                             NUMBER 13-12-00644-CV

                                COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


                    IN THE MATTER OF C. D., A JUVENILE


                   On appeal from the County Court at Law
                          of Cooke County, Texas.


                             MEMORANDUM OPINION

   Before Chief Justice Valdez and Justices Benavides and Longoria
            Memorandum Opinion by Chief Justice Valdez

       A jury found that appellant, C.D., committed the offense of indecency with a child.

By three issues, appellant contends that: (1) the evidence was insufficient for the jury to

find that he engaged in delinquent conduct by “touch[ing] the anus of V.M.S.”; (2) the

trial court abused its discretion by allowing hearsay testimony from B.J.P. under the

excited utterance exception; and (3) the trial court reversibly erred in failing to appoint a

guardian ad litem for appellant in violation of Texas Family Code section 51.11 when he
appeared at the adjudication hearing without a parent. See TEX. FAM. CODE ANN. §

51.11 (West 2008). We affirm.1

                                         I. BACKGROUND

The State alleged in its live petition that appellant had engaged in delinquent conduct

by, among other things, intentionally and knowingly engaging in sexual contact with

V.M.S., a child younger than seventeen, by touching her anus with the intent to arouse

or gratify his sexual desires in violation of section 21.11 of the Texas Penal Code. See

TEX. PENAL CODE ANN. § 21.11 (West 2011). Appellant pleaded “not true” to the State’s

allegations, and a jury trial was held.

       At trial, the evidence showed that appellant’s male relative is V.M.S.’s mother’s

boyfriend. V.M.S. testified that on one occasion when appellant spent the night at her

home, as she lay sleeping on her stomach, she awoke and saw appellant on top of her.

V.M.S. was seven years old when the alleged incident occurred. According to V.M.S.,

appellant pulled her panties down and attempted to put his “middle spot” in her

“bottom.” V.M.S. stated that appellant’s pants were down and that she saw that his

middle part was big and hairy. When the State asked whether appellant’s middle part

was hard or hanging down, V.M.S. replied that it was hard. When the State asked her if

appellant touched her anus, V.M.S. responded that he had.                     V.M.S. stated that

appellant told her not to tell anyone what he had done to her. V.M.S. testified that she

started crying and ran to her mother’s room; however, V.M.S. did not tell her mother

what had happened that night. Approximately one year later, V.M.S. told her brother,

B.J.P., about the incident. V.M.S. explained that she told B.J.P. what had happened

       1
         This case is before the Court on transfer from the Fort Worth Court of Appeals pursuant to a
docket equalization order issued by the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001
(West 2005).


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after she overheard B.J.P.’s girlfriend tell him that someone had touched her “on the

butt.” V.M.S. stated that she became frightened when she heard the girlfriend’s claim

and that hearing the girlfriend’s claim caused her to reveal the alleged incident with

appellant to her brother.2 After revealing the incident to her brother, V.M.S. told her

mother and her mother’s boyfriend.

      During V.M.S.’s mother’s testimony, the State asked, “Did—did you find out, uh,

that B.J.P.’s girlfriend was having problems at school with boys touching her?” V.M.S.’s

mother replied, “Yes, ma’am.” The State asked, “Are you aware whether or not [V.M.S.]

heard that and knew of that,” and V.M.S.s’ mother responded, “That's what they told

me, the kids told me.” V.M.S.’s mother then answered “Yes” after the State told her she

could not tell them what someone else stated and asked if she knew that V.M.S. had

found out about B.J.P.’s girlfriend’s problems.                   At trial, appellant denied that he

committed the alleged act.

      The jury answered “true” to the State’s allegations that appellant committed

indecency with a child. On September 6, 2012, the trial court signed a disposition order

committing appellant to the Texas Juvenile Justice Department Institutional Division for

“an indeterminate period of time not to exceed the time when he shall be 19 years of

age.” On that same date, the trial court signed an order stating that appellant is not

required to register as a sex offender and ordering appellant’s record to be sealed. This

appeal followed.

                                   II. SUFFICIENCY OF THE EVIDENCE

      By his first issue, appellant contends that the evidence is insufficient to support

the jury’s finding that he committed the offense of indecency with a child. Specifically,

      2
          B.J.P. was fourteen years’ old at the time of appellant’s trial.


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as we understand it, appellant argues that there are too many discrepancies in V.M.S.’s

testimony and that the evidence presented does not logically support a finding that he

committed the offense.

