                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-11-00457-CR

PHILLIP WAYNE WALLER,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                            From the 40th District Court
                                Ellis County, Texas
                              Trial Court No. 35477CR


                           MEMORANDUM OPINION

       A jury convicted Appellant Phillip Wayne Waller of indecency with a child and

assessed his punishment at twenty years’ imprisonment and a $10,000 fine. This appeal

ensued. In two issues, Waller contends that the trial court erred in denying his motion

for directed verdict, which is also a challenge to the sufficiency of the evidence to

support the conviction. See Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996).

       The Court of Criminal Appeals has expressed our standard of review of a

sufficiency issue as follows:
                In determining whether the evidence is legally sufficient to support
         a conviction, a reviewing court must consider all of the evidence in the
         light most favorable to the verdict and determine whether, based on that
         evidence and reasonable inferences therefrom, a rational fact finder could
         have found the essential elements of the crime beyond a reasonable doubt.
         Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
         13 (Tex. Crim. App. 2007). This "familiar standard gives full play to the
         responsibility of the trier of fact fairly to resolve conflicts in the testimony,
         to weigh the evidence, and to draw reasonable inferences from basic facts
         to ultimate facts." Jackson, 443 U.S. at 319. "Each 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, 214 S.W.3d at 13.

Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011).

         The Court of Criminal Appeals has also explained that our review of “all of the

evidence” includes evidence that was properly and improperly admitted. Conner v.

State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting

inferences, we must presume that the factfinder resolved the conflicts in favor of the

prosecution and therefore defer to that determination. Jackson, 443 U.S. at 326. Further,

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.” Hooper, 214 S.W.3d at 13. Finally, it

is well established that the factfinder is entitled to judge the credibility of witnesses and

can choose to believe all, some, or none of the testimony presented by the parties.

Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).

         As limited by the indictment, a person commits the offense of indecency with a

child if, with a child younger than seventeen years of age, whether the child is of the

same or opposite sex, the person causes the child to engage in sexual contact. TEX.

Waller v. State                                                                              Page 2
PENAL CODE ANN. § 21.11(a)(1) (West 2011). “Sexual contact” means 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, if committed with the intent to arouse or

gratify the sexual desire of any person. Id. § 21.11(c)(2).

         The relevant evidence presented in this case is as follows: Jeffrey M. testified

that, on October 12, 2010, he took his seven-year-old son S.M. and four-year-old

daughter K.M. to the Walmart in Midlothian to look at toys. As they entered the toy

section, Jeffrey saw Waller beside a boy of about eight or nine years old, whom Jeffrey

assumed was Waller’s son. S.M. wanted to play with the boy, so Jeffrey left him and

took K.M. a couple of aisles over to look at the girls’ toys. A few minutes later, K.M.

needed to use the restroom, so Jeffrey went back over to S.M. and told him that he was

going to take K.M. to the restroom. Jeffrey told S.M. to stay there and play with the

toys.

         Jeffrey testified that he was gone for not more than three to five minutes. Once

back in the toy section, he took K.M. back to the girls’ toys and told her that he was

going to go check on her brother. As he turned onto the aisle where he had left S.M.,

Jeffrey saw Waller standing behind S.M. Waller had one arm on S.M.’s shoulder and

his genital area pressed up and rubbing against S.M. When asked by the prosecutor if

Waller was pressed directly against S.M., Jeffrey replied, “From the angle I was at, I

couldn’t tell exactly. I wasn’t from one side, I was from the back, but he was, yes,

against him from what I could tell.” The prosecutor further asked, “You didn’t see any

opening between them?” Jeffrey replied, “No.” Jeffrey stated that, based on the way

Waller v. State                                                                     Page 3
Waller was positioned against S.M. and the motions he was making, he believed that

Waller was molesting S.M. for his own sexual gratification.

