Charles Osborn v. State ( 1995 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-93-00509-CR





Charles Osborn, Appellant



v.



The State of Texas, Appellee





FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT NO. 0921667, HONORABLE WENDELL ODOM, JUDGE PRESIDING

Appellant Charles Osborn waived a jury trial and was convicted in a bench trial of the offense of indecency with a child. Act of May 29, 1987, 70th Leg., R.S., ch. 1028, § 1, 1987 Tex. Gen. Laws 3474 (Tex. Penal Code Ann. § 21.11, since amended). The trial court assessed punishment at incarceration for ten years. Appellant's sole point of error asserts that the evidence is not sufficient to prove beyond a reasonable doubt that appellant committed the alleged acts with the intent and for the purpose of sexual gratification, a necessary element of the alleged offense. We will affirm the judgment.

The State alleged that appellant, with the intent to arouse and gratify his sexual desire, intentionally and knowingly engaged in sexual contact by touching the genitals of the male victim, a child younger than seventeen years of age and not his spouse. An essential element of this offense is the intent to arouse and gratify the sexual desire of any person. Duwe v. State, 642 S.W.2d 804 (Tex. Crim. App. 1982). In reviewing the legal sufficiency of the evidence, the relevant question is whether, after reviewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the criminal offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). The requisite specific intent to arouse or gratify the sexual desire of any person can be inferred from the defendant's conduct, his remarks, and all of the circumstances. McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. 1981); Bowles v. State, 550 S.W.2d 84, 85 (Tex. Crim. App. 1977); Branson v. State, 825 S.W.2d 162, 167 (Tex. App.--Dallas 1992, no pet.). Evidence that an accused told the victim not to tell or that he would hurt the victim will support an inference that the accused knew that what he was doing was wrong and punishable. Branson, 825 S.W.2d at 167-68; Shane v. State, 685 S.W.2d 89, 90-91 (Tex. App.--Beaumont 1984, no pet.); see Bowles, 550 S.W.2d at 85.

Appellant and the family of the victim became acquainted at the church they regularly attended. Appellant and the victim were friends, and the victim's father and appellant had considered a business association. The fourteen-year-old victim and his fifteen-year-old brother participated with the thirty-two-year-old appellant in activities such as bowling.

In the early Saturday evening of the night that the alleged offense occurred, the boys were at appellant's apartment. They were watching television while awaiting an opening at the bowling alley that appellant had reserved. On the way to the bowling alley while in appellant's car, appellant offered to bet the victim one hundred dollars that the victim "didn't have any hair on [his] balls." They entered into the bet, and appellant said they would check and see as soon as they returned to his apartment. When they left the bowling alley, they went into the alley behind the bowling alley to throw away some trash. At this time, appellant suggested they settle their bet, but the victim refused.

On the way back to the apartment, appellant stopped and bought a twelve-pack of beer. At appellant's apartment, all three went into the bathroom "to check and see if the bet was right." The victim pulled down his pants. Appellant "checked and he said: ``You ain't got hair on your balls. It's on your scrotum.'" Appellant grabbed the victim's "balls and checked himself." Appellant held the victim's scrotum and testicles for about "twenty seconds." The victim testified that appellant said, "No, I lost. He said he won. So, nobody got any money at all." The victim thought he had been tricked.

The boys and appellant then went into the living room and started to play poker. Appellant suggested: "Let's play strip poker." The victim's brother and appellant lost a game and both removed their clothes. The victim was last to lose a game, and he did not want to take off his clothes. The appellant told him that if he didn't take his clothes off, the victim's brother and he would "assist" him in doing so. The victim eventually removed his clothes.

With their clothes off, the three continued to play poker, and the appellant gave the boys beer to drink. The victim drank several beers and became "drunk" and "sick." When the victim said he needed to go to the bathroom, appellant went with him.

Q. What happened when you got into the bathroom?

A. I just stood there. I was so drunk I couldn't do nothing so he just started fondling me and doing it for himself. Doing it by himself.

Q. Tell me what you mean by that.

A. He was grabbing me all over and saying, "I'll help you."

Q. When you say he was grabbing you all over, was he touching you on your genitals?

A. Yes.

Q. Did he hold your penis --

A. Yes.

Q. -- in his hand: Okay. What happened after that?

A. Well, we went back in the living room and I puked on myself and he said that we would go in there and he would put me in the shower so I could clean myself off.

Q. Did you have any clothes on at this time when you threw up?

A. No. Well, I did when I went in there but I didn't because he assisted in taking all of my clothes off for me.

Q. You went back into the living room. You said you got sick, you threw up?

A. Yeah.

Q. Did you have any clothes on when you threw up?

A. Yeah. I did.

Q. Did you throw up on your clothes?

A. Yeah. And in my shoes.

Q. So, Charles was going to help you --

A. Yeah.

Q. -- clean up?

A. Uh-huh.

Q. So, he goes back into the bathroom with you, right?

A. Yeah.

Q. What happens when you get back into the bathroom with Charles?

A. Well, I thought that I was just going to take all of my clothes off and get in and he was going to walk out. But he just put a tub of water in there and just started scrubbing me down for me.

Q. When you say he started scrubbing you down, what part of your body was he scrubbing?

A. Mostly on my genitals.

Q. Okay. Was he using any soap?

A. No. He wasn't using anything.

Q. What was he using?

A. Just his hands.

The victim testified that after his bath, appellant dried him off and put underwear on him. The victim then watched television until he fell asleep because he "was so drunk." In the morning when he awoke, the victim testified he was naked and in the appellant's bed. The appellant was on a couch in the living room. Appellant told the victim his clothes were in the living room beside the aquarium.

Appellant took the boys to breakfast and then to church. Appellant warned the boys that if they told anybody about the previous night, he would get somebody to hurt them. Although the victim thought appellant was capable of carrying out his threat, he was not afraid of him. The boys were embarrassed about what had happened and planned to keep it a secret. However, after "quite a while passed," they eventually told their father what had happened and he took them to the police to make a report.

The victim's brother's testimony for the most part corroborated the victim's testimony. Appellant testified and agreed substantially that everything the boys said had happened did happen with the important exception that he had never touched the victim's genitals. He testified that he had not made any sexual contact.

In Baker v. State, 781 S.W.2d 688 (Tex. App.--Fort Worth 1989, pet. ref'd), relied on by appellant, the court held that "[t]he evidence [was] insufficient to prove any sexual contact occurred." Since there was no sexual contact in Baker, there could not be sexual contact with the intent to arouse Baker's sexual desires. Baker does not support appellant's contentions in this case. Although not compatible with appellant's testimony, there is evidence to support a rational finding that sexual contact occurred in this case.

The trial court as the trier of fact could rationally accept the victim's testimony, at least partially corroborated by his brother, that appellant touched the victim's genitals more than once. The trial court could rationally infer from appellant's conduct and the circumstances, including the bet he initiated, plying the boys with beer, suggesting that they play strip poker, and his threat the next morning that appellant had the intent to gratify his sexual desire. The evidence was amply sufficient to prove the essential elements of the offense charged and to support the trial court's judgment. Appellant's point of error is overruled.

The judgment is affirmed.

Carl E. F. Dally, Justice

Before Justices Powers, Aboussie and Dally^*

Affirmed

Filed: April 19, 1995

Do Not Publish

^* Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1988).