*1 geriatric might provide center more and in- nursing contended home evaluation extensive of Keller’s condition the matter vestigated and found no evi- geriatric may prescribe specialists and that dence to substantiate these claims. regimen. a different any The record does not in contain sense Zipp testified that she was satisfied overwhelming support Zipp’s evidence to regimen Keller’s current and believed her Nevertheless, guardian. removal as we placement appropriate. Zipp current was must in light view evidence most desired have Keller for evaluated hos- decision, to the and if favorable court’s because of pice care decline in marked conflicting is based evi- decision on Keller’s health in the weeks before trial. dence, abuse of no discretion shown. The director of nurses for nursing Keller’s recited, the evidence can- Based on we home testified that had Keller’s health de- say that the court abused its discretion point clined could no where she main- Zipp had failed to conclude longer explained care for herself. She liberally tain Keller “as as the means necessary that it was like patients to house ability or estate and the ward’s ward’s in a Keller secure area for own safe- their permit.” condition Tex. PROb.Code ty- 761(c)(6). § conclu- of this Ann. record conflicting The contains sion, we need not determine whether the regarding Zipp nursing whether and the in by finding court its discretion abused staff adequately home were for providing grounds favor on the other Wuemling’s needs, personal Keller’s whether grooming alleged. removal adequate she had clothing, and whether fourth Accordingly, Zipp’s we overrule living sanitary. her conditions were the judgment. issue and affirm Wuemling testified always that Keller had particular appearance been about her and nicely, nicely, to dress fix hair
liked her According to wear makeup. however,
Wuemling, Keller’s hair was al- home,
ways nursing mess
Zipp had failed to purchase new for her.
clothes Another witness testified Jay CONNELL, Appellant, Preston that there was a in “stench” Keller’s area nursing hy- of the home “her related to giene and different things.” Conversely, of Texas. STATE Zipp other witnesses No. 2-05-468-CR. had her hair once a Keller and nails done and that the in sanitary week conditions Texas, Appeals Court nursing appropriate. Zipp home were Fort Worth. plenty also that Keller stated had clothes. Aug.
Finally, a witness a former testified that employee nursing
male home en- inappropriate
gaged behavior Kel-
ler, trying to bathe her. Law enforcement contacted, employee and the was ter- Zipp disputed testimony
minated. this *3 OPINION1
MEMORANDUM McCOY, BOB Justice.
I. Introduction Jay Preston Appellant A jury convicted Connell of three counts count of indecen- and one by child contact jury The cy exposure. with a of indecen- acquitted on one count sen- cy a child contact. years’ confinement tenced Connell two *4 indecency with a child on each of the community years’ and ten contact counts supervision on issues, eight by exposure count. Con- on four argues nell that the evidence all factually and insuffi- counts is both guilty cient verdict. We part. and part affirm in reverse Background Facts II. I.R., complainant, met the while Connell at the principal and Connell was teacher Academy, private Trinity Baptist Temple scripture-based school. The ac- Bible and quaintance between I.R. Connell years from spanned approximately seven when seven until he was fourteen. I.R. was health, declining I.R.’s Because of father’s Connell, request, at I.R.’s mother’s became frequent- figure” “father I.R. Connell house ly invited I.R. over to his because Wallach, Stouffer, P.C., Andrews & and I.R. year was a older than Connell’s son Henderson, Worth, TX, Richard A. Fort routinely spend night also I.R. would Jay for Preston Connell. residence, two up at times Connell’s Curry, Attorney, Tim Criminal District per also or times week. Connell three Mallín, Dis- Charles M. Assistant Criminal and other chil- periodically removed I.R. Attorney Appellate trict and run Chief of school or errands. dren from to eat Section, Kennedy, A. Danielle Steven I.R. During spent the times when Jumes, D’Avignon, Kim Assistant and house, night at Connell would Connell’s Worth, Attorneys, Fort Criminal District living I.R. sleep in the room either with TX, for the State. I.R. other children who alone or with and night. happened spending
also be DAUPHINOT, HOLMAN, PANEL B: often rub I.R.’s back Connell would McCOY, help him fall Ocea- asleep. bare bottom to JJ. TexR.App. P. 47.4. 1.
