The State of Texas v. Christopher Thrasher ( 2023 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
THE STATE OF TEXAS, § No. 08-22-00246-CR
Appellant, § Appeal from the
v. § 243rd Judicial District Court
CHRISTOPHER THRASHER, § of El Paso County, Texas
Appellee. § (TC# 20220D03279)
MEMORNADUM OPINION
The State appeals an order of the trial court granting appellee Christopher Thrasher’s
motion for new trial. A jury found Thrasher guilty of indecency with a child by sexual contact
following the guilt-innocence stage of trial. See TEX. PENAL CODE ANN. § 21.11(a)(1), (a)(2),
(c)(2). For punishment, Thrasher elected sentencing by the trial court. After receiving punishment
evidence, the trial court imposed a sentence of two years’ confinement and signed a judgment of
conviction based on the jury’s verdict. The trial court next heard argument on Thrasher’s motion
for new trial, which was based on two grounds: (1) that the jury’s verdict was contrary to the law
and the evidence; and (2) that due process and the interest of justice required a new trial. The trial
court next granted a new trial based on insufficient evidence. Because we conclude the trial court
abused its discretion by its ruling, we reverse the new trial order, and we reinstate the jury’s verdict
and the trial court’s judgment.
I. BACKGROUND
A. Jury trial
During a jury trial on guilt-innocence, 1 the State produced evidence through multiple
witnesses and exhibits to include surveillance video from an arcade of a local restaurant. In
November 2018, L.A. 2, who was then 14 years old, went with her family to the Dave and Buster’s
Restaurant in El Paso. After L.A. finished eating, she went with her three-year-old niece to play
video games in the arcade area of the establishment. Placing her niece on her lap, L.A. first played
a seated racing game. While playing the game, L.A. noticed a father and son to her left. L.A.
identified Thrasher, while she testified in the courtroom, confirming he was the man she saw on
that occasion.
While she played the first game, L.A. testified that Thrasher spoke to her. He said, “you
drive nice,” or something about the game. She responded, “yeah,” and kind of laughed. The
surveillance video that was played to the jury showed L.A., her niece, Thrasher, and his son, all at
the racing game. Thrasher first stood in the middle of the game and then moved to L.A.’s right
side. When the game finished, L.A. moved to another game with her niece. As they walked away,
Thrasher also left the game. L.A. next played a 3D zombie game, a seated game. To enter the
game, L.A. ducked under a short curtain. While she played the game with her niece, Thrasher’s
1
Thrasher was originally found guilty by a jury on one count of indecency with a child by sexual contact. Thereafter,
an agreed notice of new trial was entered on March 23, 2022. The case was later transferred to different district courts
before it was eventually transferred to the 243rd District Court of El Paso County. The State reindicted Thrasher on
August 30, 2022.
2
Because the complaining witness was a minor at the time the offense was committed, we use initials for privacy
protection. See TEX. R. APP. P. 9.10(a)(3).
2
son came in and out of the area. L.A. was not aware of Thrasher also being present, explaining she
had paid more attention to the game. On surveillance video, however, Thrasher is seen partially
opening the short curtain as his son entered and exited.
When the game ended, L.A. and her niece moved to a Walking Dead game. This was
another seated game. To play, two players sat in a booth. L.A. noticed Thrasher stood on her side
of the game. On direct examination, the State elicited the following testimony:
. . .
L.A.: I noticed he was standing there, and he was really close. And that’s-- I saw
him looking down from the screen. Because on the screen, there’s, like, a little black
part where it’s kind of reflective where you can see. And I just saw him looking
down.
THE STATE: Okay. So you were in the game. You can see him to your right. Am
I understanding that correctly?
L.A.: uh-huh.
. . .
THE STATE: Okay. And what did you say he was doing at that time?
L.A.: He was looking down making faces, like, kind of like—
THE STATE: Do you know what kind of faces or can you remember them?
