Walter Alvarado, Jr. v. The State of Texas--Appeal from 379th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00560-CR
Walter ALVARADO, Jr.,
Appellant
v.
The STATE of Texas,
Appellee
From the 379th Judicial District Court, Bexar County, Texas
Trial Court No. 2002-CR-4749
Honorable Bert Richardson, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Sarah B. Duncan, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: September 8, 2004

AFFIRMED

Walter Alvarado, Jr. ("Alvarado") was found guilty by a jury of indecency with a child by sexual contact and sentenced to twenty years in prison. On appeal, Alvarado challenges the legal and factual sufficiency of the evidence to support his conviction. We affirm the trial court's judgment.

Background

In 2001, the complainant left her mother's home after an argument and moved in with her father, Alvarado, for a brief period. Shortly thereafter, the complainant ran away from Alvarado's home and began to live with her boyfriend. Alvarado later began staying at the house with the complainant and her boyfriend.

On the morning of November 13, 2001, the complainant and her boyfriend had an argument. After the boyfriend left the house for work, Alvarado, who was awakened by the argument, asked the complainant what had happened. The complainant responded by yelling at Alvarado to "go back to sleep." The complainant then returned to her room and fell asleep.

According to the complainant's testimony, she was awakened fifteen to thirty minutes later to find Alvarado standing nude and crawling up on the bed. Alvarado held the complainant's legs down while she pleaded with him to leave her alone. Alvarado told the complainant, "I'm going to rape you" and threatened to kill her boyfriend if she did not comply. Alvarado warned the complainant to "shut up" and slapped her when she continued to talk. Alvarado lifted the complainant's shirt and put his hand over her bra. Alvarado then attempted to remove the complainant's shorts. At some point while Alvarado was restraining the complainant and attempting to remove her clothing, Alvarado "snap[ped] out of it" and left the bedroom. The complainant was later able to run from the house and flag down construction workers, who directed her to a traffic officer nearby. The traffic officer, Juan Morales, dispatched Officer Jerry Vegas to the scene.

Officer Vegas testified that the complainant appeared to be upset and emotional when he first approached her. The complainant told Officer Vegas that she had gone to bed after a fight with her boyfriend and awoke to find her father standing naked at her bed. The complainant told Officer Vegas that her father had told her that he was going to rape her, and he threatened to kill her boyfriend if she did not allow him to do so. The complainant also told Officer Vegas that Alvarado restrained her, attempted to remove her shorts, put his hand under her shirt, and slapped her when she did not stop pleading for him to stop. Officer Vegas stated that he had the complainant recall and repeat the incident several times to make sure her statements were consistent. Officer Vegas testified that he found the complainant to be truthful and her statements to be consistent.

Alvarado denied the complainant's version of events. According to Alvarado, he woke up when the complainant's boyfriend slammed the door on his way out of the house. Alvarado walked to the complainant's room and saw that she was asleep. Alvarado dressed and left the house to find a job. Alvarado testified that he never walked into the complainant's room nude nor made any type of contact with her that morning. In an effort to discredit the complainant's testimony, Alvarado elicited evidence that the complainant had been prescribed and was taking Celexa, for depression, and Trazodone, for sleeping trouble, during the time period in which this incident took place. However, the complainant responded that she did not take any medications the night before or the morning of the incident, claiming that Alvarado had the medications in his possession and that she was often forgetful when it came to taking them.

Standard of Review

In considering the legal sufficiency of the evidence to support a conviction, we review the evidence in the light most favorable to the prosecution in order to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lane v. State, 933 S.W.2d 504, 507 (Tex. Crim. App. 1996). A factual sufficiency review of the evidence, on the other hand, is conducted by looking at all the evidence without the prism of "in the light most favorable to the prosecution" and determining whether it is so weak as to make the verdict clearly wrong and manifestly unjust or whether the adverse finding is against the great weight and preponderance of the evidence. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996); Sims v. State, 99 S.W.3d 600, 601(Tex. Crim App. 2003). In conducting a factual sufficiency review, a neutral review of all the evidence viewed by the fact finder establishes whether the proof of guilt is so obviously weak as to undermine confidence in the fact finder's determination, or that 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); Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). To prevent intrusion upon the fact finder's role as the sole judge of the weight and credibility given to witness testimony, appropriate deference must be afforded to the jury's decision so that our judgement is not substituted for that of the fact finder, even though we may disagree with the jury's determination. Jones v. State, 944 S.W.2d 642, 647-648 (Tex. Crim. App. 1996).

Sufficiency of the Evidence

In two points of error, Alvarado alleges that the evidence was legally and factually insufficient to support his conviction. Alvarado contends that the State failed to prove the requisite mental state of intent to arouse or gratify the sexual desire of any person.

With respect to the accused's mental state, a jury can infer the appellant's intent to arouse or gratify his sexual desire from the appellant's conduct alone, his remarks, or all the surrounding circumstances. McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. [Panel Op.] 1981); Santos v. State, 961 S.W.2d 304, 308 (Tex. App. - Houston [1st Dist.] 1997, pet. ref'd). An oral expression of intent is not required, and a defendant's conduct alone is sufficient to infer intent. Couchman v. State, 3 S.W.3d 155, 163 (Tex. App.-Fort Worth 1999, pet. ref'd).

In this case, evidence was presented with regard to Alvarado's conduct and his verbal remarks, as well as evidence regarding the surrounding circumstances. During the trial, the complainant described how Alvarado had appeared nude at her bed and began crawling up the bed toward her, eventually pinning her legs down. The record reflects that Alvarado then told the complainant, "I'm going to rape you." The complainant further testified that Alvarado lifted her shirt, placed his hand on top of her bra, and undid one or two of the buckles on her shorts. From this evidence, the jury could infer Alvarado's intent to arouse or gratify his sexual desire.

Although Alvarado denied the allegations, the jury was clearly free to disbelieve his testimony in its role as the exclusive judge of the witnesses' credibility and the weight to be given to that testimony. See Jones, 944 S.W.2d at 647-648; Bruno v. State, 922 S.W.2d 292, 293 (Tex. App.-Amarillo 1996, no pet.). The jurors were in attendance during the testimony and were able to evaluate the credibility of the complainant and the accused, together with any of the possible inconsistencies or suggestive influences alluded to by defense counsel during cross-examination. Having reviewed the entire record, we conclude that the evidence is legally and factually sufficient to support Alvarado's conviction.

Conclusion

The trial court's judgment is affirmed.

Alma L. L pez, Chief Justice

DO NOT PUBLISH