Luciano Lopez v. State

Opinion issued February 16, 2012.

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-10-01103-CR

———————————

Luciano Lopez , Appellant

V.

The State of

Texas , Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Case No. 1255362

MEMORANDUM OPINION

Following a bench trial, Luciano

Lopez was convicted of the felony offense of indecency with a child. [1]

The trial court assessed appellant’s punishment at seven years’ confinement. In

a single issue on appeal, appellant contends the evidence is insufficient to

support his conviction. We affirm.

Background

Appellant has four children: three

daughters and one son. In February 2010, appellant, along with his son, age

five, and daughter A.L., age six, lived in a two-bedroom apartment with appellant’s

friend, Teresa Rodriguez, and her children. Appellant and his children shared one

bedroom furnished with a single bed. Rodriguez stored her children’s clothing

and a box of hangars in a closet in appellant’s bedroom. Two or three times per

month, she entered the bedroom to retrieve clothing or hangars while appellant

and his children slept. At night, the bedroom door was shut but not locked.

On the night of February 28, 2010, Rodriguez entered appellant’s

bedroom to store hangars. Because the bedroom was dark, Rodriguez turned on the

light. She startled appellant, and she saw him “jump” from under the sheet on the

side of the bed where A.L. was lying. Appellant was fully clothed, but

Rodriguez noticed A.L. “had her pajamas lowered, almost down to her vagina, and

she was very agitated.” Appellant turned off the light and walked out of the

bedroom.

Suspicious about what she had seen, Rodriguez

invited A.L. to go for ice cream in the following days. While the two were out,

A.L. told Rodriguez that appellant had touched her “pee-pee” more than once. A.L.

elaborated, “I cross my legs so he won’t touch me. And sometimes I’ll turn

around and give my back to him while I’m upset. Sometimes he’ll stop and then

sometimes he won’t.” Rodriguez observed that A.L. was embarrassed and upset. Rodriguez

did not confront appellant; instead, she reported the incident to A.L.’s

school. School officials contacted police.

A grand jury indicted appellant for indecency

with a child by contact. See Tex. Penal Code Ann . § 21.11(a)(1)

(West 2011). The indictment alleged that appellant unlawfully engaged in sexual

contact with A.L., the complainant, a child under the age of seventeen years,

by touching her genitals with the intent to arouse and gratify his sexual

desire. Appellant waived his right to a jury trial, and the case proceeded to a

bench trial.

Three witnesses testified for the State: Rodriguez, A.L., and

Dr. Lawrence Thompson, an expert in child sexual abuse. Rodriguez testified that

she believed appellant showed favoritism towards A.L., about what she witnessed

in appellant’s bedroom, and about A.L.’s outcry statement.

During her trial testimony, however, A.L. recanted her outcry

statement. She explained that, on the night of the incident giving rise to the

charge against appellant, she fell asleep on one side of the bed, her brother

fell asleep in the middle of the bed, and appellant fell asleep on the other

side of the bed. She awoke to find appellant’s face under the blanket by her

legs. Appellant was rubbing the outside of her leg above the knee, and she felt

afraid. Appellant raised his hands away from her body when Rodriguez entered

the bedroom. When asked whether appellant had rubbed her “private parts,” A.L.

answered “no.” On cross-examination, she acknowledged that appellant would

touch her “pee-pee” to dry her off when she wet herself. A.L. recalled that,

while they were out for ice cream, Rodriguez told her she had wet herself on

the night Rodriguez entered the bedroom.

The trial court asked A.L. whether she had told anyone that appellant

touched her “pee-pee.” She answered affirmatively and indicated that she was

not telling the truth in court because her father was present. She told the

trial court that, if her father had not been in the courtroom, she would have testified

that he touched her “pee-pee.” He had done so once or twice before the night

Rodriguez entered the bedroom. The touching occurred on top of her underwear

and made her uncomfortable. On an anatomically-correct doll, she identified her

“pee-pee” as the area from which she “goes potty.”

Finally, the State presented the testimony of Dr.

Lawrence Thompson, the Director of Therapy and Psychological Services at the

Harris County Children’s Assessment Center. Although he did not meet appellant

or A.L. or review any of their statements in this case, Dr. Thompson is an expert

in the area of child sexual abuse. Based on his education and experience, Dr.

Thompson testified generally on the subjects of “victim minimization and

recant.” He explained that “[r]ecantation refers specifically to child sexual

abuse and to an instance of a child having at one point said someone abused

them in some manner and at a later time saying that they were not abused by

that person.” This may occur, according to Dr. Thompson, because the child

feels anxiety or discomfort over the attention such trauma draws. A recantation

may also occur because there was no abuse, the child wants life to return to normal,

she has been coerced to lie about the abuse, or she does not want to get the

perpetrator in trouble.