L.A.: They were kind of like-- he was kind of, like, biting his lip, kind of going--
like, I don’t know how to explain the type of faces he was making.
THE STATE: Okay. And when you noticed him making those faces and sort of
looking down in that reflection, what did you do?
L.A.: I kind of looked down. Like, I didn’t try to make it obvious. I just look down
like this. And I saw what he was doing, and then I kind of froze up.
THE STATE: Okay. When you say you saw what he was doing, what did you see?
L.A.: He was rubbing his penis area on where I had my things. I was like this. He
was kind of leaning, like, my elbow and around my hip area.
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THE STATE: Okay. So his-- his penis area was actually touching your body?
L.A.: Yes, ma’am.
THE STATE: And when you say he was rubbing it around, what do you mean?
L.A.: He was kind of, like, just moving his waist around that area.
THE STATE: Okay. Were you able to-- besides feeling what he was doing to your
body, were you able to see anything?
L.A.: No ma’am. After I saw what he was doing, I looked straight at the game. And
I kind of just froze up. A lot of things were going through my head. I didn’t know
what to do. So at that moment, I was just-- I didn’t look back down.
THE STATE: Okay. Now, you said he was rubbing his penis area against your arm
and thigh area because you were seated and then, you know, you were like that and
your legs were up. How did you know it was his penis area?
L.A.: Because the bulge that comes out of the pants.
THE STATE: Okay. So you observed a bulge in his pants. And that’s the area that
was touching you?
L.A.: Yes, ma’am.
On cross examination, defense counsel asked L.A. further questions about her description of what
occurred when she played the Walking Dead game:
. . .
DEFENSE COUNSEL: And while that is going on, you’re saying that you felt him
touching you?
L.A.: No. I didn’t feel him touching me.
DEFENSE COUNSEL: Okay.
L.A.: I-- I saw him, then I looked down. And then that’s when, like, I saw what he
was doing.
DEFENSE COUNSEL: Okay. But you didn’t feel him touching you?
L.A.: No.
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DEFENSE COUNSEL: Oh, okay. Okay.
L.A.: It’s a—his-- everything was still in his clothes.
DEFENSE COUNSEL: Yes.
L.A.: It was just his bulge. And I had my clothes on, so I didn’t really feel it on my
skin because I had a hoodie on and then I had my pants on. So I didn’t feel him
touch my skin, but he was touching my-- the outside of my clothes, my body right
here.
DEFENSE COUNSEL: Sure. No, I understand it wasn’t skin to skin. But let’s say
just-- for instance, if I-- if I come over here and I lean into my co-counsel here, she
can feel that.
L.A.: Yes, ma’am.
DEFENSE COUNSEL: So you’re saying you didn’t feel anything or you—
L.A.: I didn’t feel anything right here.
DEFENSE COUNSEL: Okay. Okay.
. . .
On redirect, the State returned to the same line of inquiry, as follows:
THE STATE: Okay. And so we’re going to have to go through it kind of step by
step just so we’re clear. His penis skin to skin never touched you?
L.A.: No, not skin to skin.
THE STATE: Okay. When you looked down, what were you able to see through
his clothing?
L.A.: The bulge.
THE STATE: Okay. And did that portion of his clothing touch you?
L.A.: Yes, ma’am.
THE STATE: Okay. And where did it start to touch you?
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L.A.: It started going from, like, kind of my elbow. And then when he kind of was,
like, moving around, it started going towards my, like, waist area, my hip area,
waist area right here. And then-- yeah.
THE STATE: Okay. And while you can’t feel his skin against your skin, you were
very clear that he was touching your body with his penis?
L.A.: Yes ma’am.
THE STATE: Okay. And how did you know it was his penis?
L.A.: Because of where the zipper was and where the bulge of where his penis is.
THE STATE: Okay. Thank you.
On re-cross, Thrasher’s attorney asked L.A. further questions, which she answered as follows:
DEFENSE COUNSEL: So, [L.A.], I’m a little confused because I gave you a little
demonstration, me touching my daughter through clothing. And of course I touch
her hard enough that she would feel it. And I thought that you said you didn’t feel
it.
