                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-14-00310-CR

MICHAEL DARREN BOYDSTON,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee


                           From the 18th District Court
                             Johnson County, Texas
                              Trial Court No. F48751


                          MEMORANDUM OPINION


      Michael Darren Boydston appeals from convictions for the offenses of indecency

with a child by contact and sexual assault of a child, for which he was sentenced to two

consecutive terms of life in prison. TEX. PEN. CODE ANN. §§ 21.11, 22.011 (West 2011).

Boydston complains that the trial court abused its discretion by allowing testimony

regarding an extraneous offense and that the evidence was insufficient to support the

convictions for indecency and sexual assault. Because we find that the trial court did
not abuse its discretion and the evidence was sufficient, we affirm the judgment of the

trial court.

Extraneous Offense

       In his first issue, Boydston complains that the trial court abused its discretion by

allowing the testimony of K.I. regarding an alleged sexual assault by Boydston in 2003

when she was 15 years old. The trial court conducted a hearing outside of the presence

of the jury as required by article 38.27 of the Code of Criminal Procedure to determine

whether or not the testimony of K.I. would be admitted. Boydston argues that the

evidence presented at the hearing would not have supported a finding beyond a

reasonable doubt that he committed either the offense of sexual assault of a child or

indecency with a child.

       A trial court's ruling on the admissibility of extraneous offenses is reviewed

under an abuse-of-discretion standard. Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim.

App. 2011); see Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007). "A trial court

does not abuse its discretion if the decision to admit evidence is within the 'zone of

reasonable disagreement.'" Marsh v. State, 343 S.W.3d 475, 478 (Tex. App.—Texarkana

2011, pet. ref'd) (quoting Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990)

(op. on reh'g)). "If the trial court's decision on the admission of evidence is supported

by the record, there is no abuse of discretion, and the trial court will not be reversed."

Id. (citing Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim. App. 2002); Montgomery, 810


Boydston v. State                                                                    Page 2
S.W.2d at 379). Where there has been no abuse of discretion, we will not substitute our

own decision for that of the trial court. Id. (citing Moses v. State, 105 S.W.3d 622, 627

(Tex. Crim. App. 2003)).

       Article 38.37, section 2(b) states that “[n]otwithstanding Rules 404 and 405, Texas

Rules of Evidence, and subject to Section 2-a, evidence that the defendant has

committed a separate offense described by Subsection (a)(1) . . . may be admitted in the

trial of an alleged offense described by Subsection (a)(1) . . . for any bearing the evidence

has on relevant matters, including the character of the defendant and acts performed in

conformity with the character of the defendant.” The trial court is required to conduct a

hearing outside of the presence of the jury to determine whether the evidence of the

separate offense is “adequate to support a finding by the jury that the defendant

committed the separate offense beyond a reasonable doubt.” TEX. CODE CRIM. PROC. art.

38.37, sec. 2-a.

       Section 21.11 of the Texas Penal Code, entitled “Indecency with a Child,” states

in relevant 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:
Boydston v. State                                                                      Page 3
       (1) any touching by a person, including touching through clothing, of the
       anus, breast, or any part of the genitals of a child…

TEX. PENAL CODE ANN. § 21.11.

       At the hearing before the trial court, K.I. testified that in July of 2003, when she

was 15 years old, she was watching television late one night while she was at her aunt’s

house. Boydston and K.I.’s uncle arrived at the house late after having gone to a bar.

Boydston was a friend of her aunt and uncle’s. Boydston went into a spare bedroom,

but came out at some point after her aunt and uncle had gone to bed. K.I. stated that

Boydston forced her to have sex with him and it caused her to bleed from her vagina.

K.I. stated that Boydston had choked her while he was forcing her.             Afterward,

Boydston told K.I. not to tell her aunt because her aunt would be very upset with her.

       K.I. did not tell anyone what had happened at that time. She had thrown away

the shorts she was wearing that night because they had blood on them. K.I. did not

remember what Boydston was wearing before these events occurred, and she did not

have marks on her neck where Boydston had allegedly choked her.

       Boydston argues that because K.I. did not testify specifically that Boydston

caused his sexual organ to contact her sexual organ or that he ever touched her breast or

genital area, the evidence was not adequate for the trial court to have allowed its

admission before the jury. We disagree. The evidence before the trial court was that

Boydston had gotten on top of K.I. and forced her to have sex while he choked her,


Boydston v. State                                                                    Page 4
which caused her vagina to bleed. It is reasonable to infer that K.I. would not have bled

from her vagina without some type of contact on her genitals, which is all that is

required for the trial court to have determined that the evidence presented was

adequate to support a finding by the jury that Boydston committed the offense of

indecency with a child beyond a reasonable doubt. Boydston does not argue that any

other element of the offense of indecency with a child was not sufficient. We find that

the trial court’s determination to allow the admission of the evidence of the separate

offense was within the zone of reasonable disagreement. We overrule issue one.