After the State rested, Lopez testified

on his own behalf and denied all of the allegations against him. He stated that

he and Rodriguez were romantically involved for part of the time they lived

together. Although the two split amicably before the incident giving rise to

the indecency charge against him, appellant believed Rodriguez was angry about

his recent decision to move out of the apartment. According to him, he and his

children were asleep on the night Rodriguez entered the bedroom. Because

Rodriguez wanted to talk and because he did not want to wake the children, he

got out of bed. He explained that A.L. was agitated because he had accidentally

pulled her hair while getting out of the bed.

Standard of Review

We review legal and factual

sufficiency challenges under the same appellate standard. Ervin v. State , 331 S.W.3d 49, 54 (Tex. App.—Houston [1st Dist.]

2010, pet. ref’d). The evidence is insufficient to support a conviction if,

considering all of the evidence in the light most favorable to the verdict, no

rational fact-finder could have found that each essential element of the

charged offense was proven beyond a reasonable doubt. See Jackson v. Virginia , 443 U.S. 307, 319 , 99 S. Ct. 2781, 2789

(1979); In re Winship , 397 U.S. 358,

361 , 90 S. Ct. 1068, 1071 (1970); Laster

v. State , 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). We give deference to

the responsibility of the fact-finder to fairly resolve conflicts in testimony,

to weigh evidence, and to draw reasonable inferences from the facts. Williams v. State , 235 S.W.3d 742, 750

(Tex. Crim. App. 2007). [2]

Sufficiency of the Evidence

Appellant raises a single issue in

this appeal, complaining that the evidence is insufficient to support his

conviction because (1) A.L. recanted her outcry statement and (2) the State did

not prove he acted with intent to arouse or gratify his sexual desire. We

disagree.

To prove indecency with a child by contact, the State had to

establish that appellant engaged in sexual contact with the complainant, a

child younger than seventeen. Tex. Penal

Code Ann . § 21.11(a)(1). The Penal Code defines “sexual contact” as “any

touching by a person, including touching through clothing” of the complainant’s

genitals “committed with the intent to arouse or gratify the sexual desire of

any person.” Id. § 21.11(c)(1). The

testimony of an outcry witness, see Tex. Code Crim. Proc . Ann . art. 38.072 (West 2011), alone is

sufficient to support a conviction for indecency with a child. See, e.g., Rodriguez v. State , 819

S.W.2d 871, 873 (Tex. Crim. App. 1991) (explaining that outcry testimony

admitted pursuant to article 38.072 is admitted as exception to hearsay rule

and thus is considered substantive evidence, admissible for truth of matter

asserted). The State has no burden to present corroborating or physical

evidence. See Lee v. State , 176

S.W.3d 452, 458 (Tex. App.—Houston [1st Dist.] 2004), aff’d , 206 S.W.3d 620 (Tex. Crim. App. 2006); Eubanks v. State , 326 S.W.3d 231, 241 (Tex. App.—Houston [1st

Dist.] 2010, pet. ref’d) (“[T]here is no requirement that outcry testimony admitted

as substantive evidence be corroborated or substantiated by the victim or

independent evidence.”).

We reject appellant’s position that

the recantation of an earlier outcry testimony destroys the probative value of

that testimony. See Chambers v. State ,

805 S.W.2d 459, 461 (Tex. Crim. App. 1991); see

also Bargas v. State , 252 S.W.3d 876, 888 (Tex. App.—Houston [14th Dist.]

2008, no pet.) (holding that outcry testimony retains probative value even if

contradictory evidence admitted). Saldaña v. State , 287

S.W.3d 43 , 60 (Tex. App.—Corpus Christi 2008, pet. ref’d) (“Furthermore, when a

witness recants prior testimony, it is up to the fact finder to determine

whether to believe the original statement or the recantation.”) (citation omitted);

Jackson v. State , 110 S.W.3d 626, 631

(Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) (“[A] criminal conviction,

which requires proof beyond a reasonable doubt, may rest on hearsay despite the

lack of the complainant’s testimony or even the complainant’s recantation.”).

Under such circumstances, it is the role of the fact-finder, who weighs the

evidence and evaluates credibility, to determine whether to believe the

original statement or the recantation, and “[a] fact finder is fully entitled

to disbelieve a witness’s recantation.” Saldaña ,

287 S.W.3d at 60; see also Maldonado v.

State , 887 S.W.2d 508, 509 (Tex. App.—San Antonio 1994, no pet.) (“Just

because the complaining witness recants incriminating testimony does not mean the

evidence is insufficient.”).