L.A.: I didn’t feel it.
DEFENSE COUNSEL: You did not?
L.A.: No.
On its final redirect, the State asked L.A. to clarify her testimony as follows:
THE STATE: When you say you didn’t feel it, what do you mean? You didn’t feel
what?
L.A.: Well, I didn’t feel his penis on me. I just felt, like, the motion, I guess. But I
didn’t feel his penis.
THE STATE: Okay.
. . .
THE STATE: You said that he was near you and he was moving his body?
L.A.: He was moving this-- like, his area.
THE STATE: That area?
6
L.A.: His hips were moving.
THE STATE: Okay. And was his body-- was any part of him touching you?
L.A.: Not-- just his penis, like, just his bulge area.
THE STATE: Okay. That part was touching you?
L.A.: Yes.
On defense counsel’s last re-cross of L.A., the line of questioning continued:
DEFENSE COUNSEL: [L.A.], you believe it was touching you because you saw
it touching you?
L.A.: I saw it touching me.
DEFENSE COUNSEL: But you did not feel it?
L.A.: No. I didn’t feel it skin to skin contact.
DEFENSE COUNSEL: Okay. That’s what we were trying to figure out. I
understand you didn’t feel skin to skin because you had clothing and he had
clothing.
L.A.: Yes.
DEFENSE COUNSEL: Okay. But are you saying you felt--
L.A.: The motion of him moving around this area, yes, I did. Like, him around this
area, moving around, I felt that. But we did not have skin to skin contact.
DEFENSE COUNSEL: Okay. No, I know that you nobody thinks you had skin to
skin contact. What were trying to say is that when you were describing what
happened, you said you saw it. But it sounded like you didn’t-- you were alerted by
something you felt.
L.A.: No. Once I saw it, that’s when I was like, he’s touching me. Like--
DEFENSE COUNSEL: Because you saw it?
L.A.: Because I saw it.
DEFENSE COUNSEL: Not because you felt it?
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L.A.: I felt the motion, like of him moving around in that area. I felt that.
In completing her testimony, L.A. testified the situation caused her to freeze up and she
had thoughts going through her head. At first, she worried about her niece. She testified, “[m]y
first thought was my niece because I didn’t want anything to happen to her, so I kind of put her in
the middle between me and his son.” Next, she wanted to flee. “And then my next thought was,
How do I get out of here. That, like–making it, like, obvious that I knew because I didn’t want him
to know that I knew.” Finally, ending her game on purpose, she said, “And then – yeah. And then
after that, I kind of just died on purpose. And I grabbed my niece, and I just went out of the way.
I just left.” Feeling disbelief and shock, she went back to her family, sat down, and curled her legs
up to her chest.
L.A.’s mother testified that L.A.’s appearance alarmed her. She asked L.A. what was
wrong, but she did not say anything. L.A.’s mother continued talking with the family at the table
but kept looking at L.A. She finally told L.A.: “No, wait a minute. There is something wrong with
you.” L.A.’s mother next described how L.A. responded:
She told me that she was playing the games, and she was going around playing
different games. And she went into the mummy game or the zombie game. And she
said she had [L.A.’s niece] on her lap, and she was playing the game and that there
was this man. I guess she said he was following her while she was going to the
different games. And then she said she was playing and the man followed her to
that game. The little boy was playing on the opposite side of her with her -- with
the son. And she said that the guy came around her to the side of her and was putting
his erect penis on her arm and rubbing on her.
After hearing from L.A., her mother and family were upset. At that point, her mother, L.A., and
her sister all went looking for Thrasher. When they found him it appeared as if he was sitting with
his wife and two children. L.A. confirmed his identity to her mother. Her mother described that
Thrasher’s eyes “went kind of wide like he was shocked.” L.A.’s mother testified she pointed
8
directly at his face while saying, “how dare he do this to a 14-year-old littler girl.” He responded,
“I’m here with my son.” The manager soon came over and accompanied L.A., her mother, and her
sister back to their table. He then called for police.