Sufficiency of the Evidence

       In his second issue, Boydston complains that the evidence was insufficient for the

jury to have found beyond a reasonable doubt that he committed the offense of

indecency with a child by contact. In his third issue, Boydston complains that the

evidence was insufficient for the jury to have found beyond a reasonable doubt that he

committed the offense of sexual assault. Boydston contends that the victim’s testimony

is not credible and therefore, presents no more than a modicum of evidence that he

committed the offenses.

Standard of Review

       The Court of Criminal Appeals has expressed our standard of review of a

sufficiency issue as follows:

       In determining whether the evidence is legally sufficient to support a
       conviction, a reviewing court must consider all of the evidence in the light
Boydston v. State                                                                     Page 5
       most favorable to the verdict and determine whether, based on that
       evidence and reasonable inferences therefrom, a rational fact finder could
       have found the essential elements of the crime beyond a reasonable doubt.
       Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
       13 (Tex. Crim. App. 2007). This “familiar standard gives full play to the
       responsibility of the trier of fact fairly to resolve conflicts in the testimony,
       to weigh the evidence, and to draw reasonable inferences from basic facts
       to ultimate facts.” Jackson, 443 U.S. at 319. “Each fact need not point
       directly and independently to the guilt of the appellant, as long as the
       cumulative force of all the incriminating circumstances is sufficient to
       support the conviction.” Hooper, 214 S.W.3d at 13.

Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011).

       The Court of Criminal Appeals has also explained that our review of “all of the

evidence” includes evidence that was properly and improperly admitted. Conner v.

State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting

inferences, we must presume that the factfinder resolved the conflicts in favor of the

prosecution and therefore defer to that determination. Jackson v. Virginia, 443 U.S. at

326. Further, direct and circumstantial evidence are treated equally: “Circumstantial

evidence is as probative as direct evidence in establishing the guilt of an actor, and

circumstantial evidence alone can be sufficient to establish guilt.” Hooper v. State, 214

S.W.3d at 13. Finally, it is well established that the factfinder is entitled to judge the

credibility of witnesses and can choose to believe all, some, or none of the testimony

presented by the parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).

       The testimony of a child victim standing alone is sufficient to support a

conviction for indecency with a child or sexual assault of a child and corroboration of


Boydston v. State                                                                          Page 6
that testimony is not required. TEX. CODE CRIM. PROC. ANN. art. 38.07; Martinez v. State,

178 S.W.3d 806, 814 (Tex. Crim. App. 2005). The victim, S.F., testified that one night in

June of 2009, she and her sister had fallen asleep at Boydston’s house in his bed while

watching television. S.F. awoke at around 3:00 a.m. by Boydston, who was moving his

hand under her shirt toward her vagina. S.F. stated that Boydston inserted a finger into

her vagina. Boydston then suggested that they go into the living room, and S.F. went

with him into the living room where he pulled down her shorts and started licking her

vagina.

       Boydston argues that the evidence was insufficient because there was no medical

or physical evidence of the offenses, no witnesses other than S.F. and Boydston, S.F. was

unable to remember specific details of what occurred other than the offenses

themselves, S.F. did not tell anyone that the offenses had occurred until several years

later when she was questioned about it, and S.F. allegedly told her niece that the

offenses did not occur. Additionally, Boydston testified that the offenses did not occur.

       The jury was in the best position to observe the witnesses directly and the jury

was in the best position to determine which witnesses were credible or were not

credible. We presume that the jury resolved the conflicts in favor of the prosecution.

Any lack of memory by the victim or other circumstances surrounding the offenses as

well as any evidence that the offenses did not occur were all before the jury, and it was

their determination that Boydston was in fact, guilty of the offenses. Viewing the


Boydston v. State                                                                   Page 7
evidence in a light most favorable to the judgment, we find that the testimony of the

victim was sufficient for a reasonable juror to have determined beyond a reasonable

doubt that Boydston did commit the offenses as alleged. We overrule issues two and

three.

Conclusion

         Having found no reversible error, we affirm the judgment of the trial court.




                                           TOM GRAY
                                           Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed August 6, 2015
Do not publish
[CRPM]




Boydston v. State                                                                       Page 8
