Brandon Wayne Kempf v. the State of Texas ( 2022 )

Reversed and Acquitted and Opinion Filed June 13, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00721-CR
No. 05-21-00722-CR
BRANDON WAYNE KEMPF, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 196th District Court
Hunt County, Texas
Trial Court Cause Nos. 33158, 33159CR
MEMORANDUM OPINION
Before Justices Molberg, Reichek, and Garcia
Opinion by Justice Garcia
Appellant pleaded not guilty to two counts of indecency with a child and
waived his right to a jury. The trial court found appellant guilty of both counts and
assessed punishment at four years in prison. In a single issue, appellant now argues
the evidence is insufficient to support his convictions. As discussed below, because
we conclude there is no evidence to establish that appellant acted with the requisite
intent, we reverse and acquit.
I. BACKGROUND
Appellant was charged with two counts of indecency with a child, his son,
LK. Specifically, the indictments alleged that appellant knowingly and intentionally
engaged in sexual contact with LK by (i) contact between appellant’s hand and LK’s
genitals with the intent to arouse and gratify appellant’s sexual desire (the “Car Seat
incident”), and (ii) causing contact between LK’s foot and appellant’s genitals with
the intent to arouse and gratify appellant’s sexual desire (the “Outside incident”).
The evidence at trial reflected that appellant had a “pornography issue,” and
reached out to Gerald Welch, a member of his church, for counseling. The two had
several conversations. One day, appellant contacted Welsh in distress, and said he
was having thoughts about his young son LK. Appellant told Welsh several stories
that “didn’t make sense.” Appellant told Welch that he would pick LK up “in a
manner that [LK’s] foot would brush against appellant’s penis and arouse him.”
Appellant also told Welch that when he buckled LK in his car seat, “he touched
[LK’s] penis while a woman’s voice on the radio aroused him.” Welch stopped
asking questions because “everything else didn’t make much sense.” Appellant said
he “might do something,” but Welch did not know what that meant. Welch contacted
the police and they came to his home that night to obtain his affidavit.1
1
Welch’s recollection at trial was refreshed with his affidavit. He said the statements appellant made
to him, as reflected in the affidavit, were close, but not exactly what appellant said.
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Jamie Torrez, an officer with the Royse City Police Department, was assigned
to investigate. Torrez first interviewed appellant in his home. Torrez wore a body
camera, and a copy of the recording from that camera was admitted into evidence at
trial.
During the interview, appellant told Torrez that there were a couple of times
when he interacted with his son when his thoughts “weren’t in the right place.”
Appellant further stated that during those instances, he did not act in the most
appropriate way with his child.2 Appellant told Torrez about the Outside incident.
On that occasion, he was outside with his son, and he had a thought that his son’s
foot could rub against his penis. Appellant then picked up his son and his son’s foot
briefly passed across appellant’s penis. Officer Torrez asked appellant if he became
excited when his son’s foot grazed his penis. Appellant said he was ashamed, not
excited.
Appellant also described the Car Seat incident. At that time, he was buckling
his son into his car seat. As he did so, he heard a woman’s voice on the radio while
he was reaching between his son’s legs to buckle the car seat. Appellant stated he
was triggered by the woman’s voice, and he had a thought that he wanted his son to
be pleased by the woman’s voice. Appellant said his hand was between his son’s
2
Appellant also told Torres about other disturbing thoughts he had when rubbing lotion on the child
and when he was bathing the child. But there was no sexual contact, and the evidence about these bad
thoughts is not relevant to any of the elements of the charged offenses.
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legs for no more than two seconds and that his son was clothed in shorts and a diaper.
When Torrez asked appellant if he became aroused, appellant responded, “If I did,
it was just for a brief moment . . . Whenever it happened it was just immediate
shame.” Appellant told Torrez he was not okay with the thoughts and that his
thoughts sicken him.
Officer Torrez interviewed appellant again at the Royse City Police
Department. The recording from that interview was admitted into evidence. During
the interview, Torrez asked appellant additional questions about the incidents
described during the initial interview. When discussing the time appellant put his
son in the car seat, appellant said he was very aware that his hand was between his
son’s legs and that he was ashamed that he had the thought, “I want my son to enjoy
this.” Torrez again asked appellant if he was aroused, and appellant said he was
ashamed and disgusted and scared, but not aroused. When asked if he touched his
son’s penis, appellant said he was pulling the strap of the car seat out from in between
his son’s legs and that he only touched his son long enough to pull the strap from
between his legs.
Torrez had appellant again describe the time he picked up his son and his son’s
foot grazed appellant’s genital area. Appellant stated he was clothed, and his son
was clothed and wearing shoes. When asked if he was aroused by this, appellant said
that the sensation may have felt good very briefly as the child’s foot grazed his penis,
but that his feeling was overwhelming shame.
–4–
Appellant discussed going to counseling to deal with his intrusive thoughts.
He said that he had anxious thoughts and some of the thoughts that come into his
head scare him, but that he has not and would not hurt his son. In addition to
experiencing anxiety, appellant lost weight.
