                                          NO. 07-03-0452-CR

                                   IN THE COURT OF APPEALS

                           FOR THE SEVENTH DISTRICT OF TEXAS

                                             AT AMARILLO

                                                 PANEL E

                                        APRIL 16, 2004
                               ______________________________

                                  JEFFERY THOMAS PARADISE,

                                                                            Appellant

                                                      v.

                                       THE STATE OF TEXAS,

                                                          Appellee
                            _________________________________


                  FROM THE 411TH DISTRICT COURT OF POLK COUNTY;

                    NO. 17,149; HON. ROBERT HILL TRAPP, PRESIDING

                              _______________________________

                                   Memorandum Opinion
                             ________________________________


Before QUINN and REAVIS, JJ., and BOYD, S.J.1

        Appellant Jeffery Thomas Paradise appeals his conviction for indecency with a child.

After a jury trial, appellant was found guilty and sentenced to 12 years imprisonment. He

timely filed a notice of appeal, and counsel was appointed to represent him. The latter has



        1
        John T. Boyd, Chief Justice (Re t.), Seventh C ourt of Appeals, sitting by assignment. Tex. Gov’t Code
Ann. §75.00 2(a)(1) (V erno n Su pp. 2004 ).
moved to withdraw after filing a brief pursuant to Anders v. California, 386 U.S. 738, 87

S.Ct. 1396, 18 L.Ed.2d 493 (1967), and representing that he has searched the record and

found no arguable grounds for reversal. The brief illustrates that appellant was informed

of his right to review the record and file his own brief. So too did we inform appellant that

any brief he cared to file had to be filed by March 11, 2004. Upon request by appellant,

that deadline was extended to April 12, 2004. To date, appellant has neither filed a pro se

response nor moved for an additional extension of time.

       We will proceed to address the validity of the issues raised by appointed counsel.

The first is the legal and factual sufficiency of the evidence to sustain the conviction which

counsel explains is sustainable on the testimony of the child victim alone. TEX . CODE CRIM .

PROC . ANN . art. 38.07 (Vernon Supp. 2004); Perez v. State, 113 S.W.3d 819, 838 (Tex.

App.--Austin 2003, pet. ref’d). Further, the intent to arouse or gratify appellant’s sexual

desire can be inferred from appellant’s conduct without an oral expression of intent.

McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. 1981); Wallace v. State, 52

S.W.3d 231, 234 (Tex. App.--El Paso 2001, no pet.). Thus, the victim’s testimony that

appellant pulled down her panties, touched her on her private parts, put his finger inside

of her, and rubbed her was sufficient to uphold the conviction even though appellant

denied having performed any of those acts.

       The second issue concerns the effective assistance of appellant’s trial counsel.

Appellate counsel points out that trial counsel had a grasp of the facts and the applicable

law, adequately cross-examined the State’s witnesses, presented a witness on appellant’s

behalf at the punishment hearing, objected to improper questioning and successfully



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challenged potential jurors during voir dire. No evidence of record illustrates that counsel

failed to provide a vigorous defense.

       Next, counsel discusses the challenge of a potential juror for cause. The trial court

overruled appellant’s challenge for cause to potential juror DeWayne Oates who knew the

family of the victim and also had an adopted sister who had been sexually assaulted.

Nevertheless, Oates stated he could be fair and impartial. The trial court does not abuse

its discretion in refusing to grant a challenge for cause if the record shows as a whole that

the juror can set aside his preconceptions. Freeman v. State, 74 S.W.3d 913, 915 (Tex.

App.--Amarillo 2002, pet. ref’d).

       Finally, the trial court also admitted the testimony of Lieutenant Darryl Hartless over

appellant’s objection. Hartless testified that he had visited appellant in jail after appellant

had invoked his right to counsel in order to warn appellant that he was making statements

that might cause him to be harmed by other prisoners in jail. As he was doing so, appellant

asked him, “How much time do you think I’m going to get for this offense?” A voluntary oral

statement made by an accused while in custody is admissible if it is not the result of

custodial interrogation. TEX . CODE CRIM . PROC . ANN . art. 38.22 §5 (Vernon Supp. 2004);

Griffith v. State, 55 S.W.3d 598, 603 (Tex. Crim. App. 2001) (holding there is no Fifth

Amendment right to counsel if there is no interrogation). Custodial interrogation includes

not only express questioning but any words or actions on the part of police that they know

are reasonably likely to elicit an incriminating response. Jones v. State, 795 S.W.2d 171,

174 (Tex. Crim. App. 1990). In this instance, the officer did not question appellant but

provided a warning for his own safety. There was no reason for him to know that appellant



                                              3
would pose the question that he did. For this reason, the trial court did not abuse its

discretion.

       We have also conducted our own review of the record pursuant to Stafford v. State,

813 S.W.2d 503 (Tex. Crim. App. 1991) and have found no arguable issue warranting

reversal.

       Accordingly, counsel’s motion to withdraw is granted, and the judgment of the trial

court is affirmed.



                                                Per Curiam

Do not publish.




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