Donald Leonard Touchet v. State ( 2018 )

NUMBER 13-17-00393-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
DONALD LEONARD TOUCHET, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the Criminal District Court
of Jefferson County, Texas.
MEMORANDUM OPINION1
Before Justices Contreras, Longoria, and Hinojosa
Memorandum Opinion by Justice Hinojosa
Appellant Donald Leonard Touchet appeals his conviction for indecency with a
child by contact, a second-degree felony. See TEX. PENAL CODE ANN. § 21.11(a)(1)
1 Pursuant to a docket-equalization order issued by the Supreme Court of Texas, the appeal has
been transferred to this Court from the Ninth Court of Appeals in Beaumont, Texas. See TEX. GOV’T CODE
ANN. § 73.001 (West, Westlaw through 2017 1st C.S.).
(West, Westlaw through 2017 1st C.S.). A jury returned a guilty verdict, and the trial
court assessed punishment at eighteen years’ imprisonment in the Texas Department of
Criminal Justice-Institutional Division. By one issue, appellant argues that the evidence
supporting his conviction is legally insufficient. 2 We affirm.
I. BACKGROUND
A grand jury returned an indictment alleging that appellant engaged in sexual
contact with T.M., 3 a child younger than 17 years of age, by touching the genitals of T.M.,
and that he did so with the intent to arouse or gratify his sexual desire. See id.
T.M., who was fourteen years old at the time of trial, testified concerning events
that occurred when she was eleven years old. T.M. stated that she was best friends with
appellant’s step-daughter Jane Doe and that she would often stay the night at appellant’s
house. T.M. stated that appellant treated her like “more than a daughter” and would
favor her over Jane. On Labor Day of 2014, appellant picked up T.M. and drove her to
his house. Although T.M. expected Jane to be present, there was no one home when
they arrived. Appellant told T.M. they were going to have an “adult day” and drove T.M.
around in his golf cart. During the ride, appellant defined various sexual terms, such as
“what a clitoris was, a penis, sex, oral [sex].” Appellant also told her that a “sticky finger”
was whenever “you put your finger inside of a girl’s private parts.” Appellant had an ice
2 Appellant also challenges the factual sufficiency of the evidence. However, the Texas Court of
Criminal Appeals has abolished factual sufficiency review. See Howard v. State, 333 S.W.3d 137, 138 n.2
(Tex. Crim. App. 2011) (citing Brooks v. State, 323 S.W.3d 893, 894–95 (Tex. Crim. App. 2010) (plurality
op.)).
3 We refer to the minor complainant by her initials to protect her privacy. We refer to the minor
witness by an alias for the same reason.
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chest with beer on the golf cart. He offered T.M. a beer and encouraged her to “chug it
down.” After drinking three to four beers, T.M. began feeling dizzy and disoriented.
After two hours of riding on the golf cart, appellant took T.M. back to his house.
Once there, appellant joined T.M. in the guest bedroom where he started rubbing T.M.’s
back. T.M. testified that appellant placed his hands under her shirt and tried to unclasp
her bra. T.M. extricated herself by going to the kitchen, where she made herself a
sandwich. Appellant then called her back into the bedroom, laid her on the bed, and
began massaging her thighs. During this time, T.M. told appellant to stop and asked
when Jane would return. At one point, appellant’s hands reached toward her underwear
line. T.M. then left the room and hid in a cupboard in the living room. When T.M. heard
appellant’s wife and Jane arrive home, she emerged from her hiding spot and met them
outside.
T.M. testified that she slept alone in the guest bedroom that night. She awoke
when she felt something touch her leg and saw appellant on her bed. Appellant
proceeded to touch the inside of T.M.’s genitals with his hand. After five minutes, T.M.
stated that she pretended to wake up by stretching her body. This caused appellant to
leave the room. T.M. then barricaded the door with a shelf stacked with water bottles so
that she would be alerted if appellant returned.
Julie Touchet, appellant’s wife, testified that she went to pick up Jane from her
grandparents’ house on Labor Day. While she was gone, appellant texted that he was
picking up T.M. and bringing her to their house. Appellant later called her and told her
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that he could not find T.M. Concerned, Julie rushed home. When she arrived, T.M.
came outside laughing nervously. Julie stated that she hugged T.M. and chastised her
for disappearing. Julie testified that T.M. stayed the night. The next morning, Julie
opened the door to T.M.’s room and noticed that a shelf was blocking the door.
