                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-15-00411-CR


BRYANT LEVINE                                                        APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE


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          FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 1355299D

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                         MEMORANDUM OPINION1

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                                 I. INTRODUCTION

      A jury found Appellant Bryant Levine guilty of two counts of indecency with

a child by contact, and the trial court sentenced him to six years’ imprisonment

on each count and ordered the sentences to run concurrently. In two points,

Levine argues that the evidence is insufficient to sustain his convictions and that


      1
       See Tex. R. App. P. 47.4.
the trial court abused its discretion by admitting, over his objections, two

photographs of a penis. Because the evidence is sufficient to sustain Levine’s

convictions and because the trial court did not abuse its discretion by admitting

the two complained-of photographs, we will affirm.

                             II. FACTUAL OVERVIEW2

      Rachel3 was sixteen years old when her stepfather Levine touched her

genitals on top of her clothes on two separate occasions. Around that same

time, Levine showed Rachel nude photos of women, attempted to show her nude

photos of himself, and sent Rachel text messages referencing sexual touching

that he had already performed on her and requesting to sexually touch her again.

      Mother found the text messages from Levine on Rachel’s phone and

asked Rachel about them; Rachel immediately started crying and told Mother

that Levine had touched her inappropriately.    When Mother confronted Levine,

he initially denied any inappropriate touching but ultimately broke down in tears,

confessed that he had inappropriately touched Rachel, and said he was sorry.




      2
       We provide a more detailed recitation of the facts in connection with the
analysis of Levine’s sufficiency point.
      3
       We use aliases to refer to the victim, her family members—other than
Levine—and any other person necessary to protect the victim’s identity. See 2d
Tex. App. (Fort Worth) Loc. R. 7; McClendon v. State, 643 S.W.2d 936, 936 n.1
(Tex. Crim. App. [Panel Op.] 1982); see also Tex. R. App. P. 9.8(a), 9.10.


                                        2
                         III. SUFFICIENCY OF THE EVIDENCE

      In his first issue, Levine argues that the evidence is insufficient to support

his convictions for indecency with a child by contact. Levine argues that there is

no evidence to show that he acted with the specific intent to arouse or gratify his

sexual desire when he touched Rachel.

                             A. Standard of Review

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

determine whether 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, 99 S. Ct. 2781, 2789 (1979); Jenkins v. State, 493 S.W.3d 583, 599

(Tex. Crim. App. 2016). This standard gives full play to the responsibility of the

trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S.

at 319, 99 S. Ct. at 2789; Jenkins, 493 S.W.3d at 599.

      The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Blea v. State,

483 S.W.3d 29, 33 (Tex. Crim. App. 2016).             Thus, when performing an

evidentiary sufficiency review, we may not re-evaluate the weight and credibility

of the evidence and substitute our judgment for that of the factfinder.         See

Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Instead, we

determine whether the necessary inferences are reasonable based upon the


                                         3
cumulative force of the evidence when viewed in the light most favorable to the

verdict. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.), cert. denied,

136 S. Ct. 198 (2015).      We must presume that the factfinder resolved any

conflicting inferences in favor of the verdict and defer to that resolution. Id. at

448–49; see Blea, 483 S.W.3d at 33.

                           B. Elements of the Offense

      A person commits the offense of indecency with a child by contact if, with a

child younger than seventeen years of age and not the person’s spouse, the

person engages in sexual contact with the child.         Tex. Penal Code Ann. §

21.11(a)(1) (West 2011). “Sexual contact” means the following acts, if committed

with the intent to arouse or gratify the sexual desire of any person: any touching

by a person, including touching through clothing, of the anus, breast, or any part

of the genitals of a child. Id. § 21.11(c)(1). A person acts intentionally with

respect to the nature of the conduct or a result of the conduct when it is the

person’s conscious objective or desire to engage in the conduct or cause the

result. Id. § 6.03(a) (West 2011). In the context of indecency with a child, the

factfinder can infer the requisite intent to arouse or gratify the sexual desire from

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

617 S.W.2d 211, 216 (Tex. Crim. App. [Panel Op.] 1981). The intent to arouse or

gratify may be inferred from conduct alone. Id. No oral expression of intent or

visible evidence of sexual arousal is necessary. Gregory v. State, 56 S.W.3d




                                         4
164, 171 (Tex. App.––Houston [14th Dist.] 2001, pet. dism’d), cert. denied, 538

U.S. 978 (2003).

