Teleforo Jimenez v. The State of Texas--Appeal from 218th Judicial District Court of Atascosa County

MEMORANDUM OPINION
No. 04-06-00840-CR
Teleforo JIMENEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 218th Judicial District Court, Atascosa County, Texas
Trial Court No. 05-07-0142-CRA
Honorable Donna S. Rayes, Judge Presiding

Opinion by: Karen Angelini, Justice

 

Sitting: Karen Angelini, Justice

Sandee Bryan Marion, Justice

Steven C. Hilbig, Justice

 

Delivered and Filed: July 18, 2007

 

AFFIRMED

Teleforo Jimenez was convicted of indecency with a child and sentenced to twenty years imprisonment. In one issue on appeal, Jimenez contends the evidence was factually insufficient to support the jury's guilty verdict. We affirm the judgment of the trial court.

Standard of Review

In conducting a factual sufficiency review, we view "all the evidence without the prism of 'in the light most favorable to the prosecution' and set[] aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997) (quoting Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996)); see also Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (explaining that the "basic ground rules for post-Clewis factual-sufficiency review were well articulated in Cain v. State"). In doing so, we must "be mindful that a jury has already passed on the facts, and convicted, and that the court should never order a new trial simply because it disagrees with the verdict, but only where it seems to the court to represent a manifest injustice, though supported by legally sufficient evidence." Watson, 204 S.W.3d at 414. The factual-sufficiency analysis can be broken down into two prongs. Id. "The first prong asks whether the evidence introduced to support the verdict, though legally sufficient, is nevertheless 'so weak' that the jury's verdict seems 'clearly wrong and manifestly unjust.'" Id. at 414-15. "The second prong asks whether, considering conflicting evidence, the jury's verdict, though legally sufficient, is nevertheless against the great weight and preponderance of the evidence." Id. at 415.

Applying this standard of review, we will conduct an examination of all the evidence adduced at trial.

The Evidence

1. Norma Cordova

In April 2005, Norma Cordova, a sergeant investigator for the Atascosa Sheriff's Department, was assigned to investigate an indecency with a child case in Charlotte, Texas, involving Jimenez. She tried to contact the eleven-year-old victim, T.P., but discovered that T.P. had been moved for her protection. Cordova did not speak with T.P. until two to three weeks later when she was able to meet with her and take a written statement. T.P. said Jimenez had abused her since she was six years old. When T.P. told Cordova what had happened she was upset and cried a little.

Cordova also interviewed T.P.'s mother, Peggy, Jimenez, and Jimenez's brother, Albundio. Additionally, she spoke with Jimenez's girlfriend, Maria Tijerina, who is also Peggy's grandmother. Cordova concluded that there was sufficient evidence to prosecute Jimenez.

2. T.P.

T.P's family first lived in Charlotte, Texas when T.P. was about five or six years old. The family moved there again when T.P. was in the third grade. T.P.'s great-grandmother, Maria Tijerina, and Jimenez lived in a house in Charlotte. In a trailer next to the house, T.P. and her family lived with Peggy's brother, Larry. Jimenez's brother, Albundio, lived in another trailer next to the house. Because T.P.'s mother did not have a car, Jimenez would drive T.P. to school in his pickup truck, which only had one long seat in the front. Sometimes T.P.'s mother, Peggy, her seven-year-old sister, M.P., or Jimenez's brother, Albundio, rode with them. According to T.P., Jimenez touched her on her front middle part, over her clothing. One time, when she was six or seven years old, Jimenez touched her when they were in the back of her great-grandmother's house. Jimenez would also touch her when they were in the truck; he would just reach over unexpectedly and touch or squeeze her private part. He would then ask her if she loved him, but she always ignored him. According to T.P., sometimes Jimenez would even touch her when his brother, Albundio, was in the truck. Jimenez would tell Albundio to look out the window at something and then reach over and touch her. (1) T.P. testified that Jimenez touched her four to five times.

At age eight or nine, T.P. first learned that this kind of touching was bad when her mother told her it was bad. At that time, T.P. did not tell her mother what Jimenez had done to her because she was afraid that he would get mad at her. Finally, when her mother questioned her about Jimenez, T.P. told her mother what had happened. However, T.P. struggled to tell her mother that it had happened. Her mother then told Maria, T.P.'s great-grandmother and Jimenez's girlfriend, about Jimenez's actions, but Maria did not believe her. After T.P. told her mother what Jimenez had done, T.P.'s family moved away.

