gratify his sexual desire; and (5) J.F. was a child younger than
seventeen years old and not his spouse.36
III. Discussion
32
Golllihar v. State, 46 S.W .3d 243, 253 (Tex. Crim . App. 2001); Malik, 953 S.W .2d at 240.
33
See T EX . P EN AL C OD E A N N . § 22.021(a)(1)(B)(i), (a)(2)(B) (Vernon Supp. 2008).
34
See id. § 21.11(a)(1) (Vernon 2003).
35
See id.
36
See id.
11
In his first issue, appellant contends the evidence is legally insufficient to support
his conviction for aggravated sexual assault because S.F. gave two different versions of
events. Specifically, appellant argues that S.F. testified that appellant played with her
vagina on the “outside,” but later testified that appellant touched her “inside” the lips of her
vagina. Similarly, in issue two, in support of his argument that the evidence is factually
insufficient to support his conviction, appellant argues only that “[t]here was evidence of
penetration and there was evidence of no penetration.”
On direct examination, S.F. testified that appellant touched her on the “outside” of
her private part. When recalled by the State, she testified that appellant touched her
“inside” the lips of her vagina. Elizabeth Andelman, the sexual assault nurse examiner that
examined S.F., testified that based on what S.F. told her, appellant put his finger inside her
vagina. Moreover, Loretta testified that she observed appellant with his hand “[i]n between
the lips of [S.F.’s] vagina.”
It is within the sole province of the jury to reconcile conflicts, contradictions, and
inconsistencies in the evidenced and testimony.37 The jury is responsible for judging the
credibility of the witnesses, and it is free to believe or disbelieve any portion of a witness’s
testimony.38 After reviewing the evidence in the light most favorable to the verdict, we
conclude that any rational trier of fact could have found the essential elements of
aggravated sexual assault beyond a reasonable doubt.39 Therefore, the evidence is legally
sufficient to support appellant’s conviction for Count 1, aggravated sexual assault.
37
Swearingen, 101 S.W .3d at 97.
38
Cain v. State, 958 S.W .2d 404, 408-09 (Tex. Crim . App. 1997).
39
Hooper, 214 S.W .3d at 13.
12
Moreover, after reviewing the evidence neutrally, we do not find that the proof of guilt is
greatly outweighed by evidence to the contrary, nor is it so weak as to undermine
confidence in the jury’s determination.40 Thus, we further conclude the evidence is
factually sufficient to support appellant’s conviction for aggravated sexual assault. We
overrule appellant’s first and second issues.
In his third issue, appellant argues the evidence is factually insufficient to support
his conviction for Count 3 (indecency with a child by touching J.F.’s genitals). In his fourth
issue, appellant argues the evidence is factually insufficient to support his conviction for
Count 2 (indecency with a child by touching S.F.’s genitals).41 Appellant argues that the
evidence is factually insufficient as to Counts 2 and 3 because “the record is devoid of any
statements made by [a]ppellant to the victim, before, during or after the act that would
manifest his intent that his sexual desire was aroused or gratified.”
We find appellant’s argument to be without merit. The jury, as the factfinder, was
empowered to determine the issue of intent.42 The jury could have inferred appellant
possessed the requisite intent from either his words, acts, or conduct and the surrounding
circumstances.43 Because it is difficult to prove by direct evidence what a defendant
intended at the time of the crime, a jury may base its inferences on circumstantial
40
Johnson, 23 S.W .3d at 11.
41
W e note that in the body of his brief, appellant characterizes issues three and four differently than
stated in his “Sum m ary of the Argum ents.” W e address appellant’s argum ents as they appear in the body
of his brief, not as they appear in the “Sum m ary of the Argum ents.” In his third issue, appellant appears to
also challenge the legal sufficiency of the evidence supporting his conviction in Count 3 by stating that “there
was no evidence that [he] intended to arouse or gratify his sexual desire.” In his fourth issue, appellant
challenges the factual sufficiency of the evidence supporting his conviction in Count 2.
42
Moreno v. State, 702 S.W .2d 636, 641 (Tex. Crim . App. 1986).
43
Guevara v. State, 152 S.W .3d 45, 49-50 (Tex. Crim . App. 2004); DeLeon v. State, 77 S.W .3d 300,
312 (Tex. App.–Austin 2001, pet. ref’d).
