                                                                ACCEPTED
                                                            11-17-00197-CR
                                               ELEVENTH COURT OF APPEALS
                                                         EASTLAND, TEXAS
                                                           1/5/2018 2:16 PM
                                                      SHERRY WILLIAMSON
                                                                     CLERK

 NO ORAL ARGUMENT REQUESTED

     CAUSE NO. 11-17-00197-CR               FILED IN
                                     11th COURT OF APPEALS
                                        EASTLAND, TEXAS
               IN THE                 01/05/18 2:16:05 PM
        COURT OF APPEALS               SHERRY WILLIAMSON
                                              Clerk
  ELEVENTH DISTRICT OF TEXAS
           AT EASTLAND
    ______________________________

        SERGIO GONZALEZ,
                 Appellant

                 V.

       THE STATE OF TEXAS,
                     Appellee
    ______________________________

 ON APPEAL IN CAUSE NO. CR48359
    385TH JUDICIAL DISTRICT
    MIDLAND COUNTY, TEXAS
HONORABLE ROBIN MALONE DARR,
        JUDGE PRESIDING
    _____________________________

      BRIEF FOR THE STATE
    ______________________________

          Lacey Holloman
       State Bar No. 24087736
     Assistant District Attorney
    500 North Loraine, Suite 200
        Midland, Texas 79701
       PHONE: (432) 688-4426
         FAX: (432) 688-4938
      da110@co.midland.tx.us
ATTORNEY FOR THE STATE OF TEXAS
TABLE OF CONTENTS


Contents
TABLE OF CONTENTS ...........................................................................ii

TABLE OF AUTHORITIES ..................................................................... iv

STATE’S REPLIES TO ISSUES PRESENTED FOR REVIEW .............. 2

  State’s Reply to Issue One ...................................................................... 2

       Whether evidence of appellant’s criminal intent to commit
       indecency with a child by contact is sufficient is a question
       of fact to be resolved by the trier of fact. Is the evidence
       legally and factually sufficient to support the jury’s finding
       appellant attempted to commit the offense of indecency
       with a child by contact?


STATEMENT OF THE CASE .................................................................. 2

STATEMENT OF FACTS ......................................................................... 4

ARGUMENTS AND AUTHORITIES ....................................................... 6

  State’s Reply to Issue One ...................................................................... 6

  Summary of Argument .......................................................................... 6

  State’s Reply to Issue One ...................................................................... 7

     A. Standard of Review ........................................................................ 7


                                                 ii
      B. Direct and Circumstantial Evidence ............................................. 9

      C. Intent to Arouse and Gratify Sexual Desire ............................... 10

      D. Application of the Law to the Facts ............................................ 12

CONCLUSION ........................................................................................ 15

PRAYER .................................................................................................. 15

CERTIFICATE OF SERVICE................................................................. 16

CERTIFICATE OF COMPLIANCE ........................................................ 16




                                                    iii
TABLE OF AUTHORITIES

Cases

Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992) .............. 8

Blankenship v. State, 780 S.W.2d 198, 206-207 (Tex. Crim. App. 1988) . 9

Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010 ................... 8

Brown v. State 381 S.W.3d 565, 573 (Tex. App.—Eastland, no pet.) ....... 8

Dixon v. State, 43 S.W.3d 548, 552 (Tex. App.—Texarkana 2001, no

  pet.). ..................................................................................................... 12

Geesa v. State, 820 S.W.2d 154, 158-59 (Tex. Crim. App. 1991) ............ 10

Gibbons v. State, 634 S.W.2d 700, 707 (Tex. Crim. App. 1982) ............. 11

Hankins v. State, 646 S.W.2d 191, 199 (Tex. Crim. App. 1981) ............. 10

Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991) ......... 11

Hooker v. State, 621 S.W.2d 597, 601 (Tex. Crim. App. 1980) ............... 10

Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). ...................... 9

Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010) ............... 8, 9

Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L.Ed.2d

  560 (1979) ....................................................................................... 7, 8, 9

Jones v. State, 229 S.W.3d 489, 497-98 (Tex. App. – Texarkana 2007, no

  pet.) ...................................................................................................... 11

                                                      iv
Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996) ................. 14

Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). .................. 8

McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. [Panel Op.]

  1981) ..................................................................................................... 11

Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000) ....................... 10

Peterson v. State, 137 S.W.3d 739, 745 (Tex. App.—Houston [1st Dist.]

