AFFIRM; and Opinion Filed October 3, 2018.




                                              In The
                                  Court of Appeals
                           Fifth District of Texas at Dallas
                                       No. 05-17-00686-CR

                            FRANKLIN EDWARD YATES, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                          On Appeal from the 86th Judicial District Court
                                     Kaufman County, Texas
                              Trial Court Cause No. 15-10580-86-F

                               MEMORANDUM OPINION
                              Before Justices Myers, Evans, and Brown
                                     Opinion by Justice Brown
       Following a jury trial, appellant Franklin Edward Yates was convicted of indecency with

a child by exposure and sentenced to ten years’ confinement. In a single issue, appellant contends

the evidence is insufficient to support his conviction. For the following reasons, we affirm the

trial court’s judgment.

                                          BACKGROUND

       Appellant lived in a trailer on his sister Jennifer Walker’s property near her house.

Appellant often entered Walker’s house to bathe and eat. Walker’s granddaughter K.W. lived with

Walker and her husband.
            On or about August 6, 2015, another of Walker’s granddaughters, Jada,1 spent the night at

Walker’s house. Jada, aged ten at that time and twelve at the time of trial, testified she and K.W.

had watched television and fallen asleep on a long couch in the living room. Jada awoke to see

appellant sitting on a small couch nearby. Appellant’s pants were down to his ankles, and he was

playing with his private part, moving it around, and moaning. Appellant moved near K.W., who

was awake, and K.W. then moved toward Jada. Appellant moved next to Jada, continued playing

with himself, and touched her legs. She pulled her legs in, pressed her head into the couch, and

tried to fall asleep. Jada testified it was very dark in the house, but the television was on. Jada

told her mother about the incident after her mother picked her up. Jada did not tell Walker about

the incident the next morning because K.W. had already told Walker and Jada trusted her mother

a little bit more.

            K.W., aged eight at the time of the incident and ten at the time of trial, testified she saw

appellant enter the house that night. He was sitting on the couch and “messing with his private

parts” with his hands. Appellant was clothed, and K.W. did not see appellant’s private parts.

Appellant moved toward her and played with himself beside her. He touched her leg “a little bit”

and she moved. Jada was in the room the whole time. According to K.W., the television was off

at the time and it was really dark. Even though it was very, very dark, K.W. could see appellant

and knew he was playing with himself “because he was shaking it around and everything like that.”

K.W. subsequently met with Tracy Ramirez at the Children’s Advocacy Center. There, K.W.

wrote that appellant did “something bad” to her by touching her leg and having “me time,” which

she defined as “mess[ing] with your private part.” Although K.W. told Ramirez appellant had

been sleeping when he had “me time,” she testified she did not know whether appellant was awake

or asleep at the time.


    1
        Jada is a pseudonym used at trial.

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       Jada’s mother, Amanda Zimmerman, testified Jada acted differently after the incident. She

described Jada as anxious and not wanting to sleep in her room by herself or spend the night with

friends. Zimmerman took Jada to the Children’s Advocacy Center for a forensic interview.

       Ramirez interviewed both girls at the Children’s Advocacy Center. Ramirez testified that

K.W. described seeing appellant with his hands on his penis, but said he was sleeping and clothed.

K.W. moved away from appellant because his arm was shaking and kept hitting her. K.W.,

however, also told Ramirez she was not allowed to talk about anything bad or she would get in

trouble. Ramirez spoke with Walker after the interview, and Walker said she did not believe what

happened was a big deal and only called the police because her daughter, Zimmerman, made her.

       Ramirez interviewed Jada approximately two weeks later. Jada provided the following

account of the incident: she spent the night at her grandparent’s house; the television was on; she

and K.W. were sleeping on the couch; Jada “kind of woke up” and saw appellant playing with

himself; appellant’s “wienie” was sticking up and he was “kind of jiggling it around” with his

pants down; he was breathing heavily and “scooted” towards K.W.; and K.W. moved toward Jada

to get away from appellant and said, “Look, look, what he’s doing.” Using a body drawing, Jada

identified appellant’s “wienie” as a penis. Based on the girls’ outcries, Ramirez believed appellant

was masturbating in front of them. Ramirez acknowledged, though, that children will sometime

make thing up for attention or to avoid being punished.

