Eric A. Bracken v. The State of Texas--Appeal from 226th Judicial District Court of Bexar County

Annotate this Case
MEMORANDUM OPINION
No. 04-06-00863-CR
Eric A. BRACKEN,
Appellant
v.
STATE of Texas,
Appellee
From the 226th Judicial District Court, Bexar County, Texas
Trial Court No. 2005-CR-1682
Honorable Sid L. Harle, Judge Presiding

Opinion by: Catherine Stone, Justice

 

Sitting: Catherine Stone, Justice

Karen Angelini, Justice

Rebecca Simmons, Justice

 

Delivered and Filed: September 5, 2007

 

AFFIRMED

Appellant Eric Bracken was charged with the offenses of Sexual Assault of a Child, by sexual contact with a child (Count I), and Indecency with a Child, by touching the genitals of a child (Count II). The jury was unable to reach a verdict on the first count, but found Bracken guilty of the second charge of Indecency with a Child. The first count was ultimately dismissed, and the trial court assessed punishment on Count II at twenty years incarceration in the Texas Department of Criminal Justice-Institutional Division. Bracken now appeals, contending the evidence is legally and factually insufficient to support a finding of guilt. We affirm the trial court's judgment.

Standard of Review

When considering a legal sufficiency challenge, we review all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found all of the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hernandez v. State, 198 S.W.3d 257, 260 (Tex. App.--San Antonio 2006, pet. ref'd). We must affirm the trial court's judgment if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997). When considering a factual sufficiency challenge, we view all the evidence in a neutral light and set aside the verdict only if: (1) the evidence is so weak the verdict is clearly wrong and manifestly unjust; or (2) the verdict is against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). The jury evaluates the credibility and demeanor of witnesses and determines the weight afforded contradicting testimony. Stogiera v. State, 191 S.W.3d 194, 196 (Tex. App.--San Antonio 2005, no pet.).

Factual Background

At trial, the State presented evidence of several alleged incidents involving Bracken and the complainant, O.A.B., occurring between 1996 and 2003. During the trial, the judge granted Bracken's motion for an election, and the State elected to rely on an incident that occurred in 1996. O.A.B. testified that her family and the Bracken family were very close and that she spent the night at the Bracken home on numerous occasions. She testified about a specific night that she spent at the Bracken home in 1996 when she was nine years old. On this particular occasion she slept on the couch in the living room. At some point during the night Bracken came into the living room, asked if she wanted to watch a movie, and then proceeded to play a pornographic video on the VCR. O.A.B. recalled the title of the video as being "Mad Wives." At the conclusion of the video he asked her if she would like to do any of the things shown on the movie when she got older. She responded negatively and Bracken then left the living room.

O.A.B. testified that later during the same night, Bracken returned to the living room, knelt down beside the couch she was on, and attempted to touch her with his hands. She stated that she pretended to be asleep, and that she rolled and turned in an effort to keep Bracken from touching her. She indicated that he touched her under her shirt, trying to touch her chest area. He also put his hands between her legs and touched her both over and under her underwear. She indicated that his hand was over the front part of her underwear, and that her vagina was directly beneath where Bracken was touching her. She was unable to say how long the incident lasted.

Louis Rodriguez, a retail sales manager for an adult video store, testified for the defense that he was unable to find an adult video entitled "Mad Housewives," and he concluded that there is not, and never has been, an adult movie of that title. He did find a "sound alike" movie entitled "Sad Wives," but that movie was not released until after the 1996 incident in question. Bracken's ex-wife testified that she was unaware of any adult videos in their home in 1996, but they did have a few adult videos at a later time, which they viewed at the suggestion of a doctor to help Bracken with impotence problems.

Indecency with a Child

The offense of indecency with a child involves (1) a person; (2) who engages in sexual contact; (3) with a child who is younger than 17 years; and (4) is not his or her spouse. Tex. Penal Code Ann. 21.11(a) (Vernon 2003). "Sexual contact" includes 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). Accordingly, in this case, the State was required to prove that Bracken touched the genitals of O.A.B. with the intent to arouse or gratify sexual desire.

On appeal, Bracken contends the State failed in its burden because there is no evidence that he ever actually touched O.A.B.'s genitals. Bracken acknowledges that the Penal Code specifically includes touching over clothing within the definition of "sexual contact." See id. He further recognizes that prior to enactment of this statutory definition, the courts construed sexual contact to include touching through or over clothing. See Resnick v. State, 574 S.W.2d 558, 560 (Tex. Crim. App. 1978) (holding that touching over clothing can be sexual contact and that "the essence of the act of touching is to perceive by the sense of feeling"). Bracken contends, however, that on this record a juror would have to speculate that touching over O.A.B.'s underwear caused O.A.B. to perceive "the sense of feeling that her genitals were being touched." He specifically contends that in the absence of any evidence about what kind of underwear O.A.B. was wearing, the jury could not determine that a touch to the underwear necessarily meant a touch to the genitals. We disagree.

Initially, we note that O.A.B. testified that Bracken touched her both over and under her underwear. She was able to affirmatively state that when he touched her over the front part of her underwear, he was touching over her vagina. This testimony indicates that she had a sense, or feeling, of what part of her body was being touched by Bracken. The jury was not required to speculate because O.A.B. provided specific testimony about being touched over clothing that covered her genitals. O.A.B. testified that she rolled around to keep Bracken from touching her and that she successfully kept him from touching her vagina under her underwear; but she clearly stated that he did touch her between her legs on top of her underwear, directly over her vagina. Based on this record, the jury could properly conclude beyond a reasonable doubt that Bracken committed the offense of Indecency with a Child as charged. See Hernandez, 198 S.W.3d at 260 (setting forth legal sufficiency standard of review).

Bracken points to evidence in the record which he contends calls into question O.A.B.'s credibility. He notes that Louis Rodriguez testified there is no known adult video entitled "Mad Wives," and that the similarly-named movie, "Sad Wives," was not released until several months after the alleged event. As the State counters, however, Rodriguez admitted that he was unfamiliar with what "black market" movies might have been available. Further, Bracken's wife acknowledged that her husband could have had some adult videos in the home.

Bracken also argues that the circumstances under which O.A.B. made her outcry in 2003 are suspect. As described by Bracken, O.A.B. made a "furtive escape" from her bedroom window and stayed out all night with a male friend. When she returned home and was confronted by her parents, she made her outcry against Bracken. The record does reveal that O.A.B. snuck out of her bedroom window and spent the night with a male friend, Brandon Garza. She left a note on her window for her parents saying that something "had been going on for six years." Garza confirmed that O.A.B. told him about Bracken's conduct and that he encouraged her to report the conduct. There was some discrepancy between his testimony and O.A.B.'s about whether she asked him to take her to the police station, and we note that six years prior to 2003 was 1997, not 1996. Nonetheless, there was no conflict as to the essential information of O.A.B.'s allegations against Bracken.

To the extent that O.A.B.'s testimony was conflicting, or that there were other conflicts in the evidence, the jury had sufficient evidence to convict Bracken. We cannot conclude that the verdict is clearly wrong or manifestly unjust, or that the verdict is against the great weight and preponderance of the evidence. See Watson, 204 S.W.3d at 414-15 (setting forth factual sufficiency standard of review). Accordingly, we overrule Bracken's appellate complaints.

Conclusion

The testimony of the complaining witness provided legally and factually sufficient evidence from which a rational jury could conclude beyond a reasonable doubt that Bracken committed the offense of Indecency with a Child by touching the child's genitals. We therefore affirm the judgment of the trial court.

Catherine Stone, Justice

DO NOT PUBLISH

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.