                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


                                                §
 STEPHEN OROZCO,                                                No. 08-07-00070-CR
                                                §
                  Appellant,                                      Appeal from the
                                                §
 V.                                                             210th District Court
                                                §
 THE STATE OF TEXAS,                                         of El Paso County, Texas
                                                §
                  Appellee.                                    (TC# 2006ODO4478)
                                                §

                                                §

                                         OPINION

       Stephen Orozco appeals his conviction for three counts of indecency with a child. The

jury assessed punishment at 12 years’ imprisonment for the indecency count involving sexual

contact and 5 years’ imprisonment for each indecency count involving exposure. The sentences

are to be served concurrently. Appellant raises four issues for our review. We affirm.

       The complaining witness in this case, A.H., was seven-years-old at the time he alleged

Appellant abused him. According to the child’s testimony, on March 16, 2006, Appellant was

spending time with his mother and sister in the family’s home. When A.H.’s mother fell asleep

on the couch, Appellant touched the boy’s genitals. Appellant then told A.H. to go to his room.

He instructed A.H. to undress and lie down, at which point A.H. testified that Appellant knelt

down and began performing oral sex on him. Appellant then told A.H. to go to the bathroom,

where Appellant made the child touch his own genitals. Finally, Appellant instructed A.H. to

kneel on the toilet, where Appellant rubbed lotion on A.H.’s backside and inserted his fingers in
the child’s rectum.

          While A.H. was still kneeling on the toilet, his stepfather arrived home and found

Appellant in the bathroom with the child. The child’s stepfather testified that Appellant had a

bottle of lotion in his hand when he opened the bathroom door. He also noticed that Appellant’s

pants were undone and that he had an erection. A.H.’s mother pushed the bathroom door open

when she heard Appellant yelling denials at A.H.’s stepfather. She also testified that Appellant’s

pants were unbuttoned, and that Appellant had an erection. She pushed her way into the

bathroom, knocked Appellant into the bathtub and removed A.H. from the room. As she carried

A.H. away, she noticed that he had lotion on his bottom. She immediately called 9-1-1.

          As soon as A.H.’s mother carried him away from the bathroom, both parents heard

crashing and falling noises in the bathroom. Appellant broke through the bathroom window and

began running from the house. A few minutes later, an El Paso Police Department motorcycle

patrol officer spotted an individual matching Appellant’s description running away from the

house several blocks away. The officer told Appellant to stop and arrested him for evading

arrest.

          Appellant was indicted on September 27, 2006, for four counts of indencey with a child,

and two counts of aggravated sexual assault of a child. The jury convicted Appellant of one

count of indecency with a child by contact (Count V in the indictment), and two counts of

indecency with a child by exposure (Counts I and II in the indictment). In Issues One, Two, and

Three, Appellant argues the evidence is legally and factually insufficient to support his

convictions. In Issue Four, Appellant contends the trial court erred by admitting A.H.’s

testimony because the child was not competent. We will address Issue Four first.


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       In Issue Four, Appellant contends the trial court erred by allowing A.H to testify before

the jury because the record as a whole failed to establish the child’s competency. To preserve a

complaint for appellate review, the record must demonstrate that the complaining party presented

the issue to the trial court via a timely request, objection, or motion. See TEX .R.APP .P. 33.1.

The objection must be made with sufficient specificity to inform the trial court of the complaint.

See id. Rule 33.1 ensures that the trial court had the opportunity to correct its own errors before a

party seeks appellate review. See Vidaurri v. State, 49 S.W.3d 880, 886 (Tex.Crim.App. 2001).

An objection satisfies the specificity requirement by informing the trial judge what the party

wants and why the party believes he is entitled to it. See Lankston v. State, 827 S.W.2d 907, 909

(Tex.Crim.App. 1992). Furthermore, the objection must be made at a time when the trial court is

in a proper position to correct the error. See id.

       Before A.H. began his testimony, the trial court held a short hearing, outside the jury’s

presence, to determine the child’s competency. The trial judge asked A.H. a number of questions

regarding the child’s ability to tell the difference between the truth and a lie, and about the child’s

knowledge and expectations about how the trial would proceed. At the end of the interview, the

trial court ruled that A.H. was competent to testify. There is no record that Appellant objected to

the trial court’s ruling, or to A.H.’s testimony. Therefore, Appellant did not preserve his

complaint for appellate review. See TEX .R.APP .P. 33.1; Martinez v. State, 98 S.W.3d 189, 193

(Tex.Crim.App. 2003). Accordingly, Issue Four is overruled.

       Issues One through Three challenge the legal and factual sufficiency of the evidence in

support of Appellant’s convictions. In a legal sufficiency review, we must consider all of the

evidence in a light most favorable to the verdict, and determine whether a reasonable minded


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juror could have found the essential elements were proven beyond a reasonable doubt. Jackson

v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979); Hooper v.

State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007). We must give deference to “‘the responsibility

of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts.’” Hooper, 214 S.W.3d at 13.

       In a factual sufficiency review, we consider all the evidence in a neutral light. Roberts v.

State, 220 S.W.3d 521, 524 (Tex.Crim.App. 2007). Evidence is factually insufficient if: (1) the

evidence supporting the verdict is so weak that the verdict seems clearly wrong and manifestly

unjust; or (2) the evidence supporting the verdict is outweighed by the great weight and

preponderance of contrary evidence, rendering the verdict clearly wrong and manifestly unjust.

Id. We cannot reverse a conviction under the “clearly wrong” or “manifestly unjust” standards

simply because, based on the quantum of evidence admitted, we would have voted to acquit.

Watson v. State, 204 S.W.3d 404, 417 (Tex.Crim.App. 2006). Nor can we declare that a conflict

in the evidence justifies a new trial because we disagree with the jury’s resolution of the conflict.