sionally, would Connell reach under the himself for ticks after she both and I.R.’s waistband of I.R.’s boxers I.R.’s pull sister discovered ticks on themselves. I.R. boxers tell pull himself, down or I.R. that he could checked but I.R.’s mother was his boxers down. I.R. that on thoroughness. unconvinced his The fol- occasion hand dropped day, Connell’s into I.R.’s lowing I.R.’s told mother “crack” ánd touched I.R.’s anus. The rub- about the incident prompting Connell to bing of his bare bottom made I.R. uncom- if inquire she would like Connell to rubbing always fortable. These incidents examine I.R.’s mother understood occurred under a blanket. I.R.’s While check geni- that the would include I.R.’s mother back-rubbing tals, was aware of the in- and I.R.’s mother consented to the cidents, she was unaware of and did not examination. give permission for rubbing of the bare The second incident occurred when I.R. bottom. I.R. testified that hand Connell’s approached Connell to discuss I.R.’s fear “certainly” touched I.R.’s at least anus oh being produce of not able to semen. Con- one possibly occasion but more than once. nell his pants had -remove after which On one occasion Connell’s hand touched physically I.R.’s checked testicles genitals during after I.R. rolled over *5 or anything for “knots” that would cause one rubbing of the I.R. stated incidents. sperm.” Following “obstructions of the that Connell told him it was an accident. inspection, which no up turned evidence of cross-examination, On initially stated unusual, anything Connell recommended specifically he recalled touch- Connell to I.R. that he see a doctor. I.R.’s mother ing his later anus but testified that he was give permis- was unaware and did not actually
unsure
Connell’s
whether
hand
this
sion for
examination.
I.R. was fifteen
made contact with
Although
his anus.
brought
at
the time this case was
trial.
I.R.’s mother confronted
about
Connell
bottom,
rubbing
prac-
I.R.’s bare
Connell’s
Indecency
a
III.
rubbing
tice of
I.R.’s bare
contin-
bottom
by
Child
Contact
ued.
one, two,
five, six,
four,
In issues
During sleep-overs,
boys
also
would
eight,
challenges
legal
and fac-
Connell
engage
“pantsing
often
in
in which
fights”
sufficiency
support
tual
of the evidence to
pull
pants
the children
one
would
another’s
guilty
his
verdict on the
con-
pulled
down. One of the other children
tact counts.
pants
exposing
Connell’s
down
Connell’s
genitals.
also participated
Connell
A. Standards of Review
pulling
pants,
expos-
down I.R.’s
thereby
ing
genitals.
LR.’s
I.R. testified that Con-
reviewing
legal sufficiency
In
reprimand
nell did not
the children for
conviction,
to support
the evidence
a
we
In
discourage
these acts or
that behavior.
view all the
in
most
statement,
his
acknowledged
to the
in
to deter
favorable
verdict
order
during wrestling
boys it
matches with the
any
trier of fact
mine whether
rational
somebody’s pants
was not
uncommon
have found the essential elements of
could
to slide down.
beyond
the crime
a
doubt.
reasonable
'
307,
occasions,
319,
Virginia,
On two
touched
v.
99
other
Jackson
443 U.S.
2781, 2789,
(1979);
genitals.
The first incident involved S.Ct.
