                                    NUMBERS
                                  13-10-00421-CR
                                  13-10-00517-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

WILLIAM SAM GRANT,                                                          Appellant,

                                           v.

THE STATE OF TEXAS,                                                          Appellee.


                    On appeal from the 13th District Court
                         of Navarro County, Texas.


                        MEMORANDUM OPINION
 Before Chief Justice Valdez and Justices Rodriguez, and Benavides
            Memorandum Opinion by Justice Benavides
      Appellant, William Sam Grant, was charged by two separate indictments for

sexual assault of a child and indecency with a child by exposure.1 See TEX. PENAL


      1
          These two cases, in cause numbers 13-10-00421-CR (sexual assault of a child) and
CODE ANN. §§ 22.011, 21.11 (West 2003). The cases were consolidated at the trial

court and tried to a jury together. The jury found Grant guilty on both charges and

sentenced him to twenty years‘ confinement in the Texas Department of Criminal

Justice—Institutional Division on the charge of sexual assault of a child, and ten years‘

probation on the charge of indecency with a child by exposure.                     The court ordered the

sentences to run consecutively.            In six issues, Grant contends that the evidence was

legally insufficient to support his conviction on either charge; the trial court permitted the

State to introduce inadmissible evidence; the jury charge contained fundamental error;

and the trial court erred in denying his motion for new trial based on newly discovered

evidence. We affirm.

                                            I. BACKGROUND2

        On Thanksgiving evening 2007, Grant—age 32—and a group of people including

his daughter, C.G., and his daughter‘s friend, K.H.—both age 14—were playing cards

and drinking alcohol. It is undisputed that both C.G. and K.H. became intoxicated.

Thereafter, C.G. and K.H. went to sleep in Grant‘s bed with the light in an adjacent

bathroom and the television turned on.               C.G. testified that at some point after falling

asleep, she awoke because ―the bed was shaking and [she] heard [K.H.] making noises‖

and ―moaning.‖ C.G. testified that when she rolled over, she observed that Grant was

―on top of K.H.‖ She further testified that she observed Grant penetrating K.H. with his


13-10-00517-CR (indecency with a child), have been consolidated into this opinion on appeal.
        2
           Originally arising in the Tenth Judicial District, these cases were transferred to this Court by the
Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV'T CODE ANN. § 73.001
(West 2005). We are unaware of any conflict between precedent of the Tenth Court of Appeals and that of
this Court on any relevant issue. See TEX. R. APP. P. 41.3.




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sex organ, and that she started to scream at which time Grant ―jumped up‖ and ran into

the closet.   After an argument ensued between C.G. and K.H., Grant apologized to C.G.

and told her that he and K.H. were ―just kissing.‖   C.G. testified that she did not believe

Grant because she ―kn[e]w what [she] saw.‖      The two girls eventually went to sleep on

the couch, and Grant drove K.H. home the next morning.       After the event was reported

to police and C.G. and K.H. were interviewed, the sheets on Grant‘s bed were sent to the

DPS laboratory in Waco for analysis. The DPS lab supervisor, Blake Goertz, testified

that stains on the sheets were a mixture of Grant‘s semen and K.H.‘s epithelial cells.

He opined that the mixtures were a result of sexual activity between Grant and K.H.

Grant‘s expert, Angela Ross, testified that it could not be determined when the

specimens were left and that she believed they were left at different times.   At trial, K.H.

testified that, because she was intoxicated, she did not remember the events that took

place at Grant‘s house.

                                     II. DISCUSSION

A.   Sufficiency of the Evidence

       By his first and second issues, Grant challenges the legal sufficiency of the

evidence to support his conviction on each of the two charged offenses.     Our sufficiency

review must be under ―a rigorous and proper application‖ of the Jackson standard of

review.   See Brooks v. State, 323 S.W.3d 893, 906 (Tex. Crim. App. 2010). Under this

standard, ―the relevant question is whether, after viewing the evidence in the light most

favorable to the prosecution, 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 (1979); see Brooks, 323 S.W.3d at 902 n.19.      ―[T]he fact-finder‘s role as weigher of


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the evidence is preserved through a legal conclusion that upon judicial review all of the

evidence is to be considered in the light most favorable to the prosecution.‖       Jackson,

443 U.S. at 319 (emphasis in original); see also TEX. CODE CRIM. PROC. ANN. art. 38.04

(West 1979) (―The jury, in all cases, is the exclusive judge of facts proved, and the

weight to be given to the testimony . . . .‖); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.

