Opinion filed March 29, 2019




                                      In The


        Eleventh Court of Appeals
                                   __________

                               No. 11-17-00076-CR
                                   __________

             CHRISTOPHER ALBERT ANAYA, Appellant
                                         V.
                     THE STATE OF TEXAS, Appellee


                    On Appeal from the 238th District Court
                           Midland County, Texas
                       Trial Court Cause No. CR46751


                     MEMORANDUM OPINION
      The jury convicted Christopher Albert Anaya of two counts of indecency with
a child by contact, a second-degree felony offense. The jury assessed his punishment
on each count at confinement for a term of twelve years in the Institutional Division
of the Texas Department of Criminal Justice. The jury also assessed a $10,000 fine
for each count.
      Appellant brings four issues on appeal. He contends that (1) the evidence is
insufficient to support his convictions, (2) the trial court erred in admitting into
evidence testimony from multiple outcry witnesses, (3) the trial court erred when it
failed to provide funds for an investigator, and (4) the trial court erred when it
assessed costs and fees against Appellant because he is indigent. We modify and
affirm.
                                   Background Facts
      A.I., the seven-year-old victim, lived in Midland with her mother, G.A.; A.I.’s
three brothers; and her mother’s boyfriend, Appellant. One evening, A.I. was lying
in her mother’s bed with her mother and C.I., A.I.’s eight-year-old brother. C.I. and
G.A. were asleep. G.A. admitted that she had ingested K2, a synthetic marihuana
that “knocks [her] out.” G.A. testified that she did not remember what happened
that night.
      A.I. testified that, while she was on the bed, Appellant touched her “in [her]
middle.” A.I. subsequently pointed to her genital area when asked to point to where
Appellant had touched her. A.I. testified that Appellant put his hand under her
clothes and moved his hand in circles. Appellant then made A.I. touch “his middle
parts” on top of his clothes with A.I.’s hand. A.I. testified that this conduct stopped
when A.I. told Appellant that she needed to use the bathroom. After A.I. left her
mother’s room, A.I.’s eighteen-year-old sister, S.O., came over to the house around
midnight. A.I. testified that she told S.O. what had happened with Appellant.
      S.O. testified that A.I. told her about Appellant touching her genital area. S.O.
then confronted both G.A. and Appellant. S.O. took A.I. back to her house. S.O.
testified that A.I. was crying and “reacted . . . really hard.” S.O. reported the incident
to the police the next day. S.O. testified that A.I. lived with S.O. for the next couple
of weeks and that, during that time, A.I. behaved very differently. A.I. would not
go to the bathroom or take a shower by herself, and A.I. did not sleep very well.
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       Investigator Robert Garcia of the Midland County Sheriff’s Office testified
that he responded to a call from S.O.’s residence for a report of a sex offense. He
briefly spoke to S.O. about the details of the incident. Investigator Garcia did not
speak to A.I. Investigator Garcia testified that he later contacted S.O. to get
Appellant’s information, but S.O. advised Investigator Garcia that G.A. and
Appellant left Midland and went to Lamesa. S.O. provided phone numbers to
contact Appellant and G.A., but apparently there were not any minutes left on their
phones. As a result, Investigator Garcia was not able to speak with Appellant or
G.A.
       Michael Margolis, a forensic interviewer, testified that he interviewed A.I.
A.I. told Margolis that Appellant pushed her head down and put his tongue in her
mouth. A.I. then said that Appellant made her rub “it” on top of his clothes. A.I.
demonstrated “with her hand over her groin and vagina area in a circular motion.”
Margolis testified that A.I. described “it” as “[h]is thing down there.”
       Dana Taylor, a sexual assault nurse examiner, testified that she conducted a
SANE exam of A.I. Taylor testified that she did not notice any visible injuries but
that the lack of visible injuries did not indicate that an offense did not occur.
                              Sufficiency of the Evidence
       In his first issue, Appellant contends that the evidence is insufficient to
support his conviction. Appellant asserts that the only evidence presented regarding
the offenses came from the child victim who was not credible. He contends that A.I.
was not competent to testify and that her testimony was inconsistent.
       We review a challenge to the sufficiency of the evidence under the standard
of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323
S.W.3d 893, 912 (Tex. Crim. App. 2010). Under the Jackson standard, we review
all of the evidence in the light most favorable to the verdict and determine whether
any rational trier of fact could have found the essential elements of the offense
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beyond a reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d
633, 638 (Tex. Crim. App. 2010). When conducting a sufficiency review, we
consider all the evidence admitted at trial, including pieces of evidence that may
have been improperly admitted. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim.
App. 2013); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We
defer to the factfinder’s role as the sole judge of the witnesses’ credibility and the
weight their testimony is to be afforded. Brooks, 323 S.W.3d at 899. This standard
accounts for the factfinder’s duty 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; Clayton, 235 S.W.3d at 778. When the record supports
conflicting inferences, we presume that the factfinder resolved the conflicts in favor
of the verdict and defer to that determination. Jackson, 443 U.S. at 326; Clayton,
235 S.W.3d at 778.
      A person commits the offense of indecency with a child by contact if the
person engages in sexual contact with a child who is younger than seventeen. TEX.
PENAL CODE ANN. § 21.11(a)(1) (West Supp. 2018). “Sexual contact” is any
touching by a person, including touching through clothing, of the anus, breast, or
any part of the genitals of a child, if committed with the intent to arouse or gratify
the sexual desire of any person. Id. § 21.11(c)(1). The specific intent to arouse or
gratify the sexual desires of a person may be inferred from the surrounding
circumstances. McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. 1981).
      The uncorroborated testimony of a child victim is sufficient to support a
conviction for indecency with a child. TEX. CODE CRIM. PROC. ANN. art. 38.07
(West Supp. 2018); Martinez v. State, 178 S.W.3d 806, 814 (Tex. Crim. App. 2005)
(noting that Article 38.07 deals with the sufficiency of evidence required to sustain
a conviction for certain sexual offenses); Chapman v. State, 349 S.W.3d 241, 245
(Tex. App.—Eastland 2011, pet. ref’d). The State has no burden to produce any
                                          4
corroborating or physical evidence. 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) (“The lack of physical or forensic evidence
is a factor for the jury to consider in weighing the evidence.”), aff’d, 206 S.W.3d
620 (Tex. Crim. App. 2006). Likewise, a child victim’s outcry statement alone can
be sufficient to support a sexual assault conviction. See Jones v. State, 428 S.W.3d
163, 169 (Tex. App.—Houston [1st Dist.] 2014, no pet.); Tear v. State, 74 S.W.3d
555, 560 (Tex. App.—Dallas 2002, pet. ref’d).
      In count one of the indictment, Appellant was charged with engaging in sexual
