                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-16-00420-CR


SAMUEL ROCHELL MADISON                                            APPELLANT

                                          V.

THE STATE OF TEXAS                                                      STATE


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      FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
                    TRIAL COURT NO. 1407727D

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                         MEMORANDUM OPINION1

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                                   I. Introduction

      In one issue, appellant Samuel Rochell Madison appeals one of his three

convictions for indecency with a child by contact, arguing that the evidence is

insufficient to support that one conviction. We will affirm.




      1
       See Tex. R. App. P. 47.4.
                                   II. Background

        Girl,2 who was eleven years old at the time of the bench trial, testified that

when she was roughly eight years old, she, her brother, and her mother (Mom)

lived with Mom’s boyfriend Madison in a two-bedroom apartment. Girl said that

she did not like living with Madison. Although she was initially reluctant to say

why, Girl eventually recounted how, when the two were alone, Madison would

intentionally touch her over her clothes with his hand in the area where she

urinates from.

        When asked how many times this had happened, Girl first responded “I

don’t remember.”      When asked whether it had happened “one time or many

times,” Girl said “[m]any times.” But Girl said that she could not remember how

many times. When asked if it had happened more than ten times, Girl said “I

don’t know.” Girl said that the touches occurred when she was in Madison’s

room, and that although it had not occurred every time she would go in his room,

she agreed it had happened on different occasions. When asked specifically if it

had happened more than once, Girl said “More than once.”

        By Girl’s account, she did not initially tell Mom when this first started

happening because she was “scared,” but later she disclosed to Mom what had

been happening. Girl averred that after she told Mom, Mom told her they would



        2
        We use aliases when possible to protect the minor child’s identity in this
case.


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be moving out the next morning. Girl said that she was relieved to know she

would no longer be around Madison.

      On cross-examination, Girl said that Madison sometimes touched her in

this manner when Mom was in the apartment, but other times when she was not.

Specifically, Girl said that Mom was either “somewhere in the house or at work or

out grocery shopping or . . . .” But Girl was not allowed to finish her answer

before defense counsel posed another question to her. When asked whether

this had occurred when she and Madison were wrestling, Girl said “I can’t

remember.”

      Mom testified that she met Madison, a neighbor in her apartment complex,

in November 2013. According to Mom, after she and Madison became friends,

their relationship evolved into a romantic one and eventually she and Girl moved

in with Madison.3     Mom stated that at first, Girl and Madison got along

wonderfully and that they “hung out constantly.” By Mom’s account, Madison

lavished Girl with gifts, including “My Little Ponies, video games, [and] a bird” and

he even “made like a whole little My Little Pony fortress” for her in his bedroom,

which he initially shared with Mom.

      Mom averred that after a few months she realized that she and Madison

were incompatible and that the two had decided to stop seeing each other

romantically but had remained friends. Mom testified that one day Girl did not

      3
       Mom’s and Madison’s testimonies indicate that Mom’s son would visit
regularly and that these visits increased in the summer.


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want to come out of her room because she said that she was “sad” and that the

following day Girl asked that her stuff be moved out of Madison’s room and into

her own. Mom also noticed that Girl’s demeanor had changed. After Girl once

again remained in her room all day, Mom went to her and asked if something had

happened—Girl said only that she “just [did not] feel good.”

      In late October 2014, just after Mom had come home from work, Girl went

to her and said, “You know how you talked to me[,] mom[,] about why I'm sad?”

After Mom acknowledged the conversation, Girl said that Madison made her

uncomfortable and that he would touch her on her “privates.” Specifically, Mom

alleged that Girl told her that she “didn’t notice at first” because she thought “he

was just accidentally doing it when [she and Madison] played . . . But he does it

now even when we’re not playing, even when we’re not wrestling.” Mom said

that she could not get any more information from Girl and that Girl shut down on

her and said that she did not want to talk about it anymore. When asked whether

Girl indicated that these touches seemed “like it was something that just

happened one time,” Mom replied “No, no.”