       Jimmy Weisbruch, a Kaufman County Sheriff’s Office investigator, testified that Walker

reported the offense. Weisbruch and his partner arrested appellant. During transport, appellant

stated he had fallen asleep in the bathtub for several hours and, when he awoke, was cold and had

lost feeling in his hands. He suffered from carpal tunnel and was shaking his hands in an effort to

regain feeling while also looking for his telephone. According to appellant, the girls “did this”




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because he caught them looking at pornography on his telephone. Further, there was no way they

could have seen what he was doing because the living room had been too dark.

       Walker testified that, earlier that evening, they had all been in the living room, and

appellant played with the girls. Appellant left, and the girls fell asleep on the couch. Walker

turned off the television. Appellant returned to bathe and, although Walker usually waited up until

appellant left, she was tired and went to bed, closing her bedroom door. Walker testified appellant

fell asleep in the bathtub all the time. He had stiff joints and carpel tunnel and was unable to move

his hands and his fingers upon awakening.

       The next morning, K.W. told Walker that appellant had been acting crazy and “doing me

time.” Jada asked what “me time” was, and Walker told her it was playing with yourself or

masturbating. Walker asked Jada if she had seen anything, and Jada responded that she had not.

Later, Walker asked K.W. what she meant by “me time,” and K.W. responded that appellant was

playing with himself and he moved her head and arm when she was laying on the couch. Walker

confronted appellant, who explained that he had moved K.W. while looking for his telephone.

However, Walker acknowledged that K.W. should have known the difference between someone

shaking their hands while looking for a telephone and someone masturbating in front of her. When

K.W. referred to “me time,” the only thing Walker could think K.W. was referring to was appellant

masturbating in front of her. Walker added though that K.W.’s eyesight was not good, she did not

wear her glasses when sleeping, and Walker’s property was remote and very dark at night.

       Appellant’s daughter Melissa Kay Bruton testified Zimmerman said Jada did not see

anything when Zimmerman and Bruton first discussed the incident. Bruton also noted Zimmerman

and appellant have never gotten along and, Jada, an emotional child, wanted to please her mother

like every daughter wants to please their mother.




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       Appellant’s employer Jerry Cornelius testified appellant’s hands have not functioned in the

mornings for the past seven or eight years. Appellant worked as a mechanic and in construction,

and, according to Cornelius, “once [appellant’s] hands get doing, he’s a good worker.”

       Appellant testified Walker had been mistaken about some events the day of the incident.

He had not been in the living room playing with the girls earlier that evening. Instead, he had

worked on a mower, which the girls rode, and then gone to work. He entered the house when he

returned, but nobody was there. He fell asleep in the bathtub, woke up, and was “freezing to

death.” Appellant could not find his telephone, but Walker’s bedroom door was open (not closed

as she testified) and he did not want to turn on any lights. Nevertheless, he felt around for a light,

but had no feeling in his hands. Appellant explained he had major problems with his hands over

the past few years. He did not know the source of the problem, but he lacked feeling in his hands

in the mornings and had to rub them thirty to forty-five minutes in order to regain circulation. So,

appellant sat in the living room, shaking because he was cold, and rubbing his hands. He did not

find his telephone in the small couch, so he started feeling for it on the long couch, finally waking

K.W. to ask if she had it. She looked up, was startled, and moved to the other couch. He asked

again about the telephone, and she said she did not have it. He got up to leave and, when he opened

the door, saw by moonlight that Jada was asleep at the end of the couch. Before that, he had not

known she was there.

       Appellant acknowledged sending the district attorney a letter in which he wrote that he

struck a lighter to find his way to the couch and did not want to turn on a light because his two

nieces were asleep on the couch. At trial, he explained the letter was not a “step-by-step-

testimony” of what happened; he had learned later that the girls were asleep on the couch.

       Appellant testified he would never expose himself to the girls and felt like a victim because

he did not do anything. K.W. told the truth about him making sounds because he had been

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shivering and rubbing his arms, but he did not know how she could have seen anything because

he had to wake her up to ask about his telephone. The girls made up that he entered the house from

outside because he had been in the house already. He believed the girls’ stories were so different

from his because they had taken his telephone and did not want to get caught. The girls also took

money from his wallet. Appellant also believed Jada made her outcry because she starved for her

mother’s attention and her mother has “had it out” for appellant ever since he slapped her when

she was thirteen.

