Opinion filed April 16, 2015
In The
Eleventh Court of Appeals
__________
No. 11-13-00091-CR
__________
JOHN MARTINEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 106th District Court
Dawson County, Texas
Trial Court Cause No. 13-7243
MEMORANDUM OPINION
John Martinez was charged in a ten-count indictment with one count of
continuous sexual abuse of a young child, eight counts of indecency with a child,
and one count of aggravated sexual assault of a child. After the State abandoned one
count of indecency with a child at the close of evidence (Count Ten in the
indictment), the trial court submitted nine counts to the jury. The jury found
Appellant guilty of five counts of indecency with a child and one count of aggravated
sexual assault of a child. See TEX. PENAL CODE ANN. § 21.11 (West 2011), § 22.021
(West Supp. 2014). The jury acquitted Appellant of the two remaining counts of
indecency with a child (Counts Six and Nine). With respect to the one count of
continuous sexual abuse of a young child (Count One), the jury was unable to reach
a unanimous verdict. The trial court granted a mistrial on the count of continuous
sexual abuse of a young child after the parties agreed to a mistrial without prejudice
to the State’s right to subsequently prosecute the offense.
The jury assessed Appellant’s punishment at confinement for a term of ninety-
nine years in the Institutional Division of the Texas Department of Criminal Justice
on the aggravated sexual assault conviction (Count Four). On three of the
convictions for indecency with a child (Counts Two, Three, and Eight), the jury
assessed Appellant’s punishment at confinement for a term of ten years. On the
remaining two convictions for indecency with a child (Counts Five and Seven), the
jury assessed Appellant’s punishment at confinement for a term of twenty years.
The trial court ordered that all of Appellant’s sentences are to be served concurrently.
In one issue on appeal, Appellant challenges the sufficiency of the evidence to
support his convictions. We affirm.
Background Facts
The ten-count indictment alleged that Appellant committed various acts of
sexual misconduct with three child victims: “EE” (Counts One, Two, and Three),
“AR1” (Counts Four, Five, Six, Seven, and Eight), and “AR2” (Counts Nine and
Ten).1 We note at the outset that Appellant was not convicted of any counts
pertaining to AR2 because the jury acquitted him of Count Nine and the State
abandoned Count Ten. We additionally note that the jury acquitted Appellant of
Count Six, which alleged indecency with a child committed against AR1. Finally,
1
We will use the same identifiers for the children that were used in the indictment.
2
the trial court granted a mistrial on Count One, which alleged continuous sexual
abuse of EE. Accordingly, Appellant’s six convictions include two convictions for
indecency with a child committed against EE (Counts Two and Three), one
conviction for aggravated sexual assault committed against AR1 (Count Four), and
three convictions for indecency with a child committed against AR1 (Counts Five,
Seven, and Eight). The indictment alleged that each of the six convictions occurred
on or about July 17, 2012.
On July 18, 2012, Sergeant Joe Martinez of the Lamesa Police Department
was dispatched to a residence in Lamesa in reference to a report of sexual assault.
T.G., the mother of AR1 and AR2 and the aunt of EE, reported to Sergeant Martinez
that a man, who lived across the street in a camper trailer and whom the children
called “Uncle Jay,” had touched AR1 and EE inappropriately.2 After talking to AR1
and EE, Sergeant Martinez made contact with Appellant at his trailer.
Sergeant Martinez subsequently turned the investigation over to Detective Antonio
Garcia. Detective Garcia advised Sergeant Martinez to request that the children be
taken to the hospital for a “SANE exam.” Detective Garcia subsequently made
arrangements for AR1 and EE to be interviewed at the Child Advocacy Center in
Midland.
