Roberto Solis v. State

                             NUMBER 13-03-00262-CR

                         COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI B EDINBURG

ROBERTO SOLIS,                                                                            Appellant,

                                                             v.

THE STATE OF TEXAS,                                                                    Appellee.

   On appeal from the 404th District Court of Cameron County, Texas.

                       MEMORANDUM OPINION

               Before Justices Hinojosa, Yañez, and Rodriguez

                         Memorandum Opinion by Justice Hinojosa

A jury found appellant, Roberto Solis, guilty of the offense of indecency with a child and assessed his punishment at six years= imprisonment.  In five issues, appellant contends (1) the evidence is legally and factually insufficient to support the jury=s finding of intent to arouse or gratify sexual desire, (2) the trial court erred by refusing to grant his motion for mistrial after the prosecutor made an improper jury argument, (3) the trial court violated the Texas Constitution when it denied his request for bail pending appeal, and (4) the trial court erred by admitting into evidence the videotaped out-of-court statements of the complaining witness.  We affirm.

                                            A.  Sufficiency of the Evidence

In his first and second issues, appellant contends the evidence is legally and factually insufficient to support the jury=s finding of intent to arouse or gratify sexual desire.

The standard of review for challenges to the legal and factual sufficiency of the evidence is well settled.  See Jackson v. Virginia, 443 U.S. 307, 319 (1979) (legal sufficiency); Young v. State, 14 S.W.3d 748, 753 (Tex. Crim. App. 2000) (legal sufficiency); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000) (factual sufficiency); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997) (legal and factual sufficiency).

A person commits the offense of indecency with a child if, with a child younger than seventeen years and not the person's spouse, the person:

(1)       engages in sexual contact with the child or causes the child to engage in sexual contact; or

(2)       with intent to arouse or gratify the sexual desire of any person:

(A)       exposes the person's anus or any part of the person's genitals, knowing the child is present; or

(B)       causes the child to expose the child's anus or any part of the child's genitals.

Tex. Pen. Code Ann. ' 21.11(a) (Vernon 2003).  The indictment alleged that appellant, with the intent to arouse or gratify his sexual desire, intentionally or knowingly engaged in sexual contact with C.S. by touching the genitals of C.S., a child younger than seventeen years and not the spouse of appellant, with appellant=s hand.

Appellant argues the evidence is insufficient because the record shows that any touching that occurred was only over clothing.  Appellant asserts that, although the current version of the statute defines Asexual contact@ to include touching through clothing, the statute in effect at the time he was alleged to have committed the offense did not.  See Act of June 13, 2001, 77th Leg., R.S., ch. 739, '1, 2001 Tex. Sess. Law. Serv. 1378 (current version at Tex. Pen. Code Ann. ' 21.11(c) (Vernon 2003)).

However, even before the statute was amended, case law held that Asexual contact may be committed even though the victim is fully clothed at the time of the sexual contact.@  In re J.S., 35 S.W.3d 287, 292 (Tex. App.BFort Worth 2001, no pet.); cf. Resnick v. State, 574 S.W.2d 558, 559‑60 (Tex. Crim. App. [Panel Op.] 1978) (concluding that touching over clothing sufficient to find sexual contact under public lewdness statute); Miles v. State, 247 S.W.2d 898, 899 (Tex. Crim. App. 1952) (holding flesh to flesh contact not required in offense of fondling); Guia v. State, 723 S.W.2d 763, 764 (Tex. App.BDallas 1986, pet. ref'd) (AThe mere imposition of a layer of fabric between a person's hand and the genitals of another did not prevent the occurrence of sexual contact.@). Accordingly, we conclude that evidence of touching through clothing is sufficient to establish Asexual contact.@

Appellant next argues the evidence is insufficient to show intent to arouse or gratify sexual desire because the record contains no evidence of Anakedness, erection, facial gestures, verbalization, [or] ejaculation accompanying the touching.@ Intent is a question of fact and may be inferred from the acts, words, and conduct of the accused.  Wallace v. State, 52 S.W.3d 231, 234 (Tex. App.BEl Paso 2001, no pet.) (citing Manrique v. State, 994 S.W.2d 640, 649 (Tex. Crim. App. 1999)).  Under section 21.11(a), 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) (citing Bowles v. State, 550 S.W.2d 84, 85‑86 (Tex. Crim. App. 1977); Turner v. State, 600 S.W.2d 927 (Tex. Crim. App. 1980)); see Lewis v. State, 676 S.W.2d 136, 139 (Tex. Crim. App. 1984) (AThe intent element in this case can only be proved by inferences from the evidence presented.@).  No oral expression of intent is necessary, nor is visible evidence of sexual arousal required.  McKenzie, 617 S.W.2d at 216.