Crim. App. 2000) (―The jury is the exclusive judge of the credibility of witnesses and of

the weight to be given testimony, and it is also the exclusive province of the jury to

reconcile conflicts in the evidence.‖).

       Sufficiency of the evidence is measured by the elements of the offense as defined

by a hypothetically correct jury charge.   Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim.

App. 1997). Under a hypothetically correct jury charge, in the sexual assault case, the

State was required to prove beyond a reasonable doubt that Grant:         (1) intentionally or

knowingly (2) penetrated the sexual organ of K.H., a child.      See TEX. PENAL CODE ANN.

§ 22.011(a)(2)(A). In the indecency with a child case, the State was required to prove

beyond a reasonable doubt that Grant: (1) exposed his genitals (2) while knowing that

C.G. was present (3) with the intent to arouse or gratify the sexual desire of any person.

Id. § 21.11(a)(2)(A).

       A defendant‘s intent may be inferred from his words, acts, and conduct.        Patrick

v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995). ―Intent and knowledge are fact

questions for the jury, and are almost always proven through evidence of the

circumstances surrounding the crime.‖      Manrique v. State, 994 S.W.2d 640, 649 (Tex.

Crim. App. 1999) (Meyers, J., concurring) (citing Robles v. State, 664 S.W.2d 91, 94

(Tex. Crim. App. 1984)).    Additionally, It is well settled law that the testimony of a child


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sexual abuse victim alone is sufficient to support a conviction.        See TEX. CODE CRIM.

PROC. ANN. art. 38.07 (West 2007); Martinez v. State, 178 S.W.3d 806, 814 (Tex. Crim.

App. 2005).

       As to the sexual assault of a child charge, Grant recognizes in his brief that C.G.

explicitly testified that she observed Grant‘s penis inside of K.H‘s vagina.             Grant,

however, contends that ―it would be impossible for C.G. to have seen [Grant‘s] penis

inside K.H. in a split second upon awakening from a deep sleep in a poorly lit room.‖

First, we reject this contention outright because it is not supported by the evidence.

C.G.‘s testimony was that she observed Grant and K.H. for several seconds before

finally realizing what was happening.     Additionally, the evidence indicated that the light

from the adjacent bathroom lit the room enough for C.G. to observe what occurred.

Regardless, such questions are for the jury to determine as the sole judge of the

credibility of the witnesses.   Wesbrook, 29 S.W.3d at 111.        There was also testimony

indicating that stains on Grant‘s sheets indicated that sexual activity had occurred

between him and K.H. Though this testimony was contradicted by Grant‘s expert, we

must view the evidence in the light most favorable to the prosecution.          See Jackson,

443 U.S. at 319; Brooks, 323 S.W.3d at 902 n.19. When so viewed, the evidence is

clearly sufficient to permit a rational trier of fact to find each element of the sexual assault

of a child charge beyond a reasonable doubt.          See Jackson, 443 U.S. at 319. We

overrule Grant‘s first issue.

       As to the indecency with a child charge, here again, C.G. testified that she

observed Grant‘s penis while he was next to her on the bed.          Grant argues on appeal

that even if C.G. did see Grant‘s genitals, there was no evidence that Grant exposed


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himself to her with the intent to arouse any person, including himself.        Grant points to

the fact that when C.G. woke up, Grant immediately jumped up and hid in the

closet—demonstrating that he did not intend to expose himself to her at all.               The

evidence was clear, however, that Grant exposed his genitals, knowing that C.G. was

mere inches away.      Additionally, his intent to satisfy his own sexual desire by doing so

in C.G.‘s presence was a question that the jury was permitted to determine based on the

circumstances surrounding the event.       See Patrick, 906 S.W.2d at 487; Breckenridge v.