Following the interviews of AR1 and EE, Detective Garcia contacted
Appellant and requested to interview him. Appellant stated as follows in the
interview:
I remember my neighbor’s kids named [AR1] and [EE] . . . came
over to my trailer. And we were playing cards when [AR1] told me she
needed to use the bathroom. I told [AR1] she needed to go to her house
and use the bathroom. [AR1] said she could not wait. I told her she
could use my bathroom, but she had to use the little trash can inside the
bathroom to pee in because I had something on top of the toilet. After
she finished, [AR1] asked me for the toilet paper. And I gave [EE] some
2
The allegations concerning AR2 arose at a later date.
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toilet paper to give to [AR1]. After [AR1] got out of the bathroom I
asked [AR1] if she had cleaned herself good. [AR1] said yes. I told
[AR1] I wanted to check, so I put my hand inside her pants and I touched
her vagina. And I put my finger inside her vagina to see if her vagina
was wet or not. I put my finger inside her vagina, but did not put the
finger deep inside her. Before they both left my trailer I asked [EE] if
her vagina was wet. [EE] did not say anything, so I put my hand inside
[EE’s] pants and I touched her vagina with my finger, and my finger
might have went inside her vagina, but not too deep. This is not a big
thing. It’s more of a joke than anything else. I am just playing with the
girls, not trying anything sexually. I wear shorts without underwear, and
I think I pulled my shorts up one time and [AR1] and [EE] both saw my
penis, but it was not -- it was only in a playing way. [AR1] and [EE] are
very curious and are always looking inside my trailer, and they follow
me wherever I go. And I think they have seen me pee when I go to the
bathroom. After [AR1] and [EE] left my trailer and went outside and
they got my bikes so they could go riding, I told them after they finished
riding I wanted some p---y juice. The girls returned and left the bikes
and went home. I did not see them anymore. I will no longer let anyone
come over to my trailer because I don’t need any problems.
AR1 and EE were nine years old at the time of trial. AR1 and EE are cousins.
EE testified that she first met Appellant three years earlier. AR1 and EE would go
to Appellant’s trailer to ride bikes and play cards. AR1 and EE said that they had
been inside Appellant’s trailer.
EE testified that, when Appellant won at cards, “[h]e asks for . . . some p---y
juice.” EE said that Appellant took “off [her] underwears” and that she was naked
from the waist down. EE indicated on a doll that Appellant would touch her genital
area. EE said that this happened for three years. EE said that Appellant touched her
genital area with “his middle” and indicated on the doll that it was his genital area.
EE also said that Appellant made her touch “his middle.”
On the day that the report was made to the police department, AR1 and EE
went over to Appellant’s trailer to ride bikes. AR1 testified that Appellant said that,
if AR1 wanted to ride the bike, she “ha[d] to give him p---y juice.” AR1, EE, and
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Appellant went inside his trailer. AR1 testified that Appellant touched her “middle,”
which is her term for genitalia. AR1 indicated on a doll that Appellant touched her
middle underneath her clothes. AR1 said that Appellant “was trying to put his hands
in my middle.” AR1 answered in the affirmative that Appellant’s fingers were inside
her middle. AR1 also testified that Appellant touched her on her “boobs” and her
“bottom” over her clothes. AR1 also indicated that Appellant had touched her the
day before on her “boobs” and her “bottom” as well. EE testified that she saw
Appellant touch AR1 on both her breast and genital area.
With respect to Appellant’s conduct with EE, AR1 said that Appellant
grabbed EE’s hand and “put his hand in her pants and touched her.” AR1 saw
Appellant touch EE in her “middle” inside her pants. EE answered affirmatively
when asked if Appellant touched her genital area on the day of the incident. AR1
testified that she and EE then left and told AR1’s mother what had happened.
AR1 testified that she had seen Appellant’s “middle” three times prior to the
day of the incident that gave rise to the police report. AR1 said that Appellant would
keep his pants on but would show his “middle” to both AR1 and EE. EE answered
affirmatively when asked if she remembered Appellant showing his middle when he
played cards with her. EE said it had happened three times.
