Opinion issued October 29, 2013.




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                           ———————————
                              NO. 01-12-01171-CR
                           ———————————
                        KELLI RAE O’DEA, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee



                   On Appeal from the 185th District Court
                           Harris County, Texas
                       Trial Court Case No. 1343334




                         MEMORANDUM OPINION

      Kelli Rae O’Dea appeals a judgment convicting her of indecency with a

child. See TEX. PENAL CODE ANN. § 21.11(a) (West 2011). A jury found O’Dea

guilty and assessed punishment at five years’ confinement probated for five years.

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O’Dea contends that the evidence is legally insufficient to support her conviction

and that the trial court erred in denying her motion for a mistrial. We affirm.

                                    Background

      O’Dea and her husband, Sean O’Dea, 1 have been close friends with the

complainant’s family for about five years. On several occasions, the complainant’s

parents allowed their son, the sixteen-year-old complainant, D.M., to play video

games and stay the night at the O’Deas’ home.

      On February 4, 2012, D.M. visited the O’Deas’ home. That evening, several

adult couples also came over for an impromptu gathering. Several of these guests

testified at trial, and O’Dea conceded, that she became intoxicated and kissed D.M.

on the back patio.

      At trial, D.M. testified that after all of the other guests left, the O’Deas asked

him how he would feel about watching them have sex. He testified that he was

unsure of how to respond, but accompanied the O’Deas into their bedroom, where

the couple undressed and had sex on the bed. D.M. testified that he saw O’Dea’s

breasts and genitals, but was unable to recall her tattoo or the piercings on her

breasts, navel, and genitals. He also testified that afterward, the O’Deas asked him

what he thought about observing their sexual encounter.



1
      Sean O’Dea was a co-defendant in this case (Cause No. 1343335) and was found
      guilty of indecent exposure.
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      O’Dea and her husband testified at trial. Both testified that they had sex that

night with their bedroom door open, but that they never invited D.M. to watch

them and had no indication that he was watching.

      The jury reported that it was deadlocked after it had deliberated for

approximately five hours. O’Dea moved for a mistrial, but the trial court denied it

and gave an Allen charge.2 A few hours later, the jury returned a verdict finding

O’Dea guilty of indecency with a child. O’Dea appeals.

                             Sufficiency of the Evidence

      In her first point of error, O’Dea contends that the evidence is insufficient to

support her conviction. She argues that D.M.’s inability to describe or even recall

the tattoo on her groin and piercings on her breasts and genitals demonstrates his

lack of credibility as a matter of law.

A.    Standard of Review

      “[E]vidence is insufficient to support a conviction if considering all record

evidence in the light most favorable to the verdict, a factfinder could not have

rationally found that each essential element of the charged offense was proven


2
      An Allen charge attempts to break a deadlocked jury by instructing jurors that the
      result of a hung jury is a mistrial and that jurors at a retrial would face essentially
      the same decision, encouraging them to resolve their differences without coercing
      one another or violating their individual choices. Allen v. United States, 164 U.S.
      492, 501, 17 S. Ct. 154, 157 (1896); Torres v. State, 961 S.W.2d 391, 393 n.1
      (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d).

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beyond a reasonable doubt.” Gonzalez v. State, 337 S.W.3d 473, 478 (Tex. App.—

Houston [1st Dist.] 2011, pet. ref’d) (citing Jackson v. Virginia, 443 U.S. 307, 319,

99 S. Ct. 2781, 2789 (1979)); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim.

App. 2009); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007)).