465
the evi
determining
full
to the
whether
gives
play
This standard
factually
insufficient
dence
responsibility of
trier of fact to resolve
supported
is nevertheless
conviction that
testimony,
weigh
conflicts in the
evidence, it
is not
by legally sufficient
evidence, and to draw reasonable infer
subjective
court
enough that this
“harbor
facts.
ences from basic facts to ultimate
doubt to overturn [the]
level of reasonable
319,
Jackson,
467 pattern of similar acts is admissible supports conflict mon faced with record that inferences, if Ranson v. presume tending prove we “must to intent. See ing —even State, 96, (Tex.Crim.App.), affirmatively appear it in the does 707 S.W.2d 97 147, denied, 840,107 fact trier of resolved S.Ct. 93 record —that cert. 479 U.S. (1986). prosecution, Thus, jury conflict could such favor L.Ed.2d 88 to must defer that resolution.” Mat totality conduct infer of Connell’s from (Tex. State, 839, 819 son v. S.W.2d 846 LR.’s anus was done touching that Crim.App.1991). gratify his sexual to arouse and intent desire. requisite specific intent for indecency with a contact can be the evidence in the most Viewing from the conduct and inferred defendant’s verdict, jury’s we find that to the favorable surrounding all circum remarks a rational upon which there was evidence State, v. 871 stances. See Robertson have the essential trier of fact could found 701, (Tex.Crim.App.1993), 705 cert. S.W.2d indecency beyond with a child elements denied, 155, U.S. S.Ct. Therefore, we doubt. over- reasonable Gottlich, State, (1994); v. L.Ed.2d 94 822 rule first issue. Connell’s 734, 741 (Tex.App.-Fort S.W.2d Worth Sufficiency One Factual —Count 'd) 1992, pet. requisite ref (finding intent five, argues that issue gratify arouse and sexual desire when de factually sup- was insufficient placed complain inside fendant his hand for port verdict panties played “pri ant’s with her I.R.’s con- anus. Connell vate”), contact abrogated grounds by on other conclusively tends I.R. never estab- that Arevalo 943 S.W.2d 888-90 contact lished that anal occurred. (Tex.Crim.App.1997). expression An oral required; of intent is not the conduct itself hand “cer- Connell’s testified is sufficient infer intent. C.F. v. “yes, tainly” his and that contacted anus (Tex.App.-El Paso contacted his he believed” Connell’s hand writ). 1995, no anus. further on cross-exam- Here, I.R. testified that Connell touched ination he understood the difference way in a made his bottom him feel complain- A “crack” and anus. between uncomfortable, always slept that Connell testimony sup- ant’s alone is sufficient spend next to I.R. when I.R. would indecency port a conviction massage night, that Connell would I.R.’s Ann. art. child. Tex.Code CRim. PROC. help sleep, him bottom to judge 38.07. The able on “certainly” touched his anus one occa and it was free credibility, demeanor and *8 sion, accidentally that Connell touched jury The to or disbelieve I.R. believe genitals during massag one of these I.R. clearly credible. considered es, I.R. that could that Connell told he in a neutral Considering all the evidence pants massages, off these take his jury was light, say cannot that the not we pull would I.R.’s boxers down for Connell finding rationally justified in Connell massages, and that I.R. touched his these Thus, was not guilty. conviction during genitals “knot” check. Addition unjust.” wrong” “manifestly or “clearly of his ally, rubbing I.R. testified that Watson, 417. at There- See S.W.3d occurred “a lot more than once” bottom fore, fifth issue. overrule Connell’s we mother continued after I.R.’s confront Sufficiency Two Legal of a com ed about it. Evidence Connell —Count issue, In his second Connell ar A. Yes.
gues that the insuffi Q. you, When was rubbing [Connell] cient to the verdict for count two: way did he ever rub down here a second contact your towards the bottom butt? of I.R.’s anus. A. I don’t believe so. Q.
