Tracy Richardson v. State ( 2009 )

Affirmed and Memorandum Opinion filed August 13, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-08-00953-CR

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TRACY RICHARDSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 180^th District Court

Harris County, Texas

Trial Court Cause No. 1123193

M E M O R A N D U M   O P I N I O N

A jury found appellant, Tracy Richardson, guilty of the felony offense of indecency with a child.  Tex. Penal Code Ann. ' 21.11 (Vernon 2003).  The jury assessed punishment at forty-five years' confinement in the Institutional Division of the Texas Department of Criminal Justice and imposed a  $10,000 fine.  Appellant challenges the factual sufficiency of the evidence. We affirm.

Factual and Procedural Background

On June 5, 2007, Nancy, a fourteen year old girl, was walking home from her grandmother=s house in the 4200 block of Alvin Street in Houston, Texas.^[1] Nancy testified that while walking home she saw appellant and her cousin=s boyfriend in appellant=s driveway.^[2] When Nancy passed by appellant=s house appellant grabbed her wrist. Nancy=s cousin=s boyfriend got in his car and drove away at that point.  Appellant then grabbed Nancy around the neck and his elbow was choking her.  Next, appellant put his right arm around Nancy=s waist and pulled her close to him so Nancy=s behind was on his pelvis.  Nancy asked appellant to let her go.  Nancy testified that appellant then touched her breast over her clothes with the palm of his hand.  Nancy explained that the touch was Amore like he like kind of grabbed it, instead of just rubbing across it like it was on accident@ and she Afelt like it wasn=t on [sic] accident.@  According to Nancy, during the incident, appellant talked about how she was developing quickly and was shaped like her mother. While talking to Nancy, appellant=s lips brushed her neck.  Nancy testified she felt appellant was not joking when he was talking to her.  Nancy and appellant struggled a bit, but appellant let her go after she elbowed him.  Nancy  then went straight home and into her room.

Nancy=s mother testified when Nancy arrived home she was walking quickly and looked upset.  Nancy=s mother asked her if anything was wrong and Nancy responded Anothing.@  Her mother did not think much of it since Nancy was a teenager.  Her mother testified Nancy did not act like herself for the rest of the evening.  After bedtime that night, Nancy=s mother heard her crying and when she confronted Nancy, Nancy told her that appellant had grabbed her breast and told her that she was going to have a bottom like her mother=s.

When asked why she did not immediately tell her mother about the incident Nancy testified:

A[c]ause I was scared and I wasn=t sure, like, because I don=t really know what kind of person he is.  So, I wasn=t sure if it was just accidentally like he was just kind of like the touchy-feely type of person or what, but I know I didn=t feel comfortable with it.@ 

Nancy also testified she was worried about how her father=s side of the family would act. 

The next morning, June 6, 2007,  Nancy=s mother spoke with Nancy=s father and called the police.  A patrol officer was sent to Nancy=s house and took a statement from Nancy and her family.  The case was sent to the juvenile sex crimes unit for further investigation.  On June 14, 2007, Nancy was interviewed by the Children=s Assessment Center. 

Sandra (Sandy) Hines, appellant=s cousin, testified for the defense.^[3] Hines testified that she and her fiancé, Kevin Fox, were present at the time of the alleged incident.^[4] Hines further testified that Nancy was walking down the street and Hines asked her where she was coming from and, since it was getting dark outside, watched her get home.  Sandy testified that appellant did not speak to Nancy.

A jury found appellant guilty of indecency with a child.  The jury assessed punishment at forty-five years' confinement in the Institutional Division of the Texas Department of Criminal Justice and imposed a  $10,000 fine.  This appeal followed.

Discussion    

A.  Is the Evidence Factually Sufficient to Support Appellant=s Conviction?

In appellant=s sole issue on appeal, he challenges the factual sufficiency of the evidence.^[5] Specifically, appellant contends the evidence is factually insufficient to prove appellant possessed the requisite intent to commit the offense of indecency with a child.  Appellant argues complainant wavered during her testimony on direct examination, causing the evidence to be factually insufficient to show that he had an intent to arouse or gratify the sexual desire of any person.

I. Standard of Review

In a factual sufficiency review, we consider all the evidence in a neutral light.  Prible v. State, 175 S.W.3d 724, 730B31 (Tex. Crim. App.2005). The evidence may be factually insufficient in two ways. Id. at 731.  First, when considered by itself, evidence supporting the verdict may be so weak the verdict is clearly wrong and manifestly unjust.  Id.  Second, where the evidence both supports and contradicts the verdict, the contrary evidence may be strong enough the beyond-a-reasonable-doubt standard could not have been met.  Id.  In conducting a factual sufficiency review, we must employ appropriate deference so we do not substitute our judgment for that of the fact finder.  Jones v. State, 944 S .W.2d 642, 648 (Tex. Crim. App.1996).  Our analysis must consider the evidence appellant claims is most important in allegedly undermining the jury's verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App.2003)

II. Analysis

For the State to prove appellant committed the offense of indecency with a child, it is required to prove that appellant engaged in sexual contact with a child.  Tex. Penal Code Ann. ' 21.11(a)(1). Sexual contact is defined as Athe following acts, if committed with the intent to arouse or gratify the sexual desire of any person: any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child.@ Id. at ' 21.11(c)(1). Appellant argues the evidence presented by the State is factually insufficient to support the jury=s verdict.  He argues that even if he touched Nancy=s breast, Nancy=s testimony shows that it may have been an accident.  Appellant argues if the touching was an accident, then he could not have had the requisite intent to arouse and gratify his sexual desires.

