AFFIRMED and Opinion Filed April 29, 2020




                                           S   In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                        No. 05-18-01352-CR

                           GLENN LOUIS BAKER, Appellant
                                       V.
                           THE STATE OF TEXAS, Appellee

                       On Appeal from the 416th Judicial District Court
                                    Collin County, Texas
                           Trial Court Cause No. 416-82158-2014

                            MEMORANDUM OPINION
                      Before Justices Whitehill, Osborne, and Nowell
                               Opinion by Justice Osborne

       Appellant, Glenn Louis Baker, was convicted by a jury of indecency with a

child1 and subsequently sentenced to two years’ imprisonment. In this appeal,

appellant raises three issues, all of which concern statutory construction of the

definition of “sexual contact” contained in the indecency statute. TEX. PENAL CODE

ANN. § 21.11(c)(2). Because we find no merit in appellant’s arguments, we affirm.




   1
     Appellant was originally indicted for continuous sexual abuse of a child in violation of TEX. PENAL
CODE ANN. § 21.02(b). The jury, however, found appellant guilty of the lesser included offense of
indecency with a child in violation of PENAL § 21.11(a)(1).
                                     Background

      B.G. was twelve years old at the time of trial. She testified to events which

occurred when she was between five and seven years old at the home of appellant,

who was her paternal grandfather. She testified that she found it hard and

embarrassing to talk about these events.

       On occasion, B.G. would be alone with appellant when her grandmother was

out of the house. She and appellant would occasionally watch cartoons in an open

living room upstairs. Sometimes appellant would take off his clothes and lay them

on the seat of a recliner in the room. Appellant would then tell her to take off her

clothes and she would pull her pants partially off. B.G. testified that she did not want

to do this, but did it because appellant told her to. Appellant would then touch her

“private part,” both through her clothes and on her skin. This happened on more than

one occasion. It made her feel uncomfortable and embarrassed.

      B.G. also testified that she and appellant “played doctor.” She would wrap

bandages around his arms and ankles. On one occasion while “playing doctor,”

appellant had her wrap his “private part” (i.e., his penis) in a bandage.

      On yet another occasion when her grandmother was not home, appellant and

B.G. were in the kitchen; appellant told B.G. to take off her pants and underwear and

spread her legs open. Appellant did not have his pants on during this event. Using

an iPad, appellant took pictures of B.G.’s private part as well as his private part. He

then used an application on the iPad to make those body parts appear older and fatter.
                                           –2–
Appellant deleted the pictures so “no one would see them.” During these events,

appellant also made B.G. touch his penis with her hand.

      Appellant asked B.G. to keep these events secret, telling her that they couldn’t

tell her grandmother. The last episode occurred around or shortly after her seventh

birthday.

      B.G. made a delayed outcry, first to her mother and later to a counselor with

the Children’s Advocacy Center in Plano, Texas.

                        Issue 1: Sufficiency of the Evidence

      In his first issue, appellant claims the evidence is legally insufficient because

the jury convicted him of conduct that was not criminal. Specifically, appellant

claims that the indecency statute does not prohibit a child from touching an adult’s

genitals. The State responds that the indecency statute prohibits any touching of any

part of a child’s body, including the child’s hand, with any part of an adult’s genitals.

The State further responds that, because B.G. testified that appellant made her touch

his penis with her hand on at least two occasions, the evidence was sufficient to

support his conviction. We agree with the State.

The Statute

      The statute prohibiting indecency with a child reads, in relevant part, as

follows:

      (a) A person commits an offense if, with a child younger than 17 years
      of age, whether the child is of the same or opposite sex and regardless

                                          –3–
      of whether the person knows the age of the child at the time of the
      offense, the person:

             (1) engages in sexual contact with the child or causes the child
             to engage in sexual contact;

                                      ***

      (c) In this section, “sexual contact” means the following acts, if
      committed with the intent to arouse or gratify the sexual desire of any
      person:

             (1) any touching by a person, including touching through
             clothing, of the anus, breast, or any part of the genitals of a child;

             or

             (2) any touching of any part of the body of a child, including
             touching through clothing, with the anus, breast, or any part of
             the genitals of a person.

