                       COURT OF APPEALS
                       SECOND DISTRICT OF TEXAS
                            FORT WORTH

                            NO. 02-15-00303-CR


JOSE L. JIMENEZ                                                  APPELLANT

                                     V.

THE STATE OF TEXAS                                                    STATE


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       FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY
                   TRIAL COURT NO. 1327144D

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                                 OPINION

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                              I. INTRODUCTION

     A jury found Appellant Jose L. Jimenez guilty of the offense of indecency

with a child by contact, and the trial court sentenced him to eight years’

imprisonment.   Appellant raises six issues––two issues challenging the

sufficiency of the evidence and four issues challenging the admission of
testimony from four witnesses for impeachment purposes. For the reasons set

forth below, we will affirm the trial court’s judgment.

                               II. FACTUAL OVERVIEW1

      Appellant is the father of Timmy,2 who was five years old at the time of the

offense. Appellant had been away from home for several days. He came home

late on the evening of April 18, 2013, and he was intoxicated. His wife, Timmy’s

mother Ann,3 was angry with him for the time he had spent away from home and

suspected he had been with his paramour.           She readied Timmy for bed by

putting on his pajamas. She refused to sleep in the couple’s bed with Appellant,

so she went to sleep on the couch.

      The next morning, Ann went to wake Timmy for school. Timmy was in the

couple’s bed with Appellant. When Ann pulled back the covers, she saw that

Appellant was fully clothed and that Timmy did not have on his pajama bottoms.

Timmy told Ann that Appellant had touched him on his “wee-wee.”

      Ann called the police a few days later to report the incident. The police

responded, and Ann made statements to them.               Timmy was examined by a



      1
       We provide a more detailed recitation of the facts in connection with the
analysis of Appellant’s issues.
      2
       To protect the victim’s identity, we refer to him by a pseudonym. See
McClendon v. State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.]
1982).
      3
       Ann does not speak English; she testified at trial through a translator.


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sexual assault nurse examiner (SANE) and made statements to her and to a

forensic investigator.

                         III. SUFFICIENCY OF THE EVIDENCE

      Appellant’s first two issues challenge the legal and factual sufficiency of

the evidence to support his conviction, respectively.

                             A. Standard of Review

      The dual concepts of “factual insufficiency” and “legal insufficiency” are

now a single “sufficiency” standard, as was articulated by the United States

Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781 (1979). See

Brooks v. State, 323 S.W.3d 893, 894–912 (Tex. Crim. App. 2010) (overruling

Clewis v. State, 922 S.W.2d 126, 134–36 (Tex. Crim. App. 1996)).              The

Jackson standard is the only standard that a reviewing court should apply in

determining whether the evidence is sufficient to support each element of a

criminal offense that the State is required to prove beyond a reasonable doubt.

Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011) (referencing

Jackson, 443 U.S. at 319, 99 S. Ct. at 2789), cert. denied, 132 S. Ct. 1763

(2012). Under the Jackson standard, we examine all of the evidence in the light

most favorable to the verdict and determine whether, based on that evidence and

any reasonable inferences from it, any rational trier of fact could have found the

essential elements of the offense beyond a reasonable doubt. 443 U.S. at 319,

99 S. Ct. at 2789; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).




                                         3
                          B. Elements of the Offense

      A person commits the offense of indecency with a child by contact if, with a

child younger than seventeen years and not the person’s spouse, the person

engages in sexual contact with the child. Tex. Penal Code Ann. § 21.11(a)(1)

(West 2011). “Sexual contact” means the following acts, if committed with the

intent to arouse or gratify the sexual desire of any person: any touching by a

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

genitals of a child. Id. § 21.11(c)(1). A person acts intentionally with respect to

the nature of the conduct or a result of the conduct when it is the person’s

conscious objective or desire to engage in the conduct or cause the result. Id.

§ 6.03(a) (West 2011). In the context of indecency with a child, the factfinder can

infer the requisite intent to arouse or gratify the sexual desire from conduct,

remarks, or all the surrounding circumstances.       See McKenzie v. State, 617

S.W.2d 211, 216 (Tex. Crim. App. [Panel Op.] 1981). The intent to arouse or

gratify may be inferred from conduct alone. Id. No oral expression of intent or

visible evidence of sexual arousal is necessary. Gregory v. State, 56 S.W.3d

164, 171 (Tex. App.––Houston [14th Dist.] 2001, pet. dism’d), cert. denied, 538

U.S. 978 (2003). Moreover, because voluntary intoxication is not a defense to

the commission of a crime, evidence of a defendant’s voluntary intoxication does

not negate the mens rea elements of intent or knowledge. See Tex. Penal Code

Ann. § 8.04(a) (West 2011); Hawkins v. State, 605 S.W.2d 586, 589 (Tex. Crim.