The responding officer and two detectives also testified to the investigation that followed.
Connected to their work, the State entered into evidence the photo lineup administered to L.A. The
detective involved described that he followed a double-blind procedure, meaning he himself did
not know the identity of the alleged offender among the photographs included in the array
displayed. Before showing any photographs, he read instructions to L.A., and she verbally
confirmed her understanding. The instructions informed her that she would be shown each
photograph, one at a time, and for each, she would be asked: “Is this the person who: rubbed his
private part on you . . .?” The detective testified that L.A. identified photo #3. He described that
she signed her name and wrote next to the picture that she was 90% sure. He asked her: “What
about this photo makes you believe this is the person?” L.A. wrote next to the photo “his eyes and
shape of his face.” The officer also testified that L.A. had originally written 50% certainty next to
the picture she chose then she changed her answer to 90%. The comment section of photo #3 shows
that L.A. scratched out 50, then wrote 90, and initialed her correction.
At the close of the State’s case in chief, Thrasher’s counsel moved for a directed verdict,
arguing that L.A. never testified she felt any contact, only movement. The State opposed the
motion, countering that more than a scintilla of evidence established that L.A. felt movement,
although it was not skin to skin. The State also claimed that L.A.’s excited utterances to her mother
added further detail to the evidence presented. After extensive argument, the trial court denied
Thrasher’s motion for directed verdict. Defense counsel next moved for a dismissal based on Brady
violations. The trial court also denied that motion.
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In the defense case in chief, Thrasher presented only one witness, a manager of Dave and
Buster’s, who principally testified about the operation of the security cameras located at the
establishment.
After deliberating, the jury returned a verdict finding Thrasher guilty of indecency with a
child by sexual contact. Based on his election, the State later presented punishment testimony to
the trial court. Before the court imposed its sentence, Thrasher filed a motion for new trial based
on two grounds: (1) the verdict is contrary to the law and the evidence pursuant to TEX. R. APP. P.
21.3(h); and (2) in the interest of justice. No attachments were included with his motion. The State
responded in opposition, attaching to its response the jury’s verdict finding Thrasher guilty, limited
excerpts of L.A.’s transcribed trial testimony, and Thrasher’s election to be sentenced by the court.
The trial court then set back-to-back hearings for sentencing and for a hearing on the motion for
new trial, both on the same date. At the sentencing hearing, the trial court imposed a sentence of
two years’ confinement in the Texas Department of Criminal Justice Institutional Division and
signed a judgment of conviction.
B. Motion for new trial
The court next presided over a non-evidentiary hearing on Thrasher’s motion for new trial,
hearing argument from both sides. Thrasher argued that L.A.’s testimony never revealed she felt
his genitals but only that she saw him rub the area against her. Thrasher asserted that absent a
physical sensation confirming a touch, the evidence was insufficient to sustain a conviction.
Additionally, Thrasher asserted there was insufficient evidence of causation because L.A. did not
engage in any conduct at all. Thrasher argued there was no evidence that he “caused” L.A. to do
anything.
10
By written order, the trial court granted the motion for new trial based on insufficient
evidence. The trial court followed this ruling by entering findings of fact and conclusions of law.
The following relevant findings of fact were provided:
5. At trial, [L.A.] testified that she did not feel [Thrasher] touching her when she
saw him touching her; that she became aware that [Thrasher] was touching her
because she saw him touching her in the reflection that she could see in the border
of the screen of the video game she was playing at the time.
6. [L.A.] believed, based on what she saw, that [Thrasher] toucher her arm and/or
leg with his penis, through their clothing.
. . .
8. [L.A.’s] was the only witness that could have provided evidence of actual,
physical contact and feeling of [Thrasher’s] genitals, as well as whether [Thrasher]
caused her to engage in sexual contact.