I.R. up testified that Connell’s hand Was it here always your towards “once, back, touched his maybe, anus or up more.” lower like where I am pressed When patting? number of times anus, Connell touched I.R.’s I.R. answered A. always. Not he Sometimes would “maybe more than once.” On cross-exami- rub a little lower. nation, I.R. Connell touched lower, Q. Just a little like about there? his anus “on In response occasion.” A. Yes. specifically whether I.R. recalled Connell Q. Was that as low he [as] about would anus, testified, touching his I.R. “Whenev- go? crack,. er he my rubbed when his hand Every A. go once in awhile he did my crack, went in I yes, believe so.” De- lower, think, little I on accident or asked, fense counsel again you “You said something, he said. doing testified, remembered him it.” I.R. Q. Well, Okay. he reach would under ‘Tes, Contradicting himself, sir.” though, your boxers and waistband of do I.R. testified on cross-examination that he that?
was not sure whether Connell actually A. Sometimes. re-direct, made contact with his anus. On far, Q. ... pulled your How when he again during stated that the massag- doesn’t boxers down—it matter ing “got far pretty down in the it you whether did or because he crack.” I.R. that even added after I.R.’s you asked to or whether he did it. spoke mother about the touch- they How far come down? would ing, Connell continued to rub I.R.’s bot- they Would come down about tom, and I.R. did tell his mother be- here? cause he her get “didn’t want at mad No, A. they Probably lower. were [Connell].” where, you said down like awhile demonstration, Additionally, via a de- ago, leg your where starts. fense counsel to ascertain sought the area permits Texas law courtroom where following Connell touched clarifying demonstrations aimed wit exchange place: took testimony. Lewis v. ness’s Q. going I’m up to stand here so the (Tex.Crim.App.1972). S.W.2d Al I can see what mean. I’m though attorney each failed to ask that the my going up to lift coat so can we of the record reflect the details demonstra be clear what talking about we are foregoing tion excerpts, indicated about, okay? we are that in opinion viewing Yes, A. sir. evidence in most favorable to *9 Q. goes Your lower to about right back verdict, excerpts we must view those there, say? you would Wawry supporting jury’s verdict. See Yes, A. sir. State, 87, (Tex.App. kow v. 90 Q. my right 1993, ref'd); And Rogers butt ends here where Beaumont pet. off;
my legs right? start is that 756 (Tex.App. S.W.2d ref'd). it the you ask is Q. point-blank, I.R. I will pet. [14th Dist.] -Houston questions changed that heat of the he the difference that understood testified story you or is don’t your it because “crack” testi his and anus. I.R.’s between a remember? support mony alone was sufficient by a child indecency conviction much. really I don’t that A. remember See Tex.Code Crim. contact. Proo. Ann. aware testified that she was LR.’s mother art. 38.07. hand incident where only one Connell’s [I.R.’s] went between “slipped and down jury’s to the determination We defer testify that point At no did backside.” credibility and de- and evaluation I.R.’s second hand anus a touched his Connell’s ambi- Resolving conflicts and meanor. all hand time. I.R. testified that Connell’s in the in favor of the guities evidence no “on his anus occasion” but touched was evi- prosecution, we find that there touching resolved whether a second point therefrom dence and reasonable inferences had occurred. a fact could upon which rational trier of of a have found the elements essential credibility mind Bearing in that I.R.’s by indecency second count of jury, weighed by a matter to be was beyond anal contact a doubt. reasonable required to be we feel that inferences Hooper v. 15-16 See S.W.3d by jury regarding a second made Therefore, (Tex.Crim.App.2007). we over- anus, touching although legally of I.R.’s rule Connell’s second issue. sufficient, are so weak nevertheless unjust. jury’s manifestly verdict seems Sufficiency 4. Factual Two —Count Watson, 204 at 415. I.R. never See S.W.3d six, issue argues Connell occurred, touching that a testified second sup- factually evidence insufficient may oc- only touching that a second have the verdict for count of port the second a Had I.R. testified that second curred. indecency with a of I.R.’s child contact occurred, touching equivocation then I.R.’s agree. anus. We solely credibility, on bear I.R.’s would clearly to resolve. question Here, examination, during direct that did not here. The evi- happen But “certainly” testified that touched enough here was weak to undermine dence pressed by his anus one time. When jury’s in the