                                       In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                            _______________________

                               NO. 09-17-00104-CR
                            _______________________

                 DAVID ANTHONY HUMPHRIES, Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee


                  On Appeal from the Criminal District Court
                          Jefferson County, Texas
                         Trial Cause No. 16-24572


                          MEMORANDUM OPINION

      A grand jury indicted David Anthony Humphries for indecency with a child

by sexual contact, a second-degree felony. See Tex. Penal Code Ann. § 21.11(a)(1)

(West Supp. 2018). 1 The State filed a notice to enhance Humphries’ sentence to a

first-degree felony based on an alleged prior conviction for burglary of a habitation.

A jury found Humphries guilty, Humphries pleaded “true” to the enhancement


      1
        We cite current versions of the statutes because subsequent amendments do
not affect our disposition.
                                          1
allegation, and the jury assessed punishment at thirty-five years in prison and a fine

of $10,000. Humphries raises eight issues on appeal. We affirm the trial court’s

judgment.

                         Background and Evidence at Trial

      A grand jury indicted Humphries for the offense of indecency with a child by

sexual contact. The indictment alleged that Humphries

      . . . on or about the 26th day of February, two thousand and sixteen . . .
      did then and there, with the intent to arouse or gratify the sexual desire
      of said Defendant, engage in sexual contact with [A.B.], 2 by touching
      the genitals of [A.B.], a child younger than 17 years of age[.]

Humphries pleaded “not guilty.”

Testimony of A.B.

      A.B. testified that in February 2016, she was six years old and went to

Academy with her mother and sister to buy her sister some softball pants. A.B.

testified that she became bored while they were looking at the softball pants, and

A.B. asked her mother if she could go over and look at the nearby softballs.

According to A.B., while A.B. was looking at the softballs, a man she did not know

wearing a black jacket walked by and “touched [her] private[]” with his hand and



      2
         We use initials to refer to the victims and family members. See Tex. Const.
art. I, § 30 (granting crime victims “the right to be treated with fairness and with
respect for the victim’s dignity and privacy throughout the criminal justice process”).
                                            2
then he left. A.B. testified that her “private” means the part of her body that she uses

to “use the bathroom[]” and go “[n]umber one[,]” and she identified the genital area

on a doll as her “private.” A.B. testified that she was standing up facing the aisle

looking at the softballs when the man walked up behind her, reached out to her and

touched her private area and said, “I love this.” According to A.B., she was “[v]ery,

very scared[,]” and she ran to tell her mother. A.B. testified that she did not trip or

fall at Academy. A.B. identified Humphries at trial as the man that came up to her

and touched her “private” at Academy.

Testimony of J.E.

      J.E., A.B.’s mother, testified that she and her daughters went to Academy to

buy one of her daughters some softball pants. According to J.E., while they were

looking at softball pants on the main aisle, A.B. asked if she could go around the

corner and get one of the softballs to play with, and J.E. said “[s]ure.” J.E. testified

A.B. went around the corner and came back, and while J.E. was talking to the mother

of one of A.B.’s classmates, A.B. asked if she could look at the softballs again and

J.E. agreed. According to J.E., A.B. returned the second time crying and was

“hysterical[,]” and J.E. asked A.B. what was wrong. A.B. told her “That man over

there touched my tee-tee[]” and pointed to a man. J.E. testified she was extremely

angry and she went to confront the man. She testified that she said to the man, “Did

                                           3
you just touch my child?” J.E. testified that the man just shrugged his shoulders, and

she took off after the man as he started to run. She was screaming “call 911” and

“That man just touched my child sexually. She’s 5.” J.E. testified that at some point

she told the man “You just touched my child sexually. You’re not going to get

away[,]” and she grabbed him by his jacket and they struggled at the front of the

store. According to J.E., Humphries unsuccessfully tried to leave the store before the

police arrived. J.E. identified Humphries as the man that she struggled with at

Academy.

Testimony of P.S.

      P.S. testified that on the date in question she was working in the men’s apparel

department at Academy. According to P.S., she was on the computer looking for an

item when she saw the reflection of a man standing pretty close behind her and

rubbing his penis with his pants “open in the middle[.]” P.S. testified that she felt

“[s]hocked[]” and uncomfortable, she ran to the front to customer service to tell her

managers, and her managers went looking for the man. P.S. testified that she heard

“one of the moms” say, “Stop him!” When she saw the man at the front of the store,

he had the same figure, hat, and shirt as the man that she had reported to her

managers, but he had put on a jacket. At trial, P.S. identified Humphries as the man

she had reported to her managers.

