Sexton, Vermaurice Deon v. State ( 2006 )

Affirmed and Opinion filed October 5, 2006

Affirmed and Opinion filed October 5, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-00505-CR

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VERMAURICE DEON SEXTON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 176th District Court

Harris County, Texas

Trial Court Cause No. 977,282

O P I N I O N

Appellant, Vermaurice Deon Sexton, appeals his conviction of indecency with a child and sentence of five years= incarceration. In two points of error, appellant contends that the evidence is legally and factually insufficient.  We affirm.

Background

On January 24, 2004, appellant babysat for his coworker Jackie Cleveland and her friend Mariette Astras while they went to a night club.  Cleveland=s two childrenCT.B. and J.R.Cwere seven and four.  Astras=s son B.J. (Acomplainant@) was seven.

Complainant testified that all of the children stayed at Cleveland=s apartment that night.  Appellant was the only adult present.  At some point, the boys began arguing over a video game, and appellant told them to be quiet.  When the boys misbehaved again, appellant gave them each three Alickings@ with a back scratcher that was about twelve inches long and had three sharp claws.  Complainant testified that at bedtime, everyone reclined on the sofa bed.  According to complainant, appellant put his hand down T.B.=s pants and touched his behind; appellant then touched T.B.=s Amiddle part.@  Complainant testified that this touching occurred underneath T.B.=s clothing for about five minutes. Complainant could not tell whether appellant=s hand was moving.

Complainant testified that appellant then touched him.  Complainant stated he was lying on his side and that appellant rubbed his behind underneath his underwear for about two minutes.  Appellant then touched complainant=s Amiddle part.@  The next morning, complainant received a second Awhooping@ for riding bikes in violation of appellant=s instructions.  Complainant testified that he did not tell his mother about the spanking or improper touching when she picked him up later that day because he was afraid appellant would find out.  Appellant had warned him not to tell anyone about the spanking.

Complainant testified that appellant babysat him and Cleveland=s children the very next weekend. Appellant showed them Aporno@ magazines with Anaked people on the front cover.@  Later that day, complainant=s father picked up complainant from Cleveland=s apartment.  The father testified that complainant did not say anything about appellant  inappropriately touching him or T.B. at that time.  T.B.=s testimony essentially corroborated complainant=s testimony.  T.B. admitted that initially, he  had described appellant=s touching him over his clothes because he feared getting in trouble if he told the truth.

Appellant testified that he babysat the children on January 24.  At some point that night, he dozed off in a bedroom.  When he woke up, the children had fallen asleep in different rooms.  Appellant stated that the following weekend, he Aswat[ted]@ complainant and T.B. three times each with a back scratcher because they were fighting over a video game. Appellant denied hitting them very hard and testified that none of the boys cried.   The boys watched television on the sofa bed with appellant while J.R. fell asleep in Cleveland=s room.  According to appellant, complainant, appellant, and T.B. slept next to each other in that order.  Appellant denied touching the children inappropriately and claimed that he had not spanked them hard enough to cause bruising.  He also testified that the children did not seem to be afraid of him the following day.  Appellant testified that as the president of the youth ministry at his church, he frequently interacted with children and he had never before been accused of any sexual misconduct.

On February 12, 2004, appellant was charged with indecency with a child, specifically complainant.  The trial court found him guilty and sentenced him to five years= imprisonment.  On appeal, appellant contends that the evidence is legally and factually insufficient to support his conviction.

Legal and Factual Sufficiency Standards of Review

In evaluating a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict.  Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt.  Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991).  The trier of fact Ais the sole judge of the credibility of the witnesses and of the strength of the evidence.@  Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999).  The fact finder may choose to believe or disbelieve any portion of the witnesses= testimony.  Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).  When faced with conflicting evidence, we presume that the trier of fact resolved conflicts in favor of the prevailing party.  Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993).  Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm.  McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).

