                                  NO. 07-09-00151-CR

                             IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL D

                                     APRIL 15, 2011


                            JULIAN VASQUEZ, APPELLANT

                                            v.

                          THE STATE OF TEXAS, APPELLEE


               FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

               NO. 2008-421,066; HONORABLE CECIL G. PURYEAR, JUDGE


Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                               MEMORANDUM OPINION

        Appellant Julian Vasquez was indicted for the offense of indecency with a child.1

A jury found him guilty of the charged offense, and the court sentenced him to fifteen

years confinement in prison. Challenging the admission of evidence over his hearsay

objection and the legal and factual sufficiency of the evidence, appellant appeals. We

will affirm.
        1
         Tex. Penal Code Ann. ' 21.11(a)(1),(c)(2) (West Supp. 2010). The indictment
alleged that appellant Adid then and there intentionally and knowingly with the intent to
arouse and gratify the sexual desire of any person, engage in sexual contact by
touching the breast of [L.F.], a child younger than 17 . . . years, and not the spouse of
the said defendant.@
                                      Background


      Early in the morning of July 20, 2008, L.F., a thirteen-year-old girl, and her eight-

year-old cousin were at the apartment of L.F.=s grandmother. The cousin was asleep on

a couch in the living room and the grandmother was asleep in her bedroom. L.F.

watched cartoons on television in the living room. She planned to sleep on a day bed in

that room. The front door was not locked because the grandmother expected a friend to

drop by with food.


      After hearing knocking on a living room window, L.F. opened the front door

expecting her grandmother=s friend.      Instead, appellant pushed his way into the

apartment and knocked L.F. onto the day bed. L.F. was on her back with appellant on

top of her. He began unbuttoning her shirt and at the final button ripped her shirt.

Appellant reached into L.F.=s shirt and unhooked her bra. He touched her chest. L.F.

acknowledged on direct examination that she was embarrassed to describe the events.

She then agreed with the prosecutor that appellant touched her in the area of her chest

covered by her bra. L.F. kicked and pushed appellant and he left the apartment. She

did not lock the apartment door but grabbed her cell phone and ran to the bathroom.

Locking the bathroom door, she called 911. Appellant reentered the apartment through

the unlocked front door.


      The 911 operator received L.F.=s call at 1:24 a.m. L.F. reported appellant was

back in the apartment and trying to enter the bathroom. Because of a scratching sound

on the door she believed he had a knife. L.F. told the operator that appellant tried to

Arape@ her. She added that he removed her bra Aand everything but that=s all.@ Police
                                            2
officers were dispatched to the apartment. The first officer that arrived found appellant

in the apartment. L.F. remained in the bathroom. Appellant was handcuffed and placed

in a patrol car.


       After hearing this and other evidence, the jury found appellant guilty of indecency

with a child. Appellant timely appealed.


                                           Analysis


       In his first issue, appellant argues the trial court erred by admitting certain

hearsay statements of L.F. over his objection.


       We review the trial court=s evidentiary rulings under an abuse of discretion

standard meaning we will uphold the trial court=s decision if it is within Athe zone of

reasonable     disagreement.@    Montgomery       v.   State,   810   S.W.2d   372,   390-91

(Tex.Crim.App. 1990) (op. on reh=g).


       Appellant was in the apartment and L.F. in the bathroom when the first police

officer arrived. Another officer arrived at 1:36 a.m. and questioned L.F. At trial, the

court overruled appellant=s hearsay objection to the officer=s recount of L.F.=s depiction

of appellant’s actions. The State did not argue, and the court did not express, a ground

for admission of the testimony.2       Appellant requested and was granted a running

objection.


       2
          We will affirm the trial court=s evidentiary ruling if the evidence is admissible on
any ground. Kipp v. State, 876 S.W.2d 330, 337 (Tex.Crim.App. 1994). In their briefs,
the parties focus on the excited utterance exception to the hearsay rule as the basis for
admission of the officer=s testimony. See Tex. R. of Evid. 803(2).
                                              3
      According to the officer, he asked L.F. to tell him what happened, beginning with

the moment she initially had contact with appellant. He then recalled L.F.=s depiction.

This included details of appellant=s entering the apartment and pushing L.F. onto the

bed. The description paralleled testimony admitted elsewhere without objection. But

the officer=s recall of what happened next in the sequence was clearer and more

detailed than L.F.=s trial testimony. The officer testified L.F. told him appellant pulled

down her shirt, exposed her breasts, and began touching her breasts.