State, 40 S.W.3d 118, 128 (Tex. App.—San Antonio 2000, pet. ref‘d) (―The requisite

specific intent to arouse or gratify the sexual desire of any person can be inferred from

the defendant's conduct, remarks, and all surrounding circumstances.‖).             Therefore,

when viewing the evidence in the light most favorable to the prosecution, we conclude

that a rational trier of fact could have found all of the essential elements of indecency

with a child beyond a reasonable doubt.       See Jackson, 443 U.S. at 319. We overrule

Grant‘s second issue.

B. Jury Charge Error

       By his third issue, Grant contends that the jury charge contained fundamental

error in that it allowed the jury to convict him of indecency with a child for ―intentionally or

knowingly‖ exposing his genitals to C.G., rather than by requiring the jury to find the

specific intent to arouse or gratify the sexual desire of any person.

       The complained-of portion of the jury charge reads as follows:

       Now if you find from the evidence beyond a reasonable doubt that . . .
       GRANT, did then and there, with intent to arouse or gratify the sexual
       desire of said defendant, intentionally or knowingly exposed the
       defendant‘s genitals, knowing that [C.G.], a child younger than 17 years
       and not the spouse of the defendant, was present, then you will find the
       defendant guilty of the offense of Indecency with a Child as charged in the

                                               6
       indictment.

       ―Our first duty in analyzing a jury-charge issue is to decide whether error exists.

Then, if we find error, we analyze that error for harm.‖     Ngo v. State, 175 S.W.3d 738,

743 (Tex. Crim. App. 2005) (citing Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim.

App. 2003)). The degree of harm required to reverse the trial court‘s judgment depends

on whether or not the appellant objected to the charge before it was given to the jury.

Id.   Under Almanza v. State, if the defendant has properly objected to the charge, we

need only find ―some harm‖ to reverse the trial court‘s judgment.        Id. at 743–44 (citing

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh‘g)).            If the

defendant fails to object, however, or states that he has no objection to the charge, ―we

will not reverse for jury-charge error unless the record shows ‗egregious harm‘ to the

defendant.‖    Id.   In determining whether egregious harm exists, we examine the

charge in its entirety, the state of the evidence, the argument of counsel, and any other

relevant information in the record.   Id.

       Here, Grant did not object to the jury charge as given and, therefore, must

demonstrate egregious harm in order to prevail on appeal.        See id. Assuming, without

deciding, that the inclusion of this language was error, it was not harmful because the

charge, as given, still required the jury to find the specific intent ―to arouse or gratify the

sexual desire of [the] defendant.‖ If anything, the addition of the requirement that he

must also have intentionally or knowingly exposed himself increased the burden on the

State, and therefore was not harmful to Grant.     See Caballero v. State, 927 S.W.2d 128,

131 (Tex. App.—El Paso 1996, no pet.) (concluding that the appellant was ―not harmed

by an element of proof that was additional to that actually necessary to convict‖).


                                              7
Accordingly, we overrule Grant‘s third issue.

C.    Admitted Evidence

        By his fourth and fifth issues, Grant contends that the trial court erred in admitting

hearsay evidence of Grant‘s alleged extraneous bad acts and by allowing the

prosecution to bolster the testimony of witnesses with evidence of their prior consistent

statements.

        ―Because trial courts are in the best position to decide questions of admissibility,

we review a trial court‘s decision regarding the admissibility of evidence under an abuse

of discretion standard.‖    Rodriguez v. State, 203 S.W.3d 837, 841 (Tex. Crim. App.

2006) (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (noting

that a trial court ―has the best vantage from which to decide‖ admissibility questions)).

Accordingly, this Court must uphold a trial court‘s admissibility decision ―when that

decision is within the zone of reasonable disagreement.‖      Id.   In applying this standard,

we will not reverse a trial court's admissibility decision solely because we disagree with

it.   Id. (citing Montgomery, 810 S.W.2d at 391; Robbins v. State, 88 S.W.3d 256,

259–60 (Tex. Crim. App. 2002)).

