Wilbur Ronald Lee v. The State of Texas--Appeal from 3rd District Court of Anderson County

NO. 12-03-00173-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

  WILBUR RONALD LEE,   ' APPEAL FROM THE THIRD

APPELLANT

  V.   ' JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

  APPELLEE   ' ANDERSON COUNTY, TEXAS

MEMORANDUM OPINION

Wilbur Ronald Lee (AAppellant@) appeals two convictions for indecency with a child. In his sole issue on appeal, Appellant asserts that the evidence is not legally sufficient to support his convictions. We affirm.

Background

Appellant was charged by indictment with two counts of indecency with a child.[1] Appellant pleaded not guilty and elected a trial by jury. At trial, the alleged victim, C.P., testified that, on April 5, 2000, she was sixteen years old and at the Dairy Queen with her nine-year-old cousin. When Appellant entered the Dairy Queen, C.P. recognized him. Appellant approached C.P., hugged her, and kissed her on the cheek. Appellant told C.P.=s cousin that he was her Adaddy.@ According to C.P., Appellant sat down beside her, and began touching her breast and between her legs. The jury found Appellant guilty of two counts of indecency with a child and assessed punishment at ten years of imprisonment for count one, and two years of imprisonment for count two. [2] Following a recommendation by the jury, the trial court suspended imposition of Appellant=s sentence on count one and placed him on probation for ten years.

Legal Sufficiency

In his sole issue, Appellant argues that the evidence is legally insufficient to support two convictions for indecency with a child. More specifically, Appellant contends that there was no evidence to prove that Appellant was not the spouse of C.P. The State disagrees, and argues that there is sufficient circumstantial evidence to establish that C.P. was not Appellant=s spouse.

Standard of Review

ALegal sufficiency is the constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal conviction.@ Escobedo v. State, 6 S.W.3d 1, 6 (Tex. App.BSan Antonio 1999, no pet.) (citing Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-88, 61 L. Ed. 2d 560 (1979)). The standard of review is whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; LaCour v. State, 8 S.W.3d 670, 671 (Tex. Crim. App. 2000). The evidence is viewed in the light most favorable to the verdict. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; LaCour, 8 S.W.3d at 671. The conviction will be sustained Aunless it is found to be irrational or unsupported by more than a >mere modicum= of the evidence.@ Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). Circumstantial evidence may be used to prove an element of an offense. Meyers v. State, 737 S.W.2d 6, 8 (Tex. App.BCorpus Christi 1987, no pet.) (citing Wilson v. State, 654 S.W.2d 465, 467 (Tex. Crim. App. 1983)). A circumstantial evidence case has no different standard of review than those cases supported by direct evidence. Alex v. State, 930 S.W.2d 787, 789 (Tex. App.BTyler 1996, no pet.) (citing Geesa v. State, 820 S.W.2d 154, 158 (Tex. Crim. App. 1991)). It is not necessary, however, that every fact point directly and independently to the guilt of the accused. Beardsley v. State, 738 S.W.2d 681, 685 (Tex. Crim. App. 1987). Further, the cumulative force of all the incriminating circumstances may be sufficient to warrant a conclusion of guilt. Id.; Alex, 930 S.W.2d at 789.

The jury is the sole judge of the credibility of witnesses and of the weight to be given their testimony. Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994). Any reconciliation of conflicts and contradictions in the evidence is entirely within the jury=s domain. Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986). If a reviewing court finds the evidence legally insufficient to support a conviction, the result is an acquittal. Tibbs v. Florida, 457 U.S. 31, 41-42, 102 S. Ct. 2211, 2217-18, 72 L. Ed. 2d 652 (1982). In a criminal conviction, sufficiency of the evidence is determined by the elements of the crime as defined by the hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The correct charge Awould be one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State=s burden of proof or unnecessarily restrict the State=s theories of liability, and adequately describes the particular offense for which the defendant was tried.@ Id.

Elements of the Offense

A person commits the offense of indecency with a child if, with a child younger than seventeen years and not the person=s spouse, whether the child is of the same or opposite sex, the person engages in sexual contact with the child.[3] Tex. Pen. Code Ann. ' 21.11(a)(1) (Vernon 2003). ASexual contact@ means any touching by a person 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.[4] Tex. Pen. Code Ann. ' 21.11(c)(1) (Vernon 2003).

Analysis

The evidence shows that, in C.P.=s statement, she referred to the man who touched her as ARoland Ross.@ At trial, C.P. testified that she knew Appellant through his daughter, Christian Ross (ARoss@), a friend of hers. C.P. testified that she Anever really called@ Appellant Aa name,@ but Ajust talked to him.@ She went to Appellant=s and Ross=s house Ajust about@ every day and, on occasion, spent the night at their house. At trial, Tabitha Inge (AInge@) testified that she was C.P.=s guardian at the time of the occurrence. According to Inge, C.P. identified the person who touched her as a man with a gold tooth whom Athey call . . . Ronnie or something like that.@

At trial, Officer Jack Hallock, III (AHallock@), a patrolman with the Palestine Police Department, testified that, on April 5, 2000, he was dispatched to Inge=s residence. According to Hallock, C.P. referred to the man who touched her as a person she knew as ARoland.@ Later that same day, Hallock questioned Appellant. Appellant declared that his daughter, Ross, knew C.P. At first, Appellant denied seeing C.P. on that date. However, after affirming that he had been to the Dairy Queen that day, he acknowledged seeing C.P. there. Although Appellant initially denied touching C.P. in any way, he admitted giving C.P. a hug Abecause she considers him as a father.@ At trial, Appellant stated that he did not know C.P.=s name because his daughter addressed C.P. by a nickname. Appellant did not know who the officer was referring to and that was why he first denied seeing C.P. When his daughter pointed out that C.P. was the girl who came to their house, he admitted seeing C.P. at the Dairy Queen.