PENAL § 21.11 (a), (c).

The Indictment and Verdict

      The indictment in this case charged appellant with three separate offenses:

      on or about the 10th day of October, 2011 through the 31st day of
      December, 2013 in said county and State, did then and there during a
      period that was 30 days or more in duration, committed two or more
      acts of sexual abuse against B.G., said acts of sexual abuse having been
      violations of one or more of the following penal laws, including:

      aggravated sexual assault of a child, intentionally and knowingly cause
      the penetration of the emale (sic) sexual organ of B.G., a child then
      younger than fourteen (14) years of age, and not the spouse of the
      defendant, by means of the defendant's finger;




                                          –4–
                                     AND/OR

      indecency with a child, intentionally and knowingly, with the intent to
      arouse and gratify the sexual desire of any person, engage in sexual
      contact by touching the genitals of B.G., a child younger than seventeen
      (17) years of age and not the spouse of the defendant, by means of
      defendant’s hand;

                                     AND/OR

      indecency with a child, intentionally and knowingly, with the intent to
      arouse and gratify the sexual desire of any person, engage in sexual
      contact by causing the hand of B.G., a child younger than seventeen
      (17) years of age and not the spouse of the defendant, to touch part of
      the genitals of said defendant;

      and each of the aforementioned acts of sexual abuse were committed
      on more than one occasion and, at the time of the commission of each
      of the acts of sexual abuse, the defendant was seventeen (17) years of
      age or older and B.G. was a child younger than fourteen (14) years of
      age.

      There were four verdict forms submitted to the jury; the first form permitted

conviction for continuous sexual assault of a child, the second and third forms

permitted conviction for indecency with a child, and the fourth verdict form

permitted the jury to find appellant not guilty. The order of the verdict forms

submitted to the jury essentially tracked the order of the offenses alleged in the

indictment, though both the second and third verdict forms were phrased in identical

language: “We, the jury, unanimously find the defendant guilty of the lesser offense

of Indecency with a Child by Contact.” The presiding juror signed the third verdict




                                        –5–
option, presumptively finding appellant guilty of indecency with a child by contact

because he caused B.G.’s hand to touch his genitals.2

Analysis

        As appellant admits in his brief to this Court, his sufficiency argument turns

not on an evaluation of whether the State proved the elements of the alleged offense

beyond a reasonable doubt but rather on the proper construction and interpretation

of Sections 21.11(a)(1) and 21.11(c)(1), (2) of the Penal Code vis-à-vis the

allegations contained in the third paragraph of the indictment, i.e., that appellant

caused B.G.’s hand to touch part of his genitals. PENAL §§ 21.11(a)(1); 21.11(c)(1),

(2).

        According to appellant, the indecency statute does not prohibit a child victim

from touching an adult’s genitals. Appellant claims that, to engage in sexual contact,

the defendant must either (1) touch the child or (2) cause the child to touch another


    2
     From the record, it appears the issue of which offense of indecency the jury found was raised after the
verdict had been received:
                THE COURT: . . . I see the charge now and I think I understand what the problem
        was. But from talking to the bailiff, I understand the State and the Defendant both agree to
        accept the charge as it was received by the Court, and that is a guilty finding of indecency
        by contact, one count, right?

                [BY THE PROSECUTOR] Yes, Your Honor, one count.

                THE COURT: And that’s the Defendant’s understanding as well?

                [BY DEFENSE COUNSEL] Yes, sir, one count.

Both appellant and the State briefed this case on the theory that, by signing the third verdict form, the jury
convicted appellant of indecency with a child because he caused B.G.’s hand to touch his genitals. Neither
party raises any issues regarding whether the jury found that appellant had touched B.G.’s genitals.


                                                    –6–
child, as opposed to an adult. Appellant argues that this is the only logical reading

of the indecency statute and that in order for the indecency statue to prohibit the type

of behavior alleged in this case, i.e., appellant’s penis touching the child’s hand, the

definition of sexual contact would have to be expanded to include “any touching by

the child, including touching through clothing with the anus, breast, or any part of

the genitals of a person” as opposed to the actual language of the statute which

prohibits “any touching of any part of the body of a child” with the anus, breast, or

any part of the genitals of a person.