Billie Jo Yancey, T.M.’s grandmother, testified that T.M. told her she did not want
to go to Jane’s house anymore because appellant made her feel uncomfortable. T.M.
then started crying and told Yancey that “she felt [appellant] get in bed with her and start
trying to rub her.”
The jury returned a guilty verdict. This appeal followed.
II. LEGAL SUFFICIENCY
A. Standard of Review and Applicable Law
“The standard for determining whether the evidence is legally sufficient to support
a conviction is ‘whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.’” Johnson v. State, 364 S.W.3d 292, 293–94 (Tex. Crim.
App. 2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in
Jackson); see Brooks v. State, 323 S.W.3d 893, 898–99 (Tex. Crim. App. 2010) (plurality
op.). The fact-finder is the exclusive judge of the credibility of witnesses and of the
weight to be given to their testimony. Brooks, 323 S.W.3d at 899; Lancon v. State, 253
S.W.3d 699, 707 (Tex. Crim. App. 2008). Reconciliation of conflicts in the evidence is
within the fact-finder’s exclusive province. Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim.
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Ohio App. 2000). We resolve any inconsistencies in the testimony in favor of the verdict.
Bynum v. State, 767 S.W.2d 769, 776 (Tex. Crim. App. 1989).
We measure the sufficiency of the evidence by the elements of the offense as
defined by a hypothetically correct jury charge. Cada v. State, 334 S.W.3d 766, 773
(Tex. Crim. App. 2011) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997)). Such a charge is one that accurately sets out the law, is authorized by the
indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily
restrict the State’s theories of liability, and adequately describes the particular offense for
which the defendant was tried. Id.
A person commits indecency with a child if the person engages in sexual contact
with a child younger than seventeen years of age or causes the child to engage in sexual
contact. TEX. PENAL CODE ANN. § 21.11(a)(1). As relevant here, “sexual contact” is
defined as “any touching by a person, including touching through clothing, of the anus,
breast, or any part of the genitals of a child” if the act is “committed with the intent to
arouse or gratify the sexual desire of any person[.]” Id. § 21.11(c)(1).
B. Analysis
Appellant argues that “[t]here is no legally acceptable evidence that even places
[him] at the scene of the crime at the [sic] any time. There are only confusing, incredible,
and contradictory statements and tangible evidence regarding the crime.” The State
responds that T.M.’s testimony “clearly placed [a]ppellant at the scene of the crime[,]” and
that her testimony supports “the jury’s determination that [a]ppellant acted with intent to
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arouse and gratify his sexual desires.” We agree with the State.
We give wide latitude to testimony provided by child victims of sexual abuse.
Gonzalez Soto v. State, 267 S.W.3d 327, 332 (Tex. App.—Corpus Christi 2008, no pet.).
The testimony of a child victim alone is sufficient to support a conviction for indecency
with a child. See TEX. CODE CRIM. PROC. ANN. art. 38.07 (West, Westlaw through 2017
1st. C.S.); Jones v. State, 428 S.W.3d 163, 169 (Tex. App.—Houston [1st Dist.] 2014, no
pet.); Gonzalez Soto, 267 S.W.3d at 332; Scott v. State, 202 S.W.3d 405, 408 (Tex.
App.—Texarkana 2006, pet. ref’d). “The State has no burden to produce any
corroborating or physical evidence.” Jones, 428 S.W.3d at 169. 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 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).
T.M.’s testimony establishes that appellant isolated her and provided her with
alcohol while discussing sexually explicit topics. Appellant later entered the room where
T.M. was sleeping and rubbed the inside of her genitals with his hand for approximately
five minutes. Appellant’s actions, as described by T.M., constitute sexual contact.
Further, the jury could have reasonably concluded from T.M.’s testimony that appellant
committed these acts with the intent to arouse or gratify his sexual desire. Viewing the
evidence in the light most favorable to verdict, we conclude that a rational jury could have
found that appellant committed the offense of indecency with a child. See Johnson, 364
S.W.3d at 293–94. Therefore, the evidence is legally sufficient to support appellant’s
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conviction. We overrule appellant’s sole issue.
III. CONCLUSION
We affirm the trial court’s judgment.
LETICIA HINOJOSA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
5th day of July, 2018.
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