App. [Panel Op.] 1980).


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                                C. The Evidence

                              1. Ann’s Testimony

      At trial, Ann testified that Timmy usually slept in bed with the couple, that

she had heard Timmy and Appellant playing and laughing in the bedroom that

night, and that Timmy had told her that Appellant had taken off his pajamas to

play “tickles” and had accidently brushed against him. Ann steadfastly testified

that Timmy had never said that Appellant had touched his private parts because

“those were not his words.” Ann admitted that she had called the police and had

reported the incident; Ann said that she had told the police that Appellant and

Timmy were just playing but that the police would not listen to her.

                             2. Timmy’s Testimony

      At trial, Timmy testified that he had lied when he said Appellant had

touched him because he did not know what was touching him, just that it was

very cold.   Timmy admitted that he had told his mother that Appellant had

touched him but said, “I don’t know if it was him.” When the prosecutor asked

whether he thought someone else was touching him, he said, “[M]aybe.” When

the prosecutor asked, “[On] what part of your body did you think that someone

touched you?” Timmy answered, “[M]y wee-wee,” which he said he uses to pee.

Timmy testified that he did not remember talking to a lady in a room with a

camera. Timmy also testified that he had taken his pajamas off himself because

he was hot. Timmy further testified that he had lied to his mother about what had




                                         5
happened and that no one had asked him to change his story; he did it on his

own.

              3. Appellant’s Testimony and Videotaped Statement

       The video of Appellant’s statement to Fort Worth Police Sergeant Patrick

Delano was played for the jury. On the video, Appellant says that if Timmy said

Appellant touched his private parts, then he touched them.

       Appellant testified at trial and was asked, “So what happened that

morning? What’s the first thing you remember when you woke up?” And he

answered:

       Just like she said, she walked in, and I was still asleep and she
       wakes him up. I remember she pull[ed] up the covers and, you
       know, I feel pretty much everything because I’m sensitive of
       everything that’s going on. And she said, “Why are you naked?”
       And his first words he said, “My dad took my clothes off.” And she
       says -- and then she asked him why, and he did say that because he
       was playing with me, and I remember that, you know, he did mention
       that I touched him on his wee-wee, and I’m like, what? But then, you
       know, that’s the opportunity that she took to make it into, like,
       something that it wasn’t, and now gives it to the State and tells the
       State about this, and now we’re here.

Appellant denied that he had touched Timmy “improperly.”

       Appellant admitted both on the video and at trial that he was intoxicated

that night and does not remember what happened. Appellant also admitted that

when Ann confronted him about what had happened that night, he told her that

he was drunk and could have thought that it was her in the bed with him. He

testified, “I told her that I am sorry if I touched him.”




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                    4. Testimony of Nurse Brenda Crawford

      Brenda Crawford is a registered nurse; she is certified as a SANE and

works at Cook Children’s Medical Center.         She performed a sexual assault

examination on Timmy on May 1, 2013. Because Ann speaks only Spanish and

because Nurse Crawford is fluent in Spanish, she was assigned to Timmy’s

case. Ann told Nurse Crawford that her husband had come home drunk, had

gone to their bedroom to sleep, and had taken Timmy with him into the bedroom;

that she could hear Timmy telling his father to leave him alone because he

wanted to sleep; and that when she went to wake up Timmy for school, he was

not wearing any clothes. Ann asked Timmy why his clothes were off, and he said

that his daddy took off his clothes and touched his “bebitos.” Nurse Crawford

explained that she writes down verbatim what she is told, using that person’s

words. Nurse Crawford testified that Timmy told her, “My dad touched me at

night[,] and he was drunk. He took my PJ pants and undies off and touched me

here” and pointed to his genital area. Nurse Crawford said those were Timmy’s

words. Nurse Crawford testified that neither Timmy nor Ann mentioned anything

to her about tickling, wrestling, playing, or an accidental touching.

         5. Testimony of Fort Worth Police Sergeant Patrick Delano

      Patrick Delano testified that he is a sergeant with the City of Fort Worth

Police Department. In May 2013, he worked in the crimes against children unit

and was assigned to investigate an indecency case against Appellant. Sergeant

Delano testified that Ann told him that around 6:50 a.m. when she went to wake


                                          7
up Timmy for school, she pulled the covers back on the bed and saw that his

underwear and his pajama bottoms were down at the foot of the bed but that he

still had his pajama top on. When she asked Timmy why his pajamas were off,

he said that his dad had taken them off and had touched him on his privates.

