AFFIRM; and Opinion Filed April 7, 2016.




                                          S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-15-00817-CR

                            VERNON ALLEN HULME, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                       On Appeal from the 199th Judicial District Court
                                    Collin County, Texas
                           Trial Court Cause No. 199-81996-2014

                              MEMORANDUM OPINION
                         Before Justices Francis, Lang-Miers, and Myers
                                   Opinion by Justice Francis
       Victor Allen Hulme appeals his conviction following a bench trial for four counts of

indecency with a child younger than 17 years of age. After finding appellant guilty, the trial

court assessed punishment at six years in prison on each count. In five issues, appellant claims

the evidence is insufficient to support the trial court’s judgment, the trial court erred by allowing

certain evidence, and the cumulative effect of the errors at trial requires reversal. We affirm.

       In his third and fourth issues, appellant claims the evidence is insufficient to support his

convictions. When assessing a challenge to the legal sufficiency of the evidence, we review all

of the evidence in the light most favorable to the verdict to determine whether any rational trier

of fact could find the essential elements of the crime beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 319 (1979); see also Howard v. State, 333 S.W.3d 137, 138 fn.2 (Tex.

Crim. App. 2011). It is “the responsibility of the trier of fact to fairly resolve conflicts in
testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate

facts.” Jackson, 443 U.S. at 318–19; Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

           A person commits an offense if, with a child younger than 17 years of age and not his

spouse, he engages in sexual contact with the child. TEX. PENAL CODE ANN. § 21.11(a)(1). 1

Sexual contact means any touching of any part of the genitals of another person with intent to

arouse or gratify the sexual desire of any person. Id. § 21.01(2). 2 Whether the person possessed

the requisite intent to commit an offense is most often proven through circumstantial evidence

surrounding the crime. Sholars v. State, 312 S.W.3d 694, 703 (Tex. App.—Houston [1st Dist.]

2009, pet. ref’d). The factfinder may infer the requisite intent from the acts, words, and conduct

of the accused. See Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001).

           When M.R. testified at trial, she was thirty-three years old. In 1986, M.R. was five years

old; appellant moved in with her family in Fort Worth, and the abuse began about the same time.

Appellant’s morning routine included going into the children’s bedrooms to wake them for

school. On numerous occasions when he went in M.R.’s bedroom, he took her hand, placed it on

his penis, and used her hand “to masturbate himself.” The “first couple of times,” M.R. woke

up; after that she “pretended [she] was sleeping because [she] couldn’t face what was

happening.”

           M.R. described a family trip to California when she was five years old. Because she was

not feeling well, her mother and brother went swimming while she stayed in the room with

appellant. M.R. was lying in bed in her pajamas when appellant got on top of her, kissed her,



     1
       The offenses occurred in 1991, and all references are to the penal code in effect at that time. See Act of May 24, 1973, 63d Leg., R.S., ch.
399, § 1,1973 Tex. Gen. Laws 883, 918, amended by Act of May 12, 1981, 67th Leg., R.S. ch. 202, § 3, 1981 Tex. Gen. Laws 471, 472 (current
version at TEX. PENAL CODE ANN. § 21.11(a)(1) (West 2011)).
     2
       Act of May 24, 1973, 63d Leg., R.S., ch. 399, § 1, 1973 Tex. Gen. Laws 883, 915, amended by Act of May 4, 1979, 66th Leg., R.S., ch.
168, § 1, 1979 Tex. Gen. Laws 373, 373 (current version at TEX. PENAL CODE ANN. § 21.01(2) (West 2011)).



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and touched her vagina with his hand. When she told him he was heavy, he “said something

rude” and got up.

          According to M.R., the family moved from Fort Worth to Arlington and then in 1991, to

Plano. Throughout the moves, the abuse continued. M.R. estimated that appellant made her

touch him about once a week. She told her mother’s secretary about the abuse, and the secretary

told M.R.’s mother. In 1996, when M.R. turned fourteen, she moved to Arizona to live with her

father.

          In March 2012, M.R. met with Tarrant County authorities and told them about the abuse.

Appellant was charged with indecency in Tarrant County and pleaded guilty. The trial court

deferred adjudication of guilt and placed appellant on community supervision for eight years.

After she met with Plano police, appellant was also indicted in Collin County on four counts of

indecency with a child.

          The trial court heard the testimony of Arlington detective Victor Hadash, appellant’s

psychotherapist George Michael Strain, and the complainant M.R. Hadash investigated the

Tarrant County case and said that although appellant initially denied the indecency allegation, he

later admitted it and pleaded guilty. Strain was appellant’s therapist after he was placed on

community supervision and said appellant admitted having his five-year-old stepdaughter touch

his penis. According to Strain, appellant characterized the event as an isolated one but later told

Strain he “didn’t remember if he had done it more than one time.”