With appellant’s consent, Torrez seized appellant’s cell phone, computer,
hard drive and a thumb drive. Nothing of any evidentiary value was found on any of
the devices.
Carlie Kempf, appellant’s wife, testified that appellant confessed he had a
pornography addiction when she was eight months pregnant with LK. Appellant also
told his wife about the Outside incident; specifically, that he was aroused when LK’s
foot grazed his “private area” after appellant picked him up. Both appellant and the
child were clothed at that time.3
Appellant also told Kempf about the Car Seat incident. He said that he was
buckling LK into his car seat and was aroused by a woman’s voice on the radio.
Appellant said that he wondered if LK was also aroused by the woman’s voice.
A text message from April 7, 2018, was read into evidence in which appellant
asked for prayers as he was being left alone to care for his infant son. Specifically,
3
Appellant also told Kempf about the occasions when he had “bad thoughts” that aroused him when
he bathed LK and on one occasion when he rubbed lotion on LK’s body. As we have noted, these instances
merely involved thoughts, not sexual contact.
–5–
appellant asked for prayer that he “wouldn’t betray his wife’s trust and that all his
actions would glorify God.”
Kempf said she never saw her son’s foot touch appellant’s penis when
appellant picked up the child. She said it appeared that appellant tried to avoid having
that happen. Appellant would hold a pillow in his lap when he held his son so that
his son would not touch appellant’s genitals, because appellant would become
aroused if anything touched his penis.
Kempf further testified that it would not have been possible to buckle LK in
his car seat without making contact with the child’s clothing in his genital area.
Moreover, appellant never stated that he left his hand between LK’s legs or that he
buckled the child into the car seat because it excited him. Kempf also stated that
appellant never reported engaging in any of the described activity for the purposes
of sexual gratification for himself or for anyone else.
Kempf and appellant were divorced in 2020, and a copy of the divorce decree
was admitted into evidence. The agreed decree includes a finding of a history of
family violence. Kempf surmised that the family violence referred to the sexual
contact instances appellant relayed to her because she was not aware of any instances
in which appellant physically abused LK.
The trial court found appellant guilty of both counts of indecency with a child
and assessed punishment at four years in prison. This timely appeal followed.
–6–
II. ANALYSIS
Appellant argues that the evidence is insufficient to support the convictions.
Our sufficiency review requires viewing all the evidence in the light most favorable
to the verdict to determine whether any rational factfinder could have found the
crime’s essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319 (1979); Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017).
Because the factfinder alone judges the evidence’s weight and credibility, TEX.
CODE CRIM. PROC. ANN. art. 38.04, this standard gives full play to the factfinder’s
responsibility to resolve conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443 U.S.
at 319; Queeman, 520 S.W.3d at 622. Instead of re-evaluating the evidence’s weight
and credibility and substituting our judgment for the factfinder’s, we determine
whether the necessary inferences are reasonable based on the evidence’s cumulative
force when viewed in the light most favorable to the verdict. Murray v. State, 457
S.W.3d 446, 448 (Tex. Crim. App. 2015). We must presume that the factfinder
resolved any conflicting inferences in favor of the verdict, and we must defer to that
resolution. Id. at 448–49.
To determine whether the State has met its Jackson burden to prove a
defendant’s guilt beyond a reasonable doubt, we compare the crime’s elements as
defined by the hypothetically correct jury charge to the evidence adduced at trial.
See Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016); see also Febus
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v. State, 542 S.W.3d 568, 572 (Tex. Crim. App. 2018) (“The essential elements of
an offense are determined by state law.”). 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 restrict the State’s theories of liability, and adequately
describes the particular offense for which the defendant was tried. Jenkins, 493
S.W.3d at 599.
To prove indecency with a child under 17 years old, the State must prove that
the defendant “with the intent to arouse or gratify [his] sexual desire,” (1) engaged
in sexual contact with the child or (2) “exposed the person’s anus or any part of the
person’s genitals, knowing the child is present.” See TEX. PENAL CODE ANN. §§
21.11(a)(1), (a)(2)(A), (c). “Sexual contact” includes “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). Here, the sexual contact was inadvertent and there was no
evidence that appellant acted with the intent to arouse or gratify his sexual desire.
The trial court specifically identified the evidence it considered to
“corroborate the corpus delicti.” First, the court considered appellant’s statements to
his wife that he was holding a pillow in his lap when he held LK to prevent LK from
touching his genitals because it made him uncomfortable, and he did not want to
become aroused. The court also considered appellant’s weight loss, anxiety, and his
text for prayer when left alone with this son. Finally, the court considered the agreed
divorce decree finding that appellant had engaged in family violence.
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The State relies on Shumway v. State, __ S.W.3d __, No. 010820, 010920,
2022 WL 301737, at *10 (Tex. Crim. App. Feb. 2, 2022) “for what it stands for in
regards to the corpus delicti rule,” The Shumway decision, however, does not alter
the sufficiency analysis here.
