Gregory v State

• Decision Date: 05 July 2001
• Docket Number: Nos. 14-99-01125-CR,s. 14-99-01125-CR
• Citation: Gregory v State, 56 S.W.3d 164 (Tex. App. 2001)
• Parties: <!--56 S.W.3d 164 (Tex.App.-Houston 2001) GLENN GORDON GREGORY, Appellant v. THE STATE OF TEXAS, Appellee - 14-99-01128-CR Court of Appeals of Texas, Houston (14th Dist.)
• Court: Texas Court of Appeals

Page 164

56 S.W.3d 164 (Tex.App.-Houston [14th Dist.] 2001)

GLENN GORDON GREGORY, Appellant v THE STATE OF TEXAS, Appellee

Nos. 14-99-01125-CR - 14-99-01128-CR

Court of Appeals of Texas, Houston (14th Dist.)

July 5, 2001.

Rehearing Overruled Sept. 13, 2001

On Appeal from the 228th District Court Harris County, Texas Trial Court Cause Nos. 807,645; 807,644; 807,643; & 807,642

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[Copyrighted Material Omitted] Panel consists of Justices Yates, Wittig, and Frost.

MAJORITY OPINION

Kem Thompson Frost, Justice

Appellant, Glenn Gordon Gregory, appeals four convictions for indecency with a child, consolidated and tried together. We affirm.

I. Factual and Procedural History

Appellant, Glenn Gordon Gregory, was accused by his granddaughter (L.G., age 11), his step-granddaughter (S.S., age 9), and a neighbor (M.A., age 11) of inappropriate sex acts, alleged to have occurred in March 1997. His granddaughter complained that appellant had touched her breasts and her genitals. His step-granddaughter complained that appellant rubbed his penis on her vagina and had other inappropriate sexual contact with her. His granddaughter and the neighbor further complained that appellant exposed his penis to them while at his house on Easter weekend in 1997.

Appellant denied all the charges, except for the exposure to his granddaughter and neighbor, which he maintained was an unintentional exposure in which his penis was visible to them through a hole in his shorts. Appellant claimed the incident occurred while he was drinking and that when he realized the problem, he immediately turned himself around to rectify the situation.

In April 1997, the police investigated the allegations of appellant's granddaughter. At that time, no determination was made as to their merit because appellant's step-granddaughter failed to corroborate the granddaughter's account and denied appellant had done anything improper to her. Later, appellant's step-granddaughter accused both her stepfather and appellant of sexual abuse, but subsequently determined that only appellant had sexually abused her and that she had merely dreamed her stepfather had. All three girls gave similar accounts of the Easter weekend incident where appellant's penis was exposed to them through his shorts. Appellant's granddaughter and the neighbor claimed that when the exposed penis was called to appellant's attention, he pulled it out further.

During the course of the investigation, appellant participated in an interview conducted by a Houston police officer (Julie Anderson) at the Children's Assessment Center. Following the interview, appellant was charged with the felony offenses of (1) indecency with a child by exposing himself (in two indictments); (2) aggravated sexual assault of a child; and (3) indecency with a child by sexual contact. In response to appellant's motion to consolidate, the trial court consolidated all four cases for trial to one jury. The jury convicted appellant of two offenses of indecency with a child by exposing himself and two offenses of indecency with a child by sexual contact.¹ The jury assessed punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for ten years for the indecency with a child by sexual contact offenses and at confinement for five years plus a $2,500 fine for the indecency with a child by exposure offenses. The trial court ordered all sentences to run concurrently.

II. Issues Presented for Review

Appellant challenges his conviction by raising nine points of error. In the first four, he claims the trial court erred in (1) denying his motion for mistrial after an investigating officer testified that she offered appellant a polygraph test; (2) admitting into evidence a videotaped interview of appellant; (3) overruling appellant's objections to admission of extraneous offenses based on the State's purported failure to provide proper notice; and (4) allowing S.S.'s mother to testify as to S.S.'s outcry statement. In his fifth through seventh points of error, appellant complains the evidence is legally and factually insufficient to establish any "intent to arouse and gratify," an essential element of each of the charged offenses. In his eighth and ninth points of error, appellant complains the trial court erred in overruling his objections to the testimony of a nurse the State called as an expert because (1) the witness lacked the qualifications to render expert testimony, and (2) the testimony was inadmissible hearsay.