                                 C. The Evidence

           1. Rachel’s Testimony and Evidence of Text Messages

      Rachel, who was a senior in high school at the time of the trial, testified

that Levine’s relationship with her changed from 2012 leading up until November

2013; the relationship went from being a friendly relationship to being “I like you, I

want to be with you type of relationship.” Rachel said that made her feel nasty

and disgusting because she did not have romantic feelings for Levine.

      Rachel described an inappropriate touching that occurred after school on

or about November 1, 2013, when Levine was giving her a ride to her job.

Rachel testified that she had her backpack in her lap and that Levine told her to

put it on the floor. When she refused, Levine put Rachel’s backpack on the

floorboard and told her, “Open your legs.” Rachel said no. Levine repeated his

command and then pushed Rachel’s legs apart, used his finger to press on her

“private” on top of her clothes, and told her not to “let any man’s penis go in

there.” Levine also told Rachel not to let any man’s penis go in her mouth.

Rachel told Levine that she did not like what he did.

      Rachel testified that Levine texted her on November 5, 2013, and asked

why she was wearing tights more often. Rachel thought his text was unusual

because Levine did not typically concern himself with what she wore and

because she had worn tights only twice.


                                          5
      Rachel testified that Levine approached her more than once after the

November 1 event and offered her $500 to watch him masturbate and to let him

watch her touch herself. Rachel told Levine “no.”

      Rachel described a second inappropriate touching that occurred on or

about November 18, 2013. Rachel testified that when Levine picked her up after

school, she got in the car and told him that she had marijuana in her purse

because she had agreed to hold the marijuana for a friend so that the friend

would not get in trouble. Levine acted like it was not a big deal that she had

marijuana and told her that he “could flip it easy” because he knew other drug

dealers. When they got home, Levine asked Rachel to come to the bedroom he

shared with Mother. When Rachel came into the bedroom, Levine positioned

Rachel with her butt facing a mirror, told her that this is how “they’re going to do

you in prison,” and squeezed her butt. Levine also cupped his hand and moved

it along her private part in the front, which made Rachel feel “nasty and

disgusting.”   Rachel froze up and backed away.        Rachel did not tell Mother

because she did not want to hurt her.

      Rachel testified that around 8:00 p.m. that same day, Levine sent her a

text message that said, “I want you in that position again,” followed by

“BENEFITS” in all caps and a smiley face. Rachel responded, “Well, sir, I don’t.

I didn’t like it.” Levine responded with a frowny face. Rachel replied, “I really

didn’t. Cause I’m not attracted to you in that way. So [] it didn’t feel good to me

or anything.” Levine said, “So.” Rachel responded that she did not want to be in


                                         6
that position anymore. Levine replied, “So I made my point.” Rachel responded,

“Yes,” and Levine texted that her “p---y felt phat.”4

      Also during November 2013, on a day when Rachel was riding home from

school with Levine, he told her that he had “other girls” and asked Rachel to

connect him to a teenage girl who was not friends with Rachel. Levine then told

Rachel to “look at this”; when Rachel looked, Levine showed her two

photographs on his phone of a girl’s private parts. Rachel responded that the

photograph was nasty and turned her attention back to her own phone. Rachel

mentioned that there was a guy whom she liked, and Levine responded, “I bet

my d--k is bigger than his.”        Levine then attempted to show Rachel the

photographs of his penis that were on his phone, but she would not turn her head

to look at them.

      During Rachel’s testimony, the State admitted exhibits showing additional

text messages from Levine to Rachel that included the following:

    On October 20, 2013, Rachel asked to borrow Levine’s phone so that she

      could fix her Instagram account and asked for some batteries to put in the

      remote to her sister’s television. Levine replied that Rachel could borrow

      his phone; asked if the batteries were for a vibrator; and told her that if she

      went through the picture gallery on his phone, “be a big girl and handle

      what[]ever u c ok?!” Rachel responded that she would not go through his

      Rachel agreed that the term “phat” is used to describe something that is
      4

good sexually.


                                          7
      photos because that was wrong and that she only needed his phone to fix

      her Instagram account.

    On November 7, 2013, Levine texted Rachel, “All these favors :) I want a

      booty grab.” Rachel responded, “No.”

    On November 20, 2013, Levine texted Rachel, “Ass look good.”

                             2. Mother’s Testimony

      Mother testified that Levine is the father of three of her four children;

Levine is Rachel’s stepfather. Levine was not Rachel’s disciplinarian; he was a

person Rachel could talk to if she did not feel comfortable talking to Mother.

