Opinion filed June 25, 2015




                                            In The


          Eleventh Court of Appeals
                                        ___________

                                   No. 11-13-00236-CR
                                      ___________

                   EDWARD SALAS MARTINEZ, Appellant
                                               V.
                        THE STATE OF TEXAS, Appellee


                        On Appeal from the 238th District Court
                                   Midland County, Texas
                             Trial Court Cause No. CR39752


                         MEMORANDUM OPINION
      The jury found Edward Salas Martinez, Appellant, guilty of the offense of
indecency with a child by contact.1 The jury assessed punishment at confinement
for ten years but recommended that the trial court suspend the sentence and place
Appellant on community supervision. The trial court accepted the jury’s verdict

      1
          See TEX. PENAL CODE ANN. § 21.11 (West 2011).
and recommendation and sentenced Appellant to confinement for ten years, but it
suspended the sentence and placed Appellant on community supervision for ten
years. Appellant asserts two issues on appeal. We affirm.
                               I. The Charged Offense
      The grand jury indicted Appellant for the offense of indecency with a child
by contact and alleged that Appellant engaged in sexual contact with L.T., a child
younger than seventeen years of age, when he touched her breast and did so with
the intent to arouse and gratify his own sexual desire. An offense of indecency
with a child by contact is a felony of the second degree. PENAL § 21.11(a)(1), (d).
Appellant pleaded “not guilty” to the charge, and the case proceeded to trial.
                                 II. Evidence at Trial
      L.T., who was fourteen years old at the time, and a friend, A.M., went to a
carnival in Midland one night in September 2011. L.T. testified they left the
carnival together later that night and went back to A.M.’s home because A.M. had
invited L.T. to spend the night. A.M. lived with Appellant, her father. The girls
watched television and ate food.          L.T. said that Appellant arrived home
approximately thirty minutes after the girls returned from the carnival and that he
sat and talked with them.
      L.T. and A.M. finished socializing and went to A.M.’s room to sleep. L.T.
testified that Appellant followed them into A.M.’s room, uninvited, and that they
all three lay on the bed; L.T. and A.M. lay in the bed next to each other with their
heads at the head of the bed, and Appellant lay at the foot of the bed, perpendicular
to them. L.T. claimed that the bedroom lights were off and that the room was dark.
A.M. was nearly asleep or asleep when Appellant touched L.T.’s feet in a
“massage way,” which L.T. thought was “odd,” so she pulled them away.
Appellant continued to rub L.T.’s feet and moved his hands up her leg almost to
her knee. L.T. testified that she was afraid at this point.
                                           2
       Appellant then “got up and moved around to the other side of [L.T.]” and lay
down so that L.T. was now between A.M. and Appellant and all three were now
aligned parallel in the bed.         Appellant touched L.T.’s arms and her stomach
underneath her clothes, and then he moved his hand to her back. L.T. continuously
pushed Appellant’s hand away, but he continued to put his hand on her. L.T.
described his touch as gentle and not aggressive.
       At this point, L.T. stood up and went to the restroom. She returned to
A.M.’s bedroom and discovered that Appellant was still positioned in the same
spot on the bed. L.T. crawled back to the same spot on the bed she had left
because she was unsure what would happen if she tried to leave or contact anyone.
Appellant continued to rub L.T.’s body and moved his hand to her buttocks on the
outside of her pants. L.T. testified, “At one point [Appellant] went up under my
shirt and tried to get under my bra, but I pushed his hand off and out of my
clothing. He went on top of my clothing and started grabbing my boobs.” L.T.
described Appellant’s grab and said, “He was squeezing, sort of in a circular
motion.” L.T. pushed Appellant’s hand away. He then tried to rub her vagina, and
she again pushed him away.
       A.M. awoke at one point after L.T. returned from the bathroom and said to
Appellant, “Why are you still here? Go to bed.” Appellant responded, “Oh, I’m
sorry.” Appellant stopped touching L.T. for a “little bit,” and L.T. believed that
A.M. fell back asleep. Appellant then touched L.T.’s arms, stomach, and back
again. L.T. eventually fell asleep, woke up around mid-morning, and asked A.M.
to take her home, but she never mentioned the incident.
       About two weeks later, L.T. attended a “meet-the-teachers” function at her
former school.2 She went to see one of her former teachers, Sarah Duran, and

