Opinion filed August 20, 2009




                                              In The


   Eleventh Court of Appeals
                                            __________

                                     No. 11-08-00164-CV
                                          ________

                     IN THE MATTER OF J.D.B., A JUVENILE


                                On Appeal from the County Court
                                      Jones County, Texas
                                   Trial Court Cause No. 1366


                            MEMORANDUM OPINION
       The jury found that J.D.B. engaged in delinquent conduct by committing the offense of
indecency with a ten-year-old child. The juvenile court placed J.D.B. on probation and committed
him to Rockdale Juvenile Justice Center for sex-offender treatment. We affirm.
                                        Background Facts
       J.D.B. was spending the night with six other children and juveniles. The State alleged that
he touched the breasts of one child and fondled the buttocks of another. The children were in the
living room watching movies while the victim’s parents were in their bedroom. J.D.B. was sixteen
years old. He laid on the floor next to a ten-year-old girl (the victim) and an eleven-year-old girl.
The State contended that J.D.B. began touching the young girls. J.D.B. first touched the victim’s
breasts over and under her shirt, and he continued even after she told him to stop. The two girls
switched places, and J.D.B. began groping the eleven-year-old girl’s buttocks. She became
uncomfortable, so the girls switched places again. J.D.B. molested the victim again before leaving
for another friend’s house. After he left, the girls woke up and confided in the victim’s step-cousin
who was close by on a couch. When J.D.B. returned the next morning to pick up some CDs that he
had left, the girls woke up the victim’s parents.
        The State alleged that J.D.B. intentionally or knowingly engaged in sexual contact with both
girls with the intent to arouse or gratify his sexual desire. The jury found that J.D.B. indecently
touched the victim, but not the eleven-year-old girl.
                                                 Issues
        J.D.B. presents two issues on appeal. First, he alleges that the evidence was legally or
factually insufficient to support his adjudication for indecency with a child by contact. Second, he
contends that the trial court abused its discretion when it placed him outside of his home to receive
sex-offender treatment.
                                    Legal and Factual Sufficiency
        J.D.B. argues that the evidence is legally and factually insufficient to support his adjudication
and that the trial court erred by denying his motion for a directed verdict because of the absence of
evidence showing physical manifestations of arousal, which he claims are necessary to establish that
he touched the victim with the intent to gratify his sexual desire.
        The appellate court applies the criminal standard of review to challenges to the sufficiency
of the evidence to support the adjudication of a juvenile as a delinquent. In re T.E.G., 222 S.W.3d
677, 678 (Tex. App.—Eastland 2007, no pet.). To determine if the evidence is legally sufficient, we
must review all of the evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex. Crim. App. 2000).
To determine if the evidence is factually sufficient, we must review all the evidence in a neutral light
to determine whether the evidence supporting the verdict is so weak that the verdict is clearly wrong
and manifestly unjust or whether the verdict is against the great weight and preponderance of the
conflicting evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006).
        A person commits the offense of indecency with a child by contact if he engages in sexual
conduct with a child younger than seventeen years of age and not his spouse. TEX . PENAL CODE
ANN . § 21.11(c)(2) (Vernon 2003). Sexual conduct is defined as any touching of the anus or breast
of another person with the intent to gratify or arouse the sexual desire of any person. TEX . PENAL
CODE ANN . § 21.02(2) (Vernon 2003). The specific intent to arouse or gratify the sexual desire of

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a person can be inferred from conduct, remarks, or all of the surrounding circumstances. Laster v.
State, 275 S.W.3d 512, 519-20 (Tex. Crim. App. 2009); McKenzie v. State, 617 S.W.2d 211, 216
(Tex. Crim. App. 1981). A defendant’s conduct alone is sufficient to demonstrate intent. McKenzie,
617 S.W.2d at 216. Further, the uncorroborated testimony of a child is sufficient to support a
conviction for indecency with a child. TEX . CODE CRIM . PROC. ANN . art. 38.07 (Vernon 2005).
       The two young girls testified that J.D.B. touched them late at night when the other children
were asleep and the adults were in another room. The older girl testified that J.D.B. dragged his
hand from her leg to her buttocks. The victim testified that J.D.B. repeatedly touched her breasts,
his actions hidden under a blanket, and that her attempts to push him aside were ignored. J.D.B.
claimed in his statement and in his trial testimony that it was the girls who made advances toward
him and that he left the house to escape their advances.
       The trial court did not err by denying J.D.B.’s motion for directed verdict because the girls’
testimony alone presented a disputed fact issue for the jury to resolve. S.V. v. R.V., 933 S.W.2d 1,
9 (Tex. 1996). The jury was then free to believe the young girls’ testimony and to disbelieve
J.D.B.’s testimony. See Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000) (the jury
as the sole judge of the credibility of witnesses is free to believe and reject any or all evidence
presented to them). Because intent can be inferred from conduct, remarks, or surrounding
circumstances, J.D.B.’s argument that evidence of facial gestures, verbalization, “erection,
ejaculation or nakedness” was necessary is incorrect. Assuming that the jury resolved the conflicting
evidence against J.D.B., it could rationally find intent beyond a reasonable doubt. When the
evidence is viewed in a neutral light, it is not so weak as to be clearly wrong and manifestly unjust,
nor is there contrary evidence that makes the finding of guilt against the great weight and
preponderance of the evidence. J.D.B.’s first issue is overruled.
                                      Sex-Offender Treatment
       J.D.B. next complains that the evidence is insufficient to show that he needed to be sent away
from home to a lock-down sex-offender treatment program. He argues that other less restrictive
placements were not considered.
       Following an adjudication, a juvenile court has broad discretion to determine disposition.
In re C.J.H., 79 S.W.3d 698, 702 (Tex. App.—Fort Worth 2002, no pet.). In reviewing a court’s
decision, we will not reverse a disposition unless the court abused its discretion. Id. Abuse of