      The State responds that appellant’s arguments are contrary to the plain

language of the statute and have no support in case law.

                               Interpreting the Statute

      We interpret a statute in accordance with the plain meaning of its language,

unless the language is ambiguous or the plain meaning leads to absurd results that

the legislature could not possibly have intended. Griffith v. State, 166 S.W.3d 261,

262 (Tex. Crim. App. 2005). We endeavor to give effect to the whole statute, which

includes each word and phrase, if possible. Id.

                                  Lack of Authority

      Appellant has not cited this Court to any authority to support his arguments

regarding his proposed statutory construction and we have found none. Indeed,

appellant admits in his brief to this Court that he could find no case law to directly



                                          –7–
support his claim and discusses five cases which he admits “may appear, directly or

indirectly, to undermine and/or conflict with his position.3

        One of the cases cited by appellant, Loving v. State, 401 S.W.3d 642, 648–49

(Tex. Crim. App. 2013), is completely contrary to his claim. In Loving, the defendant

exposed his genitals and began masturbating in the presence of two sisters, ages eight

and nine. Id. at 643. The sisters left the room, but later returned. Id. While the

defendant was still masturbating, he touched the younger sister. Id. When the

defendant completed his masturbation he touched the older sister and asked her to

touch his penis; she “punched it,” i.e., his penis, instead. Id. In holding that the

indecency statute prohibits various types of activity that constitute separate offenses,

the Court of Criminal Appeals addressed the definition of sexual contact and how it

operated under the facts of the case:

        “Sexual contact” now expressly includes touching through the clothing,
        and the definition divides prohibited sexual contact into two categories:
        first, it prohibits any touching by a person of a child’s anus, breast, or
        genitals; second, it prohibits any touching of any part of a child’s body
        with the anus, breast, or genitals of any person. . . . Both categories of
        prohibited touching also require the requisite mental state. . . .
        Therefore, the plain language of the statute forbade the touching at
        issue here because . . . (defendant) . . . caused the older sister to touch
        his genitals when she punched his penis.




    3
      See Speights v. State, 464 S.W.3d 719 (Tex. Crim. App. 2015); Loving v. State, Nos. 03-11-00074-
CR & 03-11-00075-CR, 2012 WL 3601127 (Tex. App.—Austin Aug. 17, 2012)(mem. op., not designated
for publication), aff’d in part as modified, rev’d in part, 401 S.W.3d 642 (Tex. Crim. App. 2013); Pizzo v.
State, 235 S.W.3d 711 (Tex. Crim. App. 2007); Hulsey v. State, 211 S.W.3d 853 (Tex. App.—Waco 2006,
no pet.); Haney v. State, 977 S.W.2d 638 (Tex. App.—Fort Worth 1998, pet. ref’d).
                                                   –8–
Id. at 648–49 (citing to PENAL § 21.11(c)(1), (2); emphasis added). Under that

Court’s interpretation of the statute, causing a child to touch an adult’s genitals is

prohibited conduct.

                       A Child’s Hand is “Part of the Body”

      The indecency statute prohibits, in clear and unambiguous language, the

touching of any part of the body of a child with the anus, breast, and any part of the

genitals of a person. PENAL § 21.11(a), (c). A hand is clearly a part of the child’s

body. See Merriam-Webster.com/dictionary/hand (defining “hand,” in part, as “the

body part at the end of the arm of a human”). Therefore, the act of causing B.G.’s

hand to touch appellant’s genitals is covered by the plain language of the statute.