       2
        L.T. was there with her parents because L.T.’s younger sister still attended the school and
because L.T. wanted to visit with her prior teachers.
                                                3
made an outcry to Duran about the incident. Duran encouraged L.T. to tell her
parents and told L.T. that, if L.T. did not tell her parents, then Duran would have to
report the outcry to law enforcement. L.T. told her parents about the incident later
that night when she and her mother returned home.
         Duran, along with her boyfriend, Sammy Rodriguez, Jr., went to L.T.’s
home on the night of L.T.’s outcry after L.T. had returned home and told her
parents. Duran, Rodriguez, L.T., and L.T.’s parents all spoke about the incident.
Duran informed L.T. and L.T.’s parents that, if they did not report the incident to
law enforcement, she would have to do so herself. L.T. went to the Midland Police
Department later that night to report the incident.
         A.M.’s description of the events that occurred on the night of the incident
differed from L.T.’s description. A.M. testified that, after she and L.T. returned
home from the carnival and went to her bedroom, they did not lie down to go to
sleep immediately. Rather, A.M. claimed that she and L.T. went into her bedroom,
that the lights were on, and that they continued to talk. Appellant only entered the
room after A.M. invited him in because she and L.T. wanted to talk to him about
their night at the carnival. A.M. became tired after she had talked for a while, so
Appellant left the room and shut the door. A.M. turned the lights off and went to
sleep.
         A.M. also testified that she had a lock on her bedroom door. Although she
did not lock the door on the night of the incident, the door was nevertheless locked
when she woke up the next morning, and she and L.T. were the only ones in her
bedroom. A.M. is the only person that had a key to unlock her door from the
outside, but the door can be locked from the inside. When A.M. saw L.T. the next
morning, L.T. did not appear to be upset or depressed.




                                          4
                                III. Issues Presented
      Appellant asserts two issues on appeal. First, Appellant challenges the
sufficiency of the evidence to support his conviction. Second, he challenges the
trial court’s exclusion of impeachment evidence.
                              IV. Standards of Review
      The standard of review for a challenge to the sufficiency of the evidence is
whether any rational jury could have found Appellant guilty beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 318 (1979); Brooks v. State, 323 S.W.3d
893, 912 (Tex. Crim. App. 2010); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.
App. 2007). We review all of the evidence in the light most favorable to the jury’s
verdict and decide whether any rational jury could have found each element of the
offense beyond a reasonable doubt. Jackson, 443 U.S. at 319.
      The trier of fact may believe all, some, or none of a witness’s testimony
because the factfinder is the sole judge of the weight and credibility of the
witnesses. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Isham v.
State, 258 S.W.3d 244, 248 (Tex. App.—Eastland 2008, pet. ref’d). We defer to
the trier of fact’s resolution of any conflicting inferences raised in the evidence and
presume that the trier of fact resolved such conflicts in favor of the prosecution.
Jackson, 443 U.S. at 318; Brooks, 323 S.W.3d at 894; Fuentes v. State, 991
S.W.2d 267, 271 (Tex. Crim. App. 1999) (citing Turro v. State, 867 S.W.2d 43, 47
(Tex. Crim. App. 1993)).
      We review the admission or exclusion of evidence for an abuse of discretion.
Powers v. State, 165 S.W.3d 357, 359 (Tex. Crim. App. 2005) (citing Green v.
State, 934 S.W.2d 92, 101–02 (Tex. Crim. App. 1996)).             Under an abuse of
discretion standard, we will reverse the trial court’s decision only if the trial court
acted arbitrarily, unreasonably, or without reference to any guiding rules or
principles. See Montgomery v. State, 810 S.W.2d 372, 390–92 (Tex. Crim. App.
                                          5
1991). We will uphold the trial court’s ruling if it is within the zone of reasonable
disagreement. Id. at 391.
                                    V. Analysis