  2004, pet. ref’d) .................................................................................... 14

Sorrells v. State, 343 S.W.3d 152, 155 (Tex. Crim. App. 2011). ............... 9

Soto v. State, 267 S.W.3d 327, 332 (Tex. App. – Corpus Christi 2008, no

  pet.) ...................................................................................................... 11

Tibbs v. Florida, 457 U.S. 31, 40-41, 102 S. Ct. 2211, 72 L. Ed. 2d 652

  (1982)...................................................................................................... 8

Whitaker v. State, 977 S.W.2d 595, 598 (Tex. Crim. App. 1998) .............. 8

Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012). .................... 9

Wright v. State, 603 S.W.2d 838, 840-41 (Tex. Crim. App. 1979) ......... 10

Statutes

TEX. CODE CRIM. PROC. ANN. ART. 38.07 .................................................. 10




                                                      v
                     CAUSE NO. 11-17-00197-CR


                              IN THE
                       COURT OF APPEALS
                 ELEVENTH DISTRICT OF TEXAS
                          AT EASTLAND
                   ______________________________

                         SERGIO GONZALEZ,
                                  Appellant

                                    V.

                       THE STATE OF TEXAS,
                                     Appellee
                    ______________________________

                             CR48359
                  385TH JUDICIAL DISTRICT
                  MIDLAND COUNTY, TEXAS
               HONORABLE ROBIN MALONE DARR,
                      JUDGE PRESIDING
                  ______________________________

                      BRIEF FOR THE STATE
                    ______________________________


     TO THE HONORABLE JUSTICES OF THE COURT OF

APPEALS:

     COMES NOW the appellee, the State of Texas, and files the

State's brief on appeal in reply to the brief by the appellant, and in

support thereof would show the Court as follows:
                                     1
STATE’S REPLIES TO ISSUES PRESENTED FOR REVIEW

State’s Reply to Issue One

      Whether evidence of appellant’s criminal intent to commit
      indecency with a child by contact is sufficient is a question
      of fact to be resolved by the trier of fact. Is the evidence
      legally and factually sufficient to support the jury’s finding
      appellant attempted to commit the offense of indecency
      with a child by contact?



STATEMENT OF THE CASE

      Appellant was indicted in the 385th District Court of Midland

County, Texas, on December 7, 2016, for the offense of indecency with a

child by contact. (CR1 7). He was re-indicted on June 28, 2017, for the

offense of attempted indecency with a child by contact. (CR 8). The

case proceeded to trial on July 17, 2017, and a jury of twelve people was

sworn. (RR27 172). Appellant entered a plea of "not guilty" to the

indictment. (RR7 177). After the presentation of evidence and argument

of counsel, the jury found appellant guilty of the offense of attempted




1 References to the Clerk’s Record are abbreviated as “CR”, followed by the page
number.
2 References to the Reporter’s Record are abbreviated as “RR” followed by the

volume number and page number.
                                         2
indecency with a child by contact as alleged in the indictment. (CR 83;

RR8 109).

     Appellant elected for the jury to assess punishment and the case

proceeded to trial on punishment. (CR 70; RR8 110). After presentation

of the evidence and argument of counsel, the jury sentenced appellant

to 7 years imprisonment in the Institutional Division of the Texas

Department of Criminal Justice and assessed a fine of $7,000. (CR75;

RR8 121). The sentence was pronounced on July 18, 2017. (RR8 122).

The judgment of conviction was entered on July 18, 2017. (CR 95-97).

     Appellant timely gave notice of appeal. (CR 100).




                                   3
STATEMENT OF FACTS

     On November 16, 2016, A.H. was at her dad’s shop with her

brothers. RR7 239. Her parents and appellant were also present. RR7

219. Appellant worked for A.H.’s father at his shop. RR7 216. A.H.

was 13. RR7 235. A.H. was in the office watching a video with her

brother, J.H. RR7 240. J.H. was 12. RR8 14, RR7 244. Appellant

came into the office and asked A.H. if she wanted to go to the store.

RR7 241. Appellant asked just A.H. and not her brothers to go to the

store. Id. A.H. asked J.H. go with her because her parents don’t let her

go to the store with older men. RR7 241-42. Appellant told the children

that their parents said it was okay. RR7 242. A.H.’s parents did not

give appellant to take A.H. to the store. RR7 220, 183. Initially

appellant drove, J.H. sat in the front, and A.H. sat in the backseat of

the vehicle. RR7 243. Once they reached a dark road, appellant

stopped and asked who wanted to drive. Id. J.H. stated he wanted to

drive. Id. After J.H. got in the driver’s seat, appellant got into the back

seat right next to A.H. RR7 244. While in the back seat, appellant

started to touch A.H. RR7 245. He started touching her stomach and

back. Id. Appellant began to lift up her shirt and attempt to take it off.