      Mother periodically checked Rachel’s phone, and on November 24, 2013,

she found text messages between Levine and Rachel. Mother asked Rachel

about the text messages, and she immediately started crying and told Mother

that Levine had touched her inappropriately. Mother then confronted Levine,

who denied the inappropriate touching and said that Rachel was lying. Mother

called Rachel into the room and asked her to repeat what she had told Mother.

Levine again denied the accusations until Rachel added that he had offered her

$500 to rub her vagina and to watch him “jack off”; at that point, he started crying

and saying he was sorry. Levine explained that he had touched Rachel “in that

manner” because Rachel had some marijuana in her possession and he wanted

to show her what she would endure if she went to prison. Mother told Levine to

leave, and after asking to stay because Rachel was only two years away from

leaving for college, he eventually left that same evening.


                                         8
      Mother reported the incident to the police and consented to allowing the

police to search Rachel’s phone for the text messages from Levine. Levine later

gave his son his old cell phone, and Mother turned it over to the police.

                            3. Detective Duc Nguyen

      Detective Duc Nguyen, a computer examiner with the Fort Worth Police

Department, testified that he had examined the data on a Samsung Galaxy S2

cell phone and had found that the user name was Bryant Levine. The earliest

text messages on the phone were from November 25, 2013, which was after

Levine gave the phone to his son.5 Detective Nguyen testified that he included in

his report ninety-six photos from the phone, including State’s Exhibits 7 and 8

(photos of female genitalia) and State’s Exhibits 16 and 17 (penis photos).

                                     4. Levine

      Levine testified about the day when Rachel told him that she had

marijuana in her backpack. He said that he immediately became upset and was

mortified because he could have been questioned about the marijuana if he had

been stopped by the police.        Levine said that he snatched the marijuana;

grabbed Rachel between the legs; and said, “This is what they will do to you in

the penitentiary.” Levine testified, “I’m not saying it was the right thing to do. But

I was trying to make a point because she was [an Advanced Placement]

      5
        Levine testified that he had taken his white Samsung cell phone to have it
“wiped clean” of all text messages and photographs before he gave it to his son.
Levine testified that he did not know that it still had photographs on it when he
gave it to his son.


                                          9
student.” Levine testified that he did not grab Rachel to arouse or gratify himself

sexually; it was discipline. Levine explained,

      And I’m not bragging or anything[,] and I’m not saying that it’s right[]
      because I was with . . . her mother. But I was a whore. I did a lot of
      whorish things[,] and I had a lot of whorish ways. And I was with a
      lot of women, as -- as the cell phone depicted. And -- but I’m a
      grown man[;] I can have a lot of women in my phone.

      Levine testified that after they got home, he made Rachel follow him into

the bedroom he shared with Mother, slammed the door, and told Rachel to give

him the marijuana. Levine held the marijuana up high and told her that he was

going to throw it into the toilet. Levine testified that Rachel jumped up against

him and that he pushed her back. Levine told Rachel that he was not going to

give the marijuana back to her, and Rachel said that she would tell Mother that

he had touched her inappropriately. Levine dropped the marijuana and said, “It’s

not like you’re mine anyway.”

      Levine testified that he never touched Rachel on November 1 in the

manner she described.      Levine also denied sending the text messages on

November 18; he explained that he normally went to bed at 7:30 or 8:00 p.m.

every day.

      Levine testified that when he texted Rachel about wearing tights, he

wanted to know why she was not wearing one of the thirteen pairs of pants that

he had purchased for her. Levine explained that the “[a]ss look good” text was

not a reference to Rachel’s body but instead pertained to Rachel’s best friend’s

mother, with whom Levine was allegedly flirting.


                                        10
      On cross-examination, Levine testified that he had “popped” Rachel on her

vagina to discipline her. He said, “I have enough women to gratify myself. And

I’m not proud of that. But my phone dictates that. I’m a 41-year-old man, 39-

year-old man who can walk out of this building and -- and find a woman.” Levine

denied trying to show Rachel the photographs of his penis that were on his

phone.

      With regard to the November 18 text messages, Levine opined that Rachel

had used his phone to send the messages to her phone. With regard to the text

about a “booty grab,” Levine testified that it pertained to Rachel’s friend’s mother.

The State questioned Levine about other text messages he had sent Rachel in

which he had admitted asking her to get him the phone numbers of certain

classmates, whom he described as “little big booty girl, the one who’s a player,

and the one with the ass.”

