11th Court of Appeals

Eastland, Texas

Opinion

Phillip Eugene Bishop

            Appellant

Vs.                  No. 11-03-00188-CR -- Appeal from Eastland County

State of Texas

            Appellee

            A jury convicted Phillip Eugene Bishop of indecency with a child. Upon appellant’s plea of true to both enhancement allegations, the jury assessed punishment at 99 years imprisonment.

            TEX. PENAL CODE ANN. § 21.11(a)(1) (Vernon 2003) provides that a person commits the offense of indecency with a child by engaging in sexual contact with a child. TEX. PENAL CODE ANN. § 21.11(c)(1) (Vernon 2003) defines “sexual contact” as including any touching by a person of any part of the genitals of a child with the intent to arouse or gratify the sexual desire of any person.

Issues on Appeal

            In appellant’s first two issues on appeal, he contends that the evidence was legally and factually insufficient to prove that he intended to arouse or gratify a sexual desire. In appellant’s third issue on appeal, he contends that the trial court erred in denying his motion for directed verdict in which he argued that there was insufficient evidence to prove his intent. Appellant’s challenge to the denial of his motion for directed verdict is the same as his challenge to the legal sufficiency of the evidence to show intent. See Dunn v. State, 951 S.W.2d 478, 480 (Tex.Cr.App. 1997); Gonzales v. State, 4 S.W.3d 406, 412 (Tex.App. - Waco 1999, no pet’n). We will discuss the three issues as one. Because we find that the evidence was legally and factually sufficient to support appellant’s conviction, we affirm.

Standard of Review

            In reviewing claims of legal insufficiency, we review all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App. 2000). In reviewing whether evidence was factually sufficient, we review all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak as to render the conviction clearly wrong and manifestly unjust or whether the evidence supporting guilt, although adequate when taken alone, is so greatly outweighed by the overwhelming weight of contrary evidence as to render the conviction clearly wrong and manifestly unjust. Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Cr.App. 2002); Goodman v. State, 66 S.W.3d 283 (Tex.Cr.App. 2001); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App. 1997). The jury is the sole judge of the weight and credibility of the witnesses’ testimony, and due deference must be given to the jury’s determination. TEX. CODE CRIM. PRO. ANN. arts. 36.13 & 38.04 (Vernon 1979 & 1981); Johnson v. State, 23 S.W.3d 1 (Tex.Cr.App. 2000).

Testimony

            The nine-year-old victim testified that she and appellant’s grandson would play together when she visited appellant’s house. The victim was a frequent visitor to appellant’s house; and, during these visits, appellant and the victim became friends. During one visit, the victim crawled into appellant’s lap to “warm up.” While the victim was in appellant’s lap, appellant touched the victim’s vagina for thirty seconds to one minute with his hand. The victim testified that appellant touched her private area in two places under her underwear. During cross-examination, she emphatically stated that she did not think that the touching was an accident.

            The victim immediately reported the incident to appellant’s grandson and then to her mother. Her mother took the victim to see Dr. Joann Paulk. The victim described to Dr. Paulk how appellant had touched her private area and said that it hurt. Dr. Paulk expressed her medical opinion that the victim had been sexually molested.

            Appellant, in a written statement to Texas Ranger David Hullum, said that in May or June of 2002, while playing with the victim, he slipped his hand under her shorts and “touched her bare vagina with one finger.” Appellant said that he jerked his hand away because he thought: “[W]hat am I doing? I shouldn’t be doing this.” Appellant stated further that “I wish I could turn back the clock and stop it.” Ranger Hullum stated that he has been a peace officer for 25 years, that he had over 3,000 hours of training, and that he had developed expertise in the investigation of sex crimes and violent crimes. Ranger Hullum testified that, in his opinion, appellant’s statements expressed an intent that appellant intended to arouse or gratify his sexual desire.

Analysis

             In determining whether appellant acted with intent, the actor’s intent may be inferred from the conduct and remarks of the actor and the surrounding circumstances. Cunningham v. State, 726 S.W.2d 151 (Tex.Cr.App. 1987). The victim testified that appellant’s hand touched her vagina for thirty seconds to one minute and that it was not an accident. Appellant, in his written statement, showed remorse for his actions and confessed to touching the victim’s “bare vagina.” Ranger Hullum testified that, in his opinion, appellant intended to arouse or gratify his sexual desire when he touched the victim. Dr. Paulk opined that the victim had been sexually molested. Based on the testimony, the jury could have inferred that appellant had the requisite intent. See Cunningham v. State, supra.

            The evidence was legally sufficient because a rational trier of fact could have found that appellant intended to arouse or gratify his sexual desire. The evidence, taken in a neutral light, was factually sufficient because the evidence was neither so weak nor so outweighed by contrary evidence as to render the conviction clearly wrong and manifestly unjust.

This Court’s Ruling

            The judgment of the trial court is affirmed.

                                                                                                TERRY McCALL

                                                                                                JUSTICE

June 24, 2004

Do not publish. See TEX.R.APP.P. 47.2(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.