      In the opinion of the officer, L.F. appeared nervous and embarrassed. As they

talked of the occurrence, she began crying. The officer agreed L.F. was emotional.

Another officer on the scene at the same time described L.F. as Afairly calm@ but

shaking. She cried as they spoke.


      After speaking with police, L.F. spoke with her grandmother, who remained in her

bedroom on oxygen. Her grandmother testified L.F. then appeared Anervous and real

scared.@ And she was crying. After the officers left, L.F. Acried on and off all night.@

She described L.F. as quiet and shy but added her granddaughter liked to laugh and

have fun.


      Texas Rule of Evidence 803(2) provides that a statement relating to a startling

event or condition made while the declarant was under the stress of excitement caused

by the event or condition is not excluded by the hearsay rule. The critical factor in

determining whether a statement is an excited utterance is whether the declarant was

still dominated by the emotions, excitement, fear, or pain of the event. McFarland v.

State, 845 S.W.2d 824, 846 (Tex.Crim.App. 1992) overruled on other grounds by
                                            4
Bingham v. State, 915 S.W.2d 9 (Tex.Crim.App. 1994); Gonzalez v. State, 966 S.W.2d

804, 808 (Tex.App.BAmarillo 1998), aff'd, 3 S.W.3d 915 (Tex.Crim.App. 1999). In other

words, an appellate court must determine whether the declarant made the statement

Aunder such circumstances as would reasonably show that it resulted from impulse

rather than reason and reflection.@ Zuliani v. State, 97 S.W.3d 589, 596 (Tex.Crim.App.

2003) (quoting Fowler v. State, 379 S.W.2d 345, 347 (Tex.Crim.App. 1964)). The time

elapsed between the occurrence of the event and the utterance is one factor considered

in determining the admissibility of the utterance. That the declaration was a response to

questions is likewise only one factor considered, and does not render the statement

inadmissible. McFarland, 845 S.W.2d at 846. The trial court may also consider the

nature of the declarant and whether the statement is self-serving. Apolinar v. State, 155

S.W.3d 184, 186-87 (Tex.Crim.App. 2005).


      The trial court heard evidence supporting a reasonable conclusion that when L.F.

spoke with police minutes after her 911 call she was still dominated by the emotions,

excitement, fear or pain of the event. The trial court did not abuse its discretion by

admitting the challenged testimony of the interviewing officer. Appellant=s first issue is

overruled.


      By his second issue, appellant challenges the legal and factual sufficiency of the

evidence tending to establish that he acted with intent to arouse or gratify the sexual

desire of any person. Since appellant’s brief was filed, the Texas Court of Criminal

Appeals decided Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App. 2010) (plurality op.).

In that case, the court determined the sufficiency of the evidence should be reviewed

                                            5
only under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979).3


       In reviewing the sufficiency of the evidence, we view the evidence in the light

most favorable to the verdict to determine whether a rational fact finder could have

found each element of the offense beyond a reasonable doubt. Swearingen v. State,

101 S.W.3d 89, 95 (Tex.Crim.App. 2003); Conner v. State, 67 S.W.3d 192, 197

(Tex.Crim.App. 2001) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781,

2789, 61 L.Ed.2d 560 (1979)). 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. See also Hooper v. State, 214 S.W.3d 9, 15 (Tex.Crim.App. 2007) (juries

are permitted to draw multiple reasonable inferences as long as each inference is

supported by the evidence presented at trial). The trier of fact is the sole judge of the

weight and credibility of the evidence. Tex. Code Crim. Proc. Ann. art. 38.04 (West

1979); Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000). Thus, when

reviewing the sufficiency of the evidence, we may not re-evaluate the weight and


       3
          The previously-applied factual sufficiency standard considers whether the
evidence supporting guilt, though legally sufficient, is so weak that the jury’s verdict
seems clearly wrong and manifestly unjust, or evidence contrary to the verdict is such
that the jury’s verdict is against the great weight and preponderance of the evidence.
Grotti v. State, 273 S.W.3d 273, 283 (Tex.Crim.App. 2008); Watson v. State, 204
S.W.3d 404, 414-15 (Tex.Crim.App. 2006). Under that standard, the ultimate question
is whether, considering all the evidence in a neutral light, the jury was rationally justified
in finding guilt beyond a reasonable doubt. Grotti, 273 S.W.3d at 283. Even had we
applied such a standard to review of the evidence, we could not sustain appellant’s
contention. From our review of the entire record, the finding of appellant’s guilt was
neither clearly wrong and manifestly unjust nor against the great weight and
preponderance of the evidence.
                                              6
credibility of the evidence and substitute our judgment for that of the fact-finder.

Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999).              We resolve any

inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394,

406 (Tex.Crim.App. 2000). Each fact need not point directly and independently to the

guilt of the appellant, as long as the cumulative force of all the incriminating

circumstances is sufficient to support the conviction.     Hooper, 214 S.W.3d at 13.

Circumstantial evidence is as probative as direct evidence in establishing the guilt of an

actor, and circumstantial evidence alone can be sufficient to establish guilt. Id. On

appeal, the same standard of review is used for both circumstantial and direct evidence

cases. Id.


      If, however, based on all the evidence, a reasonably-minded jury must

necessarily entertain a reasonable doubt of the defendant’s guilt, due process requires

that we reverse and order a judgment of acquittal. Swearingen, 101 S.W.3d at 95

(citing Narvaiz v. State, 840 S.W.2d 415, 423 (Tex.Crim.App. 1992)).


      To convict appellant for indecency with a child as indicted, it was for the State to

prove beyond a reasonable doubt that appellant, with intent to arouse or gratify the

sexual desire of any person, intentionally and knowingly engaged in sexual contact with

L.F., a child younger than seventeen years and not appellant=s spouse, by touching her

breast. See Tex. Penal Code Ann. ' 21.11(a), (c) (West Supp. 2010).4 The trier of fact


      4
        By amendment applicable for an offense committed on or after September 1,
2009, the State need no longer prove the actor was not the spouse of the victim.
Rather, a marital relationship between the actor and victim is now an affirmative
defense. See Tex. Penal Code Ann. ' 21.11(a),(b-1) (West Supp. 2010).

                                            7
may infer the specific intent to arouse or gratify the sexual desire of a person by

conduct, remarks, or all the surrounding circumstances.           See Bowles v. State, 550

S.W.2d 84, 85 (Tex.Crim.App. 1977); Tyler v. State, 950 S.W.2d 787, 789 (Tex.App.--

Fort Worth 1999, no pet.). No oral expression of the actor’s intent is required; intent

may be inferred from the conduct itself.           Connell v. State, 233 S.W.3d 460, 471

(Tex.App.BFort Worth 2007, no pet.).


       L.F. testified that earlier in the day on July 20, as she took out her grandmother=s

trash, she noticed appellant on an upstairs balcony at the apartment complex.                 It

appeared he was drinking beer.         When she returned, two other males had joined

appellant on the balcony. They too appeared to be drinking beer. Appellant watched

L.F. and waved.       Early the following morning appellant forced his way into the

apartment, knocked L.F. onto a bed on her back, got on top of her, began unbuttoning

her shirt and tore her shirt when he reached the last button. According to L.F., as he did

so, appellant acted forcefully. Viewed in the light most favorable to the verdict, the

evidence showed he then reached under her shirt, unclasped her bra, pulled down her

shirt exposing her breasts, and began touching her breasts with his hands.


       L.F. told the 911 operator appellant tried to rape her, and added he removed her

bra.   Although the details of appellant’s touching of L.F. were described somewhat

differently in the interviewing officer’s testimony and in his incident report, and L.F.’s trial

testimony was less explicit than her description to the interviewing officer, the jury was

the exclusive judge of the credibility of the witnesses and the weight assigned their

testimony. Fuentes v. State, 991 S.W.2d 267, 271 (Tex.Crim.App. 1999). As such, the

                                               8
jury was free to accept or reject any part of a witness’s testimony. Alvarado v. State,

818 S.W.2d 100, 105 (Tex.App.BSan Antonio 1991, no pet.). Having considered the

entire record in the appropriate light, we find that a rational jury could have found,

beyond a reasonable doubt, not only that appellant touched L.F.’s breasts as alleged

but that he did so with an intent of arousing or gratifying sexual desire.


         Finding the evidence sufficient to support the jury=s verdict, we overrule

appellant=s second issue.


                                        Conclusion


         Having overruled each of appellant=s issues, we affirm the judgment of the trial

court.




                                                         James T. Campbell
                                                              Justice

Do not publish.




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