3. Peggy Tijerina

Peggy Tijerina, T.P.'s mother, testified that she and her daughters had moved around a lot. They had lived in several different states and had moved back to Charlotte a number of times. When they lived in Charlotte, they lived with her grandmother, Maria, in a trailer in Maria's back yard. Peggy paid utilities but not rent. While Peggy lived in Charlotte, Jimenez, who lived with Maria, would sometimes give her money and would also buy things for her daughters. Although Peggy had been talking to Maria and Jimenez about them helping her buy a car, they had not done so. Thus, because Peggy did not have a car, she depended on Jimenez to take her to work and her daughters to school in his truck. Because the truck sat about three people, Peggy would sometimes ride in the truck with both daughters, holding M.P. in her lap while T.P. would sit in the middle. Jimenez would pick the girls up at different times in the afternoon, and sometimes Albundio would go with him.

At some point, Peggy decided to talk to her daughters about Jimenez. She first spoke with M.P. and then with T. P. Upon asking T.P. if Jimenez had touched her in a way that was not good, T.P. said, "Yes, Mom." T.P. told Peggy that sometimes in the morning when he drove her to school, Jimenez would touch her on her crotch on top of her clothes. Peggy reported Jimenez's actions to the police, and a sheriff's deputy came to speak with her and T.P. A Child Protective Services worker also came to interview them that day. According to Peggy, she and her daughters moved away the following day.

4. Bill Benton

As an investigator for Child Protective Services, Bill Benton was assigned to the Jimenez case. As part of his investigation, he spoke with Jimenez and Jimenez's common law wife, Maria. When Benton told Jimenez about T.P.'s allegations, Jimenez denied them. Further, Jimenez indicated that when he drove the children to and from school, his brother, Albundio, always went with him and the children. Benton, however, noticed inconsistencies in Jimenez's statements. Jimenez indicated that they all had been buckled into the seat belts, but the truck was a three-passenger truck and did not have enough room to seat Jimenez, Albundio, and the two children. When Benton talked to Jimenez about this inconsistency, Jimenez admitted that he had not been truthful and acknowledged that because he took the girls to school at the same time, Albundio could not have been with him and the children on all trips to the school.

After he spoke with Jimenez, Benton interviewed Albundio. When Albundio came in for the interview process, Benton asked him for "identifier information." Albundio immediately replied, without being asked, that when they went to school, he had always ridden in the car with Jimenez and the children. Benton then told Albundio that he had discussed with Jimenez some inconsistencies with Jimenez's statement and that Jimenez had acknowledged that there were times when Albundio had not ridden in the car with him and the children. Albundio then admitted that there were times when the children rode to school in the mornings that he was not present. He also admitted that there were times when the kids were alone in the car with Jimenez.

5. Maria Tijerina

Maria Tijerina is an eighty-three-year-old widow who lives in Charlotte, Texas. Although she and Jimenez have lived together as companions for four years, they are not married. When Peggy and her daughters came to Charlotte to live, she let them live in one of her trailers. According to Maria, because Peggy asked Jimenez to take her two daughters to school, Jimenez would take T.P. to school at 8:00 a.m. He would then take M.P. to school at 11:00. Albundio, who lived in another trailer next to Maria and Jimenez's house, would go with them. Jimenez and Albundio would then pick up M.P. at 2:45 in the afternoon and T.P. at 3:30. According to Maria, when Jimenez took T.P. and M.P. to school and when he picked them up, Albundio was always with them. Jimenez and Albundio would also take Peggy to work.

According to Maria, T.P.'s allegations are all lies. She knows this because when Albundio was not in the truck with Jimenez and the girls, she was in the truck. And, Jimenez told her that Albundio was always with him in the truck. He also told her that T.P.'s allegations are not true.

6. Albundio Jimenez

Albundio Jimenez, Jimenez's brother, lives in a trailer located on the same property as his brother and Maria Tijerina. According to Albundio, he rode with Jimenez every day to take T.P. and M.P. to school. They took one of the girls to school in the morning and then the other one a little bit later. In the afternoon, they picked one of them up and then picked the other one up later. He would always sit by the door. Albundio rode with them "so they wouldn't do nothing about the girls" and "[s]o that they wouldn't say anything." He never saw Jimenez put his hand on T.P.'s legs or touch her private parts.

7. William H. Meadows

William H. Meadows is the Charlotte Elementary School principal. In 2005, M.P. attended kindergarten there. According to Meadows, kindergarten begins at 8:05 a.m.; no kindergarten class starts after that time. Kindergarten ends at 2:45 p.m. The classes for the other grades end at 3:30 p.m. There is, however, one pre-kindergarten session that begins at 8:15 a.m. and lasts until 11:15 a.m. A second pre-kindergarten session begins immediately after that.