                                          4
Testimony of K.S.

      Ten-year-old K.S. testified that she was at Academy the same day with her

father getting new softball pants and cleats. According to K.S., while she was

looking at cleats “a man came around” and “touched [her] in [her] private part and

on [her] bottom.” She explained that her “private part” is the part of her body she

uses to “go use the restroom[]” and that her bottom is the part of her body that she

sits on. She identified the genital area on a doll as the area that she calls her “private

part” and the backside of the doll as the part she calls her “bottom.” K.S. explained

that she was about to get up from a bench and her father had his back to her and was

looking at cleats, and that is when the man touched her on her private part with his

hand in a moving motion for a couple of seconds, and he mumbled “[e]xcuse me[,]”

and left. K.S. testified that the man came back around the aisle and then he touched

her bottom with his hand when she was standing in front of the bench, then he said

“excuse me[,]” winked, stuck his tongue out at her, and then left again. According

to K.S., she was worried and “had butterflies in [her] stomach[]” and went and told

her father that a man “touched [her] in bad spots that [she] did not like” and that she

was scared. K.S. testified that her father was mad and that he and one of her softball

teammate’s mothers tried to stop the man from leaving the store. At trial, K.S.

identified Humphries as the man who had touched her.

                                            5
Testimony of S.S.

      S.S. testified that he was at Academy with his daughter, K.S., that day and

they were in the shoe department looking at cleats. He had his back to K.S. for part

of the time, and at some point, he turned to her behind him, saw a shocked look on

her face, and asked her what was wrong. According to S.S., K.S. said, “Daddy, don’t

let that man touch me again. Don’t let him touch my privates again.” S.S. testified

that K.S. told him that a man had passed her twice and “[o]nce he had touched her

behind and once he had touched her inappropriately from the front[.]” According to

S.S., he took K.S. to an employee and then went looking for the man that K.S. had

described. S.S. testified that he was on his way to the front entrance when he saw a

man that matched K.S.’s description, and he saw that a woman had a hold of the

man’s jacket and was exclaiming that the man had touched her daughter

inappropriately. S.S. testified that the man tried to leave the store, but S.S. physically

prevented him from leaving. S.S. testified that the man was “[s]urprisingly calm[]”

and told them he had not done anything, and he needed to leave.

Testimony of Rachel Luce

      Rachel Luce, a senior loss prevention investigator for Academy, testified that

she reviewed the store surveillance video from the day of the incident and she

assisted in having the video copied onto a jump drive. Luce testified that the jump

                                            6
drive contained an accurate recording of the events that took place that day. The

jump drive was admitted into evidence and published to the jury. As the video played

for the jury, Luce described the portion of the video that showed an individual who

appeared to be touching his crotch when he was standing behind P.S. while P.S. was

at a mobile computer, and she also testified that the video showed that same

individual in a black and gray Columbia jacket that she believed he stole once P.S.

left the department. Luce also testified that the video showed a little girl and her

father in the shoe department at the same time as the man who had stolen the jacket

but that there was no surveillance camera on that aisle, and that the video showed

the same man when he walked behind a different little girl near the softballs.

Testimony of Reid Rowe

      Sergeant Reid Rowe with the Port Arthur Police Department testified that he

was the first officer to arrive at Academy that day. According to Sergeant Rowe, a

store employee and another female approached Rowe when he walked in and people

were pointing to a man, who Rowe identified at trial as Humphries. Sergeant Rowe

testified that the large crowd in the store seemed agitated with Humphries. Rowe

listened to the allegations against Humphries and pulled Humphries off to the side

away from the crowd while other responding officers were arriving and speaking

with other people. Sergeant Rowe testified that, according to Rowe’s report from

                                         7
that day, Humphries told Sergeant Rowe, “I think they must think I’m someone

else.” Sergeant Rowe testified that Humphries acted like he did not know what was

going on. Sergeant Rowe testified that once Detective May arrived, Rowe did not

have any further involvement because May took over, and Officers Lapeyrolerie and

Thomason were doing “the main report.”