                                         APPLICABLE LAW

       In reviewing the sufficiency of the evidence, we consider all evidence in the light most

favorable to the jury's verdict and determine whether any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S.

307, 319 (1979); Acosta v. State, 429 S.W.3d 621, 624–25 (Tex. Crim. App. 2014). We defer to

the jury, which must weigh the evidence, resolve conflicts in the testimony, and draw reasonable

inferences from basic to ultimate facts. Jackson, 443 U.S. at 319; Clayton v. State, 235 S.W.3d

772, 778 (Tex. Crim. App. 2007). We determine only whether the necessary inferences are

reasonable based on the cumulative force of the evidence viewed in the light most favorable to the

verdict. See Clayton, 235 S.W.3d at 778.

       A person commits the offense of indecency with a child by exposure if the person, with

intent to arouse or gratify the sexual desire of any person, exposes the person's anus or any part of

the person's genitals, knowing a child younger than seventeen is present. TEX. PEN. CODE ANN. §

21.11(a)(2)(A) (West 2011). A defendant’s knowledge may be inferred from his conduct and the

circumstances surrounding his actions. See Turner v. State, 600 S.W.2d 927, 929-30 (Tex. Crim.

App. [Panel Op.] 1980); Harty v. State, 552 S.W.3d 928, 932 (Tex. App.—Texarkana 2018, no

pet.); Lopez v. State, 402 S.W.3d 55, 59 (Tex. App.—Houston [14th Dist.] 2013, no pet.).

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Circumstantial evidence is as probative as direct evidence and may be sufficient to support a

conviction. See Clayton, 235 S.W.3d at 778. And, a child victim’s testimony alone is sufficient

to support a conviction for indecency with a child. See TEX. CODE CRIM. PROC. ANN. art. 38.07

(West 2005); Navarro v. State, 241 S.W.3d 77, 81 (Tex. App.—Houston [1st Dist.] 2007, pet.

ref’d).

                                              ANALYSIS

          Here, the indictment charges that appellant, with the intent to arouse or gratify his sexual

desire, exposed his genitals, knowing that Jada, a child younger than seventeen years of age, was

present on or about August 6, 2015. Appellant complains the evidence is legally insufficient to

support his conviction and, specifically, to prove that he knew that Jada was present.

          Although disputed by appellant, Walker testified that appellant and both girls were present,

and appellant had played with the girls, in the living room that evening before he bathed. Jada

testified that she awoke to see appellant playing with his private part, moving it around, and

moaning. Appellant moved near K.W. first and then next to Jada, continuing to play with himself,

and touched her legs. Jada’s outcry to Ramirez, as well as K.W.’s testimony and outcry,

corroborates that appellant was “messing with his private parts” and was close enough to the girls

to touch them. At trial appellant denied knowing Jada was present, but he wrote after his arrest

that he had not wanted to turn on living room lights because his two nieces were asleep on the

couch.

          Appellant cross-examined each of the witnesses, and the jury was free to believe all or any

part of each witnesses’ testimony. See Clayton, 235 S.W.3d at 778. Here, the jury assessed the

witnesses’ credibility and resolved the conflicts in the testimony; in doing so, it could have

reasonably inferred, from both appellant’s conduct and the circumstances, that he knew Jada was

present. See, e.g., Turner, 600 S.W.2d at 929-30; Harty, 552 S.W.3d at 932-33. Viewing all the

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evidence in the light most favorable to the verdict, we conclude the jury could have rationally

found the essential elements of the offense, including that appellant knew Jada was present at the

time. Accordingly, we overrule appellant's sole issue.

       We affirm the trial court’s judgment.




                                               /Ada Brown/
                                               ADA BROWN
                                               JUSTICE


Do Not Publish
TEX. R. APP. P. 47.2(b)

170686F.U05




                                                –8–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 FRANKLIN EDWARD YATES, Appellant                  On Appeal from the 86th Judicial District
                                                   Court, Kaufman County, Texas
 No. 05-17-00686-CR        V.                      Trial Court Cause No. 15-10580-86-F.
                                                   Opinion delivered by Justice Brown;
 THE STATE OF TEXAS, Appellee                      Justices Myers and Evans participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 3rd day of October, 2018.




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