Before this incident, Appellant testified that his daughter, Ross, and C.P. were good friends, and that C.P. was at his house almost every day. However, Appellant denied a Aclose relationship@ with C.P. On the weekends, Appellant testified that he would stay overnight at his girlfriend=s house. At the time of the occurrence, Appellant=s girlfriend was Dawn Adair (AAdair@). In fact, he testified that they are still in a relationship and have lived together for eight years. Patricia Adair (APatricia@), Adair=s sixteen-year-old daughter, testified that Appellant has been her mother=s boyfriend for approximately eight years, and that, beginning when she was in third grade, Patricia and her mother had lived with Appellant.

Appellant remembered telling one of the officers that he considered C.P. a daughter. At the Dairy Queen, he testified that, when he walked in, C.P. Ahollered@ and said, APop, come here.@ C.P.=s cousin asked her if Appellant was her father. Appellant testified that the Akids call me pop.@ Further, Appellant explained that he did not think the trial was silly because, he stated, AI got kids. I got girls.@ Officer Brian Taylor Wharton (AWharton@), chief of detectives of the Palestine Police Department, interviewed and took a statement from Appellant. In the statement, Appellant referred to C.P. as Aa girl that I knew.@ During his testimony, Appellant referred to C.P. as Athat girl.@

A review of the evidence in the light most favorable to the verdict reveals that Appellant denied seeing C.P. until his daughter reminded him who she was, admitted that he did not know C.P.=s proper name, denied having a close relationship with C.P., and referred to C.P. as Athat girl@ or a girl he knew. Further, Appellant considered C.P. as a daughter, informed C.P.=s cousin that he was her father, acknowledged that C.P. and other children called him Apop,@ and realized the seriousness of the trial because he had daughters. Moreover, C.P. was unsure of Appellant=s name, testified that she never addressed Appellant by his name, and admitted that her only knowledge of Appellant was through Ross. All of this evidence supports an inference that C.P. was not Appellant=s spouse, and that any relationship they had was more like a father-daughter relationship. See Meyers, 737 S.W.2d at 8. Appellant and Patricia both admitted that Appellant and Adair had been in a relationship for approximately eight years and had lived together during that time. C.P. asserted that she only spent the night at Appellant=s house on occasion. This evidence shows that Appellant was involved in another relationship at the time of the occurrence and that C.P. did not regularly sleep at Appellant=s house. See id. Finally, at the time of the occurrence, Inge testified that she was C.P.=s guardian. If C.P. were Appellant=s spouse, Inge=s guardianship would have terminated. See Tex. Fam. Code Ann. ' 1.104 (Vernon 1998) (declaring that a married person, regardless of age, has the capacity and power of an adult); Thompson v. Crim, 132 Tex. 586, 590, 126 S.W.2d 18, 20 (1939) (clarifying that a guardianship is terminated by marriage). Evidence of a guardianship also supports an inference that C.P. was not Appellant=s spouse at the time of the occurrence.

Based on our review of the record and viewing the evidence in the light most favorable to the jury=s verdict, we conclude that there is sufficient circumstantial evidence to prove that C.P. was not Appellant=s spouse on April 5, 2000. Therefore, a rational trier of fact could have found the elements of indecency with a child beyond a reasonable doubt. Accordingly, Appellant=s sole issue is overruled.

Conclusion

Based upon our review of the record, we hold that the evidence is legally sufficient to support the jury=s verdict. Accordingly, the judgment of the trial court is affirmed.

SAM GRIFFITH

Justice

Opinion delivered April 30, 2004.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(DO NOT PUBLISH)

[1] Tex. Pen. Code Ann. ' 21.11(a)(1) (Vernon 2003).

[2] An offense under section 21.11(a)(1) is a second-degree felony. Tex. Pen. Code Ann. ' 21.11(d). Punishment of a second-degree felony is imprisonment for not more than twenty years or less than two years and, in addition, a fine not to exceed $10,000. Tex. Pen. Code Ann. ' 12.33 (Vernon 2003).

[3] In 2001, the legislature amended this section deleting the words Ahe@ and Ahis@ and substituting Athe person.@ Tex. Pen. Code Ann. ' 21.11(a) historical note (Vernon 2003) [Act of June 13, 2001, 77th Leg., R.S., ch. 739, ' 2, sec. 21.11(a), 2001 Tex. Gen. Laws 1463-64].

[4] In 2001, the legislature added this subsection. Tex. Pen. Code Ann. ' 21.11(c) historical note (Vernon 2003) [Act of June 13, 2001, 77th Leg., R.S., ch. 739, ' 2, sec. 21.11(c), 2001 Tex. Gen. Laws 1463-64]. However, the definition of Asexual contact@ in section 21.01(2) is basically the same as in section 21.11(c)(1). Compare Tex. Pen. Code Ann. ' 21.01(2) (Vernon 2003) with Tex. Pen. Code Ann. ' 21.11(c)(1).