        If a trial court‘s ruling falls outside the zone of reasonable disagreement, but is

nevertheless not error of a constitutional dimension, that error is only reversible when it

has a substantial and injurious effect or influence in determining the jury‘s verdict.   King

v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). If there is a fair assurance from

an examination of the record as a whole that the error did not influence the jury, or had

but slight effect, we must affirm the trial court‘s judgment.        Johnson v. State, 967

S.W.2d 410, 417 (Tex. Crim. App. 1998).


                                              8
      1.   Hearsay—Extraneous Bad Acts

      During the trial, C.G. testified that when she told her aunt that she witnessed

Grant having sex with K.H., C.G.‘s aunt replied that she was not surprised because,

according to C.G., ―whenever [C.G.‘s aunt] would have friends over at their house [Grant]

would take them and have sex with them, too.‖ Counsel for Grant objected to this

testimony as hearsay, and the trial court overruled the objection.

      On appeal, Grant first contends that admitting this testimony was error under

Texas Rule of Evidence 404(b) because it was evidence of extraneous bad acts

constituting inadmissible character evidence in order to show conformity therewith.

TEX. R. EVID. 404(b). However, Grant did not object to the testimony on this basis, and

therefore, any error under rule 404(b) is not preserved for our review.   See TEX R. APP.

P. 33.1; Banda v. State, 890 S.W.2d 42, 62 (Tex. Crim. App. 1994) (noting that error is

only preserved where the defendant‘s trial objection comports with the issue raised on

appeal).

      In addition, Grant contends that admitting the testimony was error under rule of

evidence 802 because it was inadmissible hearsay.       See TEX. R. EVID. 802.    Hearsay

is a statement, other than one made by the declarant while testifying at trial, offered in

evidence to prove the truth of the matter asserted.   TEX. R. EVID. 801(d). A statement

not offered to prove the truth of the matter asserted is not hearsay.     Dinkins v. State,

894 S.W.2d 330, 347–48 (Tex. Crim. App. 1995).            The State contends that the

testimony was not offered to prove the truth of the matter asserted, but rather ―for the

purpose of detailing the circumstances under which C.G. first told an adult of the sexual

assault and was meant to assist the jury‘s understanding of the events by providing


                                            9
context‖ and to ―show C.G.‘s state of mind.‖ The State‘s position is supported in the

record by the fact that the questions leading up to the complained of responses revolved

around the fact that C.G. had not told her grandmother or anyone else about the incident

for several days, and that her aunt‘s comments that she was not surprised made C.G.

feel that it was not necessary to report the event.           Following the complained-of

response, counsel for the State asked C.G. if her aunt told her to report the incident,

whether her aunt said it was wrong, and whether her aunt told her to tell another adult, to

each of which, C.G. replied ―No, ma‘am.‖ This tends to show that the State was indeed

seeking to show C.G.‘s state of mind and why she failed to report the incident earlier.

Additionally, we note that the prosecution neither pressed the issue nor mentioned the

testimony in its closing arguments.        Accordingly, we conclude that whether the

statement constituted hearsay was within the zone of reasonable disagreement, and

therefore, the trial court did not abuse its discretion in admitting the testimony.     See

Rodriguez, 203 S.W.3d at 841.      Grant‘s fourth issue is overruled.

       2.   Hearsay—Prior Consistent Statements

       The State presented the testimony of Kristi Skains, a forensic interviewer from the

Child Advocacy Center in Navarro County.          Skains testified that she interviewed both

C.G. and K.H., and Skains essentially echoed the testimony of each girl, noting that C.G.

told K.H. that K.H. had sex with Grant and that C.G. told her she awoke and saw Grant

having sex with K.H.    Counsel for Grant objected to this testimony as hearsay, and the

trial court overruled the objection.

       Assuming, without deciding, that the admission of this evidence constituted an

abuse of discretion, we will only reverse such non-constitutional error when it has a


                                             10
substantial and injurious effect or influence on the jury‘s verdict.      King, 953 S.W.2d at

271. Though we agree with Grant that this evidence was cumulative, the fact that it

echoed the comments previously made by K.H. and C.G. about their interviews with

Skains and added no additional information leads us to conclude that the jury would

have considered this evidence regardless of whether Skains repeated it, and the

evidence did not become any more convincing because it was relayed by Skains.

