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Garcia v. State4/23/2004
in his anus "really hard." L.C. stated, in the terminology of a nine year old, that appellant penetrated his anus with his penis and that it caused him pain. It was not necessary for L.C. to see appellant's penis to know that appellant put his penis, rather than something else, in L.C.'s anus. Further, it was a logical inference from L.C.'s description of the assault that appellant did, indeed, put his penis in L.C.'s anus. We hold that the evidence is legally sufficient to sustain the conviction for aggravated sexual assault of a child and overrule issue two.
L.C. also testified that when he was sitting on the couch watching T.V., appellant placed a pillow over L.C.'s shorts and put his hand down L.C.'s underwear. Appellant grabbed L.C.'s "private part," pushed it up, and tried to make it big.
Appellant argues that there is no evidence that appellant touched L.C.'s penis with the intent to arouse or gratify his own sexual desire. However, we can infer from L.C.'s testimony that when appellant grabbed L.C.'s penis, pushed up on it, and tried to make it hard, that appellant was doing so for his own sexual gratification. See McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. 1981) (the requisite specific intent to arouse or gratify the sexual desire of a person can be inferred from conduct, remarks and all the surrounding circumstances); Billy v. State, 77 S.W.3d 427, 429 (Tex. App.-Dallas 2002, pet. ref'd) (child victim's testimony that defendant put his hand on her panties, that his hand was on her "private," and that he was moving it around, was sufficient to infer that defendant intended to arouse or gratify his sexual desire). We hold that the evidence is legally sufficient to sustain the conviction for indecency with a child by contact and overrule issue four.
Factual Sufficiency
In reviewing the factual sufficiency of the evidence, we are to view all of the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). We must determine whether a neutral review of all the evidence, both supporting and against the finding, demonstrates that the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, No. 539-02, 2004 Tex. Crim. App. LEXIS 668, at * 20 (Tex. Crim. App. April 21, 2004). Evidence is factually insufficient when evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt. Id. Evidence is also insufficient when contrary evidence is so strong that the beyond-a-reasonable doubt standard could not have been met. Id. The fact finder is entitled to judge the credibility of the witnesses and may choose to believe all, some or none of the testimony presented. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1999). Officer Christina Moore testified that she went to the apartment complex where L.C. lived with his mother in response to a call concerning sexual abuse. She first spoke to L.C.'s father, who was very angry with appellant. She then approached L.C., who was sitting on the trunk of a car. He immediately started talking and told her what had happened. Moore attempted to get L.C. to stop talking until a detective arrived, but he was insistent. Moore did not ask any questions. L.C.'s father encouraged L.C. to tell the truth and Moore asked L.C. if he knew what telling the truth meant. L.C. told her that a week earlier, appellant had stuck his private part in his butt while they were in the bathroom. Appellant walked in, turned on the shower, and had L.C. lay on the floor. Appellant put his private part into his butt, which caused him pain. Afte
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