Additionally, the trial court made the following relevant conclusions of law:
3. An essential element of the offense of indecency with a child by contact is that
there be sexual contact. Sexual contact is defined as “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.” Put more simply, sexual contact requires
contact with a sexual body part. Additionally, sexual contact requires perceiving
the sense of touch; perceiving the sense of feeling. Although contact through
clothing can be considered sexual contact, the touching must be felt (i.e.,
“perceive[d] by the sense of feeling” to constitute “touching.” . . . .
4. There was no evidence at trial that [L.A.] ever felt [Thrasher’s] penis touch her.
Her belief that she saw (in the reflection in the border of the video game she was
playing) [Thrasher’s] penis touch her arm or leg is insufficient evidence of sexual
contact because there is no sensation of touching. If there is no feeling of touch,
there is no contact. At most, the evidence borne out at trial was that the complaining
witness felt “motion in that area.” Feeling “a motion” is insufficient to constitute
sexual contact under the applicable statute. . . .
5. There was no evidence at trial that defendant caused the complaining witness to
take any action constituting sexual contact.
6. Viewing the evidence in the light most favorable to the verdict, there was legally
insufficient evidence of sexual contact by [Thrasher], and of any act taken by the
complaining witness that resulted in her engaging in sexual contact, from which a
11
rational trier of fact could have found the State proved all of the essential elements
of the offense, as charged in the re-indictment, beyond a reasonable doubt.
7. The State’s failure to prove the statutory language of indecency with child by
contact, as pled in the charging instrument is a material variance; one which
prejudices [Thrasher’s] substantial rights, renders the evidence legally insufficient
to support the conviction, and required an acquittal. . . .
The State appealed from the trial court’s order granting defendant’s motion for new trial.
See TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(3) (setting out the State’s entitlement to appeal an
order granting a motion for new trial).
II. DISCUSSION
In its sole issue, the State asserts the trial court abused its discretion when it granted
Thrasher’s motion for new trial based on the sufficiency of the evidence. Specifically, the State
asserts a rational trier of fact could have found, beyond a reasonable doubt, that Thrasher
intentionally or knowingly caused L.A. to engage in sexual contact when he touched her body with
his genitals.
A. Standard of review
Rule 21 of the Texas Rules of Appellate Procedure governs motions for new trial. State v.
Zalman, 400 S.W.3d 590, 593 (Tex. Crim. App. 2013); State v. Herndon, 215 S.W.3d 901, 907
(Tex. Crim. App. 2007) (“The legal grounds for which a trial court must grant a new trial are listed
in Rule 21.3, but that list is illustrative, not exclusive.); see also TEX. R. APP. P. 21.3 (grounds for
new trials in criminal cases). A grant of a new trial, however, is not unbounded or unfettered.
Zalman, 400 S.W.3d at 593. For example, “[a] judge may grant or deny a motion for new trial ‘in
the interest of justice,’ but justice means in accordance with the law.” Id. Stating it differently, “[a]
judge may not grant a new trial on mere sympathy, an inarticulate hunch, or simply because [the
judge] believes the defendant received a raw deal or is innocent.” Id. “To grant a new trial for a
12
non-legal or legally invalid reason is an abuse of discretion.” Herndon, 215 S.W.3d at 907. Thus,
a trial court’s grant of a motion for new trial is reviewed for an abuse of discretion. Id. Moreover,
the abuse of discretion standard applies when the State brings an appeal under art. 44.01(a)(3) of
the Code of Criminal Procedure. State v. Gonzalez, 855 S.W.2d 692, 696 (Tex. Crim. App. 1993)
(en banc).