      Levine testified that he did not tell Mother about the discipline he gave

Rachel or the marijuana and that Mother had lied when she testified that he had

admitted to her that he had touched Rachel inappropriately. Levine testified that

he had confessed his inappropriate touching of Rachel to his son and daughter.

              5. Testimony from Detective Michael McCormack

      Detective Michael McCormack with the Fort Worth Police Department

testified that he had watched Rachel’s forensic interview from the monitoring

room while it was being conducted, that he had observed the forensic interviews




                                         11
with Rachel’s two siblings, and that he had interviewed Levine.6      During the

interview, Levine said that he did not touch Rachel. Detective McCormack asked

Levine about specific text messages that had been sent to Rachel’s phone

number from his phone number, and Levine said that he did not send them.

Detective McCormack testified that upon reviewing Rachel’s text messages, he

believed that Rachel was at the mall when the November 18, 2013 text

messages were sent and that Levine was not with her. Detective McCormack

said that information—that Rachel was at the mall and that Levine was at another

location when those messages were sent—also came up in the forensic

interviews.   Detective McCormack testified that Levine groomed Rachel by

sending her text messages and by telling her that she could share her secrets

with him instead of with Mother.

      Also during the interview, Levine brought up the marijuana incident.

Levine told Detective McCormack that the conversation with Rachel about the

marijuana took place in two locations: in the car and in his bedroom. Detective

McCormack asked Levine whether he had touched Rachel inappropriately, and

he said, “I didn’t touch her at all.” During the interview, which lasted more than

an hour, Levine did not mention that he had touched Rachel to discipline her.




      6
       The interview was recorded, but the video of the interview was not
admitted into evidence or played for the jury.


                                       12
                             D. Sufficiency Analysis

      As set forth above, Rachel described in detail the inappropriate touching

that occurred on November 1, 2013, and the inappropriate touching that occurred

on November 18, 2013. Rachel also testified about Levine’s proposition to pay

her to watch him masturbate, his attempts to show her nude photos, and the

numerous text messages that he had sent her during October and November

2013. Mother testified that when she confronted Levine about touching Rachel,

he initially denied any touching until Rachel mentioned the masturbation

proposition; at that point, he started crying and apologizing for touching Rachel

“in that manner.”   Levine did not deny touching Rachel’s genitals during the

marijuana incident; instead, he insisted that the inappropriate touching

constituted Rachel’s discipline for possessing marijuana. Levine also told the

jury that he was “whorish,” that he had been with a lot of women, and that he

could “walk out of the building and . . . find a woman.”

      Here, the jury was free to believe Rachel and to disbelieve Levine. The

jury also could have inferred that Levine had the intent to arouse or gratify his

sexual desire based on his conduct in touching Rachel’s genitals over her clothes

on two occasions; the sexual remarks he made in the text messages he had sent

to Rachel; and the surrounding circumstances, which included grooming Rachel

and showing her nude photographs. Accordingly, viewing all of the evidence—

including the text messages sent from Levine’s phone number to Rachel’s phone

number—and the reasonable inferences from it and deferring to the jury’s weight


                                         13
and credibility of the evidence determinations, we hold that a rational trier of fact

could have found beyond a reasonable doubt that the essential elements of the

offense of indecency with a child (Rachel) by contact were committed by Levine

on or about November 1, 2013, and on or about November 18, 2013.                See

Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Isassi v. State, 330 S.W.3d 633, 638

(Tex. Crim. App. 2010); McKenzie, 617 S.W.2d at 216; Jimenez v. State, 507

S.W.3d 438, 443–44 (Tex. App.—Fort Worth 2016, no pet.) (holding that a

rational trier of fact could have found beyond a reasonable doubt that the

essential elements of the offense of indecency with a child by contact were

committed by appellant). We overrule Levine’s first point.

   IV. NO ABUSE OF DISCRETION BY ADMITTING COMPLAINED-OF PHOTOGRAPHS

      In his second point, Levine argues that the trial court abused its discretion

by overruling his relevancy objections to State’s Exhibits 16 and 17, which were

photographs depicting a penis.       Specifically, Levine argues that the penis

photographs make no issue in dispute more probable or less probable than it

would be without the evidence.7


      7
        To the extent Levine’s second point argues that the trial court abused its
discretion by overruling his objections to State’s Exhibits 16 and 17 because he
was not charged with sending pornographic pictures to Rachel and because
there was no evidence of whose penis was in the photographs or who took the
photographs, Levine’s general relevancy objection at trial did not preserve an
extraneous-offense complaint or a rule 901 authentication complaint. See
Jimenez v. State, No. 05-13-01523-CR, 2014 WL 6678073, at *3 (Tex. App.—
Dallas Nov. 25, 2014, no pet.) (mem. op., not designated for publication) (holding
hearsay, relevance, and remoteness objections did not preserve for appellate
review a complaint regarding improper authentication under rule 901); cf. Muniz-

                                         14
      We review a trial court’s decision to admit evidence under an abuse-of-

discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App.