A factual sufficiency challenge requires us to consider and balance all of the evidence in a neutral manner.  Zuniga v. State, 144 S.W.3d 477, 482 (Tex. Crim. App. 2004). The evidence is factually insufficient if: (1) the evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt; or (2) in the event that there is evidence both supporting and contradicting the verdict, the contrary evidence is so strong that guilt cannot be proven beyond a reasonable doubt.  Id. at 484.  We cannot substitute our own conclusions for that of the fact finder.  Clewis v. State, 922 S.W.2d 132, 133 (Tex. Crim. App. 1996).  AThe trier of fact is the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given to their testimony.@  State v. Fury, 186 S.W.3d 67, 75 (Tex. App.CHouston [1st Dist.] 2005, pet. ref=d). 

Legal Sufficiency

In his first issue, appellant contends the evidence is legally insufficient to support his conviction.  Specifically, appellant argues the evidence fails to establish that he touched complainant with the intent to arouse or gratify sexual desire.

In order to prove appellant committed the offense of indecency with a child, the State had to prove he engaged in sexual contact with complainant.  Tex. Pen. Code Ann. '21.11(a)(1) (Vernon 2003).  ASexual contact,@ if committed with the intent to arouse or gratify the sexual desire of any person, includes Aany touching by a person, including touching through clothing . . . of any part of the genitals of a child.@  Tex. Penal Code Ann. ' 21.11(c)(1) (Vernon 2003).  AThe 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 surrounding circumstances.@  McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. 1981). 

 Appellant argues that he touched complainant=s bottom to reassure and soothe him after the spanking.  Appellant further argues that because he did not move his hand while touching complainant beneath his clothes, he did not intend to gratify anyone=s sexual desire.  Complainant testified, however, that while they were laying on the sofa bed, appellant reached underneath his clothes, touched his bottom, and then moved his hand and touched his middle part.  Complainant testified that this touching continued for a couple minutes.  T.B. also testified that he saw appellant reach beneath complainant=s clothes and touch complainant=s bottom.  Both boys testified that appellant showed them Aporno magazines.@  Such evidence is sufficient to prove that appellant touched complainant with the intent to arouse or gratify sexual desire.  See McKenzie, 617 S.W.2d at 216 (holding that when defendant asked children to search for his lost dog and then touched girl=s genitals Ato see if she was clean,@ evidence was sufficient to prove intent); Santos v. State, 961 S.W.2d 304, 308 (Tex. App.CHouston [1st Dist.] 1997, pet. ref=d) (finding sufficient evidence of intent to arouse and gratify sexual desire where defendant reached under victim=s blouse and touched her breast); Fetterolf v. State, 782 S.W.2d 927, 933 (Tex. App.CHouston [14th Dist.] 1989, pet. ref=d) (finding sufficient evidence of intent to arouse and gratify sexual desire where defendant touched sleeping child=s breast). 

Therefore, viewing the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could find that appellant touched complainant with the intent to arouse or gratify sexual desire.  We overrule appellant=s first issue.  

Factual Sufficiency

In his second issue, appellant contends that the evidence is factually insufficient to support his conviction.  Again, appellant argues that the evidence fails to establish that he touched complainant with the intent to arouse or gratify sexual desire. 

We have previously discussed the evidence supporting the judgment.  Appellant denied touching any of the children inappropriately.  He testified that complainant needed guidance and that he wanted to be complainant=s mentor.  He also stated that Cleveland=s children were happy to see him whenever he visited their apartment and that he often took them out to eat.  Appellant also testified that as the president of his youth ministry, he frequently interacted with children and had never before been accused of sexual misconduct.  Appellant explained that he slept in the same bed as the children because he expected Cleveland and her friends to sleep in Cleveland=s room, causing the sleeping arrangements to be Aout of whack.@  Complainant=s father testified that complainant did not say anything about appellant=s touching him or T.B. inappropriately when he picked up complainant after the second weekend.

Viewing the evidence in a neutral light, we conclude that the evidence is not too weak to support the finding of guilt beyond a reasonable doubt, and the contrary evidence is not so strong that guilt cannot be proved beyond a reasonable doubt.  Accordingly, we overrule appellant=s second issue and affirm the trial court=s judgment.                  

/s/        Adele Hedges

Chief Justice

Judgment rendered and Opinion filed October 5, 2006.

Panel consists of Chief Justice Hedges and Justices Yates and Seymore.

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