contact with A.I. by touching her genitals. In count two, Appellant was charged with
engaging in sexual contact with A.I. by causing A.I. to touch Appellant’s genitals.
      Based upon A.I.’s testimony alone, a rational trier of fact could have found
beyond a reasonable doubt that Appellant engaged in sexual contact with A.I. by
touching her genitals and by causing A.I. to touch Appellant’s genitals. It was the
jury’s sole responsibility to determine if A.I. was credible. See Brooks, 323 S.W.3d
at 899. To the extent there were any inconsistencies in A.I.’s testimony, it was the
jury’s duty to resolve those inconsistencies. See Jackson, 443 U.S. at 319; Clayton,
235 S.W.3d at 778. We presume that the jury resolved any conflicts in favor of the
verdicts, and we defer to that determination in reviewing the sufficiency of the
evidence. See Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778. We overrule
Appellant’s first issue.
                           Erroneous Admission of Evidence
      In his second issue, Appellant contends that the trial court erred in permitting
more than one outcry witness to testify at trial. Appellant asserts that G.A. was the
proper “outcry” witness because G.A. was the first adult that A.I. told about the
alleged offenses. Furthermore, Appellant asserts that only one outcry witness should
have been permitted because both counts were part of the same event. We disagree.
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      A trial court has broad discretion to determine the admissibility of outcry
evidence, and we will not disturb its determination as to the proper outcry witness
absent a showing in the record that the trial court clearly abused its discretion. See
Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990); Smith v. State, 131
S.W.3d 928, 931 (Tex. App.—Eastland 2004, pet. ref’d). We will uphold the trial
court’s ruling if it is within the zone of reasonable disagreement. Montgomery v.
State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991).
      Article 38.072 provides for an exception to the hearsay rule for outcry
testimony. CRIM. PROC. art. 38.072, § 2. This exception applies if a child makes a
statement describing the alleged offense so long as the statements “were made to the
first [adult] person . . . to whom the child . . . made a statement about the offense.”
Id. § 2(a)(3); see Bays v. State, 396 S.W.3d 580, 585 (Tex. Crim. App. 2013). A
trial court has broad discretion in determining the admissibility of outcry witness
testimony. Garcia, 792 S.W.2d at 92. We will uphold the trial court’s decision
unless a clear abuse of discretion is established by the record. Id.
      As mentioned above, Appellant was tried for two offenses—two counts of
indecency with a child by contact. See PENAL § 21.11(a)(1). The first count charged
Appellant with indecency with a child by contact for touching A.I.’s genitals. The
second count charged Appellant with indecency with a child by contact for causing
A.I. to touch Appellant’s genitals. We first address whether G.A. was the proper
“outcry” witness for count one. A proper outcry statement must describe the alleged
offense in some discernible manner and must be more than a general allusion that
something in the area of child abuse occurred.          Garcia, 792 S.W.2d at 91.
Furthermore, any statement that “arguably relates” to something that later evolves
into an allegation of child abuse will not satisfy the requirements of the statute. Id.
A.I.’s statement to G.A. did not contain specific details about the alleged offense
and, thus, does not describe an offense. See id. Accordingly, the trial court did not
                                          6
abuse its discretion when it found that S.O. was the proper “outcry” witness for count
one.
       Next, we address whether A.I.’s outcry to S.O. regarding count one concerned
a different offense than A.I.’s outcry to Margolis regarding count two. Hearsay
testimony from more than one outcry witness may be admissible if the witnesses
testify about different events and not simply repetition of the same event told to
different individuals. Lopez v. State, 343 S.W.3d 137, 140 (Tex. Crim. App. 2011);
Broderick v. State, 35 S.W.3d 67, 73–74 (Tex. App.—Texarkana 2000, pet. ref’d);
see CRIM. PROC. art 38.072. Thus, admissible outcry witness testimony is event-
specific, not person-specific. Lopez, 343 S.W.3d at 140; Broderick, 35 S.W.3d at
73–74.
       S.O. testified that she was the first person over the age of eighteen that A.I.
told about Appellant touching A.I.’s genitals. Margolis testified that he was the first
person over the age of eighteen that A.I. told about Appellant making A.I. touch
Appellant’s genitals. Thus, A.I.’s initial outcry to S.O. did not address A.I. touching
Appellant’s genitals, while her subsequent outcry to Margolis did address her
touching Appellant’s genitals.
       “A person who commits more than one sexual act against the same person
may be convicted and punished for each separate and discrete act, even if those acts
were committed in close temporal proximity.” Aekins v. State, 447 S.W.3d 270, 278
(Tex. Crim. App. 2014). “The key is that one act ends before another act begins.”
Id. “The defendant might touch a child’s breast; then he touches her genitals. Two
separate acts, two separate impulses, two separate crimes.” Id. The Court of
Criminal Appeals gave the following example in Aekins concerning simultaneous
events: “In a pat-your-head-while-rubbing-your-stomach case, one might touch the
victim’s breast with one hand while simultaneously touching her sexual organ with
the other hand. Those are two separate and distinct sexual assaults even though they
                                          7
occur at the same time.” Id. n.35. Applying the example from Aekins to the charges
in this case, Appellant was charged with two separate crimes irrespective of whether
they occurred simultaneously or in close temporal proximity. Accordingly, the trial
court did not abuse its discretion when it permitted both S.O. and Margolis to testify
as outcry witnesses about separate offenses. We overrule Appellant’s second issue.
                       Failure to Provide Investigative Funds
      In his third issue, Appellant contends that the trial court erred when it failed
to provide funds for an investigator. Appellant filed a “Motion for Appointment of
a Private Investigator” asserting as follows: “There is significant investigation to be
done in determining the facts of the case and in interviewing witnesses. Counsel
requires the assistance of an investigator so that     he may provide adequate and
effective assistance of counsel to Defendant as required by the Sixth Amendment to
the United States Constitution.” The State contends that Appellant failed to preserve
this issue for appellate review. Appellant fails to point out—and we have not
found—any evidence in the record that (1) Appellant asked the trial court to rule on
this motion, (2) the trial court refused to rule on the motion, or (3) Appellant
subsequently lodged an objection to the trial court’s failure to rule on the motion.
Accordingly, we agree with the State’s contention.
      Texas Rule of Appellate Procedure 33.1 governs the preservation of appellate
complaints. See TEX. R. APP. P. 33.1. To preserve error for appellate review under
Rule 33.1, the record must show that (1) the complaining party made a timely and
specific request, objection, or motion and (2) the trial court either ruled on the
request, objection, or motion (expressly or implicitly), or it refused to rule and the
complaining party objected to that refusal. See Geuder v. State, 115 S.W.3d 11, 13
(Tex. Crim. App. 2003). Failure to preserve the error at trial forfeits the later
assertion of that alleged error on appeal. Fuller v. State, 253 S.W.3d 220, 232 (Tex.