Testimony of Eric Thomason

      Officer Eric Thomason with the Port Arthur Police Department testified that

he and Officer Lapeyrolerie responded to a call about “a large fight at Academy.”

According to Thomason, Sergeant Rowe was already there and was talking with a

white male, identified at trial as Humphries, and there was a crowd in the store that

was “amped up[.]” Thomason testified that Detective May took over the

investigation when he arrived, and at May’s request, Officer Thomason took

photographs of Humphries and the two alleged victims.

Testimony of Ashley Lapeyrolerie

      Officer Ashley Lapeyrolerie with the Port Arthur Police Department testified

that on the date in question she was training with Officer Thomason when they were

dispatched to Academy. According to Lapeyrolerie, when they arrived, the mood

was “[c]haotic[]” inside the store and Sergeant Rowe was inside speaking with

Humphries. Lapeyrolerie testified that while Humphries was detained his demeanor

                                         8
was “stressed[]” but cooperative. Lapeyrolerie testified that Detective May arrived

at the scene later and took over the investigation, and Thomason and Lapeyrolerie

ultimately transported Humphries to the Port Arthur Police Department for

questioning.

Testimony of John Keith May

      John Keith May, a retired detective with the Port Arthur Police Department,

testified that he was working when he was called to Academy. He spoke to

Humphries and later interviewed Humphries at the police department. According to

May, at the time of the interview he advised Humphries of his rights and Humphries

indicated that he understood those rights and agreed to waive those rights to speak

to May. A redacted version of the video recording of the interview was admitted into

evidence and a portion was played for the jury. May testified that Humphries told

him that he was suffering from low blood sugar and was diabetic, and May provided

Humphries with a Coke for his low blood sugar even though Humphries’ claim of

low blood sugar was “not necessarily something [May] believed[]” based on

Humphries’ actions and May’s experience with people suffering from diabetes or

low blood sugar. May testified that Humphries acted “[n]ervous[]” during the

interview and that his version of the events involving A.B. was inconsistent with

May’s review of the Academy surveillance video. According to May, Humphries

                                         9
told him that A.B. had walked toward Humphries and that she looked like she was

going to fall and he reached his left hand out to keep her from falling. May testified

that, contrary to the version of events told by Humphries, the Academy surveillance

video showed Humphries following or “stalking[]” A.B., and it showed Humphries

walking towards her and it showed A.B. being stationary. According to Detective

May, the camera view of A.B. shows her hand reach for something on the display

shelf but a pole in the aisle was blocking the camera’s view of A.B., and then it

showed Humphries deliberately bending down to A.B. and standing back up as if he

was blocking her from leaving.

Testimony of Humphries

      Humphries testified that at the time of the incident, he was homeless and had

been living outside behind the Academy for a couple of weeks. According to

Appellant, he ran out of money and stole food from the nearby Walmart and went

into Academy to “swap [his clothes] out.” Appellant testified that he had been

drinking for two weeks, and that he had also been drinking earlier that day before

entering Academy around 5:00 p.m. According to Appellant, “it was freezing and I

had to go get a jacket.”

      Appellant testified he was in the men’s department and saw P.S., an employee

of Academy, at the computer and he noticed the jackets nearby. After it appeared

                                         10
she left the department, Appellant checked, and once he was sure she had left the

department, he went back to the jackets. Appellant testified that he stole a gray jacket

and put it on. According to Appellant, he left the men’s department and headed

“[t]owards shoes[]” because he “was considering swapping out [his] shoes.”

Appellant testified that he left the shoe department and started heading towards the

front of the store but when he was near the baseball aisle, he noticed employees at

the front, and he turned onto the baseball aisle. Appellant testified that he heard

K.S.’s father saying he was trying to find Appellant. Appellant testified he saw A.B.

on the baseball aisle, and she grabbed a softball and turned to run back. Appellant

testified that the little girl tripped in front of him, he “stopped her[,]” he said

something to her, and she was startled by him. Appellant testified that A.B. went and

found her mother, and as Appellant was heading for the front door, A.B.’s mother

screamed at Appellant, “Stop right there!” Appellant testified that he was stopped at

the front of the store and was placed into custody. Appellant denied masturbating

in P.S.’s presence, denied that he was trying to molest the two children, and denied

touching K.S. at all. As for A.B., Appellant admitted he touched her but only for

purposes of helping her. Appellant admitted he had been convicted of burglary of a

building in 2002, burglary of a habitation in 2006, and indecent exposure in 2011.