Here, Rodriguez’s testimony regarding

her own observations and the outcry statement, as well as A.L.’s testimony, recited

the elements required to prove indecency with a child by contact. Rodriguez

testified that when A.L. was six, she told Rodriguez appellant had touched her

“pee-pee.” On the night she entered appellant’s bedroom, Rodriguez saw

appellant jump from A.L.’s side of the bed. She noticed that A.L.’s pajama

bottoms were lowered nearly to her vagina. During trial, A.L. identified her

“pee-pee” as the area from which she “goes potty.” This evidence is sufficient

to indicate that appellant touched A.L.’s genitals. See Villalon v. State , 791 S.W.2d 130, 134 (Tex. Crim. App. 1990) (observing

that children are not expected to “testify with the same clarity and ability as

is expected of mature and capable adults”);

Bargas , 252 S.W.3d at 887 - 88.

The recantation does not render the evidence supporting

appellant’s conviction insufficient. Although

she initially testified that appellant had not touched her genitals, A.L.

explained that her testimony would have been different if appellant had not

been present in the courtroom. Dr. Thompson confirmed that feelings of anxiety

or discomfort may cause a child to recant an earlier allegation of abuse. In

convicting appellant, the trial court made a credibility determination to

believe A.L.’s initial outcry instead of her recantation during trial. We afford

almost complete deference to this determination. See Lancon v. State , 253 S.W.3d 699, 705 (Tex. Crim. App. 2008).

Finally,

with respect to the requisite intent—i.e., intent to arouse or gratify

appellant’s sexual desire—the evidence is also sufficient. A person acts with

intent when it is his conscious desire or objective to engage in the conduct or

cause the result. Tex. Penal Code Ann . § 6.03(a) (West

2003). The specific intent to arouse or gratify his sexual desire can be

inferred from appellant’s conduct, his remarks, and all surrounding

circumstances. McKenzie v. State , 617

S.W.2d 211, 216 (Tex. Crim. App. [Panel Op.] 1981) (holding that testimony of

appellant’s conduct was sufficient to permit deduction of intent); see also Rivera-Reyes v. State , 252

S.W.3d 781, 785 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (holding that

circumstantial evidence may be used to prove essential element of indecency

with a child); Navarro v. State , 241

S.W.3d 77, 79 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). An oral

expression of intent is not required. Id.

According to appellant, the requisite intent cannot be inferred given A.L.’s testimony

that appellant touched her “pee-pee” in order to dry her after she wet herself.

But there was evidence that the manner in which appellant touched A.L. made her

uncomfortable. She told Rodriguez that she would resist appellant by crossing

her legs or turning her back to him. Sometimes that resistance was successful;

other times it was not. Both Rodriguez and A.L. testified that, when Rodriguez

entered the bedroom, appellant moved away from A.L. in a startled manner. A.L.

explained that he raised his hands like a robber who had been caught by the

police. And, according to Rodriguez, appellant fled the room. From this

evidence, the trial court could deduct that appellant acted with the intent to

arouse and gratify his own sexual desire. Perales

v. State , 226 S.W.3d 531, 535 (Tex. App.—Houston [1st Dist.] 2006, pet.

ref’d); see also Lee , 176 S.W.3d at

462 (“Evidence of flight . . . is admissible as a circumstance from which an

inference of guilt may be drawn.”). We

therefore hold that, viewing all the evidence in a light most favorable to the

verdict, the trial court could reasonably find beyond a reasonable doubt each

element of the offense of indecency with a child.

We overrule

appellant’s sole issue.

Conclusion

We

affirm the judgment of the trial court.

Harvey

Brown

Justice

Panel

consists of Chief Justice Radack and Justices Higley and Brown.

Do

not publish. Tex. R. App. P. 47.2( b).

[1] See

Tex. Penal Code Ann . §

21.11(a)(1) (West 2011).

[2]

Appellant argues this appellate standard is not appropriate in child

abuse cases involving an outcry to an untrained professional and a subsequent

recantation; he insists that, “[i]nstead of viewing the evidence in the light

most favorable to the verdict, the Court should look at the evidence in a more

neutral way” and “give greater weight to the denial of the offense by the

complainant than the outcry to an untrained questioner.” This

Court has already determined that we are bound by the single standard of review

announced by the Court of Criminal Appeals in Brooks v. State , 323 S.W.3d 893 (Tex. Crim. App. 2010). See

Kiffe v. State , No. 01-10-00746-CR, 2011 WL 4925986, at *5 (Tex.

App.—Houston [1st Dist.] Oct. 13, 2011, no pet.) ( “Although an intermediate appellate court’s

decision ‘shall be conclusive on all questions of fact brought before them on

appeal or error,’ the Texas Court of Criminal Appeals has the authority to

determine questions of law, including the standard of review that an

intermediate appellate court must use in conducting factual review.”) . W e therefore decline to adopt a

new standard for our review of the sufficiency of the evidence in this case.