         Jeffrey stated that as soon as he saw them, Waller let S.M. go and started walking

toward the back of the store. Jeffrey asked S.M. if Waller had been touching him. S.M.

turned around and said “yes.” Jeffrey then yelled at Waller and asked him if he was

touching S.M. Waller said that he did not touch S.M. Jeffrey then asked Waller why he

was touching S.M. According to Jeffrey, Waller “kind of threw his hands” at him and

said, “[I]t’s not what it looked like. No, it’s not what it looked like.” Jeffrey said that

Waller also grinned like he was excited when he said it. Jeffrey thus struck Waller.

When Waller recovered from the blow, he ran. Jeffrey started to give chase, but then

turned around and got his children. Jeffrey told employees to call the police because his

son had just been molested.

         Midlothian Police Department Captain Donald Cole testified that he interviewed

Waller after he was arrested. He read Waller his Miranda warnings, and Waller agreed

to waive his constitutional rights and talk to him. After he and Waller discussed

Waller’s side of the story of what happened at the Walmart, Waller agreed to provide a

signed, written statement. In this statement, Waller said that he had been in the toy

section at Walmart. He “bumped into the little boy” and said “excuse me.” He then

heard Jeffrey call out. Jeffrey was mad and said that Waller had bumped into his child.

Waller told him that he was sorry and tried to calm him down, but Jeffrey kept coming

toward him. Waller told Jeffrey that he did not intend to hurt or bump into the little

boy. Nevertheless, Jeffrey took a swing at him. Waller ducked, turned, and started to

Waller v. State                                                                      Page 4
run. Waller then decided to leave the store.

         Captain Cole testified that he continued to interview Waller after he provided

the written statement because there were discrepancies between Waller’s statement and

what other officers had reported to him about what they had discovered during their

investigation. The continued discussion resulted in a second signed, written statement.

In the second written statement, Waller said that there was another boy who was

younger than S.M. in the toy section whom he spoke to about Hot Wheels. Waller

stated that while talking to this younger boy, he was “holding my penis with my hand.”

When S.M. arrived, the two boys were talking and appeared to know one another. The

younger boy then left, and that is when Waller noticed that S.M. was about the age of

the child he was “shopping for or looking at.” Waller saw S.M. looking at some action

figures. Waller stated, “I was holding my penis with my hand at that time, that way if I

bumped into him by accident he would not feel my penis.” Waller spoke to S.M. S.M.

had his hand on one of the action-figure packages, and Waller reached out his hand to

get the one above. Waller stated, “The little boy and I were very close and I was

touching the boy then and I moved my body down to get a better focus on the action

figures.” At some point, Waller left the toy section but returned a few minutes later.

He and S.M. were then looking at more action figures. Waller stated, “I was behind the

boy again, very close like before and I was also again holding my penis with my hand

because the little boy was being casually friendly.” Waller then heard Jeffrey call for

S.M., so Waller walked away from S.M. That is when Jeffery came at him. Waller said

that his intentions with S.M. were not of a sexual nature but that he could understand

Waller v. State                                                                   Page 5
how Jeffrey would think that if he had seen how close Waller was to S.M.

         Captain Cole testified that after Waller completed this second written statement,

Cole continued to interview Waller, again to address discrepancies. Waller ultimately

gave a third signed, written statement. It provides in pertinent part:

         I wanted to make an addition to my first statement by saying I did not tell
         the truth about this not being sexual in nature. I did not go into Wal-Mart
         to find a kid. The first kid was a little more friendly then [sic] the second
         kid. I was looking at the cars with this first kid and as I was bending
         down to get a better look I accidently bumped into this kid with my penis.
         When this happened it started me thinking about what it would feel like
         to be with a guy. This is what got the original thought going on in my
         head, I was struggling with it.

         I was not thinking about being with a kid, just guys in general. I did have
         a hold of my penis and I thought this kid was too young, I decided to back
         off this kid before I got anymore aroused. I made sure no further contact
         was made with the kid.

         Then the second kid came into the picture and I was still thinking about
         being with a guy. I went back to look at the video games and returned to
         the toy isle [sic] and two boys where [sic] there, the first one that was
         younger and [an]other boy. These two boys were talking and appeared to
         know one another.