As noted previously, AR1 and EE went to the Child Advocacy Center in
Midland to be interviewed. There they met with Michelle Simer, the interviewer at
the Child Advocacy Center, who recorded her interviews of AR1 and EE. AR1’s
and EE’s interviews were played for the jury. Both AR1 and EE described
essentially the same series of touching and exposure by Appellant as they described
in their trial testimony.
Appellant testified on his own behalf during the guilt/innocence phase. He
testified that he fixed bikes for the neighborhood. Appellant said that EE hurt herself
on one of the bikes and “pulled her pants down and she had her legs open, and then
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she called me and she said, ‘Uncle Jay, come here and look at this.’ And she showed
me her -- her thing. She said, ‘It hurts.’ She asked me if it was red.” Appellant then
testified that he did not have anything to put on it and sent her home. Appellant also
said that AR1 used his restroom and “[came] out with her pants down. Because I
had told her, joking, you know, ‘Clean yourself good.’ She wanted me to check and
see if it was -- see if she had cleaned good. And I said, ‘No, I don’t have to do that.’
I said, ‘If you clean yourself good, that’s fine.’ And she wouldn’t pull her pants up.”
Appellant denied ever touching EE or AR1. Appellant also denied ever
exposing himself to EE or AR1. Appellant admitted that he gave a signed statement
regarding the events. As noted previously, the statement was admitted into evidence.
However, Appellant argued that he did not know what he was signing. Appellant
“thought it had something to do with what [the police] were doing as far as booking
[him].” Appellant denied the statement that he had put his hand inside AR1’s pants
and touched her vagina to see “if she had cleaned herself good.” Appellant did admit
that the following statement was “probably” true: “I wear[] shorts without
underwear, and I think I pulled my shorts up one time and [AR1] and [EE] both saw
my penis, but it was only in a playing way.”
Analysis
In his sole issue, Appellant challenges the sufficiency of the evidence
supporting his convictions. He primarily contends that there was insufficient
evidence to establish that he engaged in the alleged acts with the intent to arouse or
gratify his sexual desire. We review a sufficiency of the evidence issue under the
standard of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v.
State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286,
288–89 (Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we
review all of the evidence in the light most favorable to the verdict and determine
whether any rational trier of fact could have found the elements of the offense
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beyond a reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d
633, 638 (Tex. Crim. App. 2010). When conducting a sufficiency review, we
consider all the evidence admitted at trial, including pieces of evidence that may
have been improperly admitted. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim.
App. 2013); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). In
conducting a sufficiency review, we defer to the factfinder’s role as the sole judge
of the witnesses’ credibility and the weight their testimony is to be afforded. Brooks,
323 S.W.3d at 899. This standard accounts for the factfinder’s duty to resolve
conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences
from basic facts to ultimate facts. Jackson, 443 U.S. at 319; Clayton, 235 S.W.3d at
778. When the record supports conflicting inferences, we presume that the factfinder
resolved the conflicts in favor of the prosecution and defer to that determination.
Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.
Aggravated Sexual Assault
Appellant argues that there was legally insufficient evidence to show that
Appellant had any intent to arouse or gratify his sexual desire by causing the
penetration of AR1’s sexual organ with his finger. Appellant bases his contention
on the argument that he wanted to check if AR1 had cleaned herself after using the
restroom, so he put his finger inside AR1’s vagina. As he indicated in his statement
to the police, his motivation for doing this was as follows: “[i]t’s more of a joke than
anything else. I am just playing with the girls, not trying anything sexually.”
A person commits the offense of aggravated sexual assault of a child if he
intentionally or knowingly causes the penetration of the sexual organ of a child by
any means. PENAL § 22.021(a)(1)(B)(i). An intent to arouse or gratify the sexual
desire of any person is not an element of aggravated sexual assault. Id.; see Ochoa v.
