Tony Merlos v. State

Affirmed and Memorandum Opinion filed November 25, 2014.
In The
Fourteenth Court of Appeals
NO. 14-13-01043-CR
TONY MERLOS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 155th District Court
Austin County, Texas
Trial Court Cause No. 2011R-0105
MEMORANDUM OPINION
Appellant Tony Merlos appeals his conviction for indecency with a child. See
Tex. Penal Code Ann. § 21.11 (West 2011). In a single issue, appellant argues that the
evidence was legally insufficient to establish the elements of the conviction. We affirm.
BACKGROUND
Angela Purchase, the complainant’s aunt, was living with her sister, Rachel
Purchase, the complainant’s mother; appellant; and four children, including the
complainant. Angela testified that although appellant and Rachel were married,
appellant had his own bedroom on one side of the house, and Rachel and Angela stayed
in rooms with their children on the opposite side. Appellant often invited the
complainant into his room, but would not allow his son into his bedroom.
On the date of the offense, Angela, Rachel, and the other children were outside,
but the complainant was not with them. Angela went into the house to find the
complainant and saw appellant’s bedroom door closed. Angela opened the door and saw
appellant and the complainant on the bed. When she walked in, appellant jumped up
with his pants and underwear down to his ankles, and the complainant pulled her hands
back. When appellant jumped out of the bed his penis was erect. Appellant and the
complainant were lying down on the bed under the bed covers, but Angela testified that
when she walked in the room the complainant’s hands were around appellant’s penis.
Angela admitted on cross-examination that she did not see the complainant touch
appellant’s penis, but saw the complainant pull her hands away when Angela entered
the room. Angela told Rachel about what she had seen, and expected Rachel to call the
police. Rachel did not call the police because she was afraid of appellant.
Approximately two weeks later Angela reported the abuse to the police.
Rachel Purchase Taylor1 testified that she was giving the complainant a bath one
day when appellant walked into the bathroom. Rachel asked appellant why he had come
into the bathroom, and appellant responded, “the temptation was always there.” This
incident caused Rachel to have concerns about appellant’s relationship with the
complainant. When Rachel discussed leaving the marriage, appellant threatened her
saying he would seek custody of the complainant. Rachel described another incident in
which she tried to leave with the complainant and her son, but appellant followed her,
and physically removed the complainant from Rachel’s car. Rachel moved back into
1
Between the time of this incident and the trial Rachel remarried.
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appellant’s house after this incident because she thought it was the only way to stay with
her child.
After the report of abuse, law enforcement officers accompanied Rachel and the
complainant to the house to retrieve their belongings. When officers arrived, appellant
told them that he had been molested by family members as a child. Appellant also said
he suspected the officers were there to look into the complainant being molested by him.
Appellant’s statements were spontaneous and not in answer to any questions by the
officers.
Appellant introduced video of a forensic interview with the complainant. Using a
drawing, the forensic interviewer asked the complainant whether anyone had touched
her in inappropriate places or whether she had seen someone’s private parts. The
complainant answered “no” to each of the questions.
To rebut the defensive theory that Angela fabricated the accusation in retaliation
for being asked to leave the house, the State introduced evidence of two prior
convictions in Indiana for child molestation and sexual misconduct with a minor.
The jury found appellant guilty and assessed punishment, enhanced by the two
prior convictions, at life in prison.
SUFFICIENCY OF THE EVIDENCE
Appellant contends that the evidence presented at trial was legally insufficient to
establish that appellant, with intent to gratify his sexual desire, intentionally or
knowingly engaged in sexual contact with the complainant. We disagree.
A. Standard of Review
We review the sufficiency of the evidence establishing the elements of a criminal
offense for which the State has the burden of proof under the single legal sufficiency
standard set out in Jackson v. Virginia, 443 U.S. 307 (1979). See Matlock v. State, 392
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S.W.3d 662, 673 (Tex. Crim. App. 2013); Brooks v. State, 323 S.W.3d 893, 912 (Tex.
Crim. App. 2010).
When reviewing the sufficiency of the evidence, we view all of the evidence in
the light most favorable to the verdict and determine, based on that evidence and any
reasonable inferences from it, whether any rational factfinder could have found the
elements of the offense beyond a reasonable doubt. Gear v. State, 340 S.W.3d 743, 746
(Tex. Crim. App. 2011); see also Jackson, 443 U.S. at 319. The jury is the exclusive
judge of the credibility of witnesses and the weight to be given to the evidence. See
Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). We defer to the jury’s
responsibility to fairly resolve or reconcile conflicts in the evidence. Id. We draw all
reasonable inferences from the evidence in favor of the verdict. Id.
B. Applicable Law
The indictment alleged that appellant, “with the intent to arouse or gratify the
sexual desire of said defendant, intentionally or knowingly engage[d] in sexual contact
with [the complainant], a child younger than 17 years and not the spouse of the
defendant, by causing the said [complainant] to touch the genitals of the defendant.” See
Tex. Penal Code § 21.11(a)(2)(A).
Appellant argues that there is no evidence of contact as required by the
indictment. He argues that Angela did not see the complainant touching his penis, and
that the complainant, in the forensic interview, denied any assault took place.
The specific intent required for the offense of indecency with a child may be
inferred from a defendant’s conduct, his remarks, and all of the surrounding
circumstances. McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. 1981). In a
sufficiency review, any inconsistencies in the testimony should be resolved in favor of
the jury’s verdict. Johnson v. State, 815 S.W.2d 707, 712 (Tex. Crim. App. 1991).
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Angela first testified that she saw the complainant with her hands around
appellant’s penis. On cross-examination Angela admitted that the complainant and
appellant were covered on the bed, but that the complainant removed her hands and the
appellant jumped out of the bed naked from the waist down with an erect penis.
The jury heard Angela’s testimony and weighed her testimony against that of the
complainant in the video as to whether the complainant was touching appellant at the
time Angela walked in the room. The jury judged the credibility of the witnesses and
reconciled conflicts in the testimony, and could have accepted or rejected any or all of
the evidence on either side. See Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App.
1999); Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).
We conclude that when the evidence is viewed in the light most favorable to the
verdict, the jury, as a rational trier of fact, could have determined that the complainant
touched appellant’s penis, and that appellant initiated that contact to arouse or gratify
his sexual desire. We overrule appellant’s sole issue and affirm the trial court’s
judgment.
/s/ William J. Boyce
Justice
Panel consists of Justices Boyce, Jamison, and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).
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