      A. Issue One: Sufficiency of the Evidence

      To prove that Appellant committed the offense of indecency with a child by
contact, the State had to show that Appellant touched, either directly or through
clothing, the breast of L.T., a child younger than seventeen years of age, with the
intent to arouse or gratify Appellant’s sexual desire. See PENAL § 21.11(a)(1), (c).
The testimony of a child victim alone is sufficient to support a conviction for
indecency with a child by contact. See TEX. CODE CRIM. PROC. ANN. art. 38.07(a)
(West Supp. 2014); Chapman v. State, 349 S.W.3d 241, 245 (Tex. App.—Eastland
2011, pet. ref’d). In addition, the jury may infer intent to arouse or gratify sexual
desire from the defendant’s conduct, remarks, or all the circumstances surrounding
the incident. McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. [Panel
Op.] 1981). “An oral expression of intent is not required, and a defendant’s
conduct alone is sufficient to infer intent.” Cruz v. State, No. 11-05-00112-CR,
2006 WL 572002, at *3 (Tex. App.—Eastland Mar. 9, 2006, no pet.) (not
designated for publication) (citing Tyler v. State, 950 S.W.2d 787, 789 (Tex.
App.—Fort Worth 1997, no pet.)).
      L.T. testified that Appellant “went on top of [her] clothing and started
grabbing [her] boobs” and that “he was squeezing, sort of in a circular motion.”
When she pushed him away, he then started to rub her vagina through the outside
of her clothes. Appellant also touched L.T.’s buttocks through the outside of her
clothes. Duran testified that, when L.T. made the outcry to her, L.T. was “very
upset, very scared.” Duran went home and told Rodriguez about the outcry, and
they decided to go to L.T.’s house. Duran said she never coached L.T. to say

                                         6
anything but, rather, informed L.T. of Duran’s duty to report the incident to law
enforcement if L.T. or L.T.’s parents did not do so.
       Rodriguez had worked with Appellant in the car business on and off since
the mid-1990s. On the night of the outcry,3 Rodriguez called to inform Appellant
of the allegations made against him. Rodriguez said Appellant was “pretty much
speechless.” Although Rodriguez said he did not think anyone had coached L.T.
on what statement to give to law enforcement, Rodriguez claimed L.T.’s story did
not “make sense.”
       A.M. testified she was not a heavy sleeper, and she believed she would have
woken up had Appellant committed the acts alleged by L.T. According to A.M.,
when Appellant informed A.M. of L.T.’s allegations, Appellant was in shock.
Finally, A.M. did not believe L.T.’s story and thought it was a result of L.T.’s
jealousy and desire for attention. The State’s three final witnesses, Frank Gregory,
Cassandra Gregory, and Laura Bond all testified that they knew L.T. well, and
each claimed that L.T. did not crave attention or drama.
       The jury was entitled to accept or reject any or all of the testimony of each
witness.    Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992).
Although the State and Appellant presented conflicting versions of the incident and
Appellant attacked L.T.’s credibility, the jury resolved those conflicts against
Appellant. L.T. testified that Appellant rubbed her feet; moved closer to her; and
touched her arms, stomach, back, buttocks, and breasts.                  Despite that L.T.
repeatedly pushed Appellant’s hand away, Appellant continued to touch her body.
After L.T. pushed Appellant’s hand off her breasts, he tried to put his hand on her
vagina and rub it. The jury apparently believed L.T. when she said Appellant
touched her breast, and the jury could have inferred from Appellant’s actions that,

       3
        There was conflicting testimony as to when exactly Rodriguez called Appellant to inform
Appellant of the allegations made against him.
                                              7
when he touched L.T., he did so with the intent to arouse or gratify his sexual
desire. See McKenzie, 617 S.W.2d at 216. We have reviewed the record and hold
that a rational jury could have found beyond a reasonable doubt that Appellant
committed the offense of indecency with a child by contact.             We overrule
Appellant’s first issue.

      B. Issue Two: Exclusion of Impeachment Testimony

      Appellant argues in his final issue that the trial court erred when it overruled
his “request to impeach the victim with a prior misleading statement.” Appellant
specifically claims that he should have been able to question L.T. about (1) her
prior misrepresentation of her age on her Facebook account and (2) her prior
allegation that, while she visited the country of Belize, her grandmother’s
boyfriend forced her to watch pornography. Rule 608(b) of the Texas Rules of
Evidence provides the following: “Except for a criminal conviction under
Rule 609, a party may not inquire into or offer extrinsic evidence to prove specific
instances of the witness’s conduct in order to attack or support the witness’s
character for truthfulness.” TEX. R. EVID. 608(b).
                 1. Facebook Account
      L.T. misrepresented her age on her Facebook account when she claimed she
was born in 1991; she was actually born in 1997. Appellant’s trial counsel argued
that the purpose of this evidence would be to indicate to the jury that L.T. had “not
always been truthful in the past.” On appeal, Appellant argues that he “should
have been allowed to introduce this evidence to show that the victim[] had lied in
the past and was capable [of] making misleading statements.” Appellant argued at
trial and argues on appeal that truthfulness was the purpose for which he sought to
introduce the evidence, which is a purpose that is not permitted under Rule 608(b).