determination. confidence prosecutor as to touched whether Connell time, I.R.’s anus a I.R. testified second reviewing in a neu- After “Maybe really than I’m more once. sup- we hold that the evidence light, tral cross-examination, though.” for sure On count of porting second if Connell I.R. testified he was unsure sufficient, contact, is legally while redirect, prose- his anus. touched On Re- too weak to the conviction. sought explain equivocation: cutor judgment ordering a new versing the is on count two of the indictment Now, trial Q: you when with me testified “necessary to arrest the occurrence hand you massaging, said his during Johnson, injustice.” manifest your did contact anus hole. is sus- at 9. Connell’s sixth issue S.W.3d A: Yes. tained. Q. you with defense When Contact C. Count Five —Genital sure; you counsel are not you said correct? eight, In issues four Yes, that the evidence was argues A. sir. *10 factually insufficient support the verdict sion of intent is not required; the “conduct for count indecency by five: with a child alone is sufficient to infer intent.” See genitals. contact of I.R.’s (Tex. Tyler v. App.-Fort pet.). Worth no Count five centers around an incident where Connell genitals touched LR.’s Viewing the totality of the evidence in “check for knots.” Connell had I.R. re- the most jury’s favorable to the ver- pants move his after which physi- Connell dict, we find that upon there was evidence cally checked LR.’s testicles for “knots” or which a rational trier of have fact could anything that would cause “obstructions of found indecency the essential elements of sperm.” Following the inspection, which by with a child reason- beyond contact a up turned no unusual, evidence of anything able doubt. in a Viewing the evidence Connell recommended to I.R. that he see a light, neutral we find that the evidence doctor. I.R.’s mother was unaware of and also factually support sufficient give permission did not for this examina- jury’s verdict. We overrule Connell’s tion. fourth eighth issues. Investigator
CPS Leah Warren testified that Connell touching admitted LR.’s testi- Indecency IV. Count Four — cles to check for knots because I.R. had by Exposure a Child been worried about not being able to pro- three, In issue that the argues sperm. duce Although at his first meeting support evidence was legally insufficient with CPS Connell having denied ever indecency the verdict for count four: touched I.R.’s genitals, Connell’s later child exposure. argues statement to police indicated he children, I.R. and other rather than Con- touched I.R.’s testicles to “cheek for knots nell, pulled and, pants down Connell’s why or a reason he was not pro- able to such, evidence for there was insufficient sperm by duce age years.” I.R.’s an essential element of the find mother testified that she was unaware of charge. agree. We Connell, this incident gave and never who Applicable A. Law possessed specialized no medical training, permission genitals. to touch I.R.’s Al- Indecency by exposure con though Connell touching admitted (1) sists of following elements: that the testicles his written police, statement to age group child was within protected I.R. was unable to remember whether the (2) accused, and not married to that a examination inspection. included manual (3) present, child was that the accused had repeating
Without
our prior discussions
the intent to
gratify
arouse or
someone’s
case,
(4)
desire,
evidence of this
we conclude
sexual
that the adult
knew
(5)
the evidence
was both
present,
child was
that the ac
factually
sufficient to
jury’s
exposed
cused
genitals.
his anus or
See
Although
21.11(a)(2)(A).
verdict.
Connell denied in
§
his Tex. Penal
Ann.
Code
touching
statement that the
was done with The requisite specific intent to arouse or
desire,
intent to gratify his sexual
req
gratify
person
can be
sexual desire of
specific
uisite
conduct, remarks,
intent for
with inferred from
or all the
contact can be inferred from the
surrounding circumstances. See Robert
son,
defendant’s conduct and remarks and all
expres
471
871,
State,
(Tex.Crim.App.
require
36 S.W.3d
at 472. Nor is there
897 S.W.2d
2001).
deciding, that
Assuming, without
be erect.
penis
ment that a male offender’s
344,
intent ele
required
the
jury
v.
931 S.W.2d
346-
inferred
See Barker
ref'd).
evidence, we
1996,
totality of the
pet.
ment from the
(Tex.App.-Fort
Worth
any
appel
in
an
as: “To de
of
case which
Exposure has been defined
are unaware
concealment;
indecency with a
or un
convicted of
prive of
to disclose
lant was
shameful,
having ex
criminal,
despite not
something
by exposure,
or the
child
mask
exposure
posed
like.”
himself. While Connell’s
See Balfour
ref'd).