      Mom said that she did not confront Madison that evening when he came

home from work and that after he left for work the next morning, she and her

former sisters-in-law moved her, Girl’s, and her son’s things out in under two

hours. Mom, who had less than $40 at that point, moved in temporarily with a

friend.   Later that day, Mom called the Department of Family and Protective

Services and reported what Girl had told her.


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      Girl’s Aunt testified at trial as well. Aunt described how on October 27,

2014, Mom called her very distressed. Specifically, Aunt said that Mom called

her to say that Girl had just told her that Madison had been touching Girl

inappropriately and to say that she needed to move out of the apartment right

away. Aunt described how she and Mom discussed and then executed a plan to

move all of Mom’s and Girl’s belongings out of the apartment the next morning

immediately after Madison left for work.

      Donovan Boswell testified that the Department assigned her to investigate

Girl’s case after Mom’s call. Boswell said that she “screen[ed]” Girl a few days

after the call and that during the interview Girl initially “kind of opened up a little

bit,” but that as the interview went on and began to delve into the indecent

contact, Girl “became more . . . withdrawn.” Specifically, Boswell said that it

appeared as though Girl did not want to talk about the allegations but that she did

eventually describe the indecent contact. Girl told Boswell that Madison had

touched her over her clothes and on her vaginal area and that he had done it

more than once.      After learning the details of the abuse, Boswell contacted

Detective Tony Miller of the Haltom City police. From there, Boswell coordinated

and attended a forensic interview of Girl. Miller also attended the interview.

      During cross-examination, Boswell acknowledged that her notes indicated

that both Mom and Girl had reported that Madison had touched Girl “several

times over clothes while they were wrestling around.” Boswell acknowledged,

however, that she did not remember Girl stating that these events occurred while


                                           5
“wrestling,” but Boswell averred that she gathered that information from the

Department’s forensic interview request. Donovan could not remember if the

term “wrestling” appeared in her own report.

      Miller testified that in addition to attending the forensic interview, which he

described as “consistent” with the report he had received regarding Girl’s outcry,

he also interviewed Madison at the police station. The State published a video of

the interview for the trial judge. In the video, Miller tells Madison that the reason

he was there was because Girl had alleged that he had touched her “on her

private area, over the top of her clothes, on more than one occasion.” In the

video, Miller can also be heard telling Madison that what Girl had reported was

more than just “touching” but rather that Madison had been “rubbing” . . . “her

with [his] hand on her vagina over her clothes.” In response to this, Madison

stated that Mom had described Girl as a “vicious liar” and that her lying may in

part be the reason she had made her outcry. The video also reveals Madison

stating that Mom may have had Girl make up the outcry because he had refused

Mom’s advances a few nights before and that she wanted a reason to move out

of the apartment suddenly without having to fulfill her commitment to their lease

and having to pay restoration for damage her dog had caused to Madison’s

entertainment center. Later in the interview, Madison stated that he believed

perhaps some sort of “accident” between him and Girl must have occurred.

      Lindsey Dula, director of program services and a forensic interviewer for

the Alliance for Children, testified as well. Dula said that during her interview,


                                         6
Girl would generally be talkative and engaging regarding neutral subjects but that

when Dula would question her about the allegations, her demeanor would

change to being more subdued.

      Marx Madison, Madison’s brother, testified for the defense. Marx averred

that Madison, three of his children, and Girl had attended a Madison family

reunion the summer prior to these allegations and that Girl acted as though she

trusted Madison and felt comfortable around him. He also said that he had no

reservations about Madison being around children.

      Madison testified in his own defense. Regarding how he and Mom came

to live together, Madison testified to much of the same narrative that Mom

testified to. Like Mom, Madison described an exuberant child who liked to play

with her toy ponies and watch TV in the couple’s bedroom. Madison also said

that Girl would sometimes sleep in the bed at night between the couple.