                                          8
      Rule 608(b) is very restrictive and allows for no exceptions. Gonzales v.
State, 929 S.W.2d 546, 549 (Tex. App.—Austin 1996, pet. ref’d) (citing Ramirez v.
State, 802 S.W.2d 674, 676 (Tex. Crim. App. 1990)). Under the Confrontation
Clause of the Sixth Amendment, specific acts of conduct may be used to show a
witness’s bias or interest, but specific acts of conduct are not admissible to
impeach a witness’s character for truthfulness. Id. (citing Moody v. State, 827
S.W.2d 875, 891 (Tex. Crim. App. 1992) (while there are no exceptions to
Rule 608(b), constitutional confrontation right includes opportunity to expose
witness’s motivation in testifying); Thomas v. State, 897 S.W.2d 539, 542 (Tex.
App.—Fort Worth 1995, no pet.) (evidence of specific acts of conduct are
generally not admissible to attack witness’s credibility, but exception exists where
evidence shows bias or motive to testify untruthfully)). Appellant never advanced
any argument on bias or motive but stated the purpose for the admission of the
statement was to show untruthfulness based on a specific prior instance. Use of the
evidence for that purpose is prohibited, and the trial court did not abuse its
discretion when it excluded the evidence.
                2. Prior Allegation of a Sexual Offense
      L.T. had made a prior allegation that, when she visited family in Belize, her
grandmother’s boyfriend forced her to watch pornography. When it comes to the
admission of evidence of a sex-offense victim’s prior unsubstantiated allegation
against another, the Confrontation Clause may dictate the admission of the
evidence. See Lopez v. State, 18 S.W.3d 220, 225 (Tex. Crim. App. 2000). In
Lopez, the Court of Criminal Appeals had to decide “whether, in a case involving a
sexual offense, the Confrontation Clause demands that evidence of the
complainant’s prior false allegations of abuse against a person other than the
defendant be admissible, despite Rule 608(b)’s proscription against admitting
specific instances of conduct.” Id. at 223.
                                          9
        In Lopez, the Court of Criminal Appeals balanced the probative value of the
evidence that the defendant sought to introduce at trial against the prejudice of any
admission of the evidence. Id. at 225. The trial in Lopez “was the prototypical
‘swearing match’ between Lopez and [the complainant], so there was a heightened
need on Lopez’s part to impeach [the complainant’s] credibility.” Id. The Lopez
court concluded that the trial court properly excluded evidence of the prior
allegation for two reasons.             First, there was no evidence to show that the
complainant’s prior allegation against another was false, and second, the prior
allegation and the allegation at issue in the case were not the same. Id. at 225–26.
The Lopez complainant had previously alleged that his mother physically abused
him; in contrast, the complainant had alleged that Lopez sexually abused him. Id.
at 226.
        The same reasoning applies in the present case. First, Appellant provided no
evidence that L.T.’s prior allegation was false.4 Appellant’s arguments at trial
focused only on unsupported speculation, and L.T., when she testified outside the
presence of the jury, insisted that the alleged acts actually occurred. Second,
L.T.’s allegation that a man in Belize forced her to watch pornography is different
from the allegation she made against Appellant. Accordingly, the evidence failed
to have any probative value in impeaching L.T., and the risk that the evidence
would unduly prejudice and confuse the jury was high. Thus, the trial court did not
abuse its discretion when it excluded the evidence. We overrule Appellant’s
second issue.




        4
         Appellant’s contentions that L.T.’s allegation was untrue because it was not investigated and did
not result in a conviction are irrelevant because, as the trial court noted, there was no evidence that
forcing a child to watch pornography is an illegal act in Belize.
                                                   10
                                   VI. Conclusion
      We have reviewed the record, and we hold that there was sufficient evidence
to convict Appellant of the offense of indecency with a child by contact. We also
hold that the trial court did not abuse its discretion when it excluded Appellant’s
proffered impeachment evidence.
                              VII. This Court’s Ruling
      We affirm the judgment of the trial court.




                                                    MIKE WILLSON
                                                    JUSTICE


June 25, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




                                        11