765,
1999,
or
reckless con
negligent
of
even
(Tex.App.-Austin
pet.
sounds
duct,
to an intentional
it does not amount
Application
B.
required by
plain
exposure
act of
as
Here, I.R. testified that Connell
of the statute.
reading
games
in
him and
joined
“pantsing”
with
most
the evidence in the
Viewing
boys whereby participants
other
would
verdict,
sup-
it does not
favorable to
pants
up
pull
other’s]
[each
“sneak
element,
finding of an essential
port the
asked how often Connell
down.” When
Having
himself.
exposed
that Connell
testified, “not too
joined
games,
these
I.R.
the evidence
insufficient
found
probably
much” but
more than once. I.R.
indecency
support a verdict
geni
that he witnessed
Connell’s
by exposure,
we sustain Connell’s
boys
point
tals at one
while the
were
Because
our resolution of
third issue.
pantsing each other.
I.R. also testified
reach
issue three we need not
Connell’s
reciprocated
had
the behavior
Connell
fac-
claiming that there was
seventh issue
In his state
causing
exposed.
be
indecency
evidence of
tually insufficient
ment,
wrestling
Connell admitted to
by exposure.
when,
occasion,
boys
on
Connell’s
pants
slip
would
down. Connell also stat
Conclusion
V.
ed,
pants
pants
would
each other’s
“We
conclusion,
we reverse the trial
very
it
happen
down but
didn’t
often.”
in
judgment as to count two
court’s
record is void of
pro-
and remand for further
indictment
exposed
Connell
himself to
count,
ceedings
to that
we reverse the
as
argues
only
judgment
to count four of
trial court’s
the evidence insufficient to
a find
judgment
and render a
the indictment
ing
requisite
of the
intent but that
count2,
affirm
as to that
and we
acquittal
statute,
language
specifically
of the
judg-
of the trial court’s
the remainder
person “exposes
per
that the
clause
ment.
any part
person’s
or
son’s anus
determine
genitals,” required
DAUPHINOT,
concurring
J. filed
exposed
himself. See
Tex.
dissenting opinion.
21.11(a)(2)(A).
§
in
We
Penal
Ann.
Code
DAUPHINOT,
LEE
Justice.
ANN
with the
terpret a statute
accordance
majority
as to
join
opinion
I
meaning
language
unless the While
plain
its
exposure
mean
the offenses
language
ambiguous
plain
or
anus, I must
indecency by contact with the
See Jordan v.
ing leads to absurd results.
16-18,
States,
51.2(d);
98 S.Ct.
437 U.S.
Greene v.
United
Tex.R.App.
43.2(c),
2. P.
19, 24-25,
2150-51,
(1978).
Massey, 437 U.S.