                                     Causation

      Appellant fails to appreciate the causation element of the statute. The Penal

Code defines causation: “[a] person is criminally responsible if the result would not

have occurred but for his conduct, operating either alone or concurrently with

another cause, unless the concurrent cause was clearly sufficient to produce the

result and the conduct of the actor clearly insufficient.” PENAL § 6.04; see also

Gonzales v. State, No. 05-18-00895-CR, 2019 WL 3059878, at *4 (Tex. App. —

Dallas July 12, 2019, pet. ref’d) (mem. op., not designated for publication). A child

cannot consent to sexual contact or intercourse. Gonzales, 2019 WL 3059878, at *4;

see also In re B.W., 313 S.W.3d 818, 823 (Tex. 2010); Smallwood v. State, 471

S.W.3d 601, 607 (Tex. App.—Fort Worth 2015, pet. ref’d). As a result, a defendant
                                         –9–
who initiates and directs sexual contact may be a “cause” of the result. Gonzales,

2019 WL 3059878, at *4 (holding that evidence which established that a defendant

who pulled his penis out of his pants and repeatedly asked a child for oral sex until

she acquiesced to get away from him was legally sufficient to show appellant

“caused” the penetration of the child’s mouth by his penis). Thus, in order to find

appellant guilty, the jury had to find that appellant caused the conduct of the child,

i.e., caused B.G.’s hand to touch his genitals. PENAL § 21.11 (c)(2).

                     The Evidence Establishes Sexual Contact

      We review a complaint about the sufficiency of the evidence by considering

all the evidence in the light most favorable to the verdict to determine whether, based

on that evidence and the reasonable inferences therefrom, a factfinder was rationally

justified in finding guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 318–19 (1979); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010).

The factfinder, in this case the jury, is the sole judge of the credibility of the

witnesses and the weight to be given their testimony. Jackson, 443 U.S. at 319;

Brooks, 323 S.W.3d at 899. A child victim’s testimony alone is sufficient to support

a conviction for indecency with a child. TEX. CODE CRIM. PROC. ANN. art. 38.07;

Martinez v. State, 178 S.W.3d 806, 814 (Tex. Crim. App. 2005); Jones v. State, 428

S.W.3d 163, 169 (Tex. App.—Houston [1st Dist.] 2014, no pet.).

      In order to convict appellant, the jury had to find that appellant caused a part

of B.G.’s body, i.e., her hand, to touch his genitals. B.G. testified that she touched
                                         –10–
appellant’s genitals on at least two occasions at his request: once while they were

“playing doctor,” and a second time while appellant was photographing their

respective “private parts” in the kitchen of his home. By convicting appellant of

indecency by contact, the jury obviously found B.G. credible and we defer to that

determination.

Conclusion

      We conclude that the third paragraph of the indictment in this case alleged

conduct that constitutes an offense of indecency with a child. We further conclude

that the evidence adduced at trial is sufficient to uphold appellant’s conviction for

that offense. We overrule appellant’s first issue.

                 Issue 2: Constitutionality of PENAL § 21.11(c)(2)

      In his second issue, raised in the alternative, appellant alleges that, if this Court

holds that the third paragraph of the indictment alleged prohibited conduct under

Section 21.11(c)(2) of the Texas Penal Code, then that statute is unconstitutionally

vague as applied to him. According to appellant, the plain-language of the statute

does not put a reasonable person on notice “that if a child touches the defendant’s

anus, breast, or any part of his genitals, the defendant can be prosecuted, tried, and

convicted.” The State responds that appellant has not preserved his argument for

appellate review because he did not argue at trial that the conduct described in the

third paragraph of the indictment failed to allege an offense or that the statute was

otherwise unconstitutional as applied to him. The State further responds that the
                                          –11–
indecency statute plainly prohibits the conduct alleged in the indictment, i.e., causing

B.G.’s hand to touch appellant’s genitals. We agree with the State.

Preservation

       An “as applied” challenge to the constitutionality of a statute is subject to the

general requirement that a party must preserve error by a timely request, objection,

or motion in the trial court. Reynolds v. State, 423 S.W.3d 377, 383 (Tex. Crim. App.

2014); Flores v. State, 245 S.W.3d 432, 437 n.14 (Tex. Crim. App. 2008); TEX. R.

APP. P. 33.1(a).

      Appellant does not direct this Court to any place in the record, and we have

found none, where he raised a challenge to the constitutionality of PENAL 21.11(c)(2)

as applied to him. Nor does appellant attempt to excuse the lack of an objection or

argue that preservation is unnecessary in this case under the dictates of Marin v.