Sergeant Delano said that Ann never told him she thought the offense did not

happen or that it was an accident. Sergeant Delano then met with Appellant and

interviewed him; the interview was recorded and admitted into evidence as

State’s Exhibit 3.

   6. Testimony of Child Protective Services (CPS) Investigator Vincent
                               Appolonio

      Vincent Appolonio of CPS was assigned to investigate an allegation

concerning Timmy and Appellant. Appolonio said that when he spoke with Ann,

she was concerned about her family being broken up; she said that she had

confronted Appellant about what had happened and that he had apologized and

had said that he thought it was her in the bed. Appolonio interviewed Timmy at

his elementary school.      After obtaining general information from Timmy,

Appolonio began asking general sexual screening questions. Timmy made a

statement to Appolonio reflecting sexual abuse, so Appolonio stopped his

interview and referred Timmy for a forensic interview.

             7. Testimony of Forensic Interviewer Charity Henry

      Charity Henry testified that she is employed with Alliance for Children as a

forensic interviewer and that in that capacity, she interviews children to find out



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what, if anything, happened regarding allegations of violent crimes and abuse,

mainly sexual abuse. Henry conducted two interviews of Timmy. During the first

interview, Timmy was able to provide sensory and peripheral details concerning

what had happened.       Henry conducted a second interview of Timmy eight

months after the first interview because she had been informed that he had

recanted. Henry said that Timmy was more hesitant in the second interview but

said that he did not recant.

             D. The Law on Outcry Statements and Recantations

      A child victim’s outcry statement alone can be sufficient to sustain a

conviction for a sexual offense. Rodriguez v. State, 819 S.W.2d 871, 873 (Tex.

Crim. App. 1991); Saldaña v. State, 287 S.W.3d 43, 60 (Tex. App.––Corpus

Christi 2008, pet ref’d); Kimberlin v. State, 877 S.W.2d 828, 831 (Tex. App.––Fort

Worth 1994, pet. ref’d). And when such statements are recanted by the victim

and the outcry witness, the jury as the sole judge of the credibility of the

witnesses is entitled to determine whether to believe the prior statements or the

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

Saldaña, 287 S.W.3d at 60 (“Furthermore, when a witness recants prior

testimony, it is up to the fact finder to determine whether to believe the original

statement or the recantation.     A fact finder is fully entitled to disbelieve a

witness’s recantation.”); Jackson v. State, 110 S.W.3d 626, 631 (Tex. App.—

Houston [14th Dist.] 2003, pet. ref’d) (“[A] criminal conviction, which requires

proof beyond a reasonable doubt, may rest on hearsay despite the lack of the


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complainant’s testimony or even the complainant’s recantation.”).        That is, a

complainant’s recantation of an earlier outcry statement does not destroy the

probative value of the statement. Chambers, 805 S.W.2d at 461.

                            E. Sufficiency Analysis

      Both Timmy and Appellant testified that when Ann pulled back the covers

and asked Timmy why his pajama bottoms were off, Timmy said that Appellant

had touched his “wee-wee.”      The State argued in opening statement and in

closing arguments that this initial statement by Timmy was truthful; that then-five-

year-old Timmy’s statement to his mother the morning when she pulled back the

covers was credible because when he made the statement, he was just

answering her question without thought of any consequences.4           Additionally,

Appellant did not deny touching Timmy’s genitals but insisted that any touching



      4
       The prosecutor argued:

      Times in this job you come to realize that the English language has
      cliches for a reason, and one that has stuck out to me is one that I
      think gives a snapshot of what this case is about is, in whole, from
      the mouth of babes comment. It is the whole idea that children,
      when they are not so cynical from years of maturing, often say the
      darnedest things, and they often say things without thought about --
      without worry about the consequences because it’s just the truth.
      It’s just what happened, and in this case back in April 2013, five-
      year-old [Timmy] Jimenez was a babe. And when his mother asked
      him, based upon the stuff she had seen, “Hey, did daddy touch
      you?” The babe, without the thought of anything other than this is
      what I was asked, says yes. He says that this defendant touched
      his, in his words, a five-year-old’s mind’s words, his wee-wee, his
      genitals.


