
NO. 07-03-0135-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

MAY 14, 2003

______________________________


BENJAMIN ALONZO ZEPEDA, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE


_________________________________

FROM THE 251ST DISTRICT COURT OF POTTER COUNTY;

NO. 44,027-C; HONORABLE PAT PIRTLE, JUDGE

_______________________________

Before JOHNSON, C.J. and REAVIS and CAMPBELL, JJ.
ABATEMENT AND REMAND
	On March 19, 2003, a copy of a Notice of Appeal in cause No. 44,027-C in the 251st
District Court of Potter County, Texas (the trial court), was filed with the clerk of this court
(the appellate clerk).  The document filed gives notice that Benjamin Alonzo Zepeda,
appellant, desires to appeal from a conviction and sentence in such court and cause
number.  On March 24, 2003, a docketing statement was filed with the appellate clerk.   
	On April 16, 2003, the District Clerk of Potter County (the trial court clerk) advised
that the clerk's record had not been paid for, the clerk had not received an affidavit of
indigency from appellant, and appellant's attorney had not made arrangements to pay for
the record.  The clerk's record has not been filed. 
	  On April 17, 2003, the appellate clerk sent a letter to appellant's attorney directing
counsel to advise this Court on the status of appellant's indigency.  No response to that
letter has been received to date.  The appellate clerk's record reflects no other action by
any party to the appeal to prosecute the appeal. 
	Accordingly, this appeal is abated and the cause is remanded to the trial court.  Tex.
R. App. P. 37.3(a)(2).  Upon remand, the judge of the trial court is directed to immediately
cause notice to be given of and to conduct a hearing to determine: (1) whether appellant
desires to prosecute this appeal; (2) if appellant desires to prosecute this appeal, then
whether appellant is indigent; (3) if appellant desires to prosecute this appeal, whether
appellant is entitled to have the clerk's record furnished without charge; and (4) what
orders, if any, should be entered to assure the filing of appropriate notices and
documentation to dismiss appellant's appeal if appellant does not desire to prosecute this
appeal, or, if appellant desires to prosecute this appeal, to assure that the clerk's record
will be promptly filed and that the appeal will be diligently pursued. 
	The trial court is directed to: (1) conduct any necessary hearings; (2) make and file
appropriate findings of fact, conclusions of law and recommendations, and cause them to
be included in a clerk's record on remand; (3) cause the hearing proceedings to be
transcribed and included in a reporter's record; and (4) have a record of the proceedings
made to the extent any of the proceedings are not included in the clerk's record or the
reporter's record.  In the absence of a request for extension of time from the trial court, the
clerk's record on remand, reporter's record of the hearing and proceedings pursuant to this
order, and any additional proceeding records, including any orders, findings, conclusions
and recommendations, are to be sent so as to be received by the clerk of this court not
later than June 16, 2003. 	
 