The Court of Criminal Appeals has repeatedly held that “[a]n essential element of [a motion
for new trial] is that the matter of error relied upon for a new trial must be specifically set forth
therein.” Zalman, 400 S.W.3d at 594. This pleading requirement has two purposes: (1) to allow
for enough notice for the trial court to prepare for the hearing and make informed rulings; and (2)
to allow the State enough information to prepare a rebutting argument. Id. “[T]rial courts do
maintain the authority to order new trials for evidentiary insufficiency in criminal cases[.]” State
v. Savage, 933 S.W.2d 497, 499 (Tex. Crim. App. 1996). Yet, granting a new trial for insufficient
evidence is functionally equivalent to an acquittal. Id. Nonetheless, a motion asserting a defendant
is entitled to a new trial because the verdict was “contrary to the law and the evidence,” asserts a
valid legal claim. Zalman, 400 S.W.3d at 594; see also TEX. R. APP. P. 21.03(h). This ground,
however, raises a sufficiency challenge and only a sufficiency challenge. Id. (citing Bogan v. State,
180 S.W. 247, 248 (1915)).
In such a case, a trial court must apply the same legal test as is employed by appellate
courts. See State v. Fuller, 480 S.W.3d 812, 819–20 (Tex. App.—2015, pet. ref’d) (quoting State
v. Savage, 905 S.W.2d 272, 274 (Tex. App.—San Antonio 1995, aff’d, 933 S.W.2d 497(Tex. Crim. App. 1996)). Accordingly, it must view the evidence in the light most favorable to the
verdict and determine whether any rational trier of fact could have found the essential elements of
13
the offense beyond a reasonable doubt. Id. If the evidence meets the legal sufficiency standard, the
trial court commits an abuse of discretion in granting the motion for new trial. Id.In evaluating such ruling, we also must review the evidence in the light most favorable to
the jury’s verdict to determine whether any rational jury could have found, beyond a reasonable
doubt, that the defendant committed the offense charged. See Brooks v. State, 323 S.W.3d 893,
912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). We examine
legal sufficiency under the direction of Brooks, while giving deference to the responsibility of the
jury “to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.
2007) (citing Jackson, 443 U.S. at 318–19). Legal sufficiency of the evidence is measured by the
elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953
S.W.2d 234, 240 (Tex. Crim. App. 1997) (en banc). The hypothetically correct jury charge “sets
out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of
proof or unnecessarily restrict the State’s theories of liability, and adequately describes the
particular offense for which the defendant was tried.” Id.B. Applicable law
A person commits the offense of indecency with a child younger than 17 years of age when
the person “engages in sexual contact with the child or causes the child to engage in sexual
contact.” TEX. PENAL CODE ANN. § 21.11(a)(1); Pena v. State, No. 08-16-00236-CR, 2019 WL
1374152, at *4 (Tex. App.—El Paso, Mar. 27, 2019, pet. ref’d) (not designated for publication).
As relevant here, “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,” when
14
committed with the intent to arouse or gratify the person’s sexual desire. TEX. PENAL CODE ANN.
§ 21.11(c)(2).
C. Analysis
The trial court provided two grounds for concluding there was insufficient evidence to
support the jury’s verdict of guilty. Those grounds in turn formed the basis for it exercising its
discretion in granting Thrasher’s motion for new trial. First, it concluded there was no evidence at
trial of sexual contact. Second, it concluded there was no evidence of Thrasher causing L.A. to
take any action constituting sexual contact. On review, we address each ground in turn.
(1) Evidence of sexual contact
The trial court concluded there was no evidence that L.A. ever felt Thrasher’s penis touch
her. Rather, she only believed she saw—in the reflection of the video game she was playing—that
his penis touched her arm or leg. Thrasher asserts on appeal that the trial court thoughtfully
reviewed the evidence using the correct legal standards; that is, that it did not abuse its discretion
in granting a new trial based on insufficient evidence. He asserts there were no inconsistencies in
L.A.’s testimony on whether she felt a “touching” in the context of sexual contact. He contends
there was “no evidence” of such touching. He claims that L.A.’s testimony did not meet the legal
definition of sexual contact because there was no evidence that she ever felt Thrasher’s penis touch
her body.