                                          8
Crim. App. 2008) (citing Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App.
1999)).
       Appellant contends that the trial court committed fundamental error by not
acting on Appellant’s request for funds for an investigator. We disagree. The Court
of Criminal Appeals has identified a limited number of errors in three categories that
are considered “fundamental.”            They are (1) the denial of absolute, systemic
requirements, (2) the violation of rights that are waivable only, and (3) errors
recognized by the legislature as fundamental. See Saldano v. State, 70 S.W.3d 873,
887–88 (Tex. Crim. App. 2002) (citing Marin v. State, 851 S.W.2d 275, 279–80
(Tex. Crim. App. 1993)). Appellant’s motion for funds for an investigator does not
involve a claim of fundamental error as evidenced by the matters enumerated in
Saldano as constituting fundamental error.
       Moreover, even if Appellant preserved error, the record does not show that
the trial court erred. A defendant seeking funds for expert assistance must offer
more than “undeveloped assertions that the requested assistance would be
beneficial.” Moore v. State, 935 S.W.2d 124, 130 (Tex. Crim. App. 1996). We
overrule Appellant’s third issue.
                            Assessment of Court Costs and Fees
       In his fourth issue, Appellant contends that the trial court erred when it
assessed court costs and fees against him, including fees for his court-appointed
attorney, because he is indigent. The district clerk issued a single Bill of Cost that
lists the total cost in the amount of $23,860,1 which included a $3,425 “COURT
APPOINTED ATTORNEY” fee. We note at the outset that the State has agreed
with Appellant’s contention that the assessment of attorney’s fees should be stricken