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discretion is determined by whether the court acted without reference to any guiding rules or
principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). The mere
fact that a trial court decided a matter within its discretionary authority differently than an appellate
judge does not demonstrate that an abuse of discretion has occurred. Id. Under an abuse of
discretion standard, legal and factual sufficiency are relevant factors in assessing whether the trial
court abused its discretion. In re C.G., 162 S.W.3d 448, 452 (Tex. App.—Dallas 2005, no pet.).
        We utilize a civil standard of review when reviewing the legal and factual sufficiency of a
disposition order in a juvenile case. T.E.G., 222 S.W.3d at 678. In a legal sufficiency analysis, the
evidence to support the trial court’s findings are considered in the light most favorable to the
findings, and all reasonable inferences are indulged. Id. at 679. The trier of fact is the sole judge
of the witnesses’ credibility and the weight to be given their testimony, and we cannot substitute our
judgment for that of the trier of fact so long as the evidence falls within the zone of reasonable
disagreement. Id. Also, in reviewing for abuse of discretion with respect to factual sufficiency, we
consider all of the evidence and set aside a juvenile court’s disposition only if it is so contrary to the
overwhelming weight of the evidence as to be clearly wrong and unjust. Id.
        No disposition placing a child outside the child’s home may be made unless the trial court
finds and includes in its disposition order that the removal was in the child’s best interest, that
reasonable efforts were made to eliminate the need for removal, and that the child – in the child’s
home – cannot be provided the quality of care and level of support and supervision necessary to meet
the conditions of probation. TEX . FAM . CODE ANN . § 54.04 (Vernon 2008). At the disposition
hearing, a court may consider reports from probation officers in addition to the testimony of
witnesses. Section 54.04(b).
        The juvenile court did not abuse its discretion by placing J.D.B. outside his home. J.D.B.’s
probation officer testified that, while under his supervision, J.D.B. received failing grades in school
and had been suspended on four separate occasions. J.D.B. was sent to his school’s alternative
education program for thirty days, but his behavior increased his stay in the program by an additional
forty-five days. The probation officer also testified that J.D.B. had violated conditions of his release
by associating with prohibited people and by refusing counseling. J.D.B.’s mother outlined the legal
problems her son had had when they lived in Mississippi, and she explained that J.D.B.’s behavioral
issues could be blamed on his ADHD. Melissa Moseley of the Jones County Juvenile Probation

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Department assessed J.D.B. and his family and recommended that he be placed on probation until
his eighteenth birthday and that he undergo sex-offender treatment outside the home in the Rockdale
facility. She testified that other programs were considered but that most would not accept J.D.B. or
did not fit his needs as well as the Rockdale facility.
       J.D.B. requested an alternative placement by placing him with his uncle’s family. His uncle
testified that J.D.B. had lived with him before and that he could provide the care, support, and
supervision he needed.
       Taking into consideration all the evidence, the trial court did not abuse its discretion when
it decided to remove J.D.B. from his home. The evidence showed that J.D.B. had problems obeying
authority. The trial court could rationally conclude that J.D.B.’s mother enabled his behavior and
that she could not control him. The trial court could also rationally conclude that J.D.B. would be
unable to complete a less restrictive sex-offender treatment program and that he needed treatment
at a lock-down facility. The disposition was legally and factually sufficient because it falls within
the zone of reasonable disagreement and is not so contrary to the overwhelming weight of the
evidence as to be clearly wrong and unjust. Accordingly, J.D.B.’s second issue is overruled.
                                             Conclusion
       The judgment of the trial court is affirmed.




                                                              RICK STRANGE
                                                              JUSTICE
August 20, 2009
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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