      Madison averred that once Mom’s son began to spend more time at the

apartment during the summer months, Girl moved half of her ponies into her own

bedroom that she shared with her brother. Eventually, according to Madison, he

and Mom broke off their romantic relationship and Mom began to stay in the

same room as Girl and Mom’s son.

      Madison explained that after he had purchased a parakeet for Girl, Mom

purchased a large dog for her son. By Madison’s account, the dog chewed on

his expensive furniture and this upset him. After having shown the damage to

Mom, Madison said that he remained upset. Shortly after, according to Madison,


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Mom got “all dressed up” one evening, came into his bedroom, locked the door,

and asked him to have sex with her. Allegedly, he rejected her because he was

still upset about the furniture, and this caused Mom to cry and leave the room

while slamming the door.       Madison said that he “knew there was something

coming after that.”

      Madison further testified that he believed that the allegations of him having

touched Girl inappropriately had come from Mom because he had “humiliated”

Mom when he rejected her advances. Madison described himself as a man of

faith, but he asserted that Mom was a professing “witch.”

      Madison also said that Girl’s behavior never changed toward him while she

lived with him and that she was always “a very happy well-adjusted child.”

Madison averred that he spent less time with Girl during the last days that she

lived in the apartment because Mom had “pulled her kids back behind the door”

of Girl’s bedroom. Madison said that he never touched Girl inappropriately and

that Girl was “lying.”

      The State called three rebuttal witnesses, all of whom had been Girl’s

teachers in the recent past. All three averred that Girl was a smart, responsible,

disciplined, and truthful child.

      The trial court found Madison guilty of all three counts of indecency with a

child by contact and assessed punishment at ten years’ confinement.           This

appeal followed.




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                                  III. Discussion

      In one issue, Madison argues that the evidence is insufficient to support

more than two of his three convictions for indecency with a child by contact.

Specifically, Madison argues that the prosecutor should not have been allowed to

limit a question he posed to Girl by offering what he refers to as a leading

question: whether Madison had made indecent contact with Girl “one time or

many times.” Moreover, Madison argues, that “many” does not necessarily mean

more than twice and thus the evidence is insufficient to support three indecent

contacts. We disagree.

      A.     Standard of Review

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Jenkins v. State, 493 S.W.3d 583, 599

(Tex. Crim. App. 2016). This standard gives full play to the responsibility of the

trier of fact 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, 99 S. Ct. at 2789; Jenkins, 493 S.W.3d at 599.

      The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Blea v. State,

483 S.W.3d 29, 33 (Tex. Crim. App. 2016).             Thus, when performing an


                                         9
evidentiary sufficiency review, we may not re-evaluate the weight and credibility

of the evidence and substitute our judgment for that of the factfinder.       See

Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Instead, we

determine whether the necessary inferences are reasonable based upon the

cumulative force of the evidence when viewed in the light most favorable to the

verdict. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.), cert. denied,

136 S. Ct. 198 (2015).     We must presume that the factfinder resolved any

conflicting inferences in favor of the verdict and defer to that resolution. Id. at

448–49; see Blea, 483 S.W.3d at 33.

      To determine whether the State has met its burden under Jackson to prove

a defendant’s guilt beyond a reasonable doubt, we compare the elements of the

crime as defined by the hypothetically correct jury charge to the evidence

adduced at trial. See Jenkins, 493 S.W.3d at 599; Crabtree v. State, 389 S.W.3d

820, 824 (Tex. Crim. App. 2012) (“The essential elements of the crime are

determined by state law.”). Such a charge is one that accurately sets out the

law, is authorized by the indictment, does not unnecessarily increase the State’s

burden of proof or restrict the State’s theories of liability, and adequately

describes the particular offense for which the defendant was tried. Jenkins, 493

S.W.3d at 599. The law as authorized by the indictment means the statutory

elements of the charged offense as modified by the factual details and legal

theories contained in the charging instrument. See id.; see also Rabb v. State,

434 S.W.3d 613, 616 (Tex. Crim. App. 2014) (“When the State pleads a specific


                                        10
element of a penal offense that has statutory alternatives for that element, the

sufficiency of the evidence will be measured by the element that was actually

pleaded, and not any alternative statutory elements.”).

