COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00363-CR
FERNANDO RUIZ APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY
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MEMORANDUM OPINION1
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A jury convicted Appellant Fernando Ruiz of indecency with a child by
exposure. The trial court sentenced him to eight years’ confinement. Appellant
brings two issues on appeal, challenging the sufficiency of the evidence to prove
his intent to arouse or gratify a person’s sexual desire and arguing that the trial
court improperly admitted “extraneous evidence.” Because the evidence is
sufficient to support Appellant’s conviction and the trial court did not abuse its
1
See Tex. R. App. P. 47.4.
discretion by admitting evidence of extraneous acts of misconduct, we affirm the
trial court’s judgment.
Appellant and the complainant, A.R., were next door neighbors. A.R. was
a fourteen-year-old female. Appellant is and was an adult male. He had told
both A.R. and her mother that he loved them. Appellant had tapped on A.R.’s
window a couple of nights.
One day, she was sitting on a tree stump alone in her backyard. Through
a missing slat in the fence, A.R. saw Appellant pull his penis out of his pants and
begin “moving it around.” A.R. used a cell phone she had with her to record a
video of Appellant moving his penis. A.R. called the police from inside her home.
The State had the video enhanced, and the video was admitted into evidence. At
trial, when A.R. described the incident, she also testified that Appellant had
exposed his genitals to her more than five times before that incident.
In his first issue, Appellant contends that the evidence is insufficient to
support his conviction because it is insufficient to prove that he intended to
arouse and gratify any person’s sexual desire. In our due-process review of the
sufficiency of the evidence to support a conviction, we view all of the evidence in
the light most favorable to the verdict to determine whether any rational trier of
fact could have found the essential elements of the crime beyond a reasonable
doubt.2
2
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
2
This standard gives full play to the responsibility of the trier of fact to
resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts.3 The trier of fact is the sole judge of
the weight and credibility of the evidence.4 Thus, when performing an evidentiary
sufficiency review, we may not re-evaluate the weight and credibility of the
evidence and substitute our judgment for that of the factfinder.5 Instead, we
“determine whether the necessary inferences are reasonable based upon the
combined and cumulative force of all the evidence when viewed in the light most
favorable to the verdict.”6 We must presume that the factfinder resolved any
conflicting inferences in favor of the verdict and defer to that resolution.7
The standard of review is the same for direct and circumstantial evidence
cases; circumstantial evidence is as probative as direct evidence in establishing
the guilt of an actor.8 In determining the sufficiency of the evidence to show an
appellant=s intent, and faced with a record that supports conflicting inferences, we
3
Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Isassi, 330 S.W.3d at 638.
4
See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Brown v. State,
270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075
(2009).
5
Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
6
Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007).
7
Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Isassi, 330 S.W.3d at 638.
8
Isassi, 330 S.W.3d at 638; Hooper, 214 S.W.3d at 13.
3
Amust presume—even if it does not affirmatively appear in the record—that the
trier of fact resolved any such conflict in favor of the [verdict], and must defer to
that resolution.@9
A.R. testified that Appellant had exposed his penis to her on more than
five occasions. On the date in question, she saw Appellant move his penis from
side to side. She also testified that he would say “creepy stuff” over the fence.
The “creepy stuff” included statements such as “I love you, baby” or “I dream of
you at night.” He would say similar things to A.R.’s mother. In addition to the
testimony describing Appellant’s words, actions, and demeanor, the jury had the
opportunity to view the video of Appellant’s act of exposing himself. Applying the
appropriate standard of review, we hold that the evidence was sufficient to permit
a rational jury to find beyond a reasonable doubt that when Appellant exposed
himself in front of A.R., he did so with intent to arouse or gratify his own sexual
desire as alleged in the indictment.10
In his second issue, Appellant argues that the trial court abused its
discretion by admitting extraneous offense evidence over his timely objection.
Before trial, Appellant received notice of the State’s intent to offer evidence of
extraneous bad acts. Appellant objected to their admission into evidence on
notice grounds before trial and generally when the evidence was first admitted.
9
Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991).
10
See Tex. Penal Code Ann. § 21.11(a)(2) (West 2011).
4
The trial court overruled the objections, issued a timely limiting instruction, and
allowed Appellant a running objection after overruling his general objection.
On appeal, Appellant argues that the trial court abused its discretion by
admitting the evidence because the State offered it to show character conformity.
Appellant contends that, while the bad acts may have been admissible to defeat
a defensive theory, in the case now before this court, he had set up no defensive
theory and had not even cross-examined A.R. He argues that as a
consequence, there was no defensive theory to rebut. The State is correct that
Appellant’s objection on appeal does not conform to his objection at trial. 11
Appellant has therefore forfeited his issue. In the interest of justice, we point out
that the evidence was properly admitted as evidence of the relationship between
the parties to show Appellant’s intent.12 We therefore overrule Appellant’s
second issue.
Having overruled both of Appellant’s issues, we affirm the trial court’s
judgment.
LEE ANN DAUPHINOT
11
See Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009)
(“Whether a party’s particular complaint is preserved depends on whether the
complaint on appeal comports with the complaint made at trial.”); Reyna v. State,
168 S.W.3d 173, 179 (Tex. Crim. App. 2005).
12
See Tex. Code Crim. Proc. Ann art. 38.37, §§ 1(1)(A), 2 (West Supp.
2011); Jones v. State, 119 S.W.3d 412, 420 (Tex. App.—Fort Worth 2003, no
pet.).
5
JUSTICE
PANEL: DAUPHINOT, MCCOY, and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: June 21, 2012
6