                                    NO. 12-14-00095-CR

                           IN THE COURT OF APPEALS

                TWELFTH COURT OF APPEALS DISTRICT

                                       TYLER, TEXAS

MICHAEL WAYNE LANGLEY,                               §   APPEAL FROM THE 217TH
APPELLANT

V.                                                   §   JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                             §   ANGELINA COUNTY, TEXAS

                                   MEMORANDUM OPINION
       Michael Wayne Langley appeals his conviction for indecency with a child. He raises two
issues on appeal. We affirm.


                                            BACKGROUND
       An Angelina County grand jury returned an indictment against Appellant alleging he
intentionally or knowingly engaged in sexual contact with a child younger than seventeen years
old with the intent to gratify his sexual desire. Appellant pleaded “not guilty” to the offense and a
bench trial was held. Ultimately, the trial court found Appellant “guilty,” and assessed his
punishment at ten years of imprisonment. This appeal followed.


                                 COMPETENCY OF CHILD WITNESS
       In his first issue, Appellant contends that the trial court failed to conduct a sufficient
inquiry of the alleged victim’s competency to testify and that she was, in fact, incompetent to
testify at trial. The State contends Appellant forfeited review of this alleged error because no
objection regarding the issue was raised at trial.
Applicable Law
       Error preservation is a threshold issue because challenges to the propriety of trial court
rulings must be preserved for appeal. Moore v. State, 371 S.W.3d 221, 225 (Tex. Crim. App.
2012); Mays v. State, 285 S.W.3d 884, 889 (Tex. Crim. App. 2009) (holding that error
preservation is “systemic requirement”).       Failure to present a timely and specific request,
objection, or motion to the trial court for a ruling results in forfeiture of the right to present the
claim on appeal. See TEX. R. APP. P. 33.1; Mendez v. State, 138 S.W.3d 334, 341–42 (Tex. Crim.
App. 2004). The requirement that complaints be raised in the trial court (1) ensures that the trial
court will have an opportunity to prevent or correct errors, thereby eliminating the need for a
costly and time consuming appeal and retrial; (2) guarantees that opposing counsel will have a fair
opportunity to respond to complaints; and (3) promotes the orderly and effective presentation of
the case to the trier of fact. Gillenwaters v. State, 205 S.W.3d 534, 537 (Tex. Crim. App. 2006);
Stinecipher v. State, 438 S.W.3d 155, 159 (Tex. App.—Tyler 2014, no pet.).
       “It is a familiar rule of law that the failure to object to a witness’s competency to testify
operates as a waiver of the witness’s qualifications and may not be raised for the first time on
appeal.” Matson v. State, 819 S.W.2d 839, 852 (Tex. Crim. App. 1991). “Unless a child’s
testimony shows on its face that [she] was incompetent to testify[,]” a challenge to her
competency for the “first time on motion for new trial or on appeal comes too late.” Griffin v.
State, 514 S.W.2d 278, 281 (Tex. Crim. App. 1974) (quoting Carr v. State, 475 S.W.2d 755, 757
(Tex. Crim. App. 1972)).
Discussion
       Jane Doe is the witness who Appellant contends was incompetent. She was seven years
old at the time of trial, and confirmed she knew the difference between the truth and a lie.
However, when the trial court asked her to explain the difference, she responded that she did not
know. The trial court then engaged in a dialogue with Jane Doe in which he set forth different
scenarios, asking her to identify whether the statements constituted truths or lies. We agree that
Jane Doe answered, “I don’t know” to some of the trial court’s scenarios. But her answers
indicate that her lack of knowledge was due to the fact that she was unfamiliar with the subject
matter to which the trial court referred.
       For example, Jane Doe testified that she listened to Justin Bieber’s music. When the trial
court gave scenarios involving Justin Bieber, Jane Doe was able to differentiate between truths



                                                  2
and lies. However, when the trial court made references to Beyoncé and the weather, the record
indicates that Jane Doe did not know who Beyoncé was and had a different opinion from the trial
court as to whether the outside temperature was “really really cold.”               After going over the
scenarios, the trial court advised Jane Doe that it was important that she tell the truth, and Jane
Doe promised that she would and could tell the truth. Despite Jane Doe’s “I don’t know”
answers, Appellant did not object.
        Appellant argues that he and the State should have been permitted to inquire into Jane
Doe’s competency. But neither the State nor Appellant requested to engage in such an inquiry.
Thus, Jane Doe’s testimony must indicate on its face that she was incompetent to testify at trial.
See Griffin, 514 S.W.2d at 281.
        When viewed on its face, Jane Doe’s trial testimony indicates she was able to understand
and answer numerous questions regarding the incident that led to Appellant’s criminal
prosecution. There is no indication that Jane Doe lacked sufficient intellect or was too immature
to answer the questions posed to her. See generally TEX. R. EVID. 601(a)(2).1 Therefore, by
failing to raise an objection to Jane Doe’s competency at trial, Appellant has forfeited his right to
present this claim on appeal. See TEX. R. APP. P. 33.1; Mendez, 138 S.W.3d at 341–42; see also
Chaney v. State, No. 12-01-00047-CR, 2003 WL 174088, at *5 (Tex. App.—Tyler 2003, no pet.)
(mem. op., not designated for publication) (noting that competency of child witness may not be
raised for first time on appeal). Accordingly, we overrule Appellant’s first issue.