State, 982 S.W.2d 904, 908 (Tex. Crim. App. 1998) (quoting Cunningham v. State,
726 S.W.2d 151, 155 (Tex. Crim. App. 1987)). Appellant’s admission that he
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inserted his finger into AR1’s vagina was sufficient to support his conviction for
aggravated sexual assault. See Villa v. State, 417 S.W.3d 455, 461–62 (Tex. Crim.
App. 2013). Appellant’s purported misunderstanding of the nature of the statement
that he gave to the police and his motivations in dealing with the victims were
credibility issues for the jury to resolve. Under the applicable standard of review,
we presume that the jury resolved these credibility determinations against Appellant.
Additionally, AR1 said that Appellant “was trying to put his hands in my middle,”
and she answered in the affirmative that Appellant’s fingers were inside her
“middle.” The testimony of a child victim alone is sufficient to support a conviction
for aggravated sexual assault. TEX. CODE CRIM. PROC. ANN. art. 38.07(a) (West
Supp. 2014); see Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990)
(concluding child victim’s unsophisticated terminology alone established element of
penetration beyond a reasonable doubt). We conclude that any rational trier of fact
could have found the elements of the offense of aggravated sexual assault of a child
beyond a reasonable doubt.
Indecency with a Child
Appellant’s remaining five convictions are for indecency with a child.3
Counts Two, Three, and Eight alleged that Appellant committed indecency with a
child by exposure. A person commits the offense of indecency with a child by
exposure if, with intent to arouse or gratify the sexual desire of any person, the
person exposes the person’s anus or any part of the person’s genitals, knowing the
child is present, or causes the child to expose the child’s anus or any part of the
child’s genitals. PENAL § 21.11(a)(2). Counts Five and Seven alleged that Appellant
committed indecency with a child by sexual contact. A person commits the offense
3
A person who commits more than one sexual act against the same person may be convicted and
punished for each separate and discrete act, even if those acts were committed in close temporal proximity.
Aekins v. State, 447 S.W.3d 270 (Tex. Crim. App. 2014).
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of indecency with a child by sexual contact if, with the intent to arouse or gratify the
sexual desire of any person, he touches the anus, breast, or any part of the genitals
of a child, including through clothing. Id. § 21.11(a)(1), (c)(1). Accordingly, an
essential element of the offense of indecency with a child by either exposure or
sexual contact is the mental state that accompanies the forbidden conduct: the
specific intent to arouse or gratify the sexual desire of any person. See McKenzie v.
State, 617 S.W.2d 211, 213 (Tex. Crim. App. [Panel Op.] 1981).
In a prosecution for indecency with a child, the defendant’s specific intent to
arouse or gratify his sexual desire can be inferred from his conduct, his remarks, and
all surrounding circumstances. Id. at 216; Moore v. State, 397 S.W.3d 751, 754
(Tex. App.—San Antonio 2013, no pet.). Intent can be inferred from conduct alone,
and no oral expression of intent or visible evidence of sexual arousal is necessary.
Scott v. State, 202 S.W.3d 405, 408 (Tex. App.—Texarkana 2006, pet. ref’d).
Further, a complainant’s testimony alone is sufficient to support a conviction for
indecency with a child. Moore, 397 S.W.3d at 754; Connell v. State, 233 S.W.3d
460, 466 (Tex. App.—Fort Worth 2007, no pet.).
Count Two: Indecency with a Child by Exposure to EE
The indictment alleged in Count Two that Appellant intentionally or
knowingly exposed his genitals to EE with the intent to arouse or gratify his sexual
desire. Appellant challenges the sufficiency of the evidence establishing that EE
saw his genitals. He additionally challenges the sufficiency of the evidence
regarding his intent to arouse or gratify his sexual desire. Appellant bases his
contention that there was insufficient evidence that EE saw his genitals on alleged
inconsistencies in EE’s and AR1’s testimony and on the fact that EE could not
describe his genitals. We presume that the jury resolved conflicts in the evidence in
favor of the prosecution, and we defer to that determination. EE testified that she
had seen Appellant’s “middle” three times and that it had happened when they were
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playing cards together. AR1 also said that Appellant would show his “middle” to
both AR1 and EE. Child victims of sexual crimes are afforded great latitude when
testifying, and they are not expected to testify with the same clarity and ability as is
expected of a mature and capable adult. Villalon, 791 S.W.2d at 134. Furthermore,
Appellant indicated in his written statement that it was “probably” true that EE saw
his penis.