State, 851 S.W.2d 275 (Tex. Crim. App. 1993), overruled on other grounds by Cain

v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997). Cf. Flores, 245 S.W.3d at

443 (Cochran, J. concurring) (suggesting that an “as applied” challenge to the

constitutionality of a penal statute may be made for the first time on appeal). As a

result, this issue has not been preserved for our review.

On the Merits

      Even if appellant had preserved this issue for our review, we would not find

the statute unconstitutional as applied to him.



                                         –12–
      A litigant raising only an “as applied” challenge, as opposed to a facial

challenge to a statute, concedes the general constitutionality of the statute, but asserts

that the statute operates unconstitutionally as to him because of his particular facts

and circumstances. See Faust v. State, 491 S.W.3d 733, 743-44 (Tex. Crim. App.

2015); State ex rel. Lykos v. Fine, 330 S.W.3d 904, 910 (Tex. Crim. App. 2011).

When reviewing the constitutionality of a statute, we presume that the statute is valid

and that the Legislature acted reasonably in enacting it. Faust, 491 S.W.3d at 744

(citing Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002)). Because of

the presumption of constitutionality, the burden rests on the defendant to establish

the statute’s unconstitutionality as applied to him. See Estes v. State, 546 S.W.3d

691, 698 (Tex. Crim. App. 2018); Schlittler v. State, 488 S.W.3d 306, 313 (Tex.

Crim. App. 2016).

      As noted above, in prohibiting the acts of which appellant was accused, the

Texas Penal Code reads as follows:

      (a) A person commits an offense if, with a child younger than 17 years
      of age … the person:

             (1) . . . causes the child to engage in sexual contact;

                                   ***
      (c) In this section, “sexual contact” means the following acts, if
      committed with the intent to arouse or gratify the sexual desire of any
      person:

              (2) any touching of any part of the body of a child, including
             touching through clothing, with the anus, breast, or any part of
             the genitals of a person.
                                          –13–
PENAL § 21.11(a)(1), (c)(2) (emphasis added).

      The plain language of the statute is not vague. The statute is sufficiently clear

to provide a person of ordinary intelligence a reasonable opportunity to know that

the alleged conduct, i.e., causing a child to touch his genitals with her hand, was

prohibited. See, e.g., Gonzales, 2019 WL 3059878, at *4 (holding that a defendant

who initiates and directs sexual intercourse with a child may be a “cause” of the

result as much as the person who physically controls the penetration). Appellant has

failed to demonstrate that the indecency statute is unconstitutionally vague as

applied to him. We overrule appellant’s second issue.

                         Issue 3: Ex Post Facto Application

      In his third issue, raised in the alternative, appellant argues that if this Court

interprets the indecency statute to prohibit the conduct alleged in the third paragraph

of the indictment, i.e., B.G.’s hand touched his genitals, that construction will be an

unforeseeable, retroactive application of case law in violation of the constitutional

prohibitions against ex post facto laws. The State responds that appellant has not

presented a cognizable ex post facto claim. We agree with the State, and further

conclude that appellant’s due process rights have not been violated by our

interpretation of the statute.




                                         –14–
Ex Post Facto Prohibitions

        Both the federal and state constitutions contain clauses prohibiting the

promulgation of any “ex post facto law.”4 U. S. CONST. art. I, § 10; TEX. CONST. art.

I, § 16; Ortiz v. State, 93 S.W.3d 79, 91 (Tex. Crim. App. 2002). These constitutional

prohibitions are directed at the legislature, not the courts. Ortiz, 93 S.W.3d at 91; see

also Ex parte Heilman, 456 S.W.3d 159, 165 (Tex. Crim. App. 2015).

        As a general rule, in assessing a claim based on ex post facto allegations,

courts look beyond the actor that is directly committing the alleged violation for

some legislative origin of the alleged violation. Ex parte Heilman, 456 S.W.3d at

165. A legislative body cannot escape the strictures of either the Texas or federal ex

post facto clause, but a defendant must be able to point to a legislative origin of the

alleged violation. Id. In order to raise a cognizable ex post facto claim, appellant

must show that the indecency statute itself operates retroactively, not that either the

trial court or this Court has retroactively applied the statute to an offense he

committed before its enactment. Ortiz, 93 S.W.3d at 91; Castillo v. State, 573

S.W.3d 869, 876 (Tex. App.—Houston [1st Dist.] 2019, pet. ref’d).