                                     4
Id. A.H. used her elbow to stop appellant’s hand from touching her

elsewhere. RR7 245-46. Appellant grabbed A.H.’s hips and tried to put

her in his lap. RR7 246. When he did that, A.H. jumped in the front

seat and told her brother she wanted to drive. Id. At the store, A.H.

told J.H. to stay with her because she was afraid. RR7 247. Appellant

drove them back from the store and A.H. sat in the backseat. RR7 249.

Back at the shop, A.H. ran back to the office and attempted to arrange

for her Aunt Janet to come pick her up. Id. A.H. was unable to get her

Aunt Janet to come get her so she ran to her Aunt Aide’s house. RR7

250. At her Aunt Aide’s house she was crying and asked her to take her

to her aunt Janet. RR7 250-51. Once they were at her Aunt Janet’s

house, A.H. told both of her aunts what appellant did. RR7 251. Her

Aunt Janet eventually took her back to the shop. RR7 252. A.H. could

not recall talking to the police that night. Id. The officer who spoke to

her described A.H. as extremely hysterical, crying, saying she was

scared of appellant. RR8 31. Appellant told the officer nothing

happened. RR8 33-34. That they just went to the store. Id.




                                    5
ARGUMENTS AND AUTHORITIES

State’s Reply to Issue One

      Whether evidence of appellant’s criminal intent to commit
      indecency with a child by contact is sufficient is a question
      of fact to be resolved by the trier of fact. Is the evidence
      legally and factually sufficient to support the jury’s finding
      appellant attempted to commit the offense of indecency
      with a child by contact?


Summary of Argument

      The evidence must be viewed in the light most favorable to the

verdict. The fact finder is the sole judge of the credibility of the

witnesses and the weight to be given their testimony and may choose to

believe or disbelieve all or any part of any witness's testimony. The

State’s witnesses testified appellant invited the 13 year old victim to the

store under false pretenses. Appellant isolated the victim from the

other adults. He then had the 12 year old drive and rode in the back

seat with the 13 year old girl. A.H. testified that in the backseat,

appellant attempted to lift her shirt, touch her bare skin, and pull her

onto his lap. All of this took place while the vehicle was moving and

appellant would have no legitimate reason to touch A.H., much less try

and pull her onto his lap. Based off appellant’s conduct and all the

                                      6
surrounding circumstances, the jury rationally concluded that appellant

attempted to touch A.H. with the intent to arouse or gratify his sexual

desire. Appellant’s argument seeks for this court to substitute its

judgment for that of the jury without any basis in fact or law.


State’s Reply to Issue One

     Whether evidence of appellant’s criminal intent to commit
     theft is sufficient is a question of fact to be resolved by the
     trier of fact. The State’s witnesses said appellant entered
     the building after hours without permission, he fled
     immediately after setting off the alarm, and gave an
     unreasonable explanation as to why he was there. Is the
     evidence legally and factually sufficient to support the
     jury’s finding that appellant committed burglary of a
     building?

A. Standard of Review

     The standard of review for an appellate court to evaluate

sufficiency of the evidence, whether denominated as a legal or as a

factual sufficiency claim, is to examine all the evidence in a light most

favorable to the verdict and to determine whether, based on the

evidence and any reasonable inferences from it, any rational finder of

fact could have found the existence of the elements of the offense

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.

Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Isassi v. State, 330 S.W.3d 633,

                                     7
638 (Tex. Crim. App. 2010); Brooks v. State, 323 S.W.3d 893, 912 (Tex.

Crim. App. 2010). Evidence is insufficient under this standard in four

circumstances: (1) the record contains no evidence probative of an

element of the offense; (2) the record contains a mere “modicum” of

evidence probative of an element of the offense; (3) the evidence

conclusively establishes a reasonable doubt; and (4) the acts alleged do

not constitute the criminal offense charged. Brown v. State 381 S.W.3d

565, 573 (Tex. App.—Eastland, no pet.) (Citing Jackson, 443 U.S. at

314, 318 n. 11, 320). If evidence is insufficient under this standard, the

appellate court must reverse the judgment and enter an acquittal. See

Tibbs v. Florida, 457 U.S. 31, 40-41, 102 S. Ct. 2211, 72 L. Ed. 2d 652

(1982). The sufficiency test must be applied to the application

paragraph in a hypothetically correct jury charge. Malik v. State, 953

S.W.2d 234, 240 (Tex. Crim. App. 1997). Appellant did not object to the

Court’s Charge and does not object to the Court’s Charge now. (RR5 5).

