Virgil Lee Hanson v. State of Texas--Appeal from 350th District Court of Taylor County

Opinion filed November 1, 2007

In The

Eleventh Court of Appeals

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 No. 11-05-00290-CR

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VIRGIL LEE HANSON, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 350th District Court

Taylor County, Texas

Trial Court Cause No. 6651-D

  O P I N I O N

Virgil Lee Hanson appeals his conviction by a jury of the offense of indecency with a child. The jury assessed his punishment at ten years in the Texas Department of Criminal Justice, Institutional Division, and a fine of $10,000. The jury determined that Hanson should be placed on community supervision with respect to his ten-year sentence but not as to the $10,000 fine. He contends in five points that the evidence is legally and factually insufficient to support his conviction and that the trial court abused its discretion in including a defensive charge when there was no issue concerning the defense. We affirm.

Hanson contends in points two, three, four, and five that the evidence is legally and factually insufficient to support his conviction. In order to determine if the evidence is legally sufficient, the appellate court reviews all of the evidence in the light most favorable to the verdict and determines whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11.

K.L.C., the complainant, testified that in October 2002, when she was sixteen years of age, she moved in with Hanson and his family. She indicated that, after she had been in the home for two to three weeks, Hanson began coming into the room where she was sleeping early in the morning and rubbing lotion on her body. She said he would unsnap her bra, have her turn over, and rub her breasts. She insisted that this occurred more than eight times. She related that Hanson=s daughter would be asleep three feet away on another twin bed on the occasions when this occurred. She stated that it also occurred in the den with the door closed.

According to Detective Thomas Valdez, an investigator with the Crimes Against Children Unit of the Abilene Police Department, Hanson admitted to him that he rubbed K.L.C.=s back with lotion at the time and in the manner she described, including unhooking her bra but that he denied rubbing her breasts.

Hanson called K.L.C.=s aunt, Deborah Hughes, who testified that K.L.C. had a bad reputation with respect to telling the truth or not telling the truth. She also indicated that K.L.C. was able to cry at will and that she would do it to manipulate people.

Lisa Hughes, K.L.C.=s cousin and Deborah=s daughter, testified that K.L.C.=s reputation for being a truthful person was bad. She said that K.L.C. never warned her that bad things were happening at the Hanson residence and she should not go there. She acknowledged that, even if K.L.C. had told her that Hanson rubbed her back with lotion and unhooked her bra (the things Hanson admitted to police that he did), she would have thought K.L.C. was lying. She admitted that K.L.C. never told her about the things that Hanson admitted doing.

Britny Douglas testified that she had been a close friend of K.L.C. until they became estranged when Aa guy got in between [their] relationship.@ She said she was familiar with K.L.C.=s reputation for lying. She acknowledged that a friend of her grandmother=s had in the past unsnapped her own bra and rubbed lotion on her back and that it was inappropriate. She said it made her feel violated. She indicated that she waited seven years before telling anyone. She insisted, however, that it would be okay for Hanson to have unhooked K.L.C.=s bra and rubbed lotion on her back if he did it at K.L.C.=s request.

Stacey Ruth Parker, Britny=s mother, testified that K.L.C.=s reputation for truthfulness was bad. She acknowledged that it is inappropriate for an unrelated adult male to go under a sixteen-year-old girl=s shirt, unhook her bra, and rub lotion on her back. She indicated, however, that it would be okay if the girl requested it.

We hold that the evidence is legally and factually sufficient to support the conviction. As we understand Hanson=s argument, he contends that the evidence is insufficient because he denied K.L.C.=s allegations that he touched her breasts, because there was no evidence that he touched her on the breasts with the intent to arouse his sexual desire, and because A[t]he circumstances of the events occurring in the home, the bedroom of the Appellant=s daughter, and the testimony of K.L.C. concerning when her desire to leave the home of Appellant first originated and the circumstances surrounding her leaving the home of Appellant support Appellant=s plea of not guilty.@

K.L.C.=s testimony alone is sufficient to show Hanson committed the offense. See Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon 2005). Her credibility was for the jury to determine. See Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). The intent to arouse or gratify the sexual desire of any person can be inferred from the defendant=s conduct, remarks, and all surrounding circumstances. McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. 1981). Hanson=s intent to gratify his sexual desire can then reasonably be inferred from his unhooking K.L.C.=s bra and rubbing lotion on her breasts and his comment that he wished that he were twenty years younger. The jury, as the finder of fact, was the sole judge of the weight and credibility of the witnesses= testimony. Tex. Code Crim. Proc. Ann. art. 36.13 (Vernon 2007), art. 38.04 (Vernon 1979). We overrule points two, three, four, and five.

Hanson urges in point one that the trial court erred by instructing the jury regarding an affirmative defense available to those who are not more than three years older than the victim because the defense was inapplicable in that he is much older than the victim. Hanson made no objection to this portion of the charge. In order to prevail where error is not preserved, Hanson must show egregious harm. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Errors that are egregious affect the very basis of the case and deprive the defendant of a valuable right, vitally affect a defensive theory, or make the case for punishment more oppressive. Batiste v. State, 73 S.W.3d 402, 407 (Tex. App.CDallas 2002, no pet.). We agree with the State that the mentioning of an inapplicable affirmative defense did not arise to the level of egregious harm. It did not affect the very basis of the case, it did not vitally affect a defensive theory, it did not deprive Hanson of any valuable right, and it did not make the case for punishment significantly more oppressive.

Hanson contends that the inclusion of the charge was very likely to have confounded, confused, and disturbed the members of the jury panel, as well as exciting their passions. At worst, the charge merely informed the jury that there was an affirmative defense under the law that was clearly not related to this case. Because the inapplicability of the charge was obvious, we do not see how it would have confounded, confused, or disturbed the members of the jury or excited their passions sufficiently to rise to the level of egregious harm. We overrule point one.

The judgment is affirmed.

PER CURIAM

November 1, 2007

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

Panel consists of: Wright, C.J.,

McCall, J., and Hill, J.[1]

[1]John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth sitting by assignment.