Opinion issued September 29, 2016




                                     In The

                              Court of Appeals
                                    For The

                          First District of Texas
                            ————————————
                              NO. 01-15-01037-CR
                           ———————————
                   JAMES KIRK EDMONDSON, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 174th District Court
                           Harris County, Texas
                       Trial Court Case No. 1390554


                         MEMORANDUM OPINION

      Appellant, James Edmondson, was found guilty by a jury of the offense of

indecency with a child.1 The jury assessed Appellant’s punishment as nine years in




1
      See TEX. PENAL CODE ANN. § 21.11(a)(1) (Vernon 2011).
prison. In one issue on appeal, Appellant contends that the evidence was not

sufficient to support the judgment of conviction.

      We affirm.

                                   Background

      K.L., the complainant in this case, was born in 2001. Her brother, D.L., was

born in 2002. The children never knew their biological father. In 2007, the

children’s mother (“Mother”) married Appellant. That same year, Mother and

Appellant had a son, B.E.

      Appellant, Mother, K.L., D.L., and B.E. lived together in a home in Katy,

Texas. For Christmas 2008, the family bought a Wii gaming system. The children

and Appellant were playing with the Wii in the living room, when Appellant told

K.L. to sit next to him on the sofa. Appellant placed a blanket over himself and

then seven-year-old K.L. and began rubbing K.L.’s legs and arms. This made K.L.

feel uncomfortable, but, because she had never had a father figure, she thought it

was normal behavior.

      After the incident on the sofa, Appellant began calling K.L. into the master

bedroom while Mother was at work. Each time, Appellant would tell K.L. to come

to the bedroom because he needed to talk to her. At the same time, Appellant

would tell D.L. and B.E. to stay in their bedroom or to play outside. Once in the




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bedroom, Appellant would have K.L. lie face up on the bed. Appellant would then

touch K.L.’s genitals and breasts over and under her clothes.

      Appellant would also lie on top of K.L. She later described how Appellant

would “grind on” her, moving back and forth. K.L. could feel that Appellant’s

penis was hard when he rubbed it against her. Appellant also made K.L. lie on top

of him, telling her to thrust her hips. Appellant kissed K.L. on the lips and put his

tongue in her mouth.     He told K.L. that it felt good and that he loved her.

Appellant threatened K.L. that, if she ever told anyone, he would hurt Mother.

K.L. believed Appellant’s threat.

      The molestation continued until 2011 when K.L. was 10 years old. In May

2011, Mother and Appellant divorced. Mother, K.L., D.L., and B.E. moved out of

the Katy home. Mother remarried in 2012, and K.L., D.L., B.E., Mother, and

Mother’s new husband lived together in a house in Deer Park.

      In 2013, when K.L. was 12 years old, Mother gave K.L. a notebook to use as

a journal to write down her thoughts and feelings. On March 29, 2013, Mother

opened K.L.’s journal and saw that K.L. had written that she had been molested.

The journal entry did not say who had molested K.L.

      Mother immediately approached K.L. with the notebook. When she realized

that Mother had seen her journal, K.L. began to shake and cry. She was afraid that

Appellant would hurt her or her family if he found she had told about the abuse.



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When Mother asked her who had molested her, K.L. disclosed that it was

Appellant. Mother called the police and reported the sexual abuse.

      K.L. was referred to the Children’s Assessment Center where she spoke with

E. Castro, a forensic interviewer. K.L. was tearful during the interview, describing

multiple instances of sexual abuse. Although she was forthcoming with Castro,

K.L. appeared embarrassed, at times, speaking in a whisper. Castro noted that

K.L. was consistent in what she said and that she was able to provide sensory

details of the abuse.

      On April 13, 2013, K.L. was examined by a medical doctor, Dr. R. Isaac, at

the Children’s Assessment Center. The examination consisted of two parts: a

patient history and a physical examination. Dr. Isaac obtained K.L.’s history from

Mother. Mother told the doctor that K.L. had lost 10 pounds over the past month.

She stated that K.L. had been having nightmares and trouble sleeping. Mother also

reported that K.L. had been withdrawn and prone to angry outbursts. Mother

indicated that K.L. had expressed thoughts of hanging herself in 2011. Mother

further reported that K.L. had engaged in “self-mutilation,” such as cutting herself.

      Dr. Isaac also spoke to K.L. regarding her medical history, including the

basis for the exam. K.L. told Dr. Isaac that Appellant had started touching her

inappropriately by stroking her legs. She disclosed that, after that, Appellant began

taking her into his bedroom where he would touch her vagina under her clothes.



