Gabriel Marquez v. State ( 2020 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-19-00138-CR
GABRIEL MARQUEZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 47th District Court
Potter County, Texas
Trial Court No. 073515-A-CR, Honorable Dan Schaap, Presiding
April 16, 2020
MEMORANDUM OPINION
Before QUINN, C.J., PIRTLE, and DOSS, JJ.
Gabriel Marquez appeals his conviction for indecency with a child by sexual
contact. His sole issue concerns the sufficiency of the evidence underlying the verdict of
guilty. He questions whether the evidence proved he touched his stepdaughter’s breast
on different occasions with the requisite intent to arouse or gratify the sexual desire of
any person. According to the victim, the first instance occurred as she attempted to sleep
on a couch. Appellant placed his hand under her shirt and rested it atop one of her
breasts. Her bra lay between his hand and her breast. The incident lasted a “couple of
minutes,” and she was fourteen years old at the time. The second instance occurred
about a year later and after appellant returned from delivering the victim’s mother to work.
The victim was again laying on the couch when appellant “laid with” her. He attempted
to remove her belt, met with no success, and then placed his hand under her shirt and
atop her bra and breast. His hand again remained there for a couple of minutes. We
affirm.
A person commits a crime if, “with a child younger than 17 years of age, . . . [he]
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 2019). The legislature defined “sexual
contact” as “any touching by a person, including touching through clothing, of the anus,
breast, or any part of the genitals of a child” if done “with the intent to arouse or gratify
the sexual desire of any person.” Id. § 21.11(c)(1). The standard of review we apply in
assessing whether appellant committed this crime was described in Braughton v. State,
569 S.W.3d 592, 607–08 (Tex. Crim. App. 2018), and we apply it here.
Again, appellant only questions whether the State proved his touching the minor
on the breast was done with the intent to arouse or gratify sexual desire. We previously
said that the aforementioned intent may be inferred from a defendant’s conduct and the
surrounding circumstances. Ryder v. State, 514 S.W.3d 391, 396–97 (Tex. App.—
Amarillo 2017, pet. ref’d). An oral expression of intent need not be shown. Abbott v.
State, 196 S.W.3d 334, 340–41 (Tex. App.—Waco 2006, pet. ref’d).
An accused’s moving his hand in a circular motion atop a child’s breast has been
held as sufficient evidence to permit a rational jury to reasonably infer, beyond reasonable
doubt, that the action occurred with the intent to arouse and gratify sexual desire. See,
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e.g., Fetterolf v. State, 782 S.W.2d 927, 933 (Tex. App.—Houston [14th Dist.] 1989, pet.
ref’d). Though appellant seems to acknowledge that, he would have us conclude that
evidence of mere touching without attendant motion does not support a like inference.
Yet, in making that argument, he fails to address other circumstances illustrated by the
record. For instance, to touch the breast in both instances, he had to expend effort to
achieve his goal. That effort included working his hand under the victim’s shirt during the
first occasion while attempting initially to unfasten the minor’s belt before working his hand
up her shirt on the second. So too did both instances happen at a time when the victim
appeared vulnerable to his efforts, that is, while she slept or attempted to sleep on the
couch. And, most importantly, his hand lay atop the breast for several minutes on both
occasions. The totality of these circumstances was and is sufficient to permit a rational
fact-finder to reasonably infer, beyond reasonable doubt, that appellant engaged in the
sexual contact with the requisite intent to arouse his sexual desire.
We overrule the sole issue and affirm the judgment of the trial court.
Brian Quinn
Chief Justice
Do not publish.
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