       1
         The bulk of the “amount due” from Appellant in the Bill of Cost is $20,000 in fines assessed
against Appellant. Appellant is not contesting this assessment of the fines.

                                                 9
because there has been no change in his indigency status.                             See CRIM. PROC.
arts. 26.04(p), 26.05(g); Cates v. State, 402 S.W.3d 250, 251 (Tex. Crim. App. 2013)
(An indigent defendant may not be ordered to pay court-appointed attorney’s fees
absent a factual determination of a material change in his financial circumstances.).
Based on the State’s concession and the absence of a factual determination of a
material change in Appellant’s financial circumstances, we agree that the Bill of
Cost should be reduced by the amount of the court-appointed attorney’s fees in the
amount of $3,425.
        Appellant also contends that the assessment of $435 in court costs against him
should be deleted because he is indigent. However, indigent criminal defendants are
not excused from paying mandatory court costs. See Allen v. State, 426 S.W.3d 253,
259 (Tex. App.—Texarkana 2013, no pet.); Williams v. State, 332 S.W.3d 694, 700
(Tex. App.—Amarillo 2011, pet. denied). Thus, Appellant’s indigency status does
not excuse the assessment of the other court costs.                         Accordingly, we sustain
Appellant’s fourth issue in part, and we overrule it in part.
                                         This Court’s Ruling
        Having sustained Appellant’s fourth issue in part, we modify the Bill of Cost
to reflect that the amount due from Appellant is reduced from $23,860 to $20,435.
As modified, we affirm the judgments of the trial court. See TEX. R. APP. P. 43.2(b).


March 29, 2019                                                              JOHN M. BAILEY
Do not publish. See TEX. R. APP. P. 47.2(b).                                CHIEF JUSTICE
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.2

Willson, J., not participating.

        2
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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