In The
Court of Appeals
Seventh District of Texas at Amarillo
Nos. 07-14-00418-CR
07-14-00419-CR
EUGENE THOMAS, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 251st District Court
Potter County, Texas
Trial Court Nos. 67,796-C; 67,797-C, Honorable Ana Estevez, Presiding
October 21, 2015
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPELL and HANCOCK, JJ.
Eugene Thomas appeals his two convictions for soliciting two different female
minors (“K” and “M”) and contends that the evidence is insufficient to support those
convictions. Both female victims testified that each was in his car when he asked each,
in turn, to allow him to suck on their breasts and submit to cunnilingus. According to
appellant, these entreaties were not evidence of a request or command to engage in
“specific conduct,” as required by statute. Nor was the testimony they imparted
sufficiently corroborated, in appellant’s view. We overrule each issue and affirm.
Claims of legal insufficiency are reviewed under the standard discussed in Dobbs
v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). We apply that standard here.
Specific Conduct
The State, through its indictment, alleged that appellant “. . . on or about the 13th
day of July, 2013 . . . did then and there, with intent that Indecency with a Child be
committed, request, command, or attempt to induce [the victim], an individual younger
than 17 years of age, to engage in specific conduct, to-wit: sexual contact that under the
circumstances surrounding the conduct of the defendant, as the defendant believed
them to be, would have constituted Indecency with a Child.” (Emphasis added). See
TEX. PENAL CODE ANN. § 15.031(b) (West Supp. 2014) (stating that a person commits an
offense if “. . . the person by any means requests, commands, or attempts to induce a
minor. . . to engage in specific conduct that . . . would constitute an offense under
[21.11]”). Appellant conceded that the word “conduct” (as encompassed by the statute
and charge) included either an act or omission. See Id. § 1.07(10) (stating that
“‘[c]onduct’ means an act or omission and its accompanying mental state”). And, while
discussing the definition of the word “specific,” he acknowledged that the term
encompassed the concept of “a special or particular kind.” So, putting his own
definitions together, the “specific conduct” mentioned in § 15.031(b) would encompass,
at the very least, an act or omission of a particular or special kind.
Asking the children at bar to allow him to suck on their breasts or perform
cunnilingus upon them is some evidence of a request that they either engage in a
particular act of unlawful sexual contact with him or omit from objecting to a particular
form of unlawful sexual contact he intended to be performed on them. See id.
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§ 21.01(2) (defining “sexual contact” as “any touching of the anus, breast, or any part of
the genitals of another person with intent to arouse or gratify the sexual desire of any
person”). As such, the jury had before it ample evidence upon which it could rationally
conclude, beyond reasonable doubt, that appellant asked the children to engage in
“specific conduct” as contemplated by § 15.031(b) of the Penal Code.
Corroboration
Statute provides that “a person may not be convicted under [§ 15.031(b) of the
Penal Code] on the uncorroborated testimony of the minor allegedly solicited unless the
solicitation is made under circumstances strongly corroborative of both the solicitation
itself and the actor's intent that the minor act on the solicitation." Id. § 15.031(c)
(emphasis added). Appellant argues that the solicitations of which he was accused
were not made under circumstances strongly corroborative of both the solicitation and
his intent that the respective minor act on the solicitation. Thus, he could not be
convicted simply on the uncorroborated testimony of the “minor allegedly solicited,” and
no such corroboration allegedly appeared of record. We disagree.
Assuming arguendo the accuracy of the first prong of appellant’s attack, the
second prong proves inaccurate. That is, his convictions were not based simply upon
the testimony of the child he was alleged to have solicited in each indictment. Indeed,
child “K” testified to hearing the aforementioned request made of child “M.” So,
appellant’s conviction for soliciting child “M” was not merely founded upon the
“uncorroborated” testimony of child “M”; rather, child “K” corroborated it. The same is
also true of the solicitation of child “K”; it was corroborated by the testimony of child “M.”
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If we were to eliminate “. . . entirely the complainant’s testimony” as appellant
would have us do, we still have the testimony of the other minor “. . . to connect the
accused with the crime.” And, appellant did not argue that “K” could not provide
corroborating testimony in the prosecution where “M” was the victim, and vice versa.
Nor were we cited to authority so suggesting.
We affirm appellant’s convictions and the judgments manifesting them.
Brian Quinn
Chief Justice
Do not publish.
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