Bryant Levine v. State
02-15-00411-CR
| Tex. App. | Apr 20, 2017Background
- Bryant Levine (stepfather) was convicted by a jury of two counts of indecency with a child by contact for touching his 16-year-old stepdaughter Rachel on two occasions (Nov. 1 and Nov. 18, 2013); concurrent six-year sentences were imposed.
- Rachel testified Levine touched her genitals over clothing, attempted to show her nude photos (including of his penis), propositioned her (offered money to watch him masturbate), and sent sexually explicit texts.
- Mother discovered the texts on Rachel’s phone, confronted Levine, who initially denied then apologized and cried after Rachel mentioned the masturbation proposition; Mother reported the matter to police and provided a used phone Levine had given to his son.
- Forensics recovered texts and photos from Levine’s phone, including photos of female genitalia and two penis photos (State’s Exhibits 16–17). Levine admitted disciplining Rachel by ‘‘popping’’ her vagina but asserted the touching was to discipline her for possessing marijuana and denied sexual intent.
- On appeal Levine argued (1) the evidence was insufficient to prove the requisite intent to arouse or gratify sexual desire; and (2) the trial court abused its discretion by admitting the penis photographs as irrelevant (no Rule 403 argument preserved).
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Levine) | Held |
|---|---|---|---|
| Sufficiency of evidence to prove sexual intent for indecency by contact | Evidence (Rachel’s detailed testimony, explicit texts, grooming, propositions, attempt to show nude photos, and Levine’s partial admissions) permits inference of intent to arouse or gratify. | Levine contends touching was disciplinary (no sexual intent); texts/photos do not prove intent. | Affirmed. Court held a rational juror could infer sexual intent from the touchings, texts, grooming, and photo evidence. |
| Admissibility of penis photographs (State’s Exhibits 16–17) | Photographs corroborate Rachel’s testimony that Levine tried to show penis photos and are relevant to proving sexual intent. | Levine argued the photos were irrelevant to the charged offenses and did not identify whose penis or who took them. | Affirmed. Court found the photos relevant as corroboration and probative on intent; no preserved Rule 403 or authentication complaint on appeal. |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (establishes constitutional standard for sufficiency review)
- Jenkins v. State, 493 S.W.3d 583 (Tex. Crim. App.) (application of Jackson standard in Texas sufficiency review)
- McKenzie v. State, 617 S.W.2d 211 (Tex. Crim. App.) (intent to arouse or gratify may be inferred from conduct and surrounding circumstances)
- Gallo v. State, 239 S.W.3d 757 (Tex. Crim. App.) (photographs admissible when verbal testimony about the same matter is admissible)
- Isassi v. State, 330 S.W.3d 633 (Tex. Crim. App.) (deference to jury on credibility and reasonable inferences in sufficiency review)