     The factfinder is the exclusive judge of each witness' credibility

and the weight to be given each witness' testimony. Whitaker v. State,

977 S.W.2d 595, 598 (Tex. Crim. App. 1998); Adelman v. State, 828

S.W.2d 418, 421 (Tex. Crim. App. 1992). The appellate court's duty is


                                     8
not to sit as a thirteenth juror reweighing the evidence or deciding

whether it believes the evidence established the elements in question

beyond a reasonable doubt. Blankenship v. State, 780 S.W.2d 198, 206-

207 (Tex. Crim. App. 1988); see also, Isassi, 330 S.W.3d at 638. In

reviewing the evidence the appellate court is to defer to the trier of facts

to responsibly resolve conflicts in testimony, weigh evidence, and draw

reasonable inferences from basic facts to ultimate facts. Jackson, 443

U.S. at 319, 99 S. Ct. at 2789; Hooper v. State, 214 S.W.3d 9, 13 (Tex.

Crim. App. 2007). The appellate court determines whether the

necessary inferences are reasonable based upon the cumulative force of

the evidence when viewed in the light most favorable to the verdict.

Sorrells v. State, 343 S.W.3d 152, 155 (Tex. Crim. App. 2011). The court

must presume the factfinder resolved any conflicting inferences in favor

of the verdict and defer to that resolution. Jackson, 443 U.S. at 326;

Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012).


B. Direct and Circumstantial Evidence

     In this case, the conclusion that appellant was attempting to touch

A.H. with the intent to arouse and gratify his sexual desire is based on

circumstantial evidence. In a circumstantial evidence case, each fact or

                                     9
piece of evidence need not point directly to the defendant’s guilt; rather,

the cumulative effect of all the incriminating facts may be sufficient to

support the conviction. Hooker v. State, 621 S.W.2d 597, 601 (Tex. Crim.

App. 1980) (op. on reh’g). Circumstantial evidence is no less trustworthy

or probative than direct evidence. See Geesa v. State, 820 S.W.2d 154,

158-59 (Tex. Crim. App. 1991), overruled in part, Paulson v. State, 28

S.W.3d 570 (Tex. Crim. App. 2000) (same standard of review applies to

direct as well as circumstantial evidence cases). "Circumstantial

evidence alone may suffice . . . if the inferences arising therefrom prove

the fact in question beyond a reasonable doubt." Hankins v. State, 646

S.W.2d 191, 199 (Tex. Crim. App. 1981). An accused's presence at the

scene is a circumstance that tends to prove guilt and, when combined

with other facts, may indeed show the accused to be guilty of the crime.

Wright v. State, 603 S.W.2d 838, 840-41 (Tex. Crim. App. 1979) (op. on

reh’g).

C. Intent to Arouse and Gratify Sexual Desire

      The testimony of a child victim alone is sufficient to support a

conviction for indecency with a child. TEX. CODE CRIM. PROC. ANN. ART.

38.07. A child victim’s description of what happened need not be


                                    10
precise. Soto v. State, 267 S.W.3d 327, 332 (Tex. App. – Corpus Christi

2008, no pet.). Intent generally is an element that must be inferred

from the circumstances. Hernandez v. State, 819 S.W.2d 806, 810 (Tex.

Crim. App. 1991). Intent to arouse and gratify sexual desire can also be

inferred from the defendant’s conduct, his remarks and all surrounding

circumstances. McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim.

App. [Panel Op.] 1981).

      In McKenzie, the defendant asked the girls to meet him behind

buildings and in places under construction where they would not be

seen. Id. at 215-16. The defendant also isolated one girl when he first

made physical contact with her. Id. at 216. The Court found that there

was sufficient evidence in this case to support the jury’s finding that the

defendant had the specific intent to arouse and gratify his sexual desire.

Id.

      The imaginary line between mere preparation and an attempt

depends on the nature of the crime and must be considered on a case by

case basis. Gibbons v. State, 634 S.W.2d 700, 707 (Tex. Crim. App.

1982); see Jones v. State, 229 S.W.3d 489, 497-98 (Tex. App. –

Texarkana 2007, no pet.) (rubbing up against the child’s leg and thigh,


                                    11
whispering he loved her, and claiming he thought she was her mother

was more than mere preparation).

D. Application of the Law to the Facts

     J.H. and A.H. testified that when appellant asked them to go to

the store he told them that their parents had given their permission.