98 S.Ct.
the burden of of element by the United explained best States Su- alleged beyond offense a reasonable many years ago in preme Court Moris- doubt.1 a proof The State’s burden of is sette v. United States. process protection. constitutional due As injury that an can The contention explained, our sister court in Austin has only to a when inflicted amount crime The Due Process Clause of the Four- or tran- provincial intention is no teenth Amendment to the United States sient notion. It is as universal and requires every Constitution state crimi- systems of law as persistent mature n nalconviction to be supported by evi- in freedom of the human will belief dence that a rational trier of fact could ability duty of consequent and a all the accept prove as sufficient ele- individual choose be- normal charged beyond ments of the offense good and evil.... tween doubt.... reasonable this Legislature recognized Our funda- “If, evidence, by enacting sepa- four concept based on all the a rea- mental , This sonably necessarily culpable minded must rate mental states. Court scope recognized of the de- has further that the entertain reasonable doubt guilt, requires culpable mental states is limited process fendant’s due those McQueen v. judgment type that we reverse and order a of offense. State, analysis our acquittal.” The.legal sufficiency of the we stated that according criminal conduct varies question law.2 2003) (Vernon weighing proof necessarily § evidence. 2.01 involves 1. Tex. Penal Code Ann. evidence,' ("All persons presumed preponderance are to be innocent For person may an tips and no be convicted of offense For evidence that the scales is sufficient. proved unless each element of the offense is convincing, it must evidence to be clear and doubt.”). beyond a reasonable 'highly reasonably probable or certain.’ be know, And, highest we burden is all State, Reedy 2. v. 214 S.W.3d 579-80 doubt.”) (footnote beyond omit- a reasonable ref'd) (citations pet. (Tex.App.-Austin ted). omitted), abrogated grounds by Hoo on other per (Tex.Crim.App. v. S.W.3d 9 6.02(a)-(c) (Vernon § 4. Tex. Penal Code Ann. 2007). Supp.2006). 3. Montanez 1994). (Tex.Crim.App. ("Satisfying (Tex.Crim.App.2006) a burden of S.W.2d 485 conduct and from the defendant’s elements” of the offense. We inferred “conduct surrounding all the circum- remarks and stated: stances,”9 inde- majority then treats V.T.C.A., Code, 6.03 ... Penal Sec. by contact as a strict cency with a child delineates three “conduct elements” offense, in all liability suggesting may in an which be involved offense: *13 cases, to conduct itself is sufficient “the (1) (2) conduct; the the nature of the infer intent.”10 (3) conduct; and the result of the the con- surrounding circumstances “intentional- was convicted of Appellant may ... Any duct. offense contain gratify the intent to ai’ouse or ly, with “conduct ele- one or more of these defendant, engaging] desire of said sexual ments” which alone or combination by touching any part in sexual contact form the overall behavior which the I.R.’s mother testi- genitals” Legislature has intended to criminal- Appellant to serve fied that she had asked ize, and it is those essential “conduct she figure Specifically, a father to I.R. as culpable elements” to which a mental I.R. in sex edu- Appellant asked to counsel apply. example, state must For education, she part cation. As of the sex specific are criminalized where acts anticipated Appellant’s discussing mastur- nature, very culpa- of their because I.R. She said bation and intercourse with apply mental state must to com- ble figure treat expected that she a father to mitting the act itself.... On the other own, his in most the child as he would hand, crim- unspecified conduct that is instances. requires inalist because of its result Ap- only evidence of this offense is The as to that Like- culpability result.... Warren, to pellant’s statement Leah wise, where otherwise innocent behav- statement, Ap- In investigator. CPS ior becomes criminal because of the I.R. had a father- pellant said that he and done, it circumstances under which is mother relationship and that son culpable required mental state help through to his Appellant asked circum- surrounding those of I.R.’s own years puberty because stances .... statement, age. father’s advanced The intent gratify to arouse or the sexu- [I.R.j’s said, “I Appellant have [checked] a person al desire of is an essential ele- to check for knots or reason [a] testicles ment of the offense of with a sperm by why produce he was not able to states, by majority contact.7 The him age years, of 14 because it worried “Here, I.R. testified to all the elements of could and he could not.” that his friends does charged offense.”8 The record abnormality, Appellant no When he found Indeed, this statement. if I.R. contact a doctor he suggested that majority then concedes that the intent explanation This was still concerned. gratify only could inferred. arouse and be mens rea was uncontradicted. Appellant’s correctly Although majority points out on direct ex- complainant in- requisite specific intent for “[t]he decency a child contact can be amination: (citations omitted). Majority op. 8. at 466. 6. Id. at 487 at 467. 9. Id. 21.11(a)(1) (Vernon § 7. Tex Penal Code Ann. 2003). Id. him