                                          11
      The jury found Humphries guilty of indecency with a child by sexual contact.

Humphries pleaded “true” to the enhancement allegation. The jury assessed

punishment at thirty-five years in prison and a fine of $10,000. Humphries appealed.

                                  Issues on Appeal

      In issues one through three, Appellant argues the trial court abused its

discretion and committed reversible error by denying Appellant’s motion for mistrial

“following the prosecutor’s highly prejudicial opening statement which also violated

Appellant’s motion in limine[,]” and that the trial court committed reversible error

by giving a curative instruction. In issues four and five, Appellant contends SS.’s

testimony was inadmissible under Texas Rule of Evidence 404(b) and that it was

unfairly prejudicial under Rule 403, and the trial court abused its discretion in not

excluding or limiting S.S.’s testimony. In issues six and seven, Appellant complains

about the State’s failure to provide meaningful notice of the testimony of S.S. and

K.S. In issue eight, Appellant challenges the legal sufficiency of the evidence

supporting the jury’s verdict.

                          Prosecutor’s Opening Statement

      In Appellant’s first three issues, he argues the trial court abused its discretion

and committed reversible error in denying Appellant’s motion for mistrial and

Appellant contends the trial court committed reversible error in instructing the jury

                                          12
that opening statements do not constitute evidence. Before trial and outside the jury’s

presence, defense counsel presented an oral motion in limine requesting that the

State approach the bench before referencing Humphries’ past or “prior wrongs[.]”

The trial court granted the oral motion in limine. According to Appellant, the

prosecutor’s opening statement mentioned two other victims of Appellant’s alleged

sexual misconduct, K.S. and P.S., and a bystander, C.B., in violation of the trial

court’s ruling on Appellant’s motion in limine. On appeal, appellate counsel states

that “Defense counsel . . . immediately moved for a mistrial” and “[o]n timely

objection by [defense counsel,]” the trial court denied the mistrial.

      Contrary to appellate counsel’s characterization of the defense making

“timely objections” to the alleged violation of the motion in limine during the

opening statements, the record demonstrates that defense counsel did not make a

timely objection to the complained-of statements made by the prosecutor during the

prosecutor’s opening statement. The record shows that at the conclusion of the

prosecutor’s opening statement, defense counsel told the trial court that defense

counsel “had a matter to be taken outside the presence of the jury[]” and then defense

counsel moved for a mistrial and argued that the prosecutor violated the ruling on

the motion in limine because the prosecutor had not approached the bench before



                                          13
referencing Appellant’s alleged other bad acts or offenses with respect to P.S. and

K.S.

       A motion in limine is a preliminary matter that, on its own, normally preserves

nothing for appellate review. Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App.

2008). To preserve error about a subject of a motion in limine, an objection must be

made at the time the subject is raised during trial. Id. An untimely objection to the

violation of a motion in limine does not preserve a complaint for appellate review.

Thomas v. State, 137 S.W.3d 792, 796 (Tex. App.—Waco 2004, no pet.) (citing

Dixon v. State, 2 S.W.3d 263, 265 (Tex. Crim. App. 1998)). Similarly, a defendant’s

failure to object to a jury argument or to pursue an adverse ruling on his objection to

a jury argument forfeits his right to complain about the argument on appeal. Cockrell

v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). “Before a defendant will be

permitted to complain on appeal about an erroneous jury argument or that an

instruction to disregard could not have cured an erroneous jury argument, he will

have to show he objected and pursued his objection to an adverse ruling.” Id.; See,

e.g., Graham v. State, 3 S.W.3d 272, 284-85 (Tex. App.—Fort Worth 1999, pet.

ref’d) (concluding appellant did not preserve complaint that prosecutor violated

motion in limine during opening statement when appellant failed to object at the

moment the prosecutor made the objectionable statement). We conclude that

                                          14
Humphries has not preserved issues one through three for appeal. See Tex. R. App.

P. 33.1; Thomas, 137 S.W.3d at 796. Issues one through three are overruled.

        Admissibility of S.S.’s Testimony Under Rule 403 and Rule 404(b)