To support his argument, Thrasher points to cases holding that “the essence of the act of
touching is to perceive by the sense of feeling.” See Resnick v. State, 574 S.W.2d 558, 560
(Tex. Crim. App. [Panel Op.] 1978); Tienda v. State, 479 S.W.3d 863, 873 (Tex. App.—Eastland
2015, no pet.). Thrasher’s cited cases, however, primarily considered whether sexual contact can
occur with multiple layers of fabric between a complaining witness and an accused. See Resnick,
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574 S.W.2d at 560; Tienda, 479 S.W.3d at 873. Such cases generally hold that clothing or multiple
layers of fabric will not prevent a sexual contact as a matter of law. See Resnick, 574 S.W.2d at
560; Tienda, 479 S.W.3d at 873. More recently, the Eastland Court of Appeals relied on these
cases when it similarly described “the essence of the act of touching is to perceive by the sense of
feeling.” Roe v. State, 660 S.W.3d 775, 782 (Tex. App.—Eastland 2023, pet. ref’d) (quoting
Resnick, 574 S.W.2d at 560). Roe noted that “touching for the purpose of sexual contact occurs
when it is perceived or felt by the person that is touched.” Id. (emphasis added). That is,
irrespective of the manner in which a defendant impermissibly touches a minor victim, if the touch
was felt by the victim and done with the requisite mental intent, it constitutes indecency with a
child by contact. See id.Here, the record shows that L.A. testified that Thrasher rubbed his clothed penis against
her while she was played a video game. She clarified the touch was not skin to skin; but still, she
felt he touched the outside layers of her clothing with his clothed penis. Specifically, she described,
“[i]t was just his bulge. And I had my clothes on, so I didn’t really feel it on my skin because I had
a hoodie on and then I had my pants on. So[,] I didn’t feel him touch my skin, but he was touching
my-- the outside of my clothes, my body right here.” By her clarification, L.A. made it clear that
she felt Thrasher’s “bulge” rubbing against her hip and arm.
The testimony of a child sexual abuse victim alone is sufficient to support a conviction for
indecency with a child by sexual contact. See TEX. CODE CRIM. PROC. ANN. art. 38.07(a), (b)(1)
(uncorroborated testimony of child victim is sufficient to support conviction for sexual offense if
child victim was 17 years of age or younger at time of offense). Additionally, a child victim’s
descriptions of what happened to her need not be precise and she is not expected to express herself
16
at the same level of sophistication as an adult. Ryder v. State, 514 S.W.3d 391, 396 (Tex. App.—
Amarillo 2017, pet. ref’d).
In addition to L.A.’s testimony, L.A.’s mother corroborated her testimony. Her mother
testified she noticed that L.A. looked scared and shocked, she was hugging her knees, she had
watery eyes, and she cried when she reported that a man had rubbed his erect penis on her arm and
rubbed her. With a high level of certainty, L.A. later identified Thrasher in a police-photo-lineup,
claiming he was the person who had rubbed his private part on her. Also, the incident report
prepared by Dave and Buster’s described that L.A. claimed a man was following her and rubbing
himself up against her. There were also instances in L.A.’s testimony where it appeared that she
demonstrated actions for the jury.
The trial court, and this Court, must “give deference to ‘the responsibility of the trier of
fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts.’” Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim.
App. 2016) (quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). Jurors are free
to use their common sense and apply common knowledge, observation, and experience gained in
the ordinary affairs of life when giving effect to the inferences that may reasonably be drawn from
the evidence. From L.A.’s testimony, other witness testimony, and courtroom demonstrations, the
jury was able to draw reasonable inferences that L.A. felt or perceived Thrasher’s clothed penis
rubbing against her although no skin-to-skin contact had occurred. See Roe, 660 S.W.3d at 782
(citing Resnick, 574 S.W.2d at 560 and Tienda, 479 S.W.3d at 873). We must assume the jury
made inferences in favor of its verdict. By the trial court concluding otherwise, it drew inferences
and resolved conflicts against the jury’s verdict.