Q: you particularly gone voicing regarding worried his concern Were you produce ability produce sperm. about could [whether his sperm] you when were a child? Although majority correctly states Yes, sir, I A: was. requisite specific intent for in- “[t]he Q: you What made worried about that? decency contact can be inferred from the defendant’s conduct and maybe A: I was afraid I wouldn’t be surrounding remarks all the circum- produce able to I older or get when stances,” only Appellant’s expla- we have something. conduct, remarks, nation of the and cir- Q: you go [Appellant] Did ever wor- Additionally, cumstances. other than the ried about that? concerned fact I.R. was about his IA: remember when he talked to me ability produce sperm Appellant *14 and something[.] my about I went to mom abnormalities, checking was we do not httle[,] I I when was and talked to her know when or or under what cir- where it[,] got about and then she mad at me. touching happened, except this cumstances I can’t remember. I’m not She said Appellant suggests that that I.R. was four- supposed that kind of stuff to ask her no years teen old. There is evidence that girl. because she is a County in Tarrant the event occurred or Q: Mom didn’t want to hear about that, in did state Appellant even Texas. that? abnormality, when he found no he told A: Yeah. if a doctor he was still Appellant see Q: you go [Appellant] Did then? concerned. I I go A: believe did to him. evidence, Additionally, no corroborates you At Q: any point [Ap- when went to extrajudicial confession. As Appellant’s pellant], inspect you did he to make sure Appeals Texas has Court Criminal everything okay? explained, inspecting I him A: don’t remember [Every compo- three crime] reveals me. first, parts, nent the occurrence (as in specific injury kind of or loss in the evidence This is not a case which deceased; homicide, in person ar- touching rubbing pen- or shows or son, burnt; larceny, prop- a house in only as etration that could be described erty missing); secondly, somebody’s sexually stimulating in nature. I.R. did (in contrast, to acci- criminality e.g., touching happened not recall dent) loss, as the source of in an —these Appellant all. said out-of-court involving the commission together two been to touching statement had by somebody; thirdly, and of a crime required if medical care was determine doer of identity the accused’s as the con- only because I.R. had voiced his this crime. had asked cern and because the mother in- jurisdictions, through puberty. In most American Appellant help Texas, corpus delicti rule cluding the touch- Although I.R. did not remember of the first requires some corroboration ing, he and his mother both substantiated injury or loss and Appellant’s explanation that he had been two elements—an it does not help through puberty agent -although and to criminal asked — require any independent evidence matters and that I.R. had also discuss sexual Majority op. at 467. criminal cul- that the defendant was the Individually Douglas BEATTY, G. to ensure that a
prit. purpose Its Independent Executor of the Estate person is not convicted of a crime that Deceased, Kathryn Holmes, Ap V. occurred, solely upon never based pellant person’s extra-judicial confession. however, intended,
rule was not to en- sure that all confessions are corroborat- in specific ed details or to ensure that Individually Harry HOLMES, II, and as suspect falsely does not confess to a Independent Executor of the Estate Deceased, crime that did occur but for which he Holmes, Sr., Thomas J. Thus, culpability. had no it satisfies the Any Named as as Trustee of Trust corpus delicti rule if some evidence ex- Legatee in the Will of Thomas J. extra-judicial ists outside of the confes- Sr., Deceased, Holmes, Appellee. which, sion considered alone or con- No. 14-03-00663-CV. confession, nection with the shows actually the crime occurred.12 Texas, Appeals Court of (14th Dist.). Houston independent The absence of evidence cor- *15 roborating Appellant’s extrajudicial confes- 14, Aug. 2007. yet holding sion is another basis for legally insufficient.13 Because I believe that the evidence is insuffi- support Appellant’s
cient to conviction
indecency by complain- contact with the genitals,
ant’s I would Appellant’s reverse
conviction and remand the case to the trial
court acquit Appellant with instructions to majority
of that offense. Because the does
not, respectfully I dissent. (reversing statutory rape 86 S.W.3d 644-45 conviction when Salazar
12. (footnote omitted). (Tex.Crim.App.2002) only fourteen-year-old evidence that had sexu- extrajudicial al intercourse was father’s con- 643; id. at see also Smith v. fession). (1962) Tex.Crim.