A. Standard of Review and Applicable Law

        “Although juvenile proceedings are civil matters, the standard applicable in

criminal matters is used to assess the sufficiency of the evidence underlying a finding

the juvenile engaged in delinquent conduct.” In re R.R., 373 S.W.3d 730, 734 (Tex.

App.—Houston [14th Dist.] 2012, pet. filed) (citing In re A.O., 342 S.W.3d 236, 239

(Tex. App.—Amarillo 2011, pet. denied)). In reviewing the sufficiency of the evidence to

support a conviction, the evidence is viewed 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.3 Brooks v. State, 323 S.W.3d 893, 899 (Tex.

Crim. App. 2010) (plurality op.).           “A complainant’s testimony alone is sufficient to

support a conviction for indecency with a child.” Connell v. State, 233 S.W.3d 460, 466

(Tex. App.—Fort Worth 2007, no pet.); Perez v. State, 113 S.W.3d 819, 838 (Tex.

App.—Austin 2003, pet. ref'd); see TEX. CODE CRIM. PROC. ANN. art. 38.07 (West Supp.

2011); Tear v. State, 74 S.W.3d 555, 560 (Tex. App.—Dallas 2002, pet. ref'd). The

specific intent required for the offense of indecency with a child may be inferred from a

defendant’s conduct. Bazanes v. State, 310 S.W.3d 32, 40 (Tex. App.—Fort Worth

2010, pet ref’d) (citing McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. 1981)).

        3
          Appellant contends that the evidence against him is factually insufficient. However, the court of
criminal appeals has held that there is “no meaningful distinction between the Jackson v. Virginia legal
sufficiency standard and the Clewis factual-sufficiency standard” and that the Jackson standard “is the
only standard that a reviewing court should apply in determining whether the evidence is sufficient to
support each element of a criminal offense that the State is required to prove beyond a reasonable
doubt.” Brooks v. State, 323 S.W.3d 893, 902–03, 912 (Tex. Crim. App. 2010) (plurality op.).
Accordingly, we review appellant’s claim of evidentiary sufficiency under “a rigorous and proper
application” of the Jackson standard of review. See id. at 906–07, 912.


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A person commits indecency with a child if the person engages in sexual contact with

the child or causes the child to engage in sexual contact. TEX. PENAL CODE ANN. §

21.11(a)(1) (West 2010). “Sexual contact” means any touching by a person, including

touching through clothing, of the anus, breast, or any part of the genitals of a child if

committed with the intent to arouse or gratify the sexual desire of any person. See id. §

21.11(c).

       Here, V.M.S. testified that she awoke to find that her underwear was down and

that appellant was on top of her with his pants down. V.M.S. stated that appellant

attempted to put his “middle spot” in her “bottom” and that his middle part was big, hairy,

and hard at the time. When asked if appellant touched her anus, V.M.S. responded that

he had. V.M.S. testified that appellant told her not to tell anyone what he had done and

that appellant’s actions caused her to run to her mother’s room crying.

       Appellant argues that the “only evidence in this case is alleged by V.M.S. versus”

his denial and cites portions of V.M.S.’s testimony and other witnesses’ testimony he

alleges were contradictory and/or unbelievable. However, “[r]econciliation of evidentiary

conflicts is solely a function of the trier of fact.” Perez, 113 S.W.3d at 838 (citing Losada

v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986); Bowden v. State, 628 S.W.2d

782, 784 (Tex. Crim. App. 1982); Perez v. State, 960 S.W.2d 84, 86 (Tex. App.—Austin

1997 no pet.) (citing Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991))).

Thus, although appellant denied he had committed the offense, the jury was free to

disbelieve him and believe V.M.S.’s account of what occurred instead. Accordingly,

viewing the evidence in the light most favorable to the verdict, we conclude that a

rational juror could have found beyond a reasonable doubt that appellant committed the




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offense of indecency with a child. See TEX. PENAL CODE ANN. § 21.11; Brooks, 323

S.W.3d at 899. Therefore, we overrule appellant’s first issue.

                          III. ADMISSION OF B.J.P.’S TESTIMONY

      By his second issue, appellant contends that the trial court abused its discretion

by admitting hearsay from B.J.P.     Specifically, appellant argues that the trial court

improperly concluded that the complained-of testimony was admissible under the

excited utterance exception to hearsay.

