Affirmed and Memorandum Opinion filed May 2, 2019.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-18-00344-CR

                    THOMAS WALTER LOPEZ, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 228th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1437419

                          MEMORANDUM OPINION

      In this appeal from a conviction for indecency with a child, the sole question
presented is whether the evidence is legally sufficient to support the conviction.

      To support a conviction in this case, the State was required to prove the
following essential elements: (1) that appellant engaged in sexual contact with the
complainant, and (2) that the complainant was a child younger than seventeen years
of age. See Tex. Penal Code § 21.11(a)(1). We examine all of the evidence in the
light most favorable to the verdict when deciding whether these essential elements
were proven beyond a reasonable doubt. See Robinson v. State, 466 S.W.3d 166, 172
(Tex. Crim. App. 2015).

      The complainant in this case was thirteen years old at the time of trial, and
nine years old at the time of the offense. She testified that her best friend was
appellant’s daughter, and that on the night of the offense, she was staying at
appellant’s house for a sleepover. The complainant said that while her friend was
taking a shower, she was sitting at the edge of a bed and brushing her hair when
appellant approached her from behind and started touching the sides of her body.
Appellant moved his hands to the outside of the complainant’s shorts, and then he
slipped his hands under her clothes and touched her vagina. He asked her, “Did it
feel good?”

      The complainant testified that appellant stopped touching her when his son
began banging on the door, which was locked. At that time, appellant told the
complainant to “pinkie swear not to tell anyone.” The very next day, she told her
mother that appellant had touched her inappropriately.

      There is no dispute that the complainant was a child younger than seventeen
years of age. Accordingly, there is legally sufficient evidence to support the second
essential element of the offense.

      As for the first essential element, to show that appellant engaged in “sexual
contact,” the State was required to produce legally sufficient evidence that appellant
touched any part of the complainant’s genitals, including a touching through
clothing, with the intent to arouse or gratify the sexual desire of any person. See Tex.
Penal Code § 21.11(c)(1). The State met this burden. The complainant testified that
appellant directly touched her vagina, and a reasonable factfinder could have
inferred that this touching was committed with the intent to arouse of gratify
appellant’s own sexual desires because appellant asked the complainant whether the
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touching felt good, and he further told her to not reveal the touching to anyone. See
Montgomery v. State, 810 S.W.2d 372, 396 (Tex. Crim. App. 1990) (“That appellant
instructed both children not to reveal the event to anyone shows a consciousness of
wrongdoing which in turn leads to an inference that when he touched the children as
he did, appellant harbored a specific intent to arouse and gratify his own sexual
desires.”).

      Appellant responds that the evidence is legally insufficient because there were
inconsistencies between the complainant’s live testimony and her earlier statements
to a child advocate. This point merely highlights a conflict in the evidence, which
we, as the reviewing court, presume the factfinder resolved in favor of the verdict.
See Whatley v. State, 445 S.W.3d 159, 166 (Tex. Crim. App. 2014).

      Appellant argues next that the evidence is legally insufficient because there
was no physical corroboration. This point fails for two reasons. First, there was
corroborating evidence because the State produced forensic testimony that appellant
could not be excluded as the contributor of a DNA sample collected from the inside
of the complainant’s shorts. Second, and more importantly, corroborating evidence
is not even required because a conviction may be supported by the complainant’s
testimony alone. See Tex. Code Crim. Proc. art. 38.07.

      Appellant also argues that the evidence is legally insufficient under Baker v.
State, 781 S.W.2d 688 (Tex. App.—Fort Worth 1989, pet. ref’d), but that case was
decided under remarkably different facts. The child there fell and cut her head, and
the defendant picked her up and carried her to the bathroom. As he was carrying the
child, the defendant had one arm underneath the child’s neck and another arm
underneath her thighs. The child claimed that the defendant had touched her crotch,
but she did not know if the touching occurred on purpose or by accident, and she did
not mention the touching to anyone for over a year. The defendant testified that he

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did not touch the child’s genitals, and he denied having any intent to arouse or gratify
his sexual desires. The jury rejected the defendant’s testimony and convicted him as
charged, but the court of appeals reversed, holding there was no evidence that could
support a reasonable inference that the defendant had the requisite intent to arouse
or gratify the sexual desires of any person. Id. at 689.

      The meager evidence in Baker pales in comparison to the facts of this case.
The complainant here testified that appellant purposefully touched her vagina, and
appellant’s statement to keep the touching a secret plainly supports an inference that
the touching occurred with culpable intent. Accordingly, Baker is distinguishable.

      After viewing the record in the light most favorable to the verdict, we
conclude that the evidence is legally sufficient to support every essential element of
the offense beyond a reasonable doubt. We therefore affirm the trial court’s
judgment.




                                        /s/       Tracy Christopher
                                                  Justice



Panel consists of Justices Christopher, Hassan, and Poissant.
Do Not Publish — Tex. R. App. P. 47.2(b).




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