III. Legal and Factual Sufficiency

We begin by addressing appellant's fifth through seventh points of error, in which he complains that the evidence was legally and factually insufficient to support a conviction for indecency with a child as to the element of "intent to arouse or gratify the sexual desire" of appellant.²

In reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and decide whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Wilson v. State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). We accord great deference "'to the responsibility of the trier of fact [to fairly] resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.'" Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996) (quoting Jackson, 443 U.S. at 319). We presume that any conflicting inferences from the evidence were resolved by the jury in favor of the prosecution, and we defer to that resolution. Id. n.13 (citing Jackson, 443 U.S. at 326). In our review, we determine only whether "'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (quoting Jackson, 443 U.S. at 319).

The elements of indecency with a child are either: (1) engaging in sexual contact³ with a child under seventeen years and not his spouse; or (2)(a) exposing the anus or any part of the genitals, (b) with the intent to arouse or gratify the sexual desire of any person, and (c) knowing that a child under seventeen years, and not his spouse, is present. Tex. Pen. Code Ann. § 21.11(a) (Vernon Supp. 2001). Appellant complains only about sufficiency of the evidence as to the intent element for both categories of indecency. Arguing there was no evidence he "was sexually aroused or gratifying his sexual desire when he allegedly did the acts complained of and set out in the indictments," appellant points to the following: (1) L.G. could not recall what appellant's "private" was like; (2) there was no evidence appellant's penis was ever erect, that appellant masturbated or that he ejaculated during any of the alleged encounters; (3) S.S. testified appellant's penis "felt soft" when appellant rubbed it on her "private"; (4) it is more likely than not that appellant's "alleged conduct was induced to satisfy needs other than sexual desire or gratification, e.g., the need to dominate or gratify others;" and (5) the uncontradicted evidence established that appellant was 61 years old, married, had a normal sex life with his wife, and neither found children sexy nor considered himself sexy to eight, nine, or ten-year old girls.

The requisite specific intent to arouse or gratify the sexual desire of a person can be inferred from conduct, remarks, or all the surrounding circumstances. Robertson v. State, 871 S.W.2d 701, 705 (Tex. Crim. App. 1993). An oral expression of intent is not required. C.F. v. State, 897 S.W.2d 464, 472 (Tex. App.--El Paso 1995, no pet.). Nor is there a requirement that a male offender's penis be erect. Barker v. State, 931 S.W.2d 344, 346-47 (Tex. App.--Fort Worth 1996, pet. ref'd).

L.G. testified that the sexual contact with appellant began when she was in the third grade. She recounted how appellant (1) touched her breasts and genitals, underneath her clothing; (2) asked her to touch his naked genitals, though she did not recall what they looked like; (3) asked her to dance naked, which she did; and (4) told her she should not tell anyone of these events. L.G. and M.A. both observed appellant's exposed penis while they were inside his house, and when the girls called the matter to his attention, appellant pulled his penis out further.

S.S. testified that appellant woke her up at night, pulled down her underwear, and rubbed his penis on her vagina. This sexual activity occurred throughout the house and sometimes while appellant was unclothed. S.S. explained how appellant "took his private and put it in mine a little bit and rubbed it." She initially told no one about these incidents because appellant threatened her, and she feared getting into trouble.

Appellant initially told Officer Anderson that he had never exposed himself to L.G. and M.A., but, at trial, admitted that he had exposed himself, inadvertently. He testified that he did not intentionally touch L.G.'s vagina, but that while lying with her on a couch, she moved his hand down into her pants.

From this testimony, the jury could have inferred that appellant touched or exposed himself to the victims for his own sexual gratification or arousal. See Brown v. State, 871 S.W.2d 852, 856 (Tex. App.--Corpus Christi 1994, pet. ref'd). That appellant instructed the children not to reveal the events to anyone shows a consciousness of wrongdoing, which, in turn, leads to an inference that when he touched or exposed himself to children as he did, appellant harbored a specific intent to arouse and gratify his own sexual desire. See Montgomery v. State, 810 S.W.2d 372, 396 (Tex. Crim. App. 1990).

Moreover, to the extent the girls' testimony contradicts that of appellant's, the jury as the trier of fact, had the...