Id. A new trial will only be granted when the reviewing court determines, on an objective basis,

that the great weight and preponderance of the evidence contradicts the jury’s verdict. Id. In

addition, our review should not substantially intrude upon the fact finder’s role as the sole judge

of the weight and credibility given to witness testimony. Johnson v. State, 23 S.W.3d 1, 9

(Tex.Crim.App. 2000); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006)

(factual sufficiency review still requires “due deference” be given to the jury’s determinations).

       Appellant was convicted for indecency with a child. See TEX .PEN .CODE ANN . § 21.11(a)

(Vernon 2003). A person commits an offense under Section 21.11(a) if:


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       [W]ith a child younger than 17 years and not the person’s spouse, 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; or

       (2)     with intent to arouse or gratify the sexual desire of any person:

               (A)    exposes the person’s anus or any part of the person’s genitals,
                      knowing the child is present; or

               (B)    causes the child to expose the child’s anus or any part of the child’s
                      genitals.

TEX .PEN .CODE ANN . § 21.11(a).

       The penal code defines “sexual contact” in Section 21.11 as follows:

       (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; or

               (2)    any touching of any part of the body of a child, including touching
                      through clothing, with the anus, breast, or any part of the genitals
                      of a person.

TEX .PEN .CODE ANN . § 21.11(c).

       In Issue One, Appellant argues that the evidence is legally and factually insufficient to

support the jury’s determination that he committed indecency with a child by exposing his

genitals to A.H., a child, on March 16, 2006. Appellant contends that neither A.H., or either of

his parents testified that they witnessed Appellant expose his genitals to the child. However, the

record reflects that A.H. was able to describe what Appellant’s genitals looked like, and that

Appellant had the child touch his erect penis. In addition, Appellant’s own statement to the

police admitting that he had his “thing” out when A.H.’s stepfather found him in the bathroom


                                                -5-
with A.H. Viewing this evidence in a light most favorable to the verdict, we conclude that the

jury could reasonably have concluded that Appellant did expose himself to A.H., and was

therefore, guilty of indecency by exposure. By the same token, taken in a neutral light the

evidence is factually sufficient to support the jury’s conclusion that Appellant was guilty of the

offense. Accordingly, Issue One is overruled.

       In Issue Two, Appellant argues the evidence is legally and factually insufficient to

support the jury’s determination that Appellant was guilty of indecency with a child by contact

because he caused A.H. to expose his anus as alleged in Count II of the indictment. Appellant

contends that the evidence is insufficient to support the jury’s determination that Appellant was

the person who caused A.H. to expose himself, and that the evidence does not support the jury’s

finding that Appellant did so intentionally. Appellant also asserts that the evidence is insufficient

to support an affirmative finding that the alleged actions were done for his own sexual

gratification. We disagree.

       A.H. testified that he was instructed to undress and climb on the toilet by the family

friend who he referred to as “Stephen,” who was spending time at his home on March 16, 2006.

The child explained that this individual rubbed lotion on his bottom and inserted his fingers in

A.H.’s bottom. Although A.H. was unable or unwilling to identify Appellant in court as his

abuser, both his parents identified Appellant as the individual who they discovered in the

bathroom with A.H., and as the person who fled from the house after he was discovered with the

child. Furthermore, the combined testimony by A.H. and his parents that Appellant had an

erection during the time he was in the bathroom with the child supports the jury’s finding that

Appellant committed the acts for his own sexual gratification. Therefore, having viewed the


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record both in the light most favorable to the verdict, and in a neutral light, we conclude that the

evidence is legally and factually sufficient to support the jury’s determination that Appellant was

guilty of indecency by causing A.H. to expose his anus. Issue Two is overruled.

        In Issue Three, Appellant argues the evidence is legally and factually insufficient to

support the jury’s determination that Appellant was guilty of indecency with a child because he

touched A.H.’s genitals. Appellant contends the verdict cannot stand because it is inconsistent

with the jury’s decision to acquit Appellant of three other counts involving sexual contact with

the child, and because neither of A.H.’s parents witnessed Appellant touching the child’s

genitals.

        Assuming that the jury’s decision to hold Appellant not guilty for sexual assault and one

count of indecency is inconsistent with Appellant’s conviction for the remaining indecency

counts, our review is limited to determining whether the evidence is sufficient to support the

charge on which the convictions were returned. See Jackson v. State, 3 S.W.3d 58, 62

(Tex.App.--Dallas 1999, no pet.). What the jury concluded regarding the remainder of the charge

is immaterial to our sufficiency of the evidence review. See id.

        Appellant admits that A.H. did testify that Appellant put his hand in the child’s shorts,

and fondled his genitals. A child victim’s testimony is sufficient, even without additional

evidence, to support a conviction for indecency. See Perez v. State, 113 S.W.3d 819, 838

(Tex.App.--Austin 2003, pet. ref’d). As the sole fact finder and judge of witness credibility, the

jury was free to believe or disregard any part of the testimony. See Goodman v. State, 66 S.W.3d

283, 286 (Tex.Crim.App. 2001). As the reviewing court, we cannot interfere with the jury’s

resolution of conflicts in the evidence, and we must defer to the jury’s credibility determinations.


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See Johnson, 23 S.W.3d at 7. Therefore, based on A.H.’s testimony, the evidence was both

legally and factually sufficient to support Appellant’s conviction for indecency by touching the

child’s genitals. Issue Three is overruled.

       Having overruled all of Appellants issues, we affirm the conviction.



March 5, 2009
                                              DAVID WELLINGTON CHEW, Chief Justice

Before Chew, C.J., McClure, and Carr, JJ.
Carr, J. (Not Participating)

(Do Not Publish)




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