                                        SUFFICIENCY OF THE EVIDENCE
        In his second issue, Appellant challenges the legal sufficiency of the evidence supporting
his conviction. Specifically, he contends there is no evidence that he “was awake, much less
conscious to act knowingly with respect to his conduct or aware of the nature of his conduct” as


        1
            Texas Rule of Evidence 601(a)(2) provides as follows:

        Every person is competent to be a witness unless these rules provide otherwise. The following
        witnesses are incompetent:

        ....

        (2) Persons Lacking Sufficient Intellect. A child—or any other person—whom the court
        examines and finds lacks sufficient intellect to testify concerning the matters in issue.

TEX. R. EVID. 602(a)(2).


                                                          3
required by the penal code. He further argues there is no evidence to support the element that he
touched Jane Doe “with the intent to arouse or gratify the sexual desire as required by the law.”
Standard of Review
         When sufficiency of the evidence is challenged on appeal, we view all of the evidence in
the light most favorable to the verdict to decide whether any rational trier of fact could have found
the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443
U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Brooks v. State, 323 S.W.3d 893,
895 (Tex. Crim. App. 2010). We defer to the trier of fact’s responsibility to resolve conflicts in
testimony, weigh the evidence, and draw reasonable inferences from basic facts to ultimate facts.
Jackson, 443 U.S. at 319, 99 S. Ct. at 2789. 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 v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.
2007).
         The sufficiency of the evidence is measured by the offense as defined by a hypothetically
correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). As set forth in
the indictment, the State was required to prove beyond a reasonable doubt that Appellant, with the
intent to arouse or gratify his or Jane Doe’s sexual desire, intentionally or knowingly engaged in
sexual contact with Jane Doe, by touching her genitals, and that Jane Doe was younger than the
age of seventeen and not Appellant’s spouse.
Applicable Law
         A person is guilty of indecency with a child if he engages in sexual contact with the child.
See TEX. PENAL CODE ANN. § 21.11(a)(1) (West 2011). “Sexual contact” means “any touching by
a person, including touching through clothing, of the anus, breast, or any part of the genitals of a
child,” that is committed with “the intent to arouse or gratify the sexual desire of any person[.]”
Id. § 21.11(c)(1). A fact finder can infer the requisite intent to arouse or gratify the sexual desire
from conduct, remarks, or all of the surrounding circumstances. See Scott v. State, 202 S.W.3d
405, 408 (Tex. App.—Texarkana 2006, pet. ref’d). However, if the touching is accidental, it
cannot be said that it was done with the intent to arouse or gratify the sexual desire of any person.
See Means v. State, 955 S.W.2d 686, 691 (Tex. App.—Amarillo 1997, pet. ref’d).




                                                  4
The Evidence
        Jane Doe was the State’s first witness to testify at trial. She testified that one night she and
her sister spent the night at her grandmother’s, “Mamie’s,” and Appellant’s house. Because there
was only one bed, Jane Doe and her sister slept in the same bed with Mamie and Appellant. Jane
Doe slept next to Appellant, and her sister slept next to Mamie (Appellant and Mamie slept on the
outside of the bed while the girls slept in the middle.). While her sister and Mamie were asleep,
Appellant touched Jane Doe’s genitals. Jane Doe explained that she was wearing pajamas, and
Appellant placed his hand on her genitals twice. She testified that when Appellant placed his
hand on her genitals the first time, it made her “mad” and she moved it off of her. But when
Appellant placed his hand on Jane Doe’s genitals the second time, he moved his fingers.2 She
testified that she once again moved Appellant’s hand off of her.                    She testified further that
Appellant did not move the remainder of the night and never said anything about the touching.
Jane Doe did not know whether Appellant’s touching was an accident or not. However, she
testified that she thought Appellant was asleep, but she could not explain why.
        Jane Doe’s other grandmother, Joann, testified that she learned about Appellant’s touching
after an unrelated incident involving Jane Doe’s sister was investigated. She testified that Jane
Doe told her that Appellant “had touched her private, and she pushed his hand away, and he
touched it again, and she didn’t like that. And, she said she had told Mamie, and Mamie made
him stop.” Joann confirmed that she did not mention Appellant’s moving of his hand in the
statement she gave to law enforcement. She explained that it was a detail she remembered
hearing from Jane Doe, but just forgot to mention it at the time.
        Bobby Epperly, Jr., the police chief for the City of Huntington Police Department, testified
that he had not previously heard anything about Appellant moving his hand when he touched Jane
Doe. He testified that Appellant provided a written statement when the allegations were made.
That statement was admitted into evidence as State’s exhibit 3. In State’s exhibit 3, Appellant
relates that Jane Doe and her sister were sleeping in the bed with him and his wife and that Jane
Doe was sleeping behind him.