With regard to evidence of Appellant’s intent to arouse or gratify his sexual
desire, Appellant’s intent can be inferred from the act itself. McKenzie, 617 S.W.2d
at 216. The evidence that Appellant committed indecency with a child on multiple
instances is additional evidence of an intent to arouse or gratify his sexual desire.
See Abbott v. State, 196 S.W.3d 334, 341 (Tex. App.—Waco 2006, pet. ref’d).
Viewing the evidence in the light most favorable to the jury’s verdict, we conclude
that a rational trier of fact could have found beyond a reasonable doubt that
Appellant exposed himself to EE and that he possessed the specific intent to arouse
or gratify his sexual desire when doing so.
Count Three: Indecency by Exposure of EE
The indictment alleged in Count Three that Appellant intentionally or
knowingly caused EE to expose her anus and genitals or any part of her genitals to
him with the intent to arouse or gratify his sexual desire. Appellant challenges the
sufficiency of the evidence that he caused EE to expose herself to him. He
additionally challenges the sufficiency of the evidence showing that he committed
the act with the intent to arouse or satisfy his sexual desire.
EE testified that, when Appellant won at cards, he would “ask[] for . . . some
p---y juice.” He would then take off EE’s underwear, and she would be naked from
the waist down. Appellant, however, testified that EE “pulled her pants down and
she had her legs open” but that it was simply to determine if she had hurt herself on
one of the bikes. As noted above, we presume that the factfinder resolved the
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conflicting evidence in favor of the prosecution and defer to that determination. The
testimony that Appellant took off EE’s underwear as a reward for “winning” at cards
is evidence that Appellant caused the exposure of EE’s anus or genitals to him and
that he did it with the requisite intent to arouse his sexual desire. Viewing the
evidence in the light most favorable to the verdict, we conclude that a rational trier
of fact could have found the essential elements of the alleged crime beyond a
reasonable doubt.
Counts Five, Seven, and Eight: Indecency with a Child with AR1
The indictment alleged in Count Five that Appellant intentionally or
knowingly engaged in sexual contact with AR1 by touching her genitals. Count
Seven alleged that Appellant intentionally or knowingly engaged in sexual contact
with AR1 by touching her breast. Count Eight alleged that Appellant intentionally
or knowingly exposed his genitals to AR1. Each of these counts alleged that
Appellant committed these acts with the intent to arouse or gratify his sexual desire.
Appellant restricts his challenge to the sufficiency of the evidence supporting these
convictions to the common element of his intent to arouse or gratify his sexual desire.
We have previously noted that Appellant’s intent to arouse or gratify his
sexual desire can be inferred from the individual alleged acts themselves. McKenzie,
617 S.W.2d at 216. The evidence that Appellant committed multiple acts of a sexual
nature with multiple victims is further evidence of his intent to arouse or gratify his
sexual desire. See Abbott, 196 S.W.3d at 341. Furthermore, there is evidence that
Appellant conditioned riding his bicycles and card games on sexual conduct with the
minor victims.
Viewing the evidence in the light most favorable to the jury’s verdict, we
conclude that a rational trier of fact could have found beyond a reasonable doubt that
Appellant possessed the specific intent to arouse or gratify his sexual desire when
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engaging in the alleged conduct. We overrule Appellant’s sole issue on all six of his
convictions.
This Court’s Ruling
We affirm the judgments of the trial court.
JOHN M. BAILEY
JUSTICE
April 16, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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