    4
      An ex post facto law is one that: (1) punishes as a crime an act previously committed that was innocent
when done; (2) aggravates a crime, or makes it greater than it was, when committed; (3) changes the
punishment and inflicts greater punishment than the law attached to the criminal offense when committed;
or (4) deprives a person charged with a crime of any defense available at the time the act was committed.
See Peugh v. United States, 569 U.S. 530, 538–39 (2013); Rodriguez v. State, 93 S.W.3d 60, 66 (Tex. Crim.
App. 2002); Pomier v. State, 326 S.W.3d 373, 387 (Tex. App.—Houston [14th Dist.] 2010, no pet.).
                                                   –15–
      Appellant does not argue that the statute itself operates retroactively, nor does

he point to a legislative origin of the alleged violation. As a result, he has failed to

state a cognizable ex post facto claim.

Due Process Implications

      Rather than making a true ex post facto claim, appellant argues that, if we

interpret the statute as applying to his conduct, i.e., causing B.G.’s hand to touch his

genitals, we will be creating “an unforeseeable retroactive application” of the statute.

The State, in its brief to this Court, does not address this aspect of appellant’s

argument.

      While ex post facto prohibitions do not apply to judicial actions, due process

of law may be violated when judicial action has an ex post facto effect. Bouie v. City

of Columbia, 378 U.S. 347, 353 (1964); Heilman, 456 S.W.3d at 166; Harber v.

State, 594 S.W.3d 438, 443 (Tex. App.—San Antonio 2019, pet. ref’d). An

unforeseeable judicial construction of a criminal statute, applied retroactively, can

function like an ex post facto law and result in a due process violation. Bouie, 378

U.S. at 353; Heilman, 456 S.W.3d at 166. However, this due process limitation is

not coextensive with the ex post facto prohibition; rather, it is rooted in the principle

that a criminal statute must give fair warning of the conduct it criminalizes and

protect against judicial enlargement of a criminal statute. Heilman, 456 S.W.3d at

166 (citing Rogers v. Tennessee, 532 U.S. 451, 457–62 (2001) which clarified that

the ex post facto clause does not apply to the judiciary, and due process does not
                                          –16–
incorporate all of the ex post facto clause’s strictures); Harber, 594 S.W.3d at 443.

Essential to a complaint that a judicial construction of a statute had an ex post facto

effect is a showing that the judicial construction changed the law. See, e.g., Bouie,

378 U.S. at 354; Williams v. State, No. 05-00-00254-CR, 2000 WL 1659559, at *3

(Tex. App.—Dallas Nov. 6, 2000, no pet.) (not designated for publication).

      We have not construed the indecency statute in a manner that changes the law.

Our application of the indecency statute does not result in a retroactive application

of that statute or in an expansion of the prohibitions of that statute without providing

proper notice. To the contrary, as stated above, the plain language of the statute

prohibits appellant’s alleged conduct, which the jury found to be true, i.e., causing

B.G.’s hand to touch his genitals. Loving, 401 S.W.3d at 648–49. We overrule

appellant’s third issue.

                                     Conclusion

      The trial court’s judgment is affirmed.



                                            /Leslie Osborne/
                                            LESLIE OSBORNE
                                            JUSTICE

DO NOT PUBLISH
TEX. R. APP. P. 47.2(b)
181352F.U05




                                         –17–
                                   S
                            Court of Appeals
                     Fifth District of Texas at Dallas
                                   JUDGMENT

GLENN LOUIS BAKER, Appellant                  On Appeal from the 416th Judicial
                                              District Court, Collin County, Texas
No. 05-18-01352-CR          V.                Trial Court Cause No. 416-82158-
                                              2014.
THE STATE OF TEXAS, Appellee                  Opinion delivered by Justice
                                              Osborne. Justices Whitehill and
                                              Nowell participating.

    Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.


Judgment entered April 29, 2020.




                                       –18–
