Irvin Oscar Offerle v. State

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN





NO. 3-93-181-CR



IRVIN OSCAR OFFERLE,

APPELLANT

vs.





THE STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT

NO. 0923234, HONORABLE MICHAEL LYNCH, JUDGE PRESIDING

PER CURIAM

A jury found appellant guilty of indecency with a child. Tex. Penal Code Ann. § 21.11 (West 1989). The district court assessed punishment at imprisonment for eighteen years.

The complainant, who was eight years old at the time of trial, testified that appellant, who lived in the same apartment complex, played a game with him and his friends called "Tickle Me." In this game, "Oscar would tickle us, and he'd put his hand up our pants and underwear and tickle our privates." The complainant indicated that he was referring to the penis when he used the word "privates." The game was usually played on the couch in appellant's apartment. "[W]ith one hand he'd tickle us like on our stomach or our legs or our arms, and with the other hand he'd tickle us on our privates." Appellant continued to "tickle" the complainant's penis even after the boy told him that it did not tickle.

Linda Mabius, an employee of the child abuse unit of the Austin police department, was the "outcry" witness. Tex. Code Crim. Proc. Ann. art. 38.072 (West Supp. 1994). Mabius testified that during her conversations with the complainant, the boy told her that

Oscar had started tickling him on his thigh, and that his hand then somehow got under the shorts -- inside the shorts and inside the underwear going through the leg of the shorts, and that he touched on the penis with his hand.

. . .

I asked him if he held his hand -- if Oscar had held his hand still or moved it around. He said that he moved it around when he had it on his penis. I asked him what type of touching it was. I believe the way I asked him was if he would touch it like this with his finger or just grab at it, and he said that he grabbed it. And then I asked him if he had said anything to him, and he said, "No, he just laughed."

The complainant told Mabius that this happened two or three times.

Appellant challenges the legal and factual sufficiency of the evidence in two points of error. In particular, appellant contends the State failed to prove that he acted with the intent to arouse or gratify his sexual desire. Tex. Penal Code Ann. § 21.01(2) (West 1989).

In determining the legal sufficiency of the evidence to support a criminal conviction, the question is whether, after viewing all the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991); Griffin v. State, 614 S.W.2d 155 (Tex. Crim. App. 1981). Appellant argues that his conduct was not of such an intrinsically deviant nature as to justify the inference that he acted with the requisite intent. Appellant asserts that even if the evidence supports an inference that he intended to arose or gratify his sexual desire, it also supports the inference that he was merely playing. According to appellant, this means that the jury "resolved reasonable but conflicting inferences in favor of a guilty verdict, a method of determining guilt or innocence fundamentally at odds with the principles underlying the reasonable doubt standard."

The specific intent to arouse or gratify sexual desire can be inferred from the defendant's conduct, his remarks, and from all the surrounding circumstances. McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. 1981). It was for the jury, as trier of fact, to determine the inferences to be drawn from the evidence in this cause. Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979). In essence, appellant is asking us to review the jury's verdict by applying the "alternative reasonable hypothesis construct" disapproved by the Court of Criminal Appeals in Geesa. 820 S.W.2d at 161. Even before its use was abandoned, the construct did not apply when testing the sufficiency of the circumstantial evidence relied on to prove the defendant's intent. Moone v. State, 802 S.W.2d 101, 104 (Tex. App.--Austin 1990, pet. ref'd). From the evidence in this cause, viewed in the light most favorable to the verdict, a rational trier of fact could find beyond a reasonable doubt that appellant acted with the intent to arouse or gratify his sexual desire. Point of error one is overruled.

We will set aside a verdict for factual insufficiency only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Stone v. State, 823 S.W.2d 375, 381 (Tex. App.--Austin 1992, pet. ref'd as untimely filed). When conducting a factual sufficiency review, we do not view the evidence in the light most favorable to the verdict. Instead, we consider all the evidence equally, including the testimony of defense witnesses and the existence of alternative hypotheses. Orona v. State, 836 S.W.2d 319 (Tex. App.--Austin 1992, no pet.). In this cause, the defense closed without calling witnesses, and appellant's factual sufficiency challenge is premised solely on his assertion that the evidence supports an alternative innocent hypothesis regarding his intent.

The existence of an alternative hypothesis other than guilt does not compel the conclusion that the evidence is factually insufficient. Id. at 322 n.2. The jury's conclusion beyond a reasonable doubt that appellant acted with the intent to arouse or gratify his sexual desire is not so contrary to the great weight and preponderance of the evidence as to be clearly wrong and unjust. Point of error two is overruled.

