                                  NO. 07-09-0294-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL D

                                   APRIL 22, 2010
                          ______________________________

                             DAVID GUERRERO AGUILAR,

                                                              Appellant

                                            v.

                                THE STATE OF TEXAS,

                                                      Appellee
                         _______________________________

               FROM THE 242nd DISTRICT COURT OF HALE COUNTY;

                    NO. B18054-0905; HON. ED SELF, PRESIDING
                        _______________________________

                                  Memorandum Opinion
                         _______________________________

Before QUINN, C.J., and CAMPELL and PIRTLE, JJ.

       Appellant David Guerrero Aguilar appeals from his conviction for indecency with

a child by contact. Via a single issue, he contends the evidence is factually insufficient

to show that he was the person who committed the offense and that he had the

requisite mental state due to his intoxication. We affirm.
                                       Background

       While emptying the trash at 9 p.m., the victim, who was eight at the time,

encountered a man in her backyard.          The man approached her, placed his hand

underneath her clothing and touched her buttocks and vagina. The girl then began

knocking on the back door of her house to gain entry. Apparently, her father had just

locked it while not knowing she was outside.            Upon his opening the door, he

encountered a distraught daughter and appellant next to her. No one else was seen.

       The child ran inside and told her mother what had occurred. Upon hearing this,

the child’s father struck appellant and held him until the police arrived.     When asked,

the father testified that appellant appeared intoxicated.

Issue – Factual Insufficiency

       According to appellant the evidence is factually, not legally, insufficient to identify

him as the assailant since no one directly testified that he was the person who touched

the child. Rather, the evidence simply placed him in the backyard, next to the girl when

her father opened the door. So too does he question the factual sufficiency of the

evidence illustrating that he had the requisite mens rea to commit the offense since he

was drunk. We overrule each contention.

       The standard of review for factual sufficiency issues is well established. We refer

the parties to Watson v. State, 204 S.W.3d 404 (Tex. Crim. App. 2006) for its

explanation.

       As charged by the indictment, appellant could be found guilty of the offense if the

State established, beyond reasonable doubt, that he engaged in sexual contact with the

child. TEX. PENAL CODE ANN. §21.11 (Vernon Supp. 2009). Furthermore, sexual contact



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consists of touching "any part of the genitals of a child" with "intent to arouse or gratify

the sexual desire of any person." Id. §21.11(c).

          As for the dispute regarding appellant’s identity as the assailant, the record

illustrates that the offense occurred after dark as the child was returning from emptying

the household trash. The dumpster wherein the trash was placed was located in the

alley behind her house. After being touched, the child grew scared and attempted to

enter her house. When her father responded to her knocking, appellant was the only

one he saw in the yard, other than his daughter. Moreover, appellant was standing

adjacent to the girl. It is beyond doubt that one can be convicted on the basis of

circumstantial evidence that proves beyond reasonable doubt that appellant committed

that with which he was accused. Laster v. State, 275 S.W.3d 512, 520-21(Tex. Crim.

App. 2009). So direct evidence of appellant being the assailant was unnecessary if

circumstantial evidence nonetheless existed establishing him as same.             And, such

circumstantial evidence existed here, given the aforementioned evidence. The latter is

not weak. Nor does the entire evidentiary record render the verdict manifestly wrong or

unjust.

          Regarding the matter of appellant’s mens rea, evidence of his intoxication did not

ipso facto render factually insufficient the jury’s finding that he touched the child with the

intent to arouse or gratify someone’s sexual desire. Indeed, the court in Smock v.

State, No. 11-03-00376, 2005 Tex. App. LEXIS 3612 (Tex. App.–Eastland May 12, 2005,

no pet.) (not designated for publication) (wherein appellant contended that the evidence

was factually insufficient to prove he had the intent to commit burglary by committing or

attempting to commit indecency with a child due to his intoxication), found the evidence



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factually sufficient to support conviction even though appellant was drunk. Id. at *10.

And, because one’s intent may be inferred from his conduct and words, Shamm v.

State, 280 S.W.3d 271, 277 (Tex. App.–Amarillo 2007, no pet.) (involving whether the

State sufficiently proved that appellant exposed himself with the intent to arouse or

gratify the sexual desire of any person); accord, Esquivel v. State, No. 04-06-0695-CR,

2007 Tex. App. LEXIS 8640 (Tex. App.–San Antonio October 31, 2007, pet. dism’d) (not

designated for publication) (stating that the specific intent to arouse or gratify the sexual

desire of any person can be inferred from the defendant’s conduct, remarks and the

surrounding circumstances), the jury was entitled to conclude that appellant had the

requisite specific intent to arouse and gratify his sexual desire from the evidence that he

approached the child in her backyard at night, slipped his hands under her clothes and

touched both her genitalia and buttocks. Such a conclusion is not supported by weak

evidence. Nor is it manifestly unjust simply because appellant also may have been

drunk.

         The judgment of the trial court is affirmed.



                                                   Brian Quinn
                                                   Chief Justice
Do not publish.




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