      In issues four and five, Appellant argues that the trial court abused its

discretion in not excluding or limiting S.S.’s testimony because it was inadmissible

under Texas Rule of Evidence 404(b) and unfairly prejudicial under Texas Rule of

Evidence 403. Appellant states on appeal that defense counsel “timely and

frequently raised” Rule 404(b) and 403 objections. Based upon our review of the

entire record, it appears that defense counsel did articulate such objections to K.S.’s

testimony, but Appellant did not make objections under either rule when S.S.

testified at trial. Accordingly, Appellant has not preserved issues four and five for

appellate review. See Tex. R. App. P. 33.1. Issues four and five are overruled.

         Sufficiency of State’s Notice of Testimony of K.S., S.S., and P.S.

      In issue six, Appellant argues reversal is appropriate because the trial court

abused its discretion in allowing S.S. and K.S. to testify about the charges affecting

K.S. because the prosecutor did not provide meaningful notice of their testimony in

writing. Appellant contends on appeal that, although the State’s notice included

Humphries’ offense against P.S., the notice “gives almost no specifics not found in

witness statements[.]” In issue seven, Appellant contends that because defense

                                          15
counsel did not receive timely notice as required by Rule 404(b) about K.S., S.S.,

and P.S.’s testimony on Appellant’s extraneous offense/bad acts, Appellant could

not meaningfully prepare for trial. According to Appellant, this violated his rights

under the Sixth and Fourteenth Amendments.

      We review the trial court’s admission of evidence under an abuse-of-

discretion standard. Oprean v. State, 201 S.W.3d 724, 726 (Tex. Crim. App. 2006).

We uphold the trial court’s ruling if it was within the zone of reasonable

disagreement. Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). Rule

404(b) provides that evidence of other crimes, wrongs, or other acts may be

admissible to prove “motive, opportunity, intent, preparation, plan, knowledge,

identity, absence of mistake, or lack of accident[]” when the prosecutor provides

“reasonable notice before the trial that the prosecution intends to introduce such

evidence—other than that arising in the same transaction—in its case-in-chief.” Tex.

R. Evid. 404(b).

      The State provided notice to Appellant’s trial counsel stating in relevant part

as follows:

      1. The Defendant is currently charged with the offense of Indecency
      with a Child, a second degree felony, in Cause Numbers 16-24572 and
      16-24573.

      2. Pursuant to Rule 404 of the Texas Rules of Evidence, the
      undersigned Assistant Criminal District Attorney hereby gives notice
                                      16
      to the Defendant and his attorney that the State intends to introduce in
      the case in chief evidence of other crimes, wrongs, or acts for the
      purpose of proving motive, opportunity, intent, preparation, plan,
      knowledge, identity, absence of mistake, or accident.

      ....

      6. Pursuant to Article 38.37(2) of the Texas Code of Criminal
      Procedure, the undersigned Assistant Criminal District Attorney hereby
      gives notice to the Defendant and his attorney that the State intends to
      introduce in the case in chief, notwithstanding the Rules 404 and 405
      of the Texas Rules of Evidence, evidence that the Defendant has
      committed a separate offense, other crime, wrong, or act for its bearing
      on relevant matters, including, but not limited to, the character of the
      Defendant and acts were performed in conformity with the character of
      the Defendant.

      In paragraph seven of the notice, the State listed “[t]he extraneous offenses

and/or prior convictions which the State intend[ed] to introduce at trial pursuant to

Rules 404 and 609 and Articles 37.07 and 38.37[.]” One of the extraneous offenses

was “Cause Number []310642 [for] indecent exposure.” The State alleged in its

notice that it had occurred on August 29, 2002, in Jefferson County, Texas, but the

notice listed the charge as still “[p]ending[.]” The State explained at trial that the

date listed in the notice was incorrect, but the cause number was correct and the

listed extraneous act was the offense against P.S. that day at Academy. Defense

counsel agreed that although the offense date of Humphries’ alleged offense against

P.S. was incorrect on the State’s notice, defense counsel was not confused as to the

State’s notice of intent to introduce the extraneous offense of the indecent exposure.
                                           17
The trial court found that the correct cause number provided defense counsel with

sufficient notice as to Humphries’ extraneous offense and the State’s intent to

introduce evidence about the offense.