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K.L. denied that Appellant had ever penetrated her vagina. K.L. indicated to Dr.

Isaac that Appellant had touched her more than 20 times. She said that Appellant

would touch her when Mother went to work in the evening Mondays through

Thursdays. K.L. also reported that, after she made the outcry to Mother, “a lot of

scary thoughts” had returned to her. She told the doctor that she was afraid that

Appellant would hurt her because she had told about the abuse.

      After obtaining K.L.’s history, Dr. Isaac performed a physical examination.

The examination of K.L.’s genital area was normal with no signs of trauma. At

trial, Dr. Isaac indicated that it is not uncommon for an exam to be normal when

the abuse involves touching, rather than penetration, and when disclosure of the

abuse was delayed as here.

      In June 2013, K.L. began treatment with a licensed professional counselor,

S. Ecord. Ecord diagnosed K.L. with post-traumatic stress disorder, known as

PTSD. During therapy, K.L. expressed to Ecord that she felt dirty and ugly, and

she was disgusted with herself. Ecord learned that K.L. was having nightmares

and sleep disturbances. Ecord also observed visible scratch marks on K.L.’s arms,

indicating to Ecord that K.L. had engaged in self-injurious behavior. Ecord later

testified that self-deprecatory comments, sleep disturbances, and self-injurious

behavior are all symptoms of PTSD and that PTSD may result from sexual abuse.




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       Appellant was indicted for the offense of indecency with a child. The

indictment charged that Appellant had, “on or about June 1, 2010, . . . unlawfully[]

engage[d] in sexual contact with [K.L.], a child under the age of seventeen years

and not the spouse of [Appellant], by touching the genitals of [K.L.] with the intent

to arouse and gratify [his] sexual desire . . . .”

       The case was tried to a jury in November 2015. K.L., who was then 15

years old, testified during the guilt-innocence phase. In her testimony, K.L. told

the jury that Appellant first touched her inappropriately in 2008 by stroking her leg

while they were playing with the Wii. She stated that, after that, Appellant began

calling her into his bedroom while Mother was at work. Appellant would instruct

her two brothers to stay in their room or to play outside. K.L. described how

Appellant would have her lie face up on the bed. She stated that Appellant would

rub her vagina and her breasts with his hands both over and under her clothes.

K.L. testified that Appellant would move his hand in a circular motion when

rubbing her vagina.

       K.L. also testified that Appellant “would get on top of me and grind on me

or put me on top of him and thrust my hips back and forth.” The State asked,

“When you would move back and forth at his direction, what part of your body

were you moving back and forth?” She responded, “My vagina.”




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      K.L. testified that, when Appellant would lie on top of her, she recalled

“feeling his penis on me, but it never came close to penetrating me.” K.L. also

testified that, when he was on top of her, Appellant’s penis felt hard. The State

asked K.L. on what part of her body K.L. would feel Appellant’s penis when he

was grinding on top of her. K.L. replied, “My vagina,” but K.L. made clear that

K.L.’s penis never penetrated her.

      K.L. also testified that Appellant would kiss her on the lips and place his

tongue in her mouth. While he was touching K.L., Appellant would tell her that he

loved her and that it “felt good.” K.L. testified that the abuse would happen

“[w]henever my mother was gone” and that her mother worked every week night

and sometimes on the weekends. K.L. testified that after Appellant would tell her

he was finished, she would go to her bedroom.

      K.L.’s brother, D.L. also testified at trial. He recalled that “[m]ost of the

time when my mom left for work” Appellant would call K.L. into the master

bedroom with him. Appellant would then instruct D.L. and B.E. to stay in their

room. D.L. stated that, when K.L. was in the bedroom with Appellant, the door

would be closed. D.L. recalled that, when K.L. would come out of the bedroom,

she would not talk. She “would just head straight to her room.”

      Besides K.L., the State offered the testimony of Mother; Dr. Isaac; the Child

Assessment Center’s forensic interviewer, E. Castro; and K.L.’s therapist, S. Ecor.



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Also admitted into evidence were the medical records from the exam performed by

Dr. Isaac and K.L.’s journal in which she revealed that she had been molested.

      To show that the allegations against him had been fabricated, Appellant did

not seek to directly discredit K.L.; rather, Appellant sought to discredit Mother to

whom K.L. had made her outcry.         To accomplish this, Appellant offered the

testimony of a number of witnesses, including Appellant’s current wife, another

ex-wife of Appellant, Appellant’s mother, and his step-father, who each testified

that Mother had a reputation for being untruthful.

