                                          NO. 07-05-0259-CR

                                   IN THE COURT OF APPEALS

                           FOR THE SEVENTH DISTRICT OF TEXAS

                                             AT AMARILLO

                                                PANEL D

                                      JANUARY 30, 2007
                               ______________________________

                                        JAMES C. BELL, JR.,

                                                                           Appellant

                                                     v.

                                      THE STATE OF TEXAS,

                                                          Appellee
                            _________________________________

               FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

                NO. 2003-404,158; HON. BRAD UNDERWOOD, PRESIDING
                          _______________________________

                                    Memorandum Opinion
                              _______________________________

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

        Appellant James C. Bell, Jr., was convicted of attempted sexual assault of and

indecency with a child.1 He appeals those convictions by contending 1) the evidence is

legally and factually insufficient to sustain a conviction for attempted sexual assault, 2) the

offense of indecency with a child is a lesser-included offense of attempted sexual assault

and, therefore, his right against double jeopardy was violated upon his conviction of both


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          Appellant pled g uilty to the offense of indecent exposure and was convicted by a jury of attempted
sex ual as sau lt.
crimes, and 3) the trial court erred in failing to give the jury an instruction on renunciation

or abandonment. We affirm in part and reverse in part.

                          Issue 1 - Sufficiency of the Evidence

       In his first issue, appellant challenges the legal and factual sufficiency of the

evidence to sustain his conviction of attempted sexual assault. His attack, however, is

limited to questioning the sufficiency of the evidence regarding the accusation that he

attempted to penetrate the sexual organ of the child with his penis. Specifically, he argues

that while the evidence may show that he attempted to perform some sexual act, it does

not show what type of sexual act he intended.

       We review the sufficiency of the evidence under the standards announced in

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) and Watson v.

State, 204 S.W.3d 404 (Tex. Crim. App. 2006). We refer the parties to those cases.

       Next, a defendant’s intent may be inferred by words, acts, or deeds. Hernandez v.

State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991). Here, the evidence shows that

appellant approached the complainant (a 14-year-old girl) while she was seated in the

passenger seat of her mother’s vehicle in a parking lot. One of her legs was in the car and

the other outside of it when appellant, who was utterly nude, proceeded to locate himself

between the girl’s legs, pull her to him, and utter “hey, baby, here’s some dick for you.”

The girl thought she was about to be raped. From appellant locating himself between the

girl’s legs, forcibly pulling her to him, and uttering the phrase he did, a jury could

reasonably infer that he intended to penetrate her female sex organ. See Hackbarth v.

State, 617 S.W.2d 944, 946 (Tex. Crim. App. 1981) (finding the evidence sufficient to



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support a conviction of attempted rape when the defendant grabbed the complainant,

attempted to remove her clothing, and exposed his penis).

      Contrary to appellant’s suggestion, that he had not attempted to remove the girl’s

clothing before he fled (as the girl began to scream and her mother returned to the car)

matters not. The accusation was one of attempt; he need not have completed the assault

to be convicted of the crime. There need only be enough evidence to permit a jury to

rationally infer how he was to complete the assault. And, the evidence we described above

does that.

      Given the dearth of evidence suggesting that appellant intended to use his penis in

some other manner, we conclude that the evidence is both legally and factually sufficient

to support the verdict. Thus, the issue is overruled.

                               Issue 2 - Double Jeopardy

       Next, appellant contends that the offense of indecency with a child is a lesser-

included offense of attempted sexual assault and that his conviction of both offenses

violated his right to be free of double jeopardy. The State concedes the issue; thus, we

sustain it by reversing his conviction for indecency. Roy v. State, 76 S.W.3d 87, 94 (Tex.

App.– Houston [14th Dist.] 2002, no pet.) (holding that the lesser punishment offense is to

be reversed, not the greater). Issue 3 - Jury Instruction

       Finally, appellant argues that the trial court erred in refusing to instruct the jury on

renunciation or abandonment. We overrule the issue.

       Admittedly, a defendant is entitled to an instruction on any defensive matter raised

by the evidence. Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999). Furthermore,



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renunciation is an affirmative defense to a criminal attempt, but to justify its submission,

the circumstances must show that the renunciation or abandonment was voluntary. TEX .

PEN . CODE ANN . §15.04(b) (Vernon 2003). That is, it cannot be motivated, in whole or in

part, by circumstances suggesting an increase in the probability of detection or

apprehension or making more difficult the accomplishment of the objective.                Id.

§15.04(c)(1) (defining when renunciation is not considered voluntary).

       While it is undisputed that appellant left the parking lot, we cannot excise this

evidence from its context. See Prewitt v. State, 133 S.W.3d 860, 863 (Tex. App.– Amarillo

2004, pet. ref’d) (stating that the evidence must be viewed in context to assess its import).

That context depicts appellant continuing his efforts until the girl began screaming and her

mother began to return to the car. At that point, he stopped, looked around, and then fled.

So, when viewed in context, the circumstances do not show termination of effort due to

voluntary repentance or a change of heart, see Lindsay v. State, 764 S.W.2d 376, 379

(Tex. App.–Texarkana 1989, no pet.) (stating that renunciation requires an affirmative

showing of voluntary repentance or a change of heart and cessation of activity because he

knew his wife was to return did not illustrate that), but rather due to the fear of being

caught.

       Accordingly, we reverse the conviction for indecency with a child and dismiss that

charge. We affirm his conviction for attempted sexual assault, however.



                                                 Brian Quinn
                                                 Chief Justice

Do not publish.


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