The testimony of a child victim, under the age of seventeen, standing alone is sufficient to support a conviction of indecency with a child.  Tex. Code Crim. Proc. art. 38.07(b)(1) (Vernon 2005); Glockzin v. State, 220 S.W.3d 140, 147 (Tex. App.CWaco 2007, pet. ref=d) (quoting Perez v. State, 113 S.W.3d 819, 838 (Tex. App.CAustin 2003, pet. ref=d), overruled on other grounds by Taylor v. State, 268 S.W.3d 571 (Tex. Crim. App. 2008)).^[6] The jury, as the trier of fact, is the sole judge of the credibility of the witness and the strength of the evidence.  Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999).  The jury may choose to believe or disbelieve any portion of the witness=s testimony.  Bargas v. State, 252 S.W.3d 876, 887 (Tex. App.CHouston [14th Dist.] 2008, no pet.). 

Appellant argues that since Nancy was the only eye-witness testifying for the prosecution, her testimony alone was insufficient because she wavered during direct examination and stated that it may have been an accident.  Appellant contends the State did not prove the requisite intent to arouse and gratify his sexual desire.  Because Nancy was under seventeen years of age at the time of the assault, her uncorroborated testimony is sufficient to convict appellant.^[7] See Tex. Code Crim. Proc. art. 38.07(b)(1).  The requisite intent to arouse or gratify the sexual desire of any person can be inferred from the defendant=s conduct, his remarks, and the surrounding circumstances.  McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. 1981); Navarro v. State, 241 S.W.3d 77, 79 (Tex. App.CHouston [1st Dist.] 2007, pet. ref=d).

Appellant relies on Nancy=s statement AI wasn=t sure if it was just accidentally like he was just kind of like the touchy-feely type of person or what, but I know I didn=t feel comfortable with it.@  But Nancy also testified that appellant pulled her close to where her bottom was touching his pelvis, whispered in her ear, brushed her neck with his mouth, and purposefully grabbed her breast. On cross-examination Nancy explained that she did not know appellant well enough for him to touch her and she made it clear to him that she did not like it.  The jury was free to believe or disbelieve any portion of Nancy=s testimony.  See Bargas, 252 S.W.3d at 887.  The jury could have reasonably concluded from the circumstances that the appellant intended to arouse and gratify his sexual desire.  See McKenzie, 617 S.W.2d at 216 (holding the jury could find intent to arouse and gratify sexual desire where appellant kneeled in front of a little girl, told her he was going to remove her pants Ato see if she [was] clean,@ touched her genitalia, promptly rose to leave, and told her he would see her the next day at the same time); Navarro, 241 S.W.3d at 79 (holding the jury could find intent to arouse and gratify sexual desire where appellant exposed himself to a child and asked her to lift up her shirt).  Thus, the evidence was factually sufficient for the jury to conclude appellant had the requisite intent necessary to be convicted of indecency with a child and to uphold the verdict.

Conclusion

The evidence presented by the State was factually sufficient to support the jury=s finding that appellant was guilty of indecency with a child. Accordingly, we overrule appellant=s issue on appeal and affirm the judgment of the trial court.

/s/      John S. Anderson

Justice

Panel consists of Justices Anderson, Guzman, and Boyce.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  The minor complainant will be referred to by a pseudonym to protect her identity.

^[2]  Appellant is Nancy=s father=s cousin, whom she had met a week prior to this encounter.

^[3]  Hines is also Nancy=s cousin.  However, Hines is close to appellant as she has known him her entire life.  Hines testified she is not close with Nancy and has never hung out or had a conversation with her.

^[4]  Appellant lived at Hines= mother=s house and Hines was visiting appellant at his house on the day of the alleged incident. 

^[5]  As a factual sufficiency review begins with the presumption the evidence supporting the jury=s verdict is legally sufficient, and since appellant challenges only the factual sufficiency of the evidence, he effectively concedes the evidence is legally sufficient to sustain the conviction.  See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996).

^[6]  Appellant relies on two cases in support of his argument that the victim's testimony was insufficient to sustain a guilty verdict.  Both cases are based on an earlier version of article 38.07 of the Code of Criminal Procedure in which the testimony of a child victim alone was sufficient only if the victim was under fourteen years of age. See Friedel v. State, 832 S.W.2d 420 (Tex. App.CAustin  1992, no pet.); Stewart v. State, 933 S.W.2d 555 (Tex. App.CSan Antonio 1996, pet. ref=d).

^[7]  Although Nancy=s testimony alone was sufficient to convict appellant, she informed at least three people about the assault on the day it happened.  Nancy first told  her best friend, then her aunt, and then her mother.