                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   No. 07-19-00138-CR


                          GABRIEL MARQUEZ, APPELLANT

                                           V.

                          THE STATE OF TEXAS, APPELLEE

                          On Appeal from the 47th District Court
                                   Potter County, Texas
              Trial Court No. 073515-A-CR, Honorable Dan Schaap, Presiding

                                     April 16, 2020

                            MEMORANDUM OPINION
                       Before QUINN, C.J., PIRTLE, and DOSS, JJ.

      Gabriel Marquez appeals his conviction for indecency with a child by sexual

contact. His sole issue concerns the sufficiency of the evidence underlying the verdict of

guilty. He questions whether the evidence proved he touched his stepdaughter’s breast

on different occasions with the requisite intent to arouse or gratify the sexual desire of

any person. According to the victim, the first instance occurred as she attempted to sleep

on a couch. Appellant placed his hand under her shirt and rested it atop one of her

breasts. Her bra lay between his hand and her breast. The incident lasted a “couple of
minutes,” and she was fourteen years old at the time. The second instance occurred

about a year later and after appellant returned from delivering the victim’s mother to work.

The victim was again laying on the couch when appellant “laid with” her. He attempted

to remove her belt, met with no success, and then placed his hand under her shirt and

atop her bra and breast. His hand again remained there for a couple of minutes. We

affirm.

          A person commits a crime if, “with a child younger than 17 years of age, . . . [he]

engages in sexual contact with the child or causes the child to engage in sexual contact.”

TEX. PENAL CODE ANN. § 21.11(a)(1) (West 2019).             The legislature defined “sexual

contact” as “any touching by a person, including touching through clothing, of the anus,

breast, or any part of the genitals of a child” if done “with the intent to arouse or gratify

the sexual desire of any person.” Id. § 21.11(c)(1). The standard of review we apply in

assessing whether appellant committed this crime was described in Braughton v. State,

569 S.W.3d 592, 607–08 (Tex. Crim. App. 2018), and we apply it here.

          Again, appellant only questions whether the State proved his touching the minor

on the breast was done with the intent to arouse or gratify sexual desire. We previously

said that the aforementioned intent may be inferred from a defendant’s conduct and the

surrounding circumstances. Ryder v. State, 514 S.W.3d 391, 396–97 (Tex. App.—

Amarillo 2017, pet. ref’d). An oral expression of intent need not be shown. Abbott v.

State, 196 S.W.3d 334, 340–41 (Tex. App.—Waco 2006, pet. ref’d).

          An accused’s moving his hand in a circular motion atop a child’s breast has been

held as sufficient evidence to permit a rational jury to reasonably infer, beyond reasonable

doubt, that the action occurred with the intent to arouse and gratify sexual desire. See,



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e.g., Fetterolf v. State, 782 S.W.2d 927, 933 (Tex. App.—Houston [14th Dist.] 1989, pet.

ref’d). Though appellant seems to acknowledge that, he would have us conclude that

evidence of mere touching without attendant motion does not support a like inference.

Yet, in making that argument, he fails to address other circumstances illustrated by the

record. For instance, to touch the breast in both instances, he had to expend effort to

achieve his goal. That effort included working his hand under the victim’s shirt during the

first occasion while attempting initially to unfasten the minor’s belt before working his hand

up her shirt on the second. So too did both instances happen at a time when the victim

appeared vulnerable to his efforts, that is, while she slept or attempted to sleep on the

couch. And, most importantly, his hand lay atop the breast for several minutes on both

occasions. The totality of these circumstances was and is sufficient to permit a rational

fact-finder to reasonably infer, beyond reasonable doubt, that appellant engaged in the

sexual contact with the requisite intent to arouse his sexual desire.

       We overrule the sole issue and affirm the judgment of the trial court.



                                                                 Brian Quinn
                                                                 Chief Justice




Do not publish.




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