17
(2) Evidence of causation
Thrasher also asserts the trial court did not abuse its discretion by concluding there was no
evidence that he caused L.A. to take any action constituting sexual contact. By the wording of the
reindictment charging him with the offense, he asserts the State alleged he “caused L.A. to engage
in sexual contact,” not that he “engaged in sexual contact with L.A.”
Here, the charging instrument alleged Thrasher “intentionally or knowingly cause[d]
[L.A.], a child younger than 17 years of age, to engage in sexual contact by touching her body with
his genitals[.]” The indecency with a child charge defines causation as: “[a] person is criminally
responsible if the result would not have occurred but for his conduct, operating either alone or
concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the
result and the conduct of the actor clearly insufficient.” TEX. PENAL CODE ANN. § 6.04. A
defendant who initiates and directs sexual contact may be a “cause” of the result. See Gonzales v.
State, No. 05-18-00895-CR, 2019 WL 3059878, at *4 (Tex. App.—Dallas July 12, 2019, pet.
ref’d) (mem. op., not designated for publication). To find Thrasher guilty of the offense, the jury
had to find beyond a reasonable doubt that Thrasher caused L.A.’s body to touch his genitals. See
TEX. PENAL CODE ANN. § 21.11(c)(2); see also Baker v. State, No. 05-18-01352-CR, 2020 WL
2059914, at *4 (Tex. App.—Dallas Apr. 29, 2020, pet. ref’d).
Here, the jury heard evidence that Thrasher rubbed his penis against L.A.’s body.
“[I]ntentionally touching someone is the same as causing them to touch the actor.” See Daniel v.
State, No. 03-16-00061-CR, 2016 WL 4429920, at *2 (Tex. App.—Austin Aug. 18, 2016, no pet.)
(citing Pizzo v. State, 235 S.W.3d 711, 718 (Tex. Crim. App. 2007)). A rational jury could have
reasonably concluded that, by his touching of L.A.’s body with his genitals, that Thrasher caused
L.A. to come into contact with his genitals and therefore, he caused her to engage in a sexual
18
contact. Regardless of the wording of the indictment, the evidence was sufficient to prove he
caused L.A. to engage in sexual contact because he touched her with his genitals. 3
Viewing the evidence as we must, a rational jury could have found beyond a reasonable
doubt the essential elements of the offense; specifically, that Thrasher touched L.A.’s body with
the bulge of his penis with intent to arouse or gratify his sexual desire. Accordingly, the evidence
is sufficient to establish the requisite elements of indecency with a child by sexual contact as
charged. By concluding otherwise, the trial court abused its discretion.
We sustain the State’s sole issue.
III. CONCLUSION
We reverse the order granting Thrasher’s motion for new trial and we reinstate the jury’s
verdict and the trial court’s judgment.
GINA M. PALAFOX, Justice
July 27, 2023
Before Rodriguez, C.J., Palafox, and Soto, JJ.
(Do Not Publish)
3
The trial court included a conclusion of law stating, “[t]he State’s failure to prove the statutory language of indecency
with child by contact, as pled in the charging instrument is a material variance.” On appeal, the State asserts that, even
if we found a variance existed between the charging instrument’s language and the proof at trial, the variance was not
material and did not prejudice Thrasher’s substantive rights. The State further urges the wording of the indictment
provided Thrasher with adequate notice of the charges against him such that he was able to prepare a defense, and no
evidence was presented at the new trial hearing establishing otherwise. In response, Thrasher argues a material
variance existed because the State chose not to allege that Thrasher engaged in sexual contact; but instead, the charging
instrument alleged he caused L.A. to engage in sexual contact. Because we conclude the evidence was legally
sufficient under a hypothetically correct jury charge, and the jury charge application paragraph accurately set out the
law as was authorized by the indictment, we conclude there is no need to address the State’s contingent argument. See
TEX. R. APP. P. 47.1.
19