2000); Lagrone v. State, 942 S.W.2d 602, 613 (Tex. Crim. App.), cert. denied,

522 U.S. 917 (1997). As long as the trial court’s ruling falls within the zone of

reasonable disagreement, we will affirm the trial court’s decision. Martinez v.

State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010), cert. denied, 563 U.S. 1037

(2011); Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).

      “Relevant evidence” means evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence. Tex. R.

Evid. 401.   Generally, a photograph is admissible if verbal testimony as to

matters depicted in the photograph is admissible. Gallo v. State, 239 S.W.3d

757, 762 (Tex. Crim. App. 2007), cert. denied, 553 U.S. 1080 (2008). In other

words, if verbal testimony is relevant, photographs of the same are also relevant.

Id.

      As set forth above, Rachel testified that when she told Levine that there

was a guy whom she liked, he responded, “I bet my d--k is bigger than his,” and

Luna v. State, No. 03-09-00266-CR, 2010 WL 3810820, at *5 (Tex. App.—Austin
Sept. 30, 2010, pet. ref’d) (mem. op., not designated for publication) (holding that
appellant failed to preserve request for limiting instruction when evidence was
admissible under article 38.37 and counsel had only objected and requested
instruction under rule 404(b)); Batiste v. State, 217 S.W.3d 74, 82 (Tex. App.—
Houston [1st Dist.] 2006, no pet.) (holding that trial objection on relevancy
grounds did not preserve rule 404(b) extraneous offense complaint for appellate
review). See generally Tex. R. Evid. 404(b), 901(b)(1).


                                        15
attempted to show Rachel photographs of his penis on his phone.             During

Levine’s testimony, he denied trying to show Rachel the photographs of his penis

that were on his phone. Because the photographs were relevant to corroborate

Rachel’s admissible testimony about Levine’s attempt to show her pictures of his

penis and because the photographs were also relevant evidence from which the

jury could infer that Levine’s intent when he touched Rachel was to arouse or

gratify his sexual desire—an element of the offense that the State was required

to prove, we hold that the trial court did not abuse its discretion by overruling

Levine’s relevancy objections to State’s Exhibits 16 and 17. See Tex. R. Evid.

401; Gallo, 239 S.W.3d at 762; Young v. State, 242 S.W.3d 192, 200–01 (Tex.

App.—Tyler 2007, no pet.) (holding photographs of magazine that depicted

young girls going wild on spring break, when considered in conjunction with

victim’s testimony that appellant took picture of her with her vagina exhibited,

was relevant because it tended to make more probable that appellant’s intent

was that victim’s exhibition of her vagina be of a lewd fashion); see also Perry v.

State, Nos. 05-07-01174-CR, 05-07-01313-CR, 2008 WL 2600681, at *2 (Tex.

App.—Dallas July 2, 2008, no pet.) (mem. op., not designated for publication)

(holding internet advertisement for teen pornography site and photograph of

young women in cheerleader costumes in sexually suggestive poses were both

relevant to corroborate complainant’s testimony that appellant had showed her

“pictures of kids that he molested”).8 We overrule Levine’s second point.

      8
       Although Levine includes a statement in the law section of his brief on rule

                                        16
                                 V. CONCLUSION

      Having overruled Levine’s two points, we affirm the trial court’s judgments.


                                                  PER CURIAM

PANEL: WALKER, MEIER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: April 20, 2017




403, he did not make a rule 403 objection at trial and does not argue on appeal
that the penis photographs are more prejudicial than probative. Because
Levine’s general relevance objection at trial did not preserve any appellate
argument based on rule 403 and because his brief does not contain a rule 403
analysis, we need not analyze whether the penis photos should have been
excluded under rule 403. See Sony v. State, 307 S.W.3d 348, 355–56 (Tex.
App.—San Antonio 2009, no pet.) (holding that because appellant raised only a
rule 401 complaint with regard to the photographs, he had waived his rule 403
complaint).


                                       17