        During the course of the night, [Jane Doe] kept hitting my back with her knee and I went to move
        her over to get her away from my back. As this was happening, I had a hold of her back and her
        side and my hand slipped and accidentally touched her on her butt and private area. I quickly

        2
         At trial, Jane Doe demonstrated the movement of Appellant’s hand, which the trial court described as being
“palm down” and rotating, with the fingers extended and “moving left to right.”


                                                        5
       moved my hand away and covered her up with the blanket. My wife was aware of what was going
       on and knows it was an accident. There was nothing intentional on this nor was it purposeful.


Appellant further recounted that Joann knew of the incident and advised that the girls would have
to have their own bed before they could spend the night at his and Mamie’s house again.
       Chief Epperly testified that Appellant was interviewed twice and admitted in both
interviews that he touched Jane Doe. However, in the second interview, when asked whether he
had any kind of sexual desire when he touched Jane Doe, Appellant said that he “did have a
sexual thought that ran through his mind, but he didn’t do anything on purpose.”
       Appellant’s wife, “Mamie,” testified that the first night after Jane Doe and her sister spent
the night at their house, Joanne called and advised her that Appellant had touched Jane Doe and it
was an accident. She explained that Joann told her she knew it was an accident because Appellant
was snoring. However, Mamie corrected Joann and explained that Appellant touched Jane Doe
while trying to roll her over in the bed. Mamie further testified that Jane Doe’s behavior never
changed after the touching. According to Mamie, Jane Doe was looking for attention and was
coerced by Joann to fabricate the allegations against Appellant.
       After the defense rested, the State recalled Joann, who testified that she never spoke to
Mamie on the telephone about Appellant touching Jane Doe’s genitals. Joann explained that the
conversation she had with Mamie the day after the girls spent the night was about Appellant
tickling Jane Doe. Thereafter, the State called Fay Hartman, a forensic interviewer at the child
advocacy center. Hartman testified that Jane Doe’s trial testimony was consistent with her
interview, and that she did not detect any signs that Jane Doe had been coached.
Discussion
       It is undisputed that (1) Appellant touched Jane Doe’s genitals, (2) Jane Doe is under the
age of seventeen, and (3) Jane Doe is not Appellant’s spouse. The contested issues at trial and on
appeal are whether Appellant’s touching was intentional, and whether the touching constituted
“sexual contact,” i.e., made with the intent to arouse or gratify Appellant’s sexual desire.
       Jane Doe’s testimony about Appellant’s repeated touching and subsequent moving of his
fingers on her genitals supports the inference that Appellant not only intended to touch Jane Doe,
but that the touching was made to arouse or gratify his sexual desire. See Scott, 202 S.W.3d at
408. Although Jane Doe’s testimony showed that she believed Appellant was sleeping, this does
not negate intent, as it can be inferred from the circumstances that Appellant was feigning sleep.



                                                    6
See Whatley v. State, 445 S.W.3d 159, 167 (Tex. Crim. App. 2014) (affirming conviction where
jury could reasonably infer appellant was feigning sleep when inappropriately touching
complainant); Scott, 202 S.W.3d at 408 (“No oral expression of intent or visible evidence of
sexual arousal is necessary.”) (citations omitted).
         Mamie and Appellant’s version of what transpired contradicts Jane Doe’s testimony in that
they said (1) Jane Doe was asleep, (2) Mamie and Appellant were awake, (3) Appellant touched
Jane Doe once, and (4) the touching was an accident. But as the reviewing court, we must defer
to the trier of fact’s decision regarding what weight to give contradictory testimonial evidence
because the decision is most likely based on an evaluation of credibility and demeanor. See
Lancon v. State, 253 S.W.3d 699, 706 (Tex. Crim. App. 2008).
         The trial court was free to disbelieve the portion of Mamie’s testimony and Appellant’s
statement that the touching of Jane Doe was an accident. See Sharp v. State, 707 S.W.2d 611,
614 (Tex. Crim. App. 1986). Moreover, Appellant’s admission to having a “sexual thought”
supports the inference that the touching was done with the intent to arouse or gratify his sexual
desire. See Scott, 202 S.W.3d at 408.
         After viewing the evidence in the light most favorable to the verdict, we conclude that the
trial court could reasonably conclude that the touching was not accidental and was sufficient to
show that Appellant intentionally touched Jane Doe’s genitals with the intent to gratify his sexual
desire. See Brooks, 323 S.W.3d at 895; Scott, 202 S.W.3d at 408; Means, 955 S.W.2d at 691.
Accordingly, we overrule Appellant’s second issue.


                                                   DISPOSITION
         Having overruled Appellant’s first and second issues, we affirm the judgment of the trial
court.
                                                                  GREG NEELEY
                                                                     Justice

Opinion delivered May 20, 2015.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                              (DO NOT PUBLISH)




                                                              7
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                              MAY 20, 2015


                                         NO. 12-14-00095-CR


                                 MICHAEL WAYNE LANGLEY,
                                         Appellant
                                            V.
                                   THE STATE OF TEXAS,
                                         Appellee


                                Appeal from the 217th District Court
                        of Angelina County, Texas (Tr.Ct.No. 2013-0096)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    Greg Neeley, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