Therefore, based on an examination of the record as a whole, we are fairly assured that

the error, if any, did not influence the jury or had but slight effect.    See Johnson, 967

S.W.2d at 417. We overrule Grant‘s fifth issue.

D. Motion for New Trial

       By his sixth issue, Grant contends that the trial court erred in denying his motions

for new trial in each case because the State withheld exculpatory evidence in violation of

Brady, and that evidence ―should cast such a doubt on the proceedings as to render the

verdict contrary to the law and evidence.‖    See Brady v. Maryland, 373 U.S. 83 (1963).

Specifically, Grant contends that two ―diary entries‖ written by K.H. were not provided to

the defense before the guilt-innocence phase of the trial and that one of these

hand-written notes contained the following exculpatory evidence: ―[C.G.] told C.J. that

Thinkgiving [sic] night me and her dad or the guy named Jimmy had sex and he told my

parents. Well I kinda [sic] remember having sex but I don‘t know who it was with!‖

Grant contends that this would have been material evidence that C.G. had at one time

named two possible perpetrators of the sexual assault.

       We review a trial court's ruling on a motion for an abuse of discretion.      Webb v.

State, 232 S.W.3d 109, 111 (Tex. Crim. App. 2007).       ―We view the evidence in the light


                                             11
most favorable to the trial court‘s ruling and uphold the trial court‘s ruling if it was within

the zone of reasonable disagreement.‖       Id. (citing Wead v. State, 129 S.W.3d 126, 129

(Tex. Crim. App. 2004)).     ―We do not substitute our judgment for that of the trial court,

but rather we decide whether the trial court‘s decision was arbitrary or unreasonable.‖

Id. Thus, a trial court abuses its discretion in denying a motion for new trial only when

no reasonable view of the record could support the trial court‘s ruling.    Id. (citing Charles

v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004)).

        The requirements for obtaining a new trial upon newly discovered or ―newly

available‖ evidence are:      (1) the newly discovered evidence was unknown to the

movant at the time of his trial; (2) the movant's failure to discover the evidence was not

due to his want of diligence; (3) the materiality of the evidence is such as would probably

bring about a different result in another trial; and (4) the evidence is admissible, and not

merely cumulative, corroborative, collateral, or impeaching.      Drew v. State, 743 S.W.2d

207, 226 (Tex Crim. App. 1985). Additionally, to find reversible error under Brady, a

defendant must show that:      (1) the State failed to disclose evidence, regardless of the

prosecution's good or bad faith; (2) the withheld evidence is favorable to him; and (3) the

evidence is material, that is, there is a reasonable probability that had the evidence been

disclosed, the outcome of the trial would have been different.         Hampton v. State, 66

S.W.3d 603, 612 (Tex. Crim. App. 2002). Under each of these tests, the defendant

bears the burden of showing that the evidence was not made available to him at the time

of trial.   Id.; Drew, 743 S.W.2d at 226.

        Here, at the hearing on the motion for new trial, Grant‘s trial counsel testified that

she received ―multiple copies‖ of the offense report prepared by the investigating


                                              12
detectives.   The State provided the report as part of the parties‘ discovery agreement,

which also provided that all physical evidence would be made available for inspection,

including ―documents, papers, books, accounts, letters, photographs, objects, tangible

things or records which constitute or contain evidence material to any matter involved in

this case.‖   In the offense report, one detective noted that he received ―two letters . . .

stating that [K.H.] remembered having sex with someone that night she just did not

remember who.‖ Based on the record, it is clear that Grant was given notice that the

letters existed, was given the opportunity to inspect the letters on request, and any

failure to do so was due to his own want of diligence.        Accordingly, without need to

address the remaining factors of the relevant tests, we conclude that the trial court did

not abuse its discretion in denying Grant‘s motion for new trial, nor did the State‘s actions

constitute a Brady violation. See Hampton, 66 S.W.3d at 612; Drew, 743 S.W.2d at

226. Grant‘s sixth issue is overruled.

                                     III. CONCLUSION

       Having overruled all of Grant‘s issues on appeal, we affirm the trial court‘s

judgments.


                                                         ________________________
                                                         GINA M. BENAVIDES,
                                                         Justice


Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
18th day of August, 2011.




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