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was accidental and was not done “improperly.”5 Appellant also testified that he

was intoxicated that night and does not remember much of what happened; he

testified that he had told Ann that maybe he had hugged Timmy thinking it was

her in bed with him.6    And Timmy’s “recantation” was equivocal; he did not

change his testimony that someone or something had touched his “wee-wee” but

testified he did not know that it was Appellant who had touched him.             See

Chambers, 805 S.W.2d at 461 (explaining that based on victim’s equivocating

statements, “it [was] questionable whether this was a true repudiation . . . or

merely a conflict in testimony. The jury observed the complainant’s demeanor

      5
       Appellant’s attorney asked him: “So you absolutely deny you touched him
in any way, shape, or form improperly?” And Appellant answered, “Improperly,
yes.”
      6
      Appellant testified:

            Q. What about the statement [Ann] told somebody that maybe
      you hugged her -- hugged him and thought it was her?

             A. Well, because she like -- got like, what the hell is going on,
      and I’m like, excuse me for my -- and I’m like, well, if -- if he said
      that, I touched him, all right. The only thing I can think of is, you
      know, maybe I was hugging you and thinking that it was you, all
      right. But is that something that’s maliciously -- I mean, you know
      what I’m saying.

            Q. Uh-huh.

            A. Not on purpose.

            Q. But then, again, is hugging somebody different than
      touching their private areas?

            A. Well, it’s up to them to decide.


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and was entitled not only to reconcile any such conflicts, but even to disbelieve

her recantation”).    Accordingly, viewing all of the evidence—including Nurse

Crawford’s, Sergeant Delano’s, Appolonio’s, and Henry’s testimony—and the

reasonable inferences from it and deferring to the jury’s weight and credibility of

the evidence determinations, we hold that a rational trier of fact could have found

beyond a reasonable doubt that the essential elements of the offense of

indecency with a child (Timmy) by contact were committed by Appellant. See

Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Isassi, 330 S.W.3d at 638; see also

Tex. Penal Code Ann. §§ 8.04(a), 21.11(a)(1). We overrule Appellant’s first and

second issues.

    IV. COMPLAINTS CONCERNING IMPEACHMENT TESTIMONY WERE FORFEITED

      In issues three through six, Appellant asserts that the trial court erred by

permitting Nurse Crawford, Sergeant Delano, Appolonio, and Henry to testify to

prior statements made by Ann for the purpose of impeaching Ann’s trial

testimony. Specifically, Appellant argues that the State’s primary purpose for

eliciting the testimony from these witnesses concerning Ann’s statements to them

“was to place before the jury otherwise inadmissible hearsay evidence. [See]

Hughes v. State, 4 S.W.3d 1 (Tex. Crim. App. 1999).” The State asserts that

these complaints were forfeited because Appellant did not assert these

complaints in objections at trial.

      The Texas Court of Criminal Appeals has held that a hearsay objection to

prior-inconsistent-statement impeachment testimony did not comport with a


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complaint like Appellant’s here—that the State’s actual purpose in impeaching

Ann was to gain admission of her prior statements. See Barley v. State, 906

S.W.2d 27, 36–37 & n.11 (Tex. Crim. App. 1995) (holding appellate complaint—

that “the written statement of Jimmy Fuller, who was called as a witness by the

prosecution and then impeached, ostensibly by his prior inconsistent statements,

when in fact, said impeachment was employed as a mere subterfuge to get

otherwise inadmissible hearsay evidence before the jury”—was not preserved by

hearsay objection), cert. denied, 516 U.S. 1176 (1996). Appellant asserted either

no objection, hearsay objections, or confrontation clause objections to the

complained-of testimony by Nurse Crawford, Sergeant Delano, Appolonio, and

Henry.   These objections do not raise the complaint Appellant asserts on

appeal—that the prior inconsistent statements of Ann were inadmissible as

impeachment evidence under rule 607 because the State’s actual purpose in

offering the statements was to place otherwise inadmissible testimony before the

jury, which made the statements more prejudicial than probative under rule 403.

See Hughes, 4 S.W.3d at 5.       Because Appellant’s complaints regarding the

impeachment testimony were not raised in the trial court, the trial court did not

have the opportunity to rule on them, and they are forfeited on appeal. See

Barley, 906 S.W.2d at 37 & n.11 (holding rule 403 objection to prior-inconsistent-

statement evidence—which was purportedly offered by State for impeachment

under rule 607 but was actually offered to gain admission of otherwise

inadmissible testimony—was not made in trial court, so complaint was forfeited


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on appeal); see also Tex. R. App. P. 33.1(a)(1).       Accordingly, we overrule

Appellant’s third through sixth issues.

                                  V. CONCLUSION

      Having overruled each of Appellant’s six issues, we affirm the trial court’s

judgment.

                                                  /s/ Sue Walker
                                                  SUE WALKER
                                                  JUSTICE

PANEL: LIVINGSTON, C.J.; WALKER, J.; and CHARLES BLEIL (Senior
Justice, Retired, Sitting by Assignment).

BLEIL, J., filed a dissenting opinion.

PUBLISH

DELIVERED: December 22, 2016




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