									Per Curiam
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sans-serif">MEMORANDUM OPINION
          Appellant, Aubrey Joe Johnson, appeals his conviction for the offense of attempted
indecency with a child by contact, enhanced by two prior felonies, and sentence of twenty
five years contending that the evidence was legally insufficient.  We affirm.
Background 
          On April 22, 2005, appellant drove his vehicle near an apartment residence where
three girls were present; the girls’ ages were from 12 to 14.  After circling the area for a
while, appellant stopped his vehicle and called the girls over.  When the girls arrived,
appellant asked the girls if any of them wished to pet or see his dog.  One of the girls
rejected the offer because she was afraid that the dog would bite; however, appellant said,
“No, not that dog–the dog in my pants.”  Appellant then followed that remark by looking
down at his crotch area.  One of the girls contacted her mother and the mother confronted
appellant.  Appellant denied any such remarks and claimed to be searching for a friend of
his who lived in the neighborhood.  The girls and the mother reported the incident to the
police who arrested appellant a few days later.
          At trial, the three girls testified to the encounter with appellant.  At the close of the
State’s case, appellant requested an instructed verdict which was denied.  At the
conclusion of the jury trial, the jury returned a verdict of guilty and the trial court sentenced
appellant to twenty-five years incarceration in the Institutional Division of the Texas
Department of Criminal Justice.  Appellant now appeals contending that the evidence
presented at trial is legally insufficient to support the conviction because it does not show
an act amounting to more than mere preparation that tends but fails to effect the
commission of the intended offense.
Standard of Review
          In reviewing the legal sufficiency of the evidence, we review all the evidence in the
light most favorable to the verdict to determine whether any rational trier of fact could have
found the essential elements of the offense beyond a reasonable doubt.  Jackson v.
Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560, 573 (1979); Ross v. State, 133
S.W.3d 618, 620 (Tex.Crim.App. 2004).  The standard of review applicable to the denial
of a motion for directed verdict is the same as that applied in reviewing the legal sufficiency
of the evidence.  Williams v. State, 937 S.W.2d 479, 482 (Tex.Crim.App. 1996); Madden
v. State, 799 S.W.2d 683, 686 (Tex.Crim.App. 1990) (challenge to the trial judge's ruling
on a motion for an instructed verdict is a challenge to the sufficiency of the evidence). 
However, the jury is the sole judge of the weight and credibility of the evidence.   Clewis
v. State, 922 S.W.2d 126, 132 n.10 (Tex.Crim.App. 1996) (citing Chambers v. State, 805
S.W.2d 459, 461 (Tex.Crim.App. 1991).  As an appellate court, we may not sit as a
thirteenth juror, but must uphold the jury’s verdict unless it is irrational or unsupported by
more than a “mere modicum” of evidence.  See Moreno v. State, 755 S.W.2d 866, 867
(Tex.Crim.App. 1988).  We resolve inconsistencies in the evidence in favor of the verdict. 
Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App. 2000). Circumstantial evidence is as
probative as direct evidence in establishing the guilt of an actor.  Guevara v. State, 152
S.W.3d 45, 49 (Tex.Crim.App. 2004).  Furthermore, the standard of review is the same for
both direct and circumstantial evidence.  Id.  
Law and Analysis
          The sole focus of appellant’s argument is the denial of his motion for instructed
verdict.  Appellant argued that the State failed to show that his actions were not mere
preparatory actions that tended to but failed to effect the commission of the crime charged. 
A person attempts a criminal offense if, with specific intent to commit an offense, he does
an act amounting to more than mere preparation that tends but fails to effect the
commission of the offense intended.  See Tex. Penal Code Ann. § 15.01 (Vernon 2003).
 
A person commits indecency with a child if, with a child younger than 17 years and not the
person's spouse, engages in sexual contact with the child or causes the child to engage
in sexual contact.  See § 21.11.  Thus, this case turns on whether appellant’s actions were
more than just preparation.  In this case, the State had the three girls testify to the
conversation appellant had with one of the girls.  The girl who spoke to appellant testified
that appellant asked her if she wanted to see his dog - the dog in his pants.  The other two
girls testified that appellant asked if the first girl wanted to pet the dog in his pants. 
Additionally, two of the girls testified that appellant was driving up and down the street and
would, on occasion, look at them.  Further, the two girls testified that appellant asked if they
could meet him somewhere, with one of the girls testifying that appellant specifically asked
the girls if they wanted to go to a park with him.  All three girls testified that appellant spoke
to the first girl and then glanced down to his pants indicating his private area.  Through
cross examination, appellant’s version of the encounter indicated that he was searching
for an acquaintance that lived in the neighborhood.  
          However, the jury is the sole weight of the credibility of the evidence.  Clewis, 922
S.W.2d at 132 n.10.  Though the girls’ testimony had some inconsistencies, we must view
the evidence in favor of the verdict.  Curry, 30 S.W.3d at 406.  Appellant contends that his
action of glancing down to his pants, at most, can only be viewed as preparatory action that
tends to but fails to effect the commission of the offense.  See § 15.01.  However, we
believe that this act, though circumstantial, can be viewed in the totality of the evidence as
indicative of appellant’s intent.  See Christensen v. State, 240 S.W.3d 25, 31
(Tex.App.–Houston [1st Dist.] 2007, pet. ref’d) (appellate court to view all evidence
combined coupled with reasonable inferences from the evidence).  Taken together, the
appellant’s conversation of going to the park and petting his dog, the repetitive trips by the
girls’ location, and his glancing gesture toward his pants can establish the criminal intent
to commit the charged offense beyond mere preparation.  The multiple trips by the girls’
location could have been interpreted by the jury as appellant seeking a victim; appellant’s
request and glancing gesture could have been interpreted by the jury as appellant’s
directive to the girl or girls to commit the sexual contact.   In viewing the evidence in favor
of the verdict, it would be a reasonable inference to believe that appellant’s failure to
complete a criminal offense of indecency with a child was not due to appellant’s lack of
action beyond the preparation stage, but to the girls’ refusal to go with appellant to the park
or to pet the dog in his pants.  We conclude that the evidence viewed in the light most
favorable to the verdict is legally sufficient.  
Conclusion
          For the foregoing reasons, we affirm.   
 
                                                     Mackey K. Hancock
Justice



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