Moreover, the Texas Court of Criminal Appeals has determined that in considering the sufficiency of the evidence to show intent to arouse or gratify a defendant's sexual desire, Aevidence of a common pattern of similar acts is admissible as tending to prove the intent.@  Ranson v. State, 707 S.W.2d 96, 97 (Tex. Crim. App. 1986) (citing Ferguson v. State, 579 S.W.2d 2 (Tex. Crim. App. 1979)); Morgan v. State, 692 S.W.2d 877, 880 (Tex. Crim. App. 1985). Under circumstances where Asuch an intent cannot be inferred from the act itself . . . other evidence relevant to that intent, even though such evidence constitutes an extraneous transaction or offense, will be more probative than prejudicial.@  Morgan, 692 S.W.2d at 880-81 (A[P]recisely because appellant's conduct alone was as consistent with accident as with a specific lascivious intent, any extraneous act committed by appellant which would tend otherwise to demonstrate such intent would be admissible in the instant case.@).  AThe inference to be drawn from the extraneous acts is not that appellant is a child molester by nature, and therefore more than likely molested complainant.@  Id. at 882.  What is sought is an objective inference: while each instance may be attributable to accidental touching, the repetition of similar conduct makes it less likely Athat each such touching occurred accidentally, and consequently, the more likely that in touching complainant in the instant offense, appellant harbored a guilty intent.@  Id. at 881-82.

C.S. testified appellant was the father of her best friend, G.S.  C.S. said she would visit appellant=s house frequently to play with G.S. and stayed overnight a couple of times.  When C.S. would visit, appellant would tell her to give him a kiss, and when she went to kiss his cheek, he would turn his head so she would kiss him on the mouth.  On the night in question, C.S. was approximately eleven years old and was spending the night at appellant=s house with G.S. and G.S.=s cousin, A.V.  They planned to go to the beach the next day.  C.S. testified that after the three girls had gone into G.S.=s room to go to sleep, appellant came in with a beer in his hand and closed the door behind him.  He went over to the bed and with his free hand reached under the blanket that was covering C.S.  She testified that she was wearing a T-shirt and underwear only.  Appellant touched her stomach and Athen went down to [her] private part.@  C.S. said that appellant=s hand moved Aslowly, just went slowly down,@ and she demonstrated to the jury a rubbing motion.  C.S. testified that she pushed appellant away, and he came back and Atried to do it again.@  When she pushed him away a second time, appellant left.  C.S. said that appellant touched her over her underwear only, he was not tickling her, and he never said anything.  C.S. waited until everyone was asleep and then called home for someone to pick her up. She said that she did not tell anyone what had happened immediately because she was scared.  However, the following week at school, she had a fight with G.S. and talked to the school principal about what had happened with appellant.  She further testified that she did not think the touching was accidental.

During cross examination, C.S. admitted that when appellant first came into the room, the mood was more playful, and the girls were kicking and pushing appellant before they all went to bed.  She acknowledged that maybe appellant was trying to tickle her at first when he reached under the blanket, but said that when she was not ticklish, the mood changed and that was when his hand moved down to her Aprivate part.@

The school principal, Aida Stevens, testified that C.S. came into her office on September 2, 1998, and told her what happened with appellant.  She said that after talking with C.S., she called C.S.=s mother and Child Protective Services.  Stevens said that when she spoke with her, C.S. appeared to be upset.  She later called both C.S. and G.S. into her office separately to discuss the issue because they were having arguments at school.

C.S.=s mother, Maria, testified that appellant was the father of G.S., her daughter=s best friend.  She said that C.S. frequently spent the night at appellant=s home with G.S. on Saturday nights and would attend church with appellant and his family on Sunday morning.  She explained that on the night in question, C.S. went over to appellant=s house at approximately 7:00 p.m. and called to get picked up around 10:00 p.m. This was the only time that C.S. had ever called to get picked up early, and she did not want to say why.  Maria only found out that something more serious had happened when she was contacted by the school.  Maria testified that after appellant=s wife, Perla Solis, spoke with the school principal, she went to Maria=s house and asked her to drop the charges.

A.V. testified that everyone was laughing when appellant first came into the room. Appellant tickled C.S. and G.S., but A.V. moved away because she did not want to be tickled.  When she moved away, A.V. turned her back to appellant and the other girls.  After appellant left, C.S. got very serious and was upset; C.S. then said that something had happened.  She did not remember C.S. being around the next day or going to the beach.

