Nelson Walter Meyers v. State ( 2012 )

NO. 07-11-00293-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
DECEMBER 27, 2012
NELSON WALTER MEYERS, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;
NO. 60,306-A; HONORABLE DAN L. SCHAAP, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Nelson Walter Meyers, appeals his conviction for indecency with a
child by sexual contact 1 and the resulting eight-year sentence. On appeal, he
challenges only the sufficiency of the evidence to establish the requisite intent to arouse
or gratify sexual desires. We will affirm.
Factual and Procedural History
Appellant and his ex-wife had two children during the course of their marriage,
one of them was S.M. Following their contentious divorce and legal actions taken in
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See TEX. PENAL CODE ANN. § 21.11(a)(1) (West 2011).
connection with the ex-wife’s concerns related to bathing and sleeping arrangements for
the children when in their father’s care, appellant was twice convicted of harassment of
his ex-wife. As a result of said convictions and attendant protective orders, appellant’s
previous, standard visitation with his children ceased. The last time his children saw
him was in 2006; S.M. was four years old.
S.M. was nine at the time of trial and testified that, on that last visit with her
father, her father called her into his bedroom. He was nude and guided S.M.’s hand to
touch his “weeny.” As he did this, he explained to S.M. that this is how “dadd[ies] love
their little girls.” He warned S.M. that if she told anyone about the encounter, she would
be in trouble. Only when S.M. went to visit a maternal great-aunt in Vermont three
years later—when S.M. was seven years old—did she reveal to her great-aunt that this
encounter had occurred. The great-aunt shared the information with S.M.’s mother, and
S.M.’s mother contacted police. Ultimately, appellant was arrested and charged with
indecency with a child.
A Potter County jury heard the evidence, including appellant’s own testimony in
his defense, and found appellant guilty of indecency with S.M. by sexual contact. The
trial court assessed punishment at eight years’ imprisonment. Appellant appeals said
conviction, challenging the sufficiency of the evidence that he acted with the requisite
intent. We will affirm.
Standard of Review
In assessing the sufficiency of the evidence, we review all the evidence in the
light most favorable to the verdict to determine whether any rational trier of fact could
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have found the essential elements of the offense beyond a reasonable doubt. Jackson
v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Brooks v. State,
323 S.W.3d 893, 912 (Tex.Crim.App. 2010). “[O]nly that evidence which is sufficient in
character, weight, and amount to justify a factfinder in concluding that every element of
the offense has been proven beyond a reasonable doubt is adequate to support a
conviction.” Brooks, 323 S.W.3d at 917 (Cochran, J., concurring). We remain mindful
that “[t]here is no higher burden of proof in any trial, criminal or civil, and there is no
higher standard of appellate review than the standard mandated by Jackson.” Id.
When reviewing all of the evidence under the Jackson standard of review, the ultimate
question is whether the jury’s finding of guilt was a rational finding. See id. at 906–07
n.26 (discussing Judge Cochran’s dissenting opinion in Watson v. State, 204 S.W.3d
404, 448–50 (Tex.Crim.App. 2006), as outlining the proper application of a single
evidentiary standard of review). “[T]he reviewing court is required to defer to the jury’s
credibility and weight determinations because the jury is the sole judge of the witnesses’
credibility and the weight to be given their testimony.” Id. at 899.
Applicable Law and Analysis
Appellant was convicted of indecency with a child by sexual contact. See TEX.
PENAL CODE ANN. § 21.11(a)(1). As relevant to the facts of the case at bar, “sexual
contact” means any touching of any part of the body of a child, including touching
through clothing, with the anus, breast, or any part of the genitals of a person with the
intent to arouse or gratify the sexual desire of any person. Id. § 21.11(c)(2). Appellant
acknowledges that, though the evidence is disputed, the record contains sufficient
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evidence that S.M.’s hand did come in contact with appellant’s “weeny.” That said, he
challenges only the sufficiency of the evidence of intent to arouse or gratify the sexual
desire of any person. See id.
When called on to prove the offense of indecency with a child by sexual contact,
the State is not required to prove that appellant was actually aroused; the offense only
requires that the alleged act be committed with the intent to arouse or gratify the sexual
desire of any person. See Shamam v. State, 280 S.W.3d 271, 278 (Tex.App.—Amarillo
2007, no pet.). Intent may be inferred from acts, words, and conduct of the accused.
Hernandez v. State, 819 S.W.2d 806, 810 (Tex.Crim.App. 1991) (en banc); Shamam,
280 S.W.3d at 278. The accused’s conduct following the incident is also relevant to the
issue of intent. See Couchman v. State, 3 S.W.3d 155, 163–64 (Tex.App.—Fort Worth
1999, pet. ref’d).
We conclude that a rational jury could have inferred from appellant’s act, in
conjunction with both his statement regarding how “dadd[ies] love their little girls” and
his admonition to S.M. to remain silent about the incident or else risk getting into
trouble, that appellant intended to arouse or gratify his sexual desires. See
Montgomery v. State, 810 S.W.2d 372, 396 (Tex.Crim.App. 1991) (en banc) (op. on
reh’g) (concluding that appellant’s instructions to victims “not to reveal the event to
anyone shows a consciousness of wrongdoing which in turn leads to an inference that
when he touched the children as he did, appellant harbored a specific intent to arouse
and gratify his own sexual desire”); Bousquet v. State, No. 01-02-01209-CR, 2003 Tex.
App. LEXIS 8553, at *7 (Tex.App.—Houston [1st Dist.] Oct. 2, 2003, pet. ref’d) (mem.
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op.) (concluding that appellant’s threat to harm complainant and his mother “if
complainant ever told anyone what happened shows a consciousness of guilt which
leads to an inference that, when appellant touched complainant, appellant had the
specific intent to arouse and gratify his own sexual desire”).
Viewing the record evidence in the light most favorable to the verdict, we
conclude that a rational jury could have found beyond a reasonable doubt the essential
element of intent to arouse or gratify sexual desire. See Jackson, 443 U.S. at 319; see
also TEX. PENAL CODE ANN. § 21.11(c)(2). The evidence was sufficient to support the
jury’s verdict. Accordingly, we overrule appellant’s sole issue on appeal.
Conclusion
Having overruled appellant’s sole point of error, we affirm the trial court’s
judgment of conviction.
Mackey K. Hancock
Justice
Do not publish.
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