      B.     Indecency With a Child By Contact

      A person commits the offense of indecency with a child if, among other

things, he touches the genitals of someone younger than seventeen years of age

with the intent to arouse or gratify the sexual desire of anyone. Tex. Penal Code

Ann. § 21.11(a)(1), (c)(1) (West Supp. 2017).       Touching a child through her

clothing is encompassed by the offense. Id. The required intent may be inferred

from the surrounding circumstances. Navarro v. State, 241 S.W.3d 77, 79 (Tex.

App.—Houston [1st Dist.] 2007, pet. ref’d). And the uncorroborated testimony of

either the child or an outcry witness suffices to support a conviction for indecency

with a child. Jones v. State, 428 S.W.3d 163, 169–70 (Tex. App.—Houston [1st

Dist.] 2014, no pet.).

      Here, viewing the evidence in a light most favorable to the trial court’s

rulings, the record evidence establishes that the indecent contact occurred on

more than two occasions. Girl reported to Mom that she “didn’t notice at first”

when Madison began to touch her “privates” and that she believed “he was just

accidentally doing it when” she and Madison “played,” but that at the time of her

outcry, “he [did] it now even when [they were] not playing, even when [they were]

not wrestling.” It is a reasonable inference from Girl’s outcry that the indecent

contact had happened more than once when the two had “played” or “wrestle[d].”


                                        11
And it is directly evident that it began to occur “even when” the two were not

playing or wrestling.   Thus, Girl’s own outcry was sufficient to establish that

Madison’s indecent contact occurred on more than two occasions. See Jones,

428 S.W.3d at 169.

      Furthermore, Girl testified that the indecent touching had occurred “[m]any

times.” A reasonable inference from this testimony is that the indecent contact

occurred more than twice. Even assuming, as Madison argues, that it is also a

reasonable inference from the testimony that “many” might only mean twice, we

must presume that the trial court resolved any conflicting inferences in favor of

the verdict and defer to that resolution. Murray, 457 S.W.3d at 448–49.

      But Girl’s testimony is not the only evidence from which a reasonable

inference can be made that the indecent contact happened on more than two

occasions. Boswell testified, in direct response to repeated questions posed by

defense counsel, that both Mom and Girl had reported that Madison had touched

her “several times over [her] clothes while they were wrestling around.” Even if

this court were to strain the meaning of “many” and “several” as to mean only

two, as Madison has suggested, this evidence coupled with Girl’s outcry that it

happened “now even when [she and Madison were] not playing [or] wrestling”

would mean that the indecent contact had occurred more than once while they

were playing or wrestling and at least one other time when they were not. Thus,

the evidence supports that the indecent contact occurred on at least three

occasions.


                                       12
      We also note that even though Madison now complains that the

prosecutor’s question to Girl of whether the indecent contact had happened “one

time or many times” was a leading question, Madison did not object to the

prosecutor’s question at trial. See Tex. App. P. 33.1. More significantly, defense

counsel is the one who elicited testimony that the indecent contact had occurred

“several times . . . while [Girl and Madison] were wrestling around.”

      We hold that the trial court could have found beyond a reasonable doubt

that Madison touched Girl, someone younger than seventeen years of age, over

her clothes, on her genitals, with the intent to arouse or gratify his sexual desire

and that this indecent contact occurred at least three times. See Tex. Penal

Code Ann. § 21.11(a)(1), (c)(1); see also Jackson, 443 U.S. at 319, 99 S. Ct. at

2789; Jenkins, 493 S.W.3d at 599. Thus, we overrule Madison’s sole issue on

appeal.

                                 IV. Conclusion

      Having overruled Madison’s sole issue on appeal, we affirm the trial court’s

judgments.


                                                   /s/ Bill Meier
                                                   BILL MEIER
                                                   JUSTICE

PANEL: SUDDERTH, C.J.; MEIER and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: April 5, 2018


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