Victor Torrez v. The State of Texas--Appeal from 195th District Court of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-94-145-CR

VICTOR TORREZ,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 195th District Court

Dallas County, Texas

Trial Court # F92-05030-N

O P I N I O N

Appellant Torrez appeals from his conviction for indecency with a child, for which he was sentenced to ten years, probated.

Appellant was indicted for indecency with a child, specifically that he "did unlawfully, knowingly and intentionally engage in sexual contact with Christine Amanda Torrez, complainant and a child younger than seventeen years of age and not the spouse of defendant, by contact between the hand of defendant and the genitals of complainant with the intent to arouse and gratify the sexual desire of" Appellant.

Appellant pled not guilty. The jury found Appellant guilty and he elected to have the judge assess punishment. He was sentenced by the judge to ten years, probated.

Appellant appeals on one point of error: "The evidence is insufficient as a matter of law to prove the necessary element that Appellant's actions were intended to `arouse and gratify the sexual desires of the appellant.'"

Specifically, Appellant argues that there is no evidence as to whether Appellant committed the alleged acts, if he did, with the intent to arouse or gratify his sexual desire, as opposed to the possibility that his intent was to arouse the sexual desire in the complaining witness.

Where there is a claim of insufficient evidence to support a verdict in a criminal case, the reviewing court should determine whether, after viewing the evidence in the light most favorable to the prosecution, 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, S.Ct. 1979); Turner v. State, 805 S.W.2d 423, 427 (Tex. Crim. App. 1991).

The requisite intent to arouse or gratify the sexual desire of any person can be inferred from the appellant's conduct, his remarks, and all surrounding circumstances. McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. 1984); Branson v. State, 825 S.W.2d 162, 168 (Tex. App. Dallas 1992); Bowles v. State, 550 S.W.2d 84, 85-86 (Tex. Crim. App. 1977; Turner v. State, 600 S.W.2d 927, 729 (Tex. Crim. App. 1980).

Complainant testified that in the summer of 1992 while she was seven years old, she went to her father's house for a weekend visit. [Her parents were divorced and the mother had custody]. She testified that her grandfather, the appellant, who lived next door to her father, sat down beside her and had her sit on his lap; that while sitting on his lap, he rubbed her private parts, on top of her clothing, in the area between her legs where you go "pee"; and that he did this as many as six times.

Several weeks later, prior to another scheduled visit to her father's house, she told her mother she did not wish to go to her father's house and, upon close questioning, revealed to her mother that Appellant had touched her on her private parts. Her mother made an outcry which resulted in a police investigation and the indictment of Appellant.

Appellant testified that he was fifty-seven years; that he was born in Mexico but had been in the United States since 1946; that he has been married to his wife for forty years and is the father of fifteen children; that he is disabled as a the result of an accident where he formerly worked; that he had four years of pain because of back surgery; and that he is the pastor of a Pentecostal church. He also testified that the complainant was mad at him for asking her to clean up some ice cream she had thrown on the floor; and that he had problems with complainant's mother because she was always asking his son for money. He further testified that he was not guilty; that it did not happen; that he did not pick up complainant and have her sit on his lap; and that what he was accused of, he would not do to anyone. Appellant's wife also testified she had problems with complainant's mother because she was trying to get money from Appellant's son above his child support, which he paid.

In this record there is no evidence to support Appellant's suggestion that his actions may have been undertaken to arouse the sexual desire on the part of the seven-year-old victim. The complainant testified that Appellant initiated the contact between his hand and her genitals and did so as many as six times. This indicates arousal and gratification on the part of Appellant. The child did not realize Appellant was going to touch her private parts and she did not like it when he did. The initiation of the contact between Appellant and the victim, and the length of that contact, taken together, are sufficient to establish the intent to arouse and gratify Appellant. The victim was anxious to forego the once enjoyable visits with her father because she was "scared [Appellant] was going to do it again." The victim remained afraid of Appellant.

After viewing all of the evidence in the light most favorable to the verdict, we hold that a rational trier of fact could have found beyond a reasonable doubt the essential elements of the indictment.

Appellant's point is overruled and the judgment of the trial court is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Justice Cummings,

Justice Vance, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed April 12, 1995

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