          This evidence shows that on the dates alleged in each of the four counts, with the intent to

arouse and gratify the sexual desire of any person, appellant engaged in sexual contact by having

M.R., a child younger than 17 years of age and not his spouse, touch his penis. See TEX. PENAL

CODE ANN. §§ 21.01(2), 21.11(a)(1). To the extent he argues there is no evidence he did so to

arouse or gratify the sexual desire of any person, we disagree. M.R. testified that appellant used

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her hand to masturbate approximately once a week over several years. That he repeatedly did

this and continued to do it while she pretended to be asleep is evidence from which a reasonable

factfinder could conclude he did so to gratify or arouse his sexual desire. M.R. also testified he

lay on top of her, kissed her, and touched her vagina with his hand―further evidence from which

the factfinder could infer his masturbation encounters were for self-gratification or arousal. We

overrule appellant’s third issue and, because the court of criminal appeals has abolished factual-

sufficiency review, we do not address appellant’s fourth issue.

        In his first issue, appellant complains about the State’s questions regarding the

“continuous sexual abuse of a child” offense. To preserve error in admitting evidence, a party

must make a proper objection and get a ruling on that objection each time the inadmissible

evidence is offered or obtain a running objection. Valle v. State, 109 S.W.3d 500, 509 (Tex.

Crim. App. 2003). Error, if any, in the admission of evidence is cured where the same evidence

comes in elsewhere without objection. Id.

        When the State asked appellant’s sister, a punishment phase witness, whether she knew

that appellant’s actions, if committed today, would allow him to be charged with continuous

sexual abuse of a child, he objected. Appellant did not object, however, when the State asked the

complainant the same general question. We conclude appellant did not preserve error. We

overrule his first issue.

        In his second issue, appellant challenges the admission of impermissible character

evidence, specifically the evidence of the California incident, under evidentiary rule 404.

        We review the trial court’s decision to admit or exclude evidence under an abuse of

discretion standard. See Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007). A trial

court abuses its discretion when it acts outside the zone of reasonable disagreement.

Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g).

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       Rule of evidence 404 prohibits the use of a crime, wrong, or other act “to prove a

person’s character in order to show that on a particular occasion the person acted in accordance

with the character.” TEX. R. EVID. 404(b). Notwithstanding rule 404, “evidence of other crimes,

wrongs, or acts committed by the defendant against the child who is the victim of the alleged

offense shall be admitted for its bearing on relevant matters, including (1) the state of mind of the

defendant and the child; and (2) the previous and subsequent relationship between the defendant

and the child.” TEX. CODE CRIM. PROC. ANN. art. 38.37, § 1(b) (West Supp. 2015).

       Here, although appellant objected “under 404(b)” when the State asked Hadash and M.R.

about the California incident, the evidence was admissible under article 38.37 to show

appellant’s state of mind and his relationship with M.R. We conclude the trial court did not err

by allowing the evidence.

       To the extent appellant argues the State failed to provide notice of its intent to use the

evidence at guilt/innocence and the trial court should have excluded the evidence under the rule

403 balancing test, we note these complaints were not raised at trial and are therefore waived.

See Martinez v. State, 327 S.W.3d 727, 736 f.10 (Tex. Crim App. 2010) (failure to object to lack

of notice at trial waives issue on appeal); Beasley v. State, 838 S.W.2d 695, 702 (Tex.

App.―Dallas 1992, pet. ref’d) (incumbent upon opponent of evidence to object that evidence,

although relevant, should not be admitted because probative value is substantially outweighed by

danger of unfair prejudice). We overrule his fourth issue.

       In his final issue, appellant claims the cumulative effect of the compounded errors and

questions raised requires we reverse his conviction for a new trial. Appellant, however, failed to

prove error concerning his individual claims. As a result, we find no cumulative harm. See

Buntion v. State, No. AP-76,769, 2016 WL 320742, at *13 (Tex. Crim. App. Jan. 27, 2016); see




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also Hughes v. State, 24 S.W.3d 833, 844 (Tex. Crim. App. 2000) (declining to find harm in

“cumulative effect” of alleged constitutional violations after finding no constitutional violations).

       We affirm the trial court’s judgment.




                                                      /Molly Francis/
                                                      MOLLY FRANCIS
                                                      JUSTICE


Do Not Publish
TEX. R. APP. P. 47

150817F.U05




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                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

VERNON ALLEN HULME, Appellant                         On Appeal from the 199th Judicial District
                                                      Court, Collin County, Texas
No. 05-15-00817-CR         V.                         Trial Court Cause No. 199-81996-2014.
                                                      Opinion delivered by Justice Francis,
THE STATE OF TEXAS, Appellee                          Justices Lang-Miers and Myers
                                                      participating.

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


Judgment entered this 7th day of April, 2016.




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