      “Evidence is insufficient under this standard in four circumstances: (1) the

record contains no evidence probative of an element of the offense; (2) the record

contains a mere ‘modicum’ of evidence probative of an element of the offense;

(3) the evidence conclusively establishes a reasonable doubt; and (4) the acts

alleged do not constitute the criminal offense charged.” Gonzalez, 337 S.W.3d at

479, (citing Jackson, 443 U.S. at 314, 318 n.11, 320, 99 S. Ct. at 2786, 2789 n.11;

Laster, 275 S.W.3d at 518; and Williams, 235 S.W.3d at 750)). If an appellate

court finds the evidence insufficient under this standard, it must reverse the

judgment and enter an order of acquittal. Gonzalez, 337 S.W.3d at 479 (citing

Tibbs v. Florida, 457 U.S. 31, 41, 102 S. Ct. 2211, 2218 (1982)).

      An appellate court “determine[s] whether the necessary inferences are

reasonable based upon the combined and cumulative force of all the evidence

viewed in the light most favorable to the verdict.” Clayton v. State, 235 S.W.3d

772, 778 (Tex. Crim. App. 2007) (quoting Hooper v. State, 214 S.W.3d 9, 16–17

(Tex. Crim. App. 2007)). When the record supports conflicting inferences, an

appellate court presumes that the factfinder resolved the conflicts in favor of the


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verdict and defers to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at 2793;

Clayton, 235 S.W.3d at 778. “An appellate court likewise defers to the factfinder’s

evaluation of the credibility of the evidence and the weight to give the evidence.”

Gonzalez, 337 S.W.3d at 479 (citing Williams, 235 S.W.3d at 750).

B.     Analysis

      To prove indecency with a child, the State bore the burden to prove beyond a

reasonable doubt that: (1) the defendant exposed her anus or any part of her

genitals; (2) knowing a child under 17 was present; (3) with intent to arouse or

gratify the sexual desire of any person. TEX. PENAL CODE ANN. § 21.11(a)(2)(A).

       A child complainant’s testimony alone may support a conviction for

indecency with child. See TEX. CODE CRIM. PROC. ANN. art. 38.07(a) (West Supp.

2012); Bazanes v. State, 310 S.W.3d 32, 40 (Tex. App.—Fort Worth 2010, pet.

ref’d) (“a complainant’s testimony alone is sufficient to support a conviction for

indecency with a child”). “As long as the evidence provides the requisite proof

needed to satisfy the elements of the offense charged, the evidence is legally

sufficient.” Bousquet v. State, 47 S.W.3d 131, 137 (Tex. App.—Houston [1st

Dist.] 2001, pet. ref’d). The factfinder determines the credibility of witnesses and

the weight to give any conflicting testimony. Williams, 235 S.W.3d at 750. We

may not re-evaluate the credibility or weight of the evidence. Id.




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      The evidence at trial showed that the O’Deas had been close with D.M. and

his parents for several years and that the two families frequently spent time

together. D.M. testified that on the night of the incident, when he was less than

seventeen years old, the O’Deas invited him to watch them have sex, and that he

saw O’Dea’s breasts and genitals during the encounter.          This testimony is

sufficient to support O’Dea’s conviction. See TEX. CODE CRIM. PROC. ANN. art.

38.07(a); Bousquet, 47 S.W.3d at 137 (finding child complainant’s video testimony

sufficient to support indecency conviction).    As the factfinder determines the

credibility of witnesses and the weight to give their testimony, it is up to the

factfinder to resolve conflicts in testimony. Williams, 235 S.W.3d at 750; Clayton,

235 S.W.3d at 778.       As an appellate court, we defer to these credibility

determinations. Williams, 235 S.W.3d at 750. We conclude that the jury rationally

could have resolved the conflicts in the testimony against O’Dea and believed

D.M.’s account of the night’s events.

      O’Dea contends that D.M.’s inability to recall or describe O’Dea’s tattoo

and piercings makes him incredible as a matter of law.        We disagree.     The

factfinder determines the credibility of the witness. Williams, 235 S.W.3d at 750.

Moreover, the Court of Criminal Appeals has noted that requiring children to

recount such details with the same clarity and ability as is expected of mature

adults would “condone, if not encourage, the searching out of children to be the


                                        6
victims of crimes . . . in order to evade successful prosecution.” Villalon v. State,

791 S.W.2d 130, 134 (Tex. Crim. App. 1990).

        We overrule O’Dea’s first point of error.