      The State argued that even if the offense against K.S. was not specifically

listed in a separate cause number in the notice, the State had already told defense

counsel that the State intended to consolidate the prosecution of Humphries’ offense

against K.S. with the prosecution of Humphries for the offense against A.B.

Additionally, the State explained to the trial court that on the same date that the State

gave its notice of the intent to use the extraneous offenses in Cause No. 16-24572 it

gave a notice to Humphries’ same attorney about Cause No. 16-24573. Humphries

objected to the consolidation. The State also explained to the trial court that the

discovery in all three cases (Humphries’ offenses against A.B., K.S., and P.S. that

day at Academy) had been turned over to defense counsel, who was representing

Humphries in all three cases, and defense counsel acknowledged at trial that he had

received the discovery. In ruling that the notice was sufficient, the trial court noted:

      But I do find that it is admissible, that, number one, you have been given
      sufficient notice by inference, by actual, by even if the State did not use
      the exact words “we intend to use the complainant’s testimony under
      [Humphries’ offense against K.S.] in [the present case] and vice versa,
      depending on which case is tried first,” it wasn’t necessary because of
      the information that they have given to you that plainly showed that
      their intent was to try both of these together from the outset, which
      would have put you on notice that their master plan here and strategy
                                            18
      was to present both cases at the same time. You objected to that
      yesterday, and it would have been a fair understanding. You have all
      the discovery. It would have been a fair inference to expect that this
      would have been argued for 404[b] purposes. And, also, the event from
      [P.S.]’s testimony was actually given in enough specificity in their
      motion - - in their notice to use extraneous acts to put you on notice.3

On this record, we cannot say that the trial court abused its discretion in overruling

the complaint made by defense counsel’s complaint regarding the alleged

deficiencies in the notice and admitting the testimony of P.S., K.S., or S.S. We

overrule issues six and seven.

                            Sufficiency of the Evidence

      In issue eight, Appellant challenges the legal sufficiency of the evidence

supporting the jury’s verdict. According to Appellant, “[i]ncidental (or accidental)

contact by Appellant . . . with his hand (not a finger) touching either girl’s genital

area for 2 seconds through layers of clothing” is not legally sufficient evidence to

support his conviction.

      In reviewing the legal sufficiency of the evidence to determine whether the

State proved the elements of the offense beyond a reasonable doubt, we apply the



      3
        The trial court also found that the testimony “is probative especially towards
the intent element in this indictment” and the trial court concluded that the probative
value was not substantially outweighed by the danger of unfair prejudice, confusion
of the issues, misleading the jury, or by other considerations reflected under Rule
403 of the Texas Rules of Evidence and, therefore, is admissible.
                                           19
Jackson v. Virginia standard. Brooks v. State, 323 S.W.3d 893, 894-95, 912 (Tex.

Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Under that

standard, a reviewing court must consider all the evidence in the light most favorable

to the verdict and determine whether a rational justification exists for the jury’s

finding of guilt beyond a reasonable doubt. Id. at 902; see also Jackson, 443 U.S. at

319. “A jury may accept one version of the facts and reject another, and it may reject

any part of a witness’s testimony.” Febus v. State, 542 S.W.3d 568, 572 (Tex. Crim.

App. 2018). As the trier of fact, the jury is the sole judge of the weight and credibility

of the witnesses’ testimony, and on appeal we must give deference to the jury’s

determinations. Brooks, 323 S.W.3d at 899, 905-06. If the record contains

conflicting inferences, we must presume the jury resolved such facts in favor of the

verdict and defer to that resolution. Id. at 899 n.13 (citing Jackson, 443 U.S. at 319).

On appeal, we serve only to ensure the jury reached a rational verdict, and we may

not substitute our judgment for that of the fact finder. King v. State, 29 S.W.3d 556,

562 (Tex. Crim. App. 2000). In our review, we consider both direct and

circumstantial evidence and all reasonable inferences that may be drawn from the

evidence. Gardner v. State, 306 S.W.3d 274, 285 (Tex. Crim. App. 2009); Hooper

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



                                           20
      To establish the offense of indecency with a child by contact, the State had to

prove that Appellant engaged in sexual contact with A.B., a child younger than

seventeen years of age. See Tex. Penal Code Ann. § 21.11(a)(1). Section 21.11’s

definition of “sexual contact” includes the act, if committed with the intent to arouse

or gratify the sexual desire of any person, of “any touching by a person, including

touching through clothing, of . . . any part of the genitals of a child[.]” Id.