13
evidence.44 An oral expression of intent is not required; the conduct itself is sufficient to
infer intent.45
Here, S.F. testified that on several occasions, appellant called her to his room when
her cousins were asleep and played with her vagina. He also told her not to tell anyone.
J.F. testified that on two occasions, appellant was wrestling with her and touched her
vagina over her clothing. During the second incident, appellant moved his hand “back and
forth” on her vagina. During the incident when J.F. was on appellant’s shoulders, she
testified that he “started moving his head back and forth up against me.” We conclude that
based on this evidence, the jury could have reasonably inferred from appellant’s conduct
and the surrounding circumstances that appellant intended to arouse or gratify his sexual
desire.46 We also conclude that a rational trier of fact could have found that appellant was
guilty of Counts 2 and 3.47 We hold the evidence is legally and factually sufficient to
support appellant’s conviction in Counts 2 and 3. We overrule issues three and four.
In issue five, appellant contends the evidence is legally insufficient to support his
conviction as to Count 3 (indecency with a child by touching J.F.’s genitals on or about
November 24, 2006). In issue five, appellant appears to be challenging the intent element.
He argues that there was no conduct from which it could be inferred that he acted with the
intent to arouse or gratify his sexual desire. We overrule issue five for the same reasons
stated above.
44
Guevara, 152 S.W .3d at 49-50.
45
Connell v. State, 233 S.W .3d 460, 467 (Tex. App.–Fort W orth 2007, no pet.).
46
See Guevara, 152 S.W .3d at 49-50.
47
See Hooper, 214 S.W .3d at 13.
14
In issue six, appellant challenges the factual sufficiency of the evidence supporting
his conviction as to Count 3. Appellant states that J.F. “gave no date,” but testified as to
an incident involving wrestling with appellant. Appellant then states that “there was another
occasion” involving appellant putting J.F. on his shoulders. Appellant states, without
argument or authority, that “[t]he State was not requested to elect as to which one of the
above two occurrences they were proceeding on.” We have already determined that the
evidence is legally and factually sufficient to support appellant’s conviction as to Count 3.
To the extent that appellant is asserting that the State was required to elect between the
wrestling incident and the incident involving appellant putting J.F. on his shoulders, we hold
the issue is inadequately briefed, and appellant has preserved nothing for review.48 We
overrule issues five and six.
In issue seven, appellant contends the evidence is legally insufficient to support his
conviction as to Count 4. Appellant again notes that “although she gave no date,” J.F.
testified as to a wrestling incident and “another occasion” involving appellant putting J.F.
on his shoulders. Again, without argument or authority, appellant asserts that “[t]he State
was not requested to elect as to which one of the above two occurrences they were
proceeding on.” We hold this issue is inadequately briefed and is not preserved for our
review.49 Appellant also argues that there was no evidence of appellant’s intent to arouse
or gratify his sexual desire. We reject this argument for the same reasons as outlined
above.
In issue eight, appellant contends the evidence is factually insufficient to support
48
See T EX . R. A PP . P. 38.1(i); Busby v. State, 253 S.W .3d 661, 673 (Tex. Crim . App. 2008).
49
See T EX . R. A PP . P. 38.1(i); Busby, 253 S.W .3d at 673.
15
his conviction in Count 4. In support, appellant makes the same arguments: (1) “[t]he
State was not requested to elect” between the wrestling incident and the incident involving
appellant putting J.F. on his shoulders; and (2) there was insufficient evidence of
appellant’s intent to arouse or gratify his sexual desire. With respect to the election issue,
we have already determined that it is inadequately briefed and not preserved for our
review.50 With regard to the challenge to the intent element, we reject it for the same
reasons as outlined above. We hold the evidence is legally and factually sufficient to
support appellant’s conviction in Count 4. We overrule issues seven and eight.
Conclusion
Having overruled all of appellant’s issues, we affirm the trial court’s judgment.
LINDA REYNA YAÑEZ,
Justice
Do not publish.
TEX . R. APP. P. 47.2(b).
Memorandum Opinion delivered and
filed this the 31st day of August, 2009.
50
See T EX . R. A PP . P. 38.1(i); Busby, 253 S.W .3d at 673.
16