In the Matter of T. D. B.--Appeal from County Court at Law of Walker County

Affirmedand Memorandum Opinion filed July 3, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00984-CV

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IN THE MATTER OF T.D.B.

On Appeal from the County Court at Law

Walker  County, Texas

Trial Court Cause No.J01-82

M E M O R A N D U M O P I N I O N

A jury found that appellant, T.D.B., engaged in delinquent conduct by committing the offense of indecency with a child. In three points of error, appellant claims that the trial court erred in submitting indecency with a child as a lesser-included offense of aggravated sexual assault and that the evidence is legally and factually insufficient.

Background

Appellant, a thirteen year-old juvenile, and his family, were close friends with the complainant=s family. On September 13, 2001, appellant stayed at the complainant=s house while his parents were with their other child who was receiving medical treatment in Houston. The complainant was five years old. Appellant was to sleep in the complainant=s older brother=s room. Adjoining this room was an Aattic.@ It contained, among other things, the complainant=s school records and projects. The complainant asked appellant to accompany her to the attic in order for her to show him some of her school projects. He did so.

Once in the attic, appellant asked the complainant to sit in his lap and he placed his hand inside her underwear and touched her Atootoo,@ or private part, with his finger. The complainant=s sister, R.L., knocked on the door, entered the room and observed the complainant sitting on appellant=s lap. Both the exterior door to the bedroom, as well as the interior door to the attic room were closed. R.L. observed that the complainant=s underwear was down and appellant=s zipper was undone. R.L. told the complainant she needed to go to bed and appellant responded, Agive us a few more minutes.@ R.L. left the room, but returned shortly to take the complainant back to her bedroom. At that time, the complainant and appellant were on the floor looking at a box of school items. Upon leaving the room, the complainant told R.L. that appellant had rubbed her Abottom.@ The complainant told her mother the same thing approximately one month later. At trial, appellant denied any inappropriate touching.

Appellant was charged with aggravated sexual assault of a child. The jury convicted him of the lesser-included offense of indecency with a child.

Legal and Factual Sufficiency

As all three of appellant=s points of error challenge the sufficiency of the evidence proving Aintent,@we will address the legal and factual sufficiency claims first.

In reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). We accord great deference Ato the responsibility of the trier of fact [to fairly] resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.@ Id. at 319. We presume that any conflicting inferences from the evidence were resolved by the jury in favor of the prosecution, and we defer to that resolution. Id. at 326. In our review, we determine only whether Aany rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.@ Id. at 319.

An essential element of the offense of indecency with a child is the intent to arouse or gratify the sexual desire of any person. Duwe v. State, 642 S.W.2d 804, 805 (Tex. Crim. App. 1982). The requisite specific intent 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).

Here, the evidence showed that appellant touched the complainant=s Atootoo@ with his finger. He was alone with her in an attic room behind closed doors and away from the remainder of the family. She was seen sitting in his lap, with her underwear pulled down, and his pants unzipped. When her sister entered the room, appellant asked for a few more minutes alone with the complainant. Viewing the evidence in the light most favorable to the jury=s verdict, a rational jury could have found the evidence sufficient beyond a reasonable doubt to prove that appellant had the requisite intent to arouse or gratify his sexual desire. See Couchman v. State, 3 S.W.3d 155, 163 (Tex. App.CFort Worth 1999, pet. ref=d) (repeated attempts to fondle complainant found legally sufficient to infer intent); Tyler v. State, 950 S.W.2d 787, 788-89 (Tex. App.CFort Worth 1997, no pet.) (slipping finger inside shorts of two different complainants found legally sufficient to infer intent); Santos v. State, 961 S.W.2d 304, 308 (Tex. App.CHouston [1st Dist.] 1997, pet. ref=d) (standing near complainant in toy aisle, fondling, and slipping hand under complainant=s shirt found legally sufficient evidence to infer intent).

We conduct a factual sufficiency review by asking whether a neutral review of all the evidence demonstrates the proof of guilt is so obviously weak as to undermine confidence in the jury's determination or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). We may set aside the jury=s verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Although we review the fact finder=s weighing of the evidence, and we are authorized to disagree with the fact finder=s determination, our evaluation should not substantially intrude upon the fact finder=s role as the sole judge of the weight and credibility given to witness testimony. Johnson, 23 S.W.3d at 7. In particular, we must defer to the jury=s determination concerning what weight to give contradictory testimonial evidence, because resolution often turns on an evaluation of credibility and demeanor, an evaluation better suited for jurors who were in attendance when the testimony was delivered. Id. at 8.

Appellant argues the evidence is factually insufficient to support the finding of intent to arouse. He does not point to any contradictory evidence, but relies on what he argues is a complete lack of evidence. However, as previously stated, intent to arouse may be inferred by conduct, remarks, and surrounding circumstances. McKenzie, 617 S.W.2d at 216. AAn oral expression of intent is not required, and a defendant=s conduct alone is sufficient to infer intent.@ Couchman, 3 S.W.3d at 163.

The only evidence contrary to the verdict consists of appellant=s denial that he committed the offense and minor conflicts in the testimony. For example, R.L., complainant=s sister, testified that she witnessed complainant sitting in appellant=s lap with her underwear down and appellant=s zipper undone. R.L. also stated appellant was wearing Awind@ pants. In contrast to this testimony, appellant states he was wearing blue-jean shorts and a t-shirt, while complainant testified her underwear remained on. As the trier of fact, the jury is the sole judge of the credibility of the witnesses. Soto v. State, 864 S.W.2d 687, 691 (Tex. App.CHouston [14th Dist.] 1993, pet. ref=d) (citing Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986), cert denied, 488 U.S. 872 (1988)). The weight to be given conflicting testimony lies within the sole province of the jury, and the reviewing court must show deference to the jury=s determination. Cain v. State, 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997). Further, it was within the province of the jury to reject appellant=s testimony. See Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991); Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982) (finding Athe jury may believe some witnesses and refuse to believe others, and it may accept portions of the testimony of a witness and reject other portions@).

Because we find the evidence sufficient to support the jury=s verdict, we overrule appellant=s second and third points of error.

Lesser-Included Offense

In appellant=s first point of error, he complains that the trial court erred in submitting the lesser-included offense of indecency with a child to the jury. The indictment charged appellant with aggravated sexual assault. At trial, the jury charge included the lesser-included offense of indecency with a child. Indecency with a child requires a sexual contact Acommitted with the intent to arouse or gratify the sexual desire of any person.@ Tex. Pen. Code Ann. ' 21.11(c) (Vernon Supp. 2002). Appellant recognizes that indecency with a child may be a lesser-included offense of aggravated sexual assault. Cunningham v. State, 726 S.W.2d 151, 153-155 (Tex. Crim. App. 1987). Whether indecency with a child is a lesser included offense of aggravated sexual assault of a child is to be determined on a case-by-case basis. Cunningham, 726 S.W.2d at 154. The focus is Awhether the State=s case as presented to prove the offense charged included proof of [a lesser-included offense].@ Ochoa v. State, 982 S.W.2d 904, 908 (Tex. Crim. App. 1998); Cunningham, 726 S.W.2d at 155.

As discussed above, appellant=s conduct and the surrounding circumstances support the inference that appellant acted with the intent to arouse or gratify his sexual desire. Appellant=s first point of error is overruled.

The judgment of the trial court is affirmed.

/s/ Leslie Brock Yates

Justice

Judgment rendered and Memorandum Opinion filed July 3, 2003.

Panel consists of Justices Yates, Hudson, and Edelman.