§ 21.11(c)(1). The testimony of either a child victim or an outcry witness is sufficient

to support a conviction for indecency. Jones v. State, 428 S.W.3d 163, 169-70 (Tex.

App.—Houston [1st Dist.] 2014, no pet.); Tear v. State, 74 S.W.3d 555, 560 (Tex.

App.—Dallas 2002, pet. ref’d); see also Tex. Code Crim. Proc. Ann. art. 38.07 (West

Supp. 2018). The State has no burden to produce any corroborating or physical

evidence. See Martines v. State, 371 S.W.3d 232, 240 (Tex. App.—Houston [1st

Dist.] 2011, no pet.); see also Lee v. State, 176 S.W.3d 452, 458 (Tex. App.—

Houston [1st Dist.] 2004), aff’d, 206 S.W.3d 620 (Tex. Crim. App. 2006)

(concluding that medical or physical evidence is not required to corroborate child

victim’s testimony).

      Courts give wide latitude to testimony provided by child victims of sexual

abuse. See Jones, 428 S.W.3d at 169; Gonzalez Soto v. State, 267 S.W.3d 327, 332

(Tex. App.—Corpus Christi 2008, no pet.). We liberally construe such testimony.

                                          21
See Lee, 176 S.W.3d at 457; see also Gonzalez Soto, 267 S.W.3d at 332 (“The

victim’s description of what happened to her need not be precise, and she is not

expected to express herself at the same level of sophistication as an adult.”). The

requisite intent for the offense of indecency with a child can be inferred from the

defendant’s conduct and remarks and all of the surrounding circumstances. See

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

other grounds by Fuller v. State, 829 S.W.2d 191 (Tex. Crim. App. 1992) (“[M]ental

culpability is of such a nature that it generally must be inferred from the

circumstances under which a prohibited act or omission occurs.”); Gonzalez Soto,

267 S.W.3d at 332; Navarro v. State, 241 S.W.3d 77, 79 (Tex. App.—Houston [1st

Dist.] 2007 pet. ref’d).

      The jury heard A.B. testify that when she was looking at the softballs

Humphries walked by and “touched [her] private[]” with his hand and said “I love

this[]” while touching her private area. The jury also watched the surveillance video

and portions of Detective May’s videotaped interview of Humphries. The jury heard

Humphries’ testimony that he did not intend to touch A.B. inappropriately, but

instead was reaching out to A.B. to help her as she was falling. The jury heard

Detective May describe the inconsistencies between Humphries’ version of events

and what Academy’s surveillance cameras showed.

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      On this record, we cannot say the State failed to present evidence that

Humphries, with the intent to arouse or gratify his sexual desire, touched a part of

A.B.’s genitals through her clothing. The jury was the exclusive judge of the facts,

the credibility of the witnesses, and the weight to be given their testimony. The jury

was free to disbelieve Appellant’s testimony that he was trying to help A.B. or that

he only accidentally touched A.B. See Sharp v. State, 707 S.W.2d 611, 614 (Tex.

Crim. App. 1986). Additionally, A.B.’s testimony alone was sufficient to support a

conviction for indecency with a child. See Tex. Code Crim. Proc. Ann. art. 38.07;

Carr v. State, 477 S.W.3d 335, 338 (Tex. App.—Houston [14th Dist.] 2015, pet.

ref’d). We overrule Humphries’ challenge to the legal sufficiency of the evidence.

See Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 899; see also Tex. Code Crim.

Proc. Ann. art. 38.07. Issue eight is overruled.

      Having overruled all the issues raised by the Appellant, we affirm the

judgment of the trial court.

      AFFIRMED.

                                                    _________________________
                                                       LEANNE JOHNSON
                                                             Justice




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Submitted on June 27, 2018
Opinion Delivered February 13, 2019
Do Not Publish

Before McKeithen, C.J., Horton and Johnson, JJ.




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