      After hearing the evidence, the jury found Appellant guilty of the offense of

indecency with a child as charged in the indictment. It assessed Appellant’s

punishment at nine years in prison. This appeal followed.

                              Sufficiency of the Evidence

      In his sole issue, Appellant asserts that the evidence is not sufficient to

support the judgment of conviction.

A.    Standard of Review

      We review the sufficiency of the evidence establishing the elements of a

criminal offense for which the State has the burden of proof under a single

standard of review. Matlock v. State, 392 S.W.3d 662, 667 (Tex. Crim. App. 2013)

(citing Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010)). This

standard of review is the standard enunciated in Jackson v. Virginia, 443 U.S. 307,



                                         8
319, 99 S. Ct. 2781, 2789 (1979). See Winfrey v. State, 393 S.W.3d 763, 768 (Tex.

Crim. App. 2013).

      Pursuant to the Jackson standard, evidence is insufficient to support a

conviction if, considering all the record 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, 443 U.S. at

319, 99 S. Ct. at 2789; 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); Williams v.

State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We can hold evidence to be

insufficient under the Jackson standard in two circumstances: (1) the record

contains no evidence, or merely a “modicum” of evidence, probative of an element

of the offense, or (2) the evidence conclusively establishes a reasonable doubt. See

Jackson, 443 U.S. at 314, 318 & n.11, 320, 99 S. Ct. at 2786, 2789 n.11; see also

Laster, 275 S.W.3d at 518; Williams, 235 S.W.3d at 750.

      The sufficiency-of-the-evidence standard gives full play to the responsibility

of the fact finder to resolve conflicts in the testimony, to weigh the evidence, and

to draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443

U.S. at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.

App. 2007). An appellate court presumes that the fact finder resolved any conflicts




                                          9
in the evidence in favor of the verdict and defers to that resolution, provided that

the resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793.

      In our review of the record, direct and circumstantial evidence are treated

equally; circumstantial evidence is as probative as direct evidence in establishing

the guilt of an actor, and circumstantial evidence alone can be sufficient to

establish guilt. Clayton, 235 S.W.3d at 778. Finally, “[e]ach fact need not point

directly and independently to the guilt of the appellant, as long as the cumulative

force of all the incriminating circumstances is sufficient to support the conviction.”

Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

B.    Elements of the Offense

      A person commits the offense of indecency with a child by engaging in

sexual contact with a child younger than seventeen. TEX. PENAL CODE ANN.

§ 21.11(a)(1) (Vernon 2011).      “Sexual contact” includes “any touching by a

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

genitals of a child” with the intent to arouse or gratify the sexual desire of any

person. Id. § 21.11(c)(1).

C.    Analysis

      A complainant’s testimony, standing alone, is sufficient to support his

conviction of the offense of aggravated sexual assault. See TEX. CODE CRIM.

PROC. ANN. art. 38.07(a) (Vernon Supp. 2015); Garcia v. State, 563 S.W.2d 925,



                                         10
928 (Tex. Crim. App. [Panel Op.] 1978). Here, K.L.’s testimony by itself was

sufficient to prove, beyond a reasonable doubt, each element of the offense of

indecency with a child. K.L. testified that Appellant, on many occasions while

Mother was at work, had her lie on his bed and would touch the outside of her

vagina and her breasts both over and under her clothes.

      K.L.’s testimony was also supported by other evidence. Consistent with

K.L.’s testimony, D.L. recalled that Appellant would tell him and B.E. to stay in

their room when Appellant took K.L. into his bedroom. D.L. testified that K.L.

would stay in the master bedroom with Appellant with the door closed. When she

would come out, K.L. would not say anything, but would go directly to her room.

In addition, the forensic interviewer testified that K.L. was consistent throughout

the interview with regard to recounting the sensory details of the abuse. And,the

testimony of K.L.’s therapist indicated that the behavioral issues that K.L. had

been experiencing were consistent with someone who had been sexually abused.

      On appeal, Appellant asserts that the evidence was insufficient to support his

conviction because “[t]here is not enough evidence in this record from which a

reasonable inference can be made to support that any of the testified contact

Appellant had with K.L. was to gratify his own sexual desires.” We disagree.

      “[T]he requisite specific intent to arouse or gratify the sexual desire of any

person can be inferred from the defendant’s conduct, his remarks and all



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surrounding circumstances.” McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim.