         The younger boy left when someone came to get him and that [was] when
         I noticed the boy that was left was about the age of the child I was
         shopping for or looking at. I watched what this boy was looking at and
         then we moved towards the back isle [sic] of [the] toy section, where I
         noticed he was looking at some action figures that looked like pieces of
         candy[.] I was holding my penis with my hand at that time. I took my
         hand off my penis and went to reach for the toys [we] were looking at. I
         think my penis may have touched the boy around the lower part of his
         back, the best I can remember. We continued to look at the toys. I
         remember that I was holding my penis and my hand touched the boys
         back area, I am not sure if it was upper or lower back area. The little boy
         and I were very close and I was touching the boy then and I moved my
         body down to get a better focus on the action figures. I was still
         struggling with the thought about being with a guy in general, so I walked
         over to the Nintendo type games and returned to the toy section a few

Waller v. State                                                                          Page 6
         minutes later. The little boy and I were then looking at the green and
         white action figures. I was behind the boy again, very close like before
         and I was also again holding my penis with my hand because the little
         boy was being casually friendly. I heard the little boy’s [father] call for
         him. I walked over to the wrestling action figures and that is when [the]
         boy’s father came at me.

Waller further explained to Cole that “bumping into a boy” was Waller positioning

himself behind the boy and slowly and methodically moving his body up and down the

back of the child and buttocks area.

         Waller first argues that this evidence is insufficient to establish that he

intentionally or knowingly caused the child to touch his genitals.         To support this

argument, Waller cites Deason v. State, 786 S.W.2d 711 (Tex. Crim. App. 1990), overruled

on other grounds by Gipson v. State, 844 S.W.2d 738 (Tex. Crim. App. 1992). The Deason

court held that there was no evidence in the record that the appellant had touched the

complainant’s vagina when the evidence only showed that the appellant pushed the

complainant’s panties to the side. Id. at 716. The Deason court stated: “Thus, there is no

evidence that the complainant felt the appellant touch her genitals. In fact, the evidence

is replete with evidence to the contrary. Both the complainant and the mother’s recall

of the complainant’s outcry indicate that before touching her genitals, the appellant was

interrupted.” Id.

         Waller argues that, like in Deason, S.M.’s father did not testify that he saw Waller

touching S.M. with his genitals and that there was no testimony from S.M. that he felt

Waller touch him with his genitals; therefore, the jury could not find beyond a

reasonable doubt that he had touched S.M. with his genitals. But, unlike in Deason,


Waller v. State                                                                        Page 7
Waller’s signed, written statements were admitted into evidence. In Waller’s third

statement, he admits, “I took my hand off my penis and went to reach for the toys [we]

were looking at. I think my penis may have touched the boy around the lower part of

his back, the best I can remember.” The evidence is thus sufficient to establish that

Waller intentionally or knowingly caused S.M. to touch his genitals.

          Waller next argues that the evidence is insufficient to establish that he had the

intent to arouse or gratify the sexual desire of any person. The requisite specific intent

to arouse or gratify can be inferred from the defendant’s conduct, his remarks, and all

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

[Panel Op.] 1981); Villanueva v. State, 209 S.W.3d 239, 246 (Tex. App.—Waco 2006, no

pet.). The jury thus could infer from Waller’s conduct, his written statements, and all

the surrounding circumstances that he had the intent to arouse or gratify his sexual

desire.

          Viewing all the evidence in the light most favorable to the verdict, we therefore

conclude that a rational trier of fact could have found beyond a reasonable doubt that

Waller committed the offense of indecency with a child beyond a reasonable doubt. We

overrule both of Waller’s issues and affirm the trial court’s judgment.



                                                  REX D. DAVIS
                                                  Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed

Waller v. State                                                                      Page 8
Opinion delivered and filed March 20, 2014
Do not publish
[CR25]




Waller v. State                              Page 9