The State also called D.T., appellant=s granddaughter, to testify.  D.T. testified that appellant touched her Ain a place she shouldn=t have been touched.@  She said that for a period of time when she was about nine years old, she would go to appellant=s house on Friday nights with her family.  D.T. said that when the rest of the adults were outside and she would go inside to get something, in the living room of appellant=s trailer, he would touch her front private part over her clothes with his hand. D.T. testified that it happened more than once, and she also demonstrated a rubbing motion.  D.T. said that it made her feel very uncomfortable and she did not like it, but she was afraid to tell anyone.  She finally told her father because he asked her if she had been touched.

Appellant=s wife, Perla Solis, testified in his defense.  She said that when appellant=s family would come over on Friday nights, she was usually in the kitchen cooking or doing dishes while everyone else was outside.  She would go outside only occasionally, and appellant would go inside only occasionally.  Perla testified that she remembered C.S. spending the night at the house only once, on the night in question.  She said that G.S. had told her that she did not like C.S. very much because she did not have very good character.  Perla admitted talking to C.S.=s mother, but said she only went to see what the problem was.  She denied trying to convince Maria of anything.

Appellant=s daughter, G.S., testified that on the night C.S. was at her house, after the girls had gone to her room to go to sleep, C.S. wanted to know when they were going to the beach.  G.S. told her to ask appellant, and C.S. went into the living room to get him. Appellant came back to the room with C.S. and told the girls they were leaving in the morning.  As he was about to leave, C.S. playfully kicked appellant in the ankle and then ran to the bed and hid under the covers.  Appellant followed her and started tickling her, and then G.S. got up and started tickling appellant; however, appellant did not divert his attention from C.S.  G.S. said they were all playing around and laughing, no one was uncomfortable, and when appellant left, the girls went to sleep.  G.S. said that C.S. did not leave that night; the next day they all went to the beach.  G.S. testified that she did not notice anything unusual and only became aware of a problem when she went to school.  According to G.S., after she had a conversation at school with C.S., which G.S. later discussed with her mother, she decided she did not want to be C.S.=s friend anymore.  C.S. got mad at her, and that is when the allegations arose.  After that, C.S. wanted to stay over again, but appellant would not let her.  G.S. denied that C.S. used to spend the night frequently, that C.S. ever told her anything had happened, or that she was ever called into principal Stevens= office to discuss it.

G.S. further testified that when D.T. was over with the rest of the family, all of the kids were always together, and that Perla was usually in the kitchen. She never recalled D.T. being upset or disturbed at the house, or anything unusual or odd happening between D.T. and appellant.

Finally, A.H., one of appellant=s granddaughters, testified that on the Friday nights when the family would gather at appellant=s house, the kids would be outside playing, and Perla would be inside cooking. She said that she never noticed anything unusual about D.T.=s behavior.

The jury, as the sole judge of the credibility of the witnesses and the weight to be given their testimony, is free to accept or reject all or any part of the testimony of any witness.  Tex. Code. Crim. Proc. Ann. art. 38.04 (Vernon 1979); Cain v. State, 958 S.W.2d 404, 408‑09 (Tex. Crim. App. 1997);  Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982).  In determining the sufficiency of the evidence to show appellant's intent, Awe must presume that the trier of fact resolved any conflict in testimony in favor of the prosecution, and must defer to that resolution.@ Jackson, 443 U.S. at 326; Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991).

After reviewing all the evidence in the light most favorable to the verdict, we conclude that any rational trier of fact could have found that appellant had the intent to arouse or gratify his sexual desire beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Young, 14 S.W.3d at 753; see also Malik, 953 S.W.2d at 240.  In addition, after a neutral review of the evidence, we conclude the evidence is not so weak as to be clearly wrong and manifestly unjust, nor is there contrary evidence that makes the finding of guilt against the great weight and preponderance of the evidence.  See Johnson, 23 S.W.3d at 11; see also Malik, 953 S.W.2d at 240.   Accordingly, we hold the evidence is legally and factually sufficient to support appellant=s conviction for the offense of indecency with a child.

Appellant=s first and second issues are overruled.

                                                      B.  Jury Charge Error

During closing argument, appellant objected to part of the argument made by the State. The objection was sustained, and the trial court instructed the jury to disregard the prosecutor=s statement. Appellant=s motion for a mistrial was denied.

In his third issue, appellant contends the trial court=s instruction to the jury was inadequate to cure the harm caused by the prosecutor=s improper argument.  While appellant raises this issue in the ASummary of the Argument@ at the beginning of his brief, the actual AArgument@ section of his brief does not address this issue.  See Tex. R. App. P. 38.1(g), (h).  Because appellant does not support this issue with (1) a clear and concise argument, (2) citation to authority, and (3) citation to the record, we hold this issue is inadequately briefed.  See Tex. R. App. P. 38.1(h).

