Edwin Kenner Lyon, Jr. v. The State of Texas--Appeal from 40th District Court of Ellis County

IN THE

TENTH COURT OF APPEALS

No. 10-07-00251-CR

Edwin Kenner Lyon, Jr.,

Appellant

v.

The State of Texas,

Appellee

From the 40th District Court

Ellis County, Texas

Trial Court No. 31647CR

MEMORANDUM Opinion

Edwin Kenner Lyon was convicted of indecency with a child, a second degree felony. He was sentenced to 20 years in prison. Because the evidence is both legally and factually sufficient to support the conviction, the trial court s judgment is affirmed.

J.L., Lyon s five-year-old granddaughter, told her foster mother during a conversation about stranger danger that she had been touched inappropriately. She pointed to her vaginal area when telling her foster mother about the touching. After the allegation was reported to the authorities, J.L. was interviewed by Teresa Evans at the Gingerbread House, Ellis County s Child Advocacy Center. J.L. told Evans that her real dad s dad touched her private, which she indicated on a drawing was her genitals, under her clothes. J.L. also told Evans that it happened at Lyon s house in Waxahachie in his bedroom while they watched television. She said he touched her with a rubbing motion on her skin. At trial, although she was unable to provide details about the event or the name of the person who touched her, J.L. identified Lyon as the person who touched her, said that it happened more than once, and said that no one other than Lyon had touched her.

In a counseling session with Caroline Von Helms, and while talking about a stuffed animal given to J.L., J.L. told Helms about the interview she had gone to. J.L. drew a doll on a white board and started coloring in different parts of the doll, primarily the genitals. When asked what she was doing, J.L. responded that those were the areas where her papa touched her. When Helms stated that she did not know who her papa was, J.L. explained that he was her father s father. When asked whether he touched her above or below her clothes, she said below. Helms further testified that it was not unusual for children J.L. s age to have a hard time remembering the specifics of what happened because their memory has not developed fully and, specifically with J.L., because she was no longer in the abusive environment and had moved beyond it. Helms also stated that it was not uncommon to have no medical evidence of inappropriate touching.

In two issues, Lyon argues that the evidence was legally and factually insufficient to support his conviction because there was no medical evidence of abuse, and because J.L. could not tell the jury the name of the person who touched her, could not provide details about the incident, and could not recall when or where the incident happened. He also argues that because the touching described was consistent with applying medication to the genital area, a theory that was only mentioned in argument to the jury, the evidence was legally and factually insufficient to prove intent to arouse and gratify his sexual desire. See Tex. Penal Code Ann. 21.11(a), (c) (Vernon 2003).

A conviction for indecency with a child is supportable on the uncorroborated testimony of the victim of the sexual offense. See Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon 2005). The requisite specific intent of the offense can be inferred from the defendant's conduct and remarks and all the surrounding circumstances. McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. [Panel Op.] 1981). Additionally, the lack of physical or medical evidence does not necessarily render the evidence insufficient to support a conviction. See Murphy v. State, 4 S.W.3d 926, 930 (Tex. App. Waco 1999, pet. ref'd). And further, there is no evidence in this record that Lyon was in the process of applying medication to J.L. when the incident occurred or that Lyon was a caregiver that would be responsible for such activity.

Viewing the evidence under the appropriate standards of review, we find the evidence legally and factually sufficient to support the conviction. See Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979); Castillo v. State, 221 S.W.3d 689, 693 (Tex. Crim. App. 2007); Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). Lyon s issues are overruled.

The trial court s judgment is affirmed.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed May 21, 2008

Do not publish

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