                                 Motion for Mistrial

     In her second point of error, O’Dea contends that the trial court abused its

discretion in denying her motion for mistrial because the jury had deliberated for a

sufficient period of time before reporting it was deadlocked.

A.       Standard of Review

         A trial court may in its discretion discharge a jury that has deliberated for

such time as to render it altogether improbable that it can agree. See TEX. CODE

CRIM. PROC. ANN. art. 36.31 (West 2006). The “[l]ength of time a jury may be

held for deliberation rests in the discretion of the trial judge.” See Howard v. State,

941 S.W.2d 102, 121 (Tex. Crim. App. 1996) (en banc) (quoting Montoya v. State,

810 S.W.2d 160, 166 (Tex. Crim. App. 1989) (en banc)). “The rule is well settled

that the exercise of discretion in declaring a mistrial is determined by the amount

of time the jury deliberates considered in light of the nature of the case and the

evidence.” Nelson v. State, 813 S.W.2d 651, 653 (Tex. App.—Houston [14th

Dist.] 1991, no pet.) (quoting Patterson v. State, 598 S.W.2d 265, 268 (Tex. Crim.

App. [Panel Op.] 1980)); Beeman v. State, 533 S.W.2d 799, 800 (Tex. Crim. App.

1976).


                                           7
       An appellate court reviews a trial court’s ruling on a motion for mistrial for

an abuse of discretion. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999).

We must uphold a trial court’s ruling on a motion for mistrial if it was within the

zone of reasonable disagreement. Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim.

App. 2004) (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App.

1990) (en banc)).

B.     Analysis

       O’Dea contends that, given the simplicity of the case, the jury deliberated

for a sufficient amount of time before informing the court it could not reach a

decision and, therefore, the trial court abused its discretion in giving the Allen

charge and denying her motion for mistrial.

       Numerous appellate courts have found no abuse of discretion in denial of a

motion for mistrial in cases where the time spent deliberating exceeded the length

of the trial. See, e.g., Page v. State, 819 S.W.2d 883, 885–86 (Tex. App.—

Houston [14th Dist.] 1991, pet. ref’d) (no abuse of discretion in denying motion for

mistrial when jury reported deadlock after three hours’ deliberation following

thirty-minute punishment trial); Byars v. State, 691 S.W.2d 48, 50–51 (Tex.

App.—San Antonio 1985, no pet.) (finding no abuse of discretion in requiring jury

to deliberate more than ten and one-half hours following day-long sexual abuse

trial); Moses v. State, No. 14-99-00377-CR, 2004 WL 78162, at *1 (Tex. App.—


                                         8
Houston [14th Dist.] Jan. 20, 2004, no pet.) (mem. op., not designated for

publication) (finding defendant not entitled to mistrial when jury had deliberated

for eight hours following four-and-one-half-hour trial).

       Here, the evidence was presented over the course of three days, and the jury

deliberated approximately five hours before it reported being deadlocked and

O’Dea moved for a mistrial. Although O’Dea correctly points out that this was not

a trial involving complex facts or voluminous exhibits, the jury did have to weigh

the testimony of the child complainant against the conflicting testimony of the

O’Deas. Because of this and because the period of time the jury deliberated was

not so disproportionate to the length of the trial as to require the jury’s dismissal

and a declaration of mistrial, the trial court did not abuse its discretion in denying

O’Dea’s motion for mistrial. See Bledsoe v. State, 21 S.W.3d 615, 623–24 (Tex.

App.—Tyler 2000, no pet.) (no abuse of discretion in denying mistrial where jury

deliberated four hours after two-day trial and had to weigh conflicting testimony).

       We overrule O’Dea’s second point of error.




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                                   Conclusion

      We affirm the judgment of the trial court.



                                             Rebeca Huddle
                                             Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

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




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