Appellant=s third issue is overruled.

                                                            C.  Denial of Bail

After the jury found him guilty, appellant filed a motion to be released on bond during the pendency of his appeal.  The trial court denied the motion.

In his fourth issue, appellant contends that article 44.04(b) of the Texas Code of Criminal Procedure, which governs bail pending appeal, violates the Texas Constitution.  See Tex. Code. Crim. Proc. Ann. art. 44.04(b) (denying bail pending appeal to those convicted of (1) any felony where the punishment equals or exceeds ten years= confinement or (2) an offense listed under section 3g(a)(1), article 42.12 of the code of criminal procedure); see also Tex. Const. art. 1, '11.

While there is an established constitutional right to pre-trial bail, Athere is no federal or state constitutional right to bail pending appeal.@  Dallas v. State, 983 S.W.2d 276, 278 n.1 (Tex. Crim. App. 1998) (citing Stack v. Boyle, 342 U.S. 1 (1951)). Moreover, the Texas Court of Criminal Appeals has specifically held that article 44.04(b) is constitutional.  Lebo v. State, 90 S.W.3d 324, 326, 330 (Tex. Crim. App. 2002) (determining that those who are placed on ten years= community supervision may seek release on bail pending appeal).

Appellant argues that article 44.04(b) is unconstitutional as applied to him because there is no rational reason to differentiate section 3(g) offenses from other offenses.  However, Ait is well settled that the Equal Protection Clause allows the Legislature considerable leeway to enact legislation that may appear to affect similarly situated people differently.@  Clark v. State, 665 S.W.2d 476, 480 (Tex. Crim. App. 1984); Faerman v. State, 966 S.W.2d 843, 847 (Tex. App.BHouston [14th Dist.] 1998, no pet.).  AClassifications will not be set aside on equal protection grounds if they are rationally related to a legitimate state interest,@ so long as they do not interfere with the exercise of a Afundamental@ right or place a burden on a Asuspect@ class. Clark, 665 S.W.2d at 480; Faerman, 966 S.W.2d at 847.  AThe right to appeal does not create a suspect class or infringe on a fundamental right.@  Faerman, 966 S.W.2d at 847.

We consider the classification established by the legislature in article 44.04(b) to be rationally related to a legitimate state interest, Ai.e., the prevention of convicted felons from fleeing the jurisdiction and escaping punishment during the pendency of their appeals.@  Cortez v. State, 36 S.W.3d 216, 222 (Tex. App.BHouston [14th Dist.] 2001, pet. ref=d). While someone convicted of a section 3(g) offense may be no more likely to flee the jurisdiction during the pendency of his appeal, Athe Legislature is justified in drawing and redrawing a line between those that qualify for an appeal bond and those that do not.@  See id.  We consider a distinction based on the type of offense committed to be Aa legitimate place for the Legislature to draw that line.@  See id. 

Appellant=s fourth issue is overruled.

                                                  D.  Admission of Evidence

In his fifth issue, appellant contends the trial court erred by admitting into evidence the videotaped out-of-court statements of the complaining witness after she testified in person.

At trial, appellant objected primarily on hearsay grounds.  On appeal, he glosses over his hearsay argument, and asserts that the statements were Atestimonial@ and harmful because they Areiterated the testimony of the complaining witness in this credibility contest.@

We review a trial court's admission or exclusion of evidence under an abuse of discretion standard.  Montgomery v. State, 810 S.W.2d 372, 379‑80 (Tex. Crim. App. 1990).  An abuse of discretion occurs when the trial court acts arbitrarily or unreasonably,  without reference to guiding rules or principles.  Id. at 380.

Assuming that the trial court erred in its admission of the videotaped statements, we would then proceed to review the entire record to determine if the error was harmful.  See Tex. R. App. P. 44.2(b); cf.  Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999) (holding any error in admission of hearsay testimony harmless in light of other properly admitted evidence proving same fact).  However, appellant did not request that the videotapes be included in the appellate record, and they are not before us for review. It is the appellant=s responsibility in requesting the preparation of the reporter=s record to designate the exhibits to be included.  Tex. R. App. P. 34.6(b)(1). In light of the record before us, we cannot say that the trial court abused its discretion by admitting into evidence the videotaped out-of-court statements of the complaining witness or that the court=s admission of such evidence was harmful.  See Rowell v. State, 66 S.W.3d 279, 282-83 (Tex. Crim. App. 2001). Appellant=s fifth issue is overruled.

The judgment of the trial court is affirmed.

FEDERICO G. HINOJOSA

Justice

Do not publish.  See Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed this

the 20th day of July, 2006.