      We review a trial court’s decision to admit or exclude evidence under an abuse of

discretion standard. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2011);

Green v. State, 934 S.W.2d 92, 101–02 (Tex. Crim. App. 1996); Montgomery v. State,

810 S.W.2d 372, 379–80 (Tex. Crim. App. 1990) (en banc). We may not reverse the

judgment if the trial court’s decision is within the zone of reasonable disagreement.

Martinez, 327 S.W.3d at 736; State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App.

2006); Green, 934 S.W.2d at 102; Montgomery, 810 S.W.2d at 391.

      At his trial, appellant objected on the basis that it constituted hearsay to B.J.P.’s

testifying about the event surrounding V.M.S.’s revelation to him of what appellant had

allegedly done to her and to B.J.P. stating what V.M.S. had told him. The State argued

that although the testimony was hearsay, it was admissible under the excited utterance

exception. See TEX. R. EVID. 803(2). The trial court allowed B.J.P. to state that when

he was listening to his girlfriend on the speaker of his phone, V.M.S. overheard B.J.P.’s

girlfriend say that some boys had been “touching her butt.” B.J.P. testified that V.M.S.

heard what his girlfriend said, and told him what appellant had allegedly done to her.

Appellant objected to B.J.P. stating, “[V.M.S.] told me that that she woke up with her




                                               6
pants down and [appellant] on top of her and she got up and went in my mom’s

room. . . . She said that she pushed him off and got up.”

       We need not determine whether the trial court erred by allowing B.J.P. to testify

as described above because the same evidence was admitted through V.M.S.’s

testimony and her mother’s testimony. See Land v. State, 291 S.W.3d 23, 28–29 (Tex.

App.—Texarkana 2009) (“The admission of inadmissible evidence becomes harmless

error if other evidence proving the same fact is properly admitted elsewhere (or comes

in elsewhere without objection).”); see also Valle v. State, 109 S.W.3d 500, 509 (Tex.

Crim. App. 2003) (“An error [if any] in the admission of evidence is cured where the

same evidence comes in elsewhere without objection.”). Therefore, even assuming

without deciding that the trial court should have excluded the complained-of testimony,

the trial court admitted without objection V.M.S.’s testimony concerning the exact same

facts. Thus, error, if any, was harmless. See Land, 291 S.W.3d at 28–29; Valle, 109

S.W.3d at 509. We overrule appellant’s second issue.

                                  IV. GUARDIAN AD LITEM

       By his third issue, appellant contends that the trial court violated section 51.11 of

the family code by failing to appoint a guardian ad litem. Appellant states in his brief

that the trial court “appointed the attorney for the juvenile as the guardian ad litem for

[him] during the disposition phase . . . but no guardian ad litem was appointed for [him]

during the adjudication phase of the trial.”

       Section 51.11 of the family code states: “If a child appears before the juvenile

court without a parent or guardian, the court shall appoint a guardian ad litem to protect

the interests of the child. The juvenile court need not appoint a guardian ad litem if a

parent or guardian appears with the child.” See TEX. FAM. CODE ANN. § 51.11.


                                                7
        At his jury trial held on August 22, 2012, appellant’s trial counsel did not request

that a guardian ad litem be appointed. Therefore, it appears that appellant argues that

the trial court had a sua sponte duty to make such an appointment. However, in a

document, signed by the trial court judge on August 22, 2012, entitled, “Jury Order Child

Engaged in Delinquent Conduct,” the judge documented that appellant’s guardian, E.R.,

appeared at his jury trial.4 As stated above, a juvenile court is not required to appoint a

guardian ad litem if the child’s guardian appears with the child at the proceeding. Here,

E.R., appellant’s guardian, appeared with appellant; therefore, the trial court was not

required to sua sponte appoint a guardian ad litem pursuant to section 51.11. We

overrule appellant’s third issue.

                                            V. CONCLUSION

        Having overruled all of appellant’s issues, we affirm the trial court’s judgment.



                                                                 ___________________
                                                                 ROGELIO VALDEZ
                                                                 Chief Justice

Delivered and filed the
20th day of June, 2013.




        4
           Although appellant argues that he was only appointed a guardian ad litem during the disposition
phase of the proceedings, our review of the record shows that the trial court did so after discovering that
appellant’s guardian had left the courtroom to get some shoes for appellant. Appellant’s trial counsel then
told the trial court that the guardian “was fine” and that trial counsel had “explained everything to her.”
Appellant’s trial counsel said, “She was fine with me standing in for her.” The trial court then appointed
appellant’s trial counsel as his guardian ad litem for purposes of the disposition hearing held on
September 6, 2012.


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