McKenzie v. State

• Decision Date: 20 May 1981
• Docket Number: No. 2,No. 60032,60032,2
• Citation: 617 S.W.2d 211
• Parties: Don R. McKENZIE, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 211

617 S.W.2d 211

Don R. McKENZIE, Appellant, v. The STATE of Texas, Appellee.

No. 60032.

Court of Criminal Appeals of Texas, Panel No. 2.

May 20, 1981.

Rehearing Denied July 1, 1981.

Robert O. Smith, Austin, for appellant.

Ronald Earle, Dist. Atty. and Bill White, Asst. Dist. Atty., Austin, Robert Huttash, State's Atty., Austin, for the State.

Before DALLY, W. C. DAVIS and CLINTON, JJ.

OPINION

CLINTON, Judge.

This is an appeal from a conviction for indecency with a child, denounced by V.T.C.A., Penal Code § 21.12(a)(1), ¹ aided by the definition of "sexual conduct" in id., § 21.01(2). ² A jury found appellant guilty as charged and, rejecting his application for probation, assessed punishment at six years confinement.

An essential element of the offense of indecency with a child is the mental state that accompanies the forbidden conduct: the specific intent to arouse or gratify the sexual desire of any person. Victory v. State, 547 S.W.2d 1 (Tex.Cr.App.1976); Clark v. State, 558 S.W.2d 887, 891 (Tex.Cr.App.1977). In his first ground of error appellant contends there is "no evidence" ³ that such an intent joined his conduct at issue. ⁴ A recitation of the facts is in order, and because they are not seriously disputed we draw freely from the presentation by appellant, elaborating details when germane.

September 18, 1977, during the late morning hours of that Sunday, one six and two seven year old girls ⁵ were playing around a commercial area on Burnet Road in Austin. Open for business near the residence of one girl was a convenience store where they bought "an Icee and stuff." Though closed, neighboring buildings, one of which was called the Promenade Center, housed a "Gibson's," a "Cleaners" and offices; behind them two story duplex units under construction were attended by a security guard, one James Carter Wilhelm. Karen had on a shirt and pants, to be distinguished from a skirt, and under them she was wearing panties.

The girls were approached by a man in a car who told them he was looking for a lost dog and there was a reward of twenty five dollars for finding it; he asked them to help and Karen and Megan agreed, but Becky went to the house.

For some time, perhaps thirty minutes, usually on directions from the man, the two girls walked to and fro while the man drove around in his car, meeting them at various locations behind one building or another. The first time was behind the "Cleaners." At one point near the Promenade Center the man left his car and asked Karen to take off her tennis shoes and let him look at them, representing that he wanted his daughter to get some. The he directed them to go to the nearby unfinished construction site where he would drive to meet them. After they all arrived