In Shumway, appellant was convicted of indecency with a child involving a
pre-verbal 17-month-old victim. The appellant confessed to his pastor and his wife
that he pushed aside the infant’s diaper and touched her genital region with his hands,
mouth, and penis. Id. at *1. On appeal, appellant argued that the State’s evidence
was not sufficient to satisfy the corpus delicti rule. Id. Specifically, appellant argued
that his extrajudicial confessions were not legally sufficient evidence of guilt absent
evidence that a crime was committed by someone. Id. at *4.
After examining the general application of the corpus delicti rule in Texas,
the Court of Criminal Appeals recognized a “narrow exception to the strict
application of the rule when confessed conduct is committed against a child
incapable of outcry.” Id. at *6. The court held:
This exception applies in cases in which the defendant voluntarily
confessed to a sexual offense against an infant who was incapable of
outcry and that the confessed conduct did not result in any perceptible
harm. In such a case, if the record reflects sufficient corroborating facts
and circumstances of the confession itself, the reviewing courts should
uphold the confession so long as there is legally sufficient evidence
[under the Jackson standard].
Id. at *10.
–9–
In the instant case, appellant did not confess to a sexual offense. Rather, he
confessed that he had inappropriate sexual thoughts and responses. Thoughts,
however inappropriate or disturbing, do not constitute a crime.
When appellant described the Car Seat incident to Torrez, he said he was in
the process of securing the car seat when the voice on the radio aroused him.
Appellant related the same event to Welch. Appellant said that when the voice
aroused him, he had an improper thought about whether the voice affected his son
the same way. Appellant told Torrez he was ashamed that he thought “I want my son
to enjoy this.” In context, the antecedent for “this” is the voice on the radio.
Moreover, Kempf testified that appellant never said that he left his hand between his
son’s legs as he secured the seat or that he buckled the car seat because it aroused
him. Kempf also said that it was impossible to buckle the car seat without making
contact with the child’s genital area. Indeed, appellant never told Kempf that he
purposefully engaged in any of the activity he told her about for the purpose of sexual
gratification.
When he told Torrez about the Outside incident, appellant said that he thought
his son’s foot could rub against his penis when he picked him up. The record reflects
that appellant was concerned about and took steps to avoid having anything touch
his penis when he held his son. That LK’s foot actually did graze his penis when
appellant picked him up that day does not establish that appellant knowingly or
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intentionally engaged in sexual contact with the child to arouse or gratify his desire.
See TEX. PENAL CODE ANN. § 21.11(a)(1), (c).
Likewise, Welch’s testimony that appellant became aroused when his son’s
foot grazed his penis when he picked him up is insufficient to establish the requisite
mental state for the crime charged. Although Welch said appellant “would pick up
his son in such a manner,” Welch could not be certain of the exact words appellant
used when he spoke to him and described much of what appellant told him as “not
making sense.”
Indecency with a child is a “nature of conduct” offense, meaning that the State
must prove that a defendant acted with the specific intent to arouse or gratify sexual
desire. See Pizzo v. State, 235 S.W.3d 711, 717–19 (Tex. Crim. App. 2007). A
defendant’s specific intent to arouse or gratify his sexual desire can be inferred “from
the defendant’s conduct, his remarks[,] and all surrounding circumstances.”
McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. 1981). In this case,
however, the evidence does not support an inference that appellant’s actions during
the Car Seat incident or the Outside incident were undertaken with the specific intent
to arouse or gratify his sexual desire. Instead, the record shows that appellant’s
arousal during the Car Seat incident was triggered by the voice on the radio, and if
he was aroused by the Outside incident it was an unintended consequence of the
contact with his son.
–11–
The trial court considered the divorce decree, appellant’s anxiety and weight
loss, and his text for prayer as “corroborating evidence.” But we need not consider
corroborating evidence because there was no confession to a crime. See Shumway,
2022 WL 301737, at *10. And none of this evidence is indicative of intent. The
divorce decree was agreed and is not probative of whether appellant acted with the
intent to gratify his sexual desire. Likewise, it is equally plausible that appellant’s
text for prayer, weight loss, and anxiety resulted from concern about his disturbing
thoughts rather than a specific intent to commit or having committed a crime.
On this record, we conclude the evidence is insufficient to support the
convictions. We reverse the trial court’s judgment and acquit.
/Dennise Garcia/
210721f.u05 DENNISE GARCIA
210722f.u05 JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
BRANDON WAYNE KEMPF, On Appeal from the 196th District
Appellant Court, Hunt County, Texas
Trial Court Cause No. 33158CR.
No. 05-21-00721-CR V. Opinion delivered by Justice Garcia.
Justices Molberg and Reichek
THE STATE OF TEXAS, Appellee participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
REVERSED and the appellant is hereby ACQUITTED.
Judgment entered this 13th day of June, 2022.
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
BRANDON WAYNE KEMPF, On Appeal from the 196th District
Appellant Court, Hunt County, Texas
Trial Court Cause No. 33159CR.
No. 05-21-00722-CR V. Opinion delivered by Justice Garcia.
Justices Molberg and Reichek
THE STATE OF TEXAS, Appellee participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
REVERSED and the appellant is hereby ACQUITTED.
Judgment entered this 13th day of June, 2022.
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