Discussion

A person commits indecency with a child if, with a child younger than seventeen years and not the person's spouse, the person engages in sexual contact with the child or causes the child to engage in sexual contact. Tex Penal Code Ann. 21.11(a)(1) (Vernon 2003). "Sexual contact" is any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child, if committed with the intent to arouse or gratify the sexual desire of any person. Id. 21.11(c)(1).

The indictment against Jimenez for indecency with a child alleged that Jimenez, with the intent to arouse or gratify his own sexual desire, intentionally and knowingly engaged in sexual contact with T.P., a child younger than seventeen years and not his spouse, by touching her genitals. Although Jimenez does not contend the evidence is insufficient to show he touched T.P. on her genitals, he does argue that the evidence is factually insufficient to prove that he did so with the intent to arouse or gratify the sexual desire of any person. In support of his argument, Jimenez emphasizes that the record contains no evidence of "nakedness, erection, facial gestures, verbalization, [or] ejaculation accompanying the touching." And, he argues that "the actual touching was more of an unexpected quick touching," which "does not describe action to arouse or gratify the sexual desire of a seventy-three year old man." Further, he argues that the evidence is too weak to support a finding of guilt beyond a reasonable doubt because the evidence shows he "touched her real quickly over her clothing" and "[t]here was no other actions [sic] by [Jimenez] to support an inference of intent to arouse or gratify [Jimenez's] sexual desires."

The requisite specific intent to arouse or gratify the sexual desire of any person may 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. [Panel Op.] 1981) (holding that a defendant acted with intent to arouse and gratify his own sexual desire where the evidence showed that the man knelt down in front of a child, stated that he wanted "to see if she is clean," touched her genitalia, and then promptly rose to leave in his car). Furthermore, an oral expression of intent is not required; the defendant's conduct alone is sufficient to infer intent. Tyler v. State, 950 S.W.2d 787, 789 (Tex. App.--Fort Worth 1997, no pet.). And, a jury can rationally infer a defendant's intent from the conduct of touching the child's genitals and from him touching her in the same manner on many prior occasions. Ramos v. State, No. 14-99-01197-CR, 2001 WL 1287359, at *5 (Tex. App.--Houston [14th Dist.] 2001, pet. ref'd).

Viewing all the evidence in a neutral light and favoring neither party, the evidence supporting Jimenez's conviction is not so weak that the jury's determination is clearly wrong and manifestly unjust, nor does the conflicting evidence so greatly outweigh the evidence supporting his conviction that the jury's determination is manifestly unjust. See Watson v. State, 204 S.W.3d. 404, 414-15, 417 (Tex. Crim. App. 2006). The evidence shows that while they were riding in his pickup truck, Jimenez touched T.P.'s genitals through her clothing on a number of occasions. T.P. believed the touching was bad, and when Jimenez asked if she loved him, she just ignored him. There is also evidence that Jimenez touched T.P.'s genitals while Albundio rode in the truck; Jimenez would distract Albundio by telling him to look at something outside the window. When confronted by T.P.'s allegations, Jimenez denied them and insisted that he never rode in the pickup truck alone with T.P. He also said that when he drove both girls to school, both girls wore their seatbelts. His pickup truck, however, was only a three-passenger vehicle. When confronted with this inconsistency, Jimenez admitted he had not initially told the truth and acknowledged that he had been alone in the truck with T.P.

Jimenez has cited no authority to support his contention that the quickness of his touching of T.P's genitals somehow negates his intention to arouse or gratify his sexual desires. And, Jimenez has cited no authority to support his argument that "nakedness, erection, facial gestures, verbalization, [or] ejaculation accompanying the touching" is required to show intent. In fact, the same argument was rejected by the Corpus Christi Court of Appeals in Solis v. State, No. 13-03-00262-CR, 2006 WL 2025154 (Tex. App.--Corpus Christi 2006, no pet.). Relying on the Texas Court of Criminal Appeals's opinion in McKenzie, 617 S.W.2d at 216, the Corpus Christi Court of Appeals explained that "[n]o oral expression of intent is necessary, nor is visible evidence of sexual arousal required." Solis, 2006 WL 2025154, at *2. We, therefore, hold that the evidence is factually sufficient.

Conclusion

Finding no error, we affirm the trial court's judgment.

 

Karen Angelini, Justice

DO NOT PUBLISH

 

1. According to T.P., Jimenez, however, would not touch T.P. when her sister, M.P., was in the truck with them. T.P. would sit in the middle next to Jimenez so he could not touch M.P.