RR8 18, RR7 242. A.H. testified that appellant wanted just her to go to

the store. RR7 241. She testified that on the way to the store, once

they reached a dark road, appellant stopped and asked who wanted to

drive. RR7 243. Once her little brother got in the driver’s seat,

appellant sat in the back with her. RR7 244. He sat right next to her in

the back seat. Id. A.H. testified that appellant began touching her

stomach and back. RR7 245. He attempted to lift up her shirt and take

it off. Id. A.H. testified that appellant grabbed her by the hips and

tried to pull her into his lap. RR7 246. Appellant made her so

uncomfortable that at the store A.H. asked her little brother to stay

with her because she was scared. RR8 21, RR7 247.

     J.H. testified that he thought appellant only asked his sister to go

to the store. RR8 25. J.H. also testified that when they got back to the

shop appellant told them “we’re not going to tell nobody, ok.” RR8 22.


                                    12
     Appellant admitted that he rode with the children to the store.

RR8 71. Appellant admitted that he told the children it was ok for

them to go with him even though he had never asked their parents.

RR8 87. He testified that he rode in the back with A.H while J.H.

drove. RR8 71, 74. Appellant testified that he let them drive because

he “wanted to be cool.” RR8 80.

     It is a reasonable inference for the jury to find that appellant was

attempting to lift up A.H’s shirt in an attempt to touch her breasts in

order to arouse and gratify his sexual desire. There is no other

reasonable explanation for why appellant would lie to the children in

order to get them to go to the store with him. There is no other

reasonable explanation as to why appellant would allow a 12 year old

child to drive down a dark and deserted road while sitting in the back

with a 13 year old. There is no other reasonable explanation for why

appellant would try to lift up a 13 year old’s shirt, and attempt to pull

her on to his lap while the vehicle was moving. Appellant wanted to

look cool to A.H. in an attempt to groom her. Appellant knew he did

something was not supposed to and that is why he told J.H. not to tell

anyone when they got back to the shop. These facts combined create


                                    13
the inference that appellant was attempting to touch A.H. with the

intent to arouse and gratify his sexual desire. The jury as the exclusive

judge of the facts, the credibility of the witnesses, and the weight to be

given to their testimony, was free to believe or disbelieve all or any part

of the witnesses’ testimony. See Jones v. State, 944 S.W.2d 642, 647

(Tex. Crim. App. 1996). Clearly, the jury disbelieved appellant’s version

of events as shown by their guilty verdict. An appellate court cannot

hold the evidence factually insufficient merely because a defendant

offers an explanation of the facts that is different from the explanation

offered by the State. Peterson v. State, 137 S.W.3d 739, 745 (Tex. App.—

Houston [1st Dist.] 2004, pet. ref’d). Appellant simply asks this court to

substitute its judgment for that of the jury without any facts or

explanation as to why the jury’s verdict is unreasonable. Appellant’s

point of error should be denied.




                                    14
CONCLUSION

      The evidence is legally and factually sufficient to support the

conviction of appellant for attempted indecency with a child by contact.

The jury as the finder of facts has sufficient evidence to determine

appellant attempted to touch A.H. in a way as an attempt to arouse or

gratify his sexual desire. Appellant’s appeal should be denied and the

conviction should be affirmed by this court.



PRAYER

      WHEREFORE, PREMISES CONSIDERED, the Appellee prays

that this Honorable Court affirm the judgment of conviction in this

cause.

Respectfully submitted,

Laura Nodolf
District Attorney
Midland County, Texas

By:
/S/ Lacey Holloman
Lacey Holloman
Assistant District Attorney
State Bar No. 24087736
500 North Loraine, Suite 200
Midland, Texas 79701
da110@co.midland.tx.us
                                    15
(432) 688-4426; FAX (432) 688-4938



CERTIFICATE OF SERVICE

      I, Lacey Holloman, do hereby certify that on the 5th day of

January, 2018, I sent a true and correct copy of the foregoing brief by

electronic service to Damian Castillo, attorney of record for Appellant,

at 1120 N. Big Spring, Midland TX, 79701.


/S/ Lacey Holloman
Lacey Holloman
Assistant District Attorney


CERTIFICATE OF COMPLIANCE

      I, Lacey Holloman, certify the Brief for Appellee was prepared

with Microsoft Word 2010 and that according to that program’s word-

count function, the sections covered by TEX. R. APP. P. 9.4(i)(3) contain

2,509 words. I further certify the body text is Century Schoolbook 14

point font and the footnote text is 12 point font.

By:

/S/ Lacey Holloman
Lacey Hollman
Assistant District Attorney


                                    16