Appellant's third point of error multifariously asserts that Mabius's outcry testimony was irrelevant, unfairly prejudicial, and constituted improper bolstering of the complainant's unimpeached testimony. "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Tex. R. Crim. Evid. 401. Appellant argues that Mabius's testimony was offered only to confirm the trustworthiness of the complainant's testimony, and was therefore irrelevant because the complainant's testimony was unimpeached. We find this argument unpersuasive. Article 38.072 contains several conditions precedent to the admissibility of outcry testimony, but nothing in the statute requires that the child complainant be impeached before an outcry statement can be admitted in evidence. To the contrary, the statute contemplates testimony from both the child and the outcry witness regardless of whether the complainant is impeached. Article 38.072, § 2(b)(3); Cantu v. State, 830 S.W.2d 166, 170-71 (Tex. App.--Dallas 1992, no pet.). Appellant cites no authority requiring impeachment of the complainant as a prerequisite to admission of outcry testimony under article 38.072, nor does he offer support for his suggestion that evidence is irrelevant if it is merely corroborative of other evidence. The district court did not err by overruling appellant's objection to the relevance of Mabius's testimony.

Appellant also relies on Rule 403 of the Texas Rules of Criminal Evidence, which provides that evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice. "Unfair prejudice" refers to an undue tendency to suggest decision on an improper basis, commonly but not necessarily an emotional one. Cohn v. State, 849 S.W.2d 817, 820 (Tex. Crim. App. 1993). Evidence that corroborates the testimony of the complaining witness is not unfairly prejudicial for that reason. Id. We conclude that Mabius's testimony did not introduce the risk of decision on an improper basis, and that the district court did not err by overruling appellant's Rule 403 objection. ⁽¹⁾

Finally, if "bolstering" remains a proper basis for objection under the Rules of Criminal Evidence, it does so only by reference to Rule 608(a), which provides that opinion or reputation evidence as to a witness's character for truthfulness is admissible only after that character has been attacked, and Rule 612(c), which prohibits introduction of a witness's prior consistent statements except to rebut a charge of recent fabrication or improper influence or motive. Cohn, 849 S.W.2d at 820. In his brief, appellant does not argue that Mabius's testimony was inadmissible under either of these rules. Thus, appellant fails to demonstrate that the district court erred by overruling his bolstering objection. Point of error three is overruled.

In his last point of error, appellant contends the district court erred by overruling his motion to dismiss on double jeopardy grounds. ⁽²⁾ By this motion, appellant asserted that he was placed in jeopardy when the offense underlying this prosecution was alleged in motions to revoke probation in two other cases. It has been held, however, that the double jeopardy provisions of the Texas and United States constitutions are not offended when evidence used in a probation revocation proceeding is later used to prosecute the defendant in a different case. Chambers v. State, 700 S.W.2d 597, 599 (Tex. Crim. App. 1985). Appellant acknowledges the holding in Chambers, but states that he "challenges its analysis." As an intermediate court, we are bound by Chambers. Appellant must challenge the reasoning of that opinion in the Court of Criminal Appeals. Even if we were to reach the merits of appellant's double jeopardy claim, we would find it to be without factual support because there is no evidence that the offense for which appellant was convicted in this cause was the offense alleged in the motion to revoke. ⁽³⁾ Point of error four is overruled.

The judgment of conviction is affirmed.

Before Chief Justice Carroll, Justices Kidd and B. A. Smith

Affirmed

Filed: April 20, 1994

Do Not Publish

1.   Appellant also argues that Mabius's testimony should not have been admitted because its probative value was substantially outweighed by its needlessly cumulative nature. Tex. R. Crim. Evid. 403. Appellant did not object to the testimony on this ground, however, and this contention was not preserved for review. Tex. R. Crim. Evid. 103(a)(1); Tex. R. App. P. 52(a).

2.   Appellant's motion to dismiss was not verified as required for special pleas of former jeopardy. Tex. Code Crim. Proc. Ann. art. 27.06 (West 1989). Further, appellant did not request that his jeopardy claim be determined by the jury. See Apolinar v. State, 820 S.W.2d 792 (Tex. Crim. App. 1991). Appellant also raised his jeopardy claim in a pretrial habeas corpus application, but did not appeal the district court's denial of relief. See Ex parte Robinson, 641 S.W.2d 552 (Tex. Crim. App. 1982).

3.   In one motion to revoke probation, a different complaining witness was named. In the other, the offense was alleged to have taken place on a different date. In overruling the motion to dismiss, the district court stated, "I heard no evidence whatsoever [at the probation revocation hearing] in connection with the subsequent offense."