App. 1981); accord Bazanes v. State, 310 S.W.3d 32, 40 (Tex. App.—Fort Worth

2010, pet. ref’d). Intent can be inferred from conduct alone, and no oral expression

of intent or visible evidence of sexual arousal is necessary. Tienda v. State, 479

S.W.3d 863, 873 (Tex. App.—Eastland 2015, no pet.); Scott v. State, 202 S.W.3d

405, 408 (Tex. App.—Texarkana 2006, pet. ref’d).

      Here, Appellant’s intent to arouse or to gratify his sexual desire could have

reasonably been inferred from the evidence showing the sexual nature of the other

acts engaged in by Appellant while he was touching K.L.’s vagina:

          Appellant made K.L. lie on his bed where he then touched her.

          Appellant rubbed K.L.’s vagina in a circular motion.

          Appellant laid on top of K.L. and, in a grinding motion, rubbed his
           penis on K.L.’s vagina.

          Appellant’s penis was “hard” when he was rubbing it on K.L.’s
           vagina.

          Appellant forced K.L. to lie on top of him and thrust her hips.

          Appellant kissed K.L. on the lips and put his tongue in her mouth.

          While he was touching K.L., Appellant told her that it “felt good” and
           that he loved her.

      In addition, the evidence showing that Appellant took steps to keep the

activities secret further supports a finding that Appellant intended to arouse and to



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gratify his sexual desire when he touched K.L.’s vagina. The evidence showed

that Appellant touched K.L. only when Mother was not home, he told his sons to

stay in their room or to play outside while he was with K.L. in the bedroom, and he

told K.L. that he would hurt Mother if K.L. told anyone. See Gregory v. State, 56

S.W.3d 164, 172 (Tex. App.—Houston [14th Dist.] 2001, pet. dism’d) (“That

appellant instructed the children not to reveal the events to anyone shows a

consciousness of wrongdoing, which, in turn, leads to an inference that when he

touched or exposed himself to children as he did, appellant harbored a specific

intent to arouse and gratify his own sexual desire.”).

      In his brief, Appellant argues that the evidence was also insufficient to

support his conviction because he presented evidence showing that Mother had a

reputation for untruthfulness.     Appellant intimates that Mother instigated a

fabrication of the sexual-abuse claims as a means to remove Appellant from the

life of their son, B.E. Appellant indicates that Mother’s testimony was important

to the State’s case because she was the outcry witness, she testified that K.L.’s

behavior changed after the outcry, and she provided information to Dr. Isaac

regarding K.L.’s medical history. However, the record shows that there was other,

stronger evidence of Appellant’s guilt independent of Mother’s testimony.

Specifically, as discussed, K.L.’s testimony fully supported the jury’s guilty

finding. In addition, the record shows that, not only did Dr. Isaac speak to Mother



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when performing the examination, she also spoke to K.L. with regard to the sexual

abuse. Furthermore, K.L. and her therapist each provided testimony regarding

K.L.’s post-outcry behavior, including the therapist’s observations that K.L. had

engaged in self injury and K.L.’s testimony that she had tried to commit suicide

three times.

      Appellant also points to discrepancies between Mother’s testimony and

K.L.’s testimony regarding the details surrounding K.L.’s outcry to Mother. To the

extent that Appellant’s arguments focus on Mother’s credibility or on the

consistency of the evidence, the jury was the sole judge of the credibility of the

witnesses at trial, and we defer to the responsibility of the fact finder to fairly

resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from the facts. See Williams, 235 S.W.3d at 750; see also Cain v. State,

958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997) (“What weight to give

contradictory testimonial evidence is within the sole province of the jury, because

it turns on an evaluation of credibility and demeanor.). In short, we do not sit as

the thirteenth juror and may not substitute our judgment for that of the jury by re-

evaluating the weight and credibility of the evidence. Isassi v. State, 330 S.W.3d

633, 638 (Tex. Crim. App. 2010).

      Viewing the evidence in the light most favorable to the verdict, we conclude

a rational fact finder could have found, beyond a reasonable doubt, each element



                                        14
necessary to support the finding that Appellant committed the offense of indecency

with a child. Accordingly, we hold that the evidence was sufficient to support the

judgment of conviction.

      We overrule Appellant’s sole issue.

                                   Conclusion

      We affirm the judgment of the trial court.




                                                Laura Carter Higley
                                                Justice

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

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




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