                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-13-00482-CR


KURLEY JAMES JOHNSON                                                APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


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          FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY
                      TRIAL COURT NO. 53,445-C

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                        MEMORANDUM OPINION 1

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      Appellant Kurley James Johnson was charged by indictment with three

counts of indecency with a child by contact. Each count alleged an offense

against a different complainant. Appellant pled not guilty to each count. The jury

found him guilty on each count and, as to each count, assessed punishment at

imprisonment for life. The trial court sentenced him accordingly and ordered the

      1
       See Tex. R. App. P. 47.4.
three life sentences to be served consecutively. Appellant brings two points on

appeal, arguing that the evidence is insufficient to support each of his three

convictions for indecency with a child and that the trial court reversibly erred by

allowing an expert witness to testify that the complainants had not been coached.

Because the evidence is sufficient to support the jury’s verdict and because the

trial court committed no reversible error, we affirm the trial court’s judgment.

Brief Summary of Facts

      The complainants are referred to by pseudonyms: Count 1—Pseudonym

120002A (“Avery”), Count 2—Pseudonym 120002C (“Lala”), and Count 3—

Pseudonym 120002D (“Nikki”).

      On December 24, 2011, Appellant was at the home of his relative M.J.

M.J.’s daughters Lala and Nikki were there with their friends Avery and Avery’s

sister, CC. Later that same day, Avery made an outcry to her mother, who told

M.J. Avery, Lala, and Nikki (collectively “Complainants”) said that Appellant had

placed his hand on their genitals over their clothes. M.J. and his son were also in

the house when those acts occurred.

      About a week later, Complainants’ mothers filed a police report listing

Appellant as a suspect for indecency with a child by sexual contact. Officers took

the reports, filled out a pseudonym sheet for each complainant, and forwarded the

information to the Criminal Investigative Division (“CID”).           Following CID

procedure, the CID did not personally interview the children involved in the report

but instead went to Patsy’s House—a child advocacy center—which has forensic


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interviewers trained to speak with children in these cases. Complainants were

interviewed by Shannon May, a forensic interviewer for Patsy’s House.

      At trial, Avery testified that Appellant picked her up, placed her on his lap,

and rubbed his hand over her genital area for “[a] few seconds” while they played

a game of Monopoly. Appellant stopped when Avery asked to use the bathroom.

Lala testified that on the same day, Appellant touched her “private area” as she

was playing a computer game in the living room. She testified that he moved his

hand while he touched her but said that she was too embarrassed to explain how

he moved it.     Lala said that Appellant stopped when she moved to another

couch.    Although Nikki was unable to testify whether she was lying down,

standing up, or sitting down when the incident occurred, she also testified that

Appellant placed his hand on her genitals over her clothes, but she said that he

kept his hand still.

      May also testified at trial.     May had completed training in conducting

forensic interviews with children who had allegedly been sexually molested. She

had also completed a five-block training course through the State of Texas and

additional national forensic interview training.

      At trial, May explained that her interview process was a semi-structured

narrative process; some parts of the interviews were therefore the same with all

the children. She testified,

      I want to make sure that they understand the difference in truth and
      lie. I want to make sure that they’re kind of developmentally on
      target so I’m asking questions that they understand. And then I’m


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      just trying to ask them in a way that’s free narrative, so from their own
      recall, they can put words to their own story.

      All four children were interviewed, but CC did not describe a completed

offense of indecency with a child during May’s interview.

      The State asked May if there was “anything else significant about the

interviews and the way the children answered their questions.” May testified that

“[t]here was nothing that [the children] stated that would make [her], based on

[her] experience, think that there was any coaching.” Appellant objected to May’s

statement, asserting that the statement was intended to “bolster the credibility of

the witness.” The trial court overruled Appellant’s objection.

Sufficiency of the Evidence

      In his first point, Appellant argues that the evidence of intent to arouse or

gratify is insufficient to support the jury’s verdict. In our due-process review of the

sufficiency of the evidence to support a conviction, we view all of the evidence in

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

fact could have found the essential elements of the crime beyond a reasonable

doubt. 2 This standard gives full play to the responsibility of the trier of fact to

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

inferences from basic facts to ultimate facts. 3

      2
      Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014).
      3
       Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Dobbs, 434 S.W.3d at 170.



                                           4
      The trier of fact is the sole judge of the weight and credibility of the

evidence.4 Thus, when performing an evidentiary sufficiency review, we may not

re-evaluate the weight and credibility of the evidence and substitute our judgment

for that of the factfinder.5    Instead, we determine whether the necessary

inferences are reasonable based upon the cumulative force of the evidence when

viewed in the light most favorable to the verdict.6 We must presume that the

factfinder resolved any conflicting inferences in favor of the verdict and defer to

that resolution.7

      The standard of review is the same for direct and circumstantial evidence

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

the guilt of an actor.8 In determining the sufficiency of the evidence to show an

appellant’s intent, and faced with a record that supports conflicting inferences, we

“must presume—even if it does not affirmatively appear in the record—that the




      4
      See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs, 434
S.W.3d at 170.
      5
       Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
      6
      Sorrells v. State, 343 S.W.3d 152, 155 (Tex. Crim. App. 2011); see
Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013).
      7
       Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Dobbs, 434 S.W.3d at 170.
      8
      Dobbs, 434 S.W.3d at 170; Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.
App. 2007).



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trier of fact resolved any such conflict in favor of the prosecution, and must defer

to that resolution.” 9

       Section 21.11 of the penal code provides in pertinent part,

       (a)   A person commits an offense if, with a child younger than 17
       years of age, whether the child is of the same or opposite sex, the
       person:

               (1)    engages in sexual contact with the child or causes the
               child to engage in sexual contact . . . .

       ....

       (c)   In this section, “sexual contact” means the following acts, if
       committed with the intent to arouse or gratify the sexual desire of any
       person:

               (1)     any touching by a person, including touching through
               clothing, of the anus, breast, or any part of the genitals of a
               child . . . 10

       It is well established that intent may be inferred from an accused’s behavior

and words as well as from the surrounding circumstances.11 Avery, who was

eleven, testified that she went into the kitchen to the table where Appellant and

the other children were playing Monopoly. Appellant put her in his lap, put his

hand “at” her “front private” over her clothes, and moved his hand up and down.

Avery did not testify that any adult other than Appellant was in the room. There is

       9
        Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991).
       10
           Tex. Penal Code Ann. §21.11(a)(1) (West 2011).
       11
         McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. [Panel Op.]
1981); Bazanes v. State, 310 S.W.3d 32, 37 (Tex. App.—Fort Worth 2010, pet.
ref’d); see Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004).



                                          6
no evidence that Appellant said anything significant to the determination of intent,

but he stopped only when Avery got up and walked away. Lala testified that he

did essentially the same thing to her on that same day and stopped when she

moved away from him. Although Nikki was unable to provide detail, she testified

that Appellant touched her genitals through her clothing with his hand.

      Avery’s sister CC testified that Appellant rubbed her right hip and that when

Avery was sitting in his lap, although CC could not see his hand moving, she saw

his left shoulder moving.

      Thus, the evidence shows that Appellant touched and rubbed the genitals

of two of the complainants and touched the genitals of the third complainant. He

rubbed the hip of a fourth girl, who testified that she saw his arm moving while

Avery was sitting in Appellant’s lap. The evidence that Appellant engaged in

sexual contact with each of the three girls on the same day suggests that the

contact was not accidental or inadvertent. Nothing in the context of the fondling

suggests that a nonsexual explanation for the contact exists. Additionally, the

testimony suggests that Appellant was trying to hide his actions by engaging in

the touching below the level of the table or when the respective child was alone.

Considering the record as a whole, and employing the appropriate standard of

review, we hold that the evidence is sufficient to support the jury’s determination

that Appellant fondled each of the three girls with intent to arouse or gratify his

sexual desire. We overrule Appellant’s first issue.




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Opinion Testimony of Interviewer

      In his second point, Appellant argues that the trial court reversibly erred by

allowing May to testify that she saw no evidence of coaching when she

interviewed the children because the opinion constituted improper bolstering of

the children’s testimony. Technically, May did not testify that in her opinion they

had not been coached.        Rather, she testified that “[t]here was nothing that

the[ children] stated that would make [her], based on [her] experience, think that

there was any coaching.” That is, she said that she saw no evidence of coaching,

which is permissible. 12 We see no expression of May’s opinion of the truthfulness

of the children. 13 We therefore hold that the trial court did not abuse its discretion

by admitting May’s testimony. But even if, as Appellant argues, May’s objected-to

testimony was an expression of her opinion of the truthfulness of the children, and

therefore inadmissible, 14 a conclusion we do not reach, Appellant suffered no

harm.15 Trial counsel’s skillful cross-examination of May revealed that, although

she did not suspect coaching, she could not know for a certainty, or even a




      12
       See Schutz v. State, 957 S.W.2d 52, 70, 73 (Tex. Crim. App. 1997);
Cantu v. State, 366 S.W.3d 771, 777 (Tex. App.—Amarillo 2012, no pet.).
      13
        See Schutz, 957 S.W.2d at 73; Cantu, 366 S.W.3d at 777.
      14
        See Yount v. State, 872 S.W.2d 706, 709 (Tex. Crim. App. 1993).
      15
        See Tex. R. App. P. 44.2(b).



                                          8
probability, that the children’s testimony had not been influenced. We overrule

Appellant’s second point.

Conclusion

      Having overruled Appellant’s two points, we affirm the trial court’s

judgments.




                                                /s/ Lee Ann Dauphinot
                                                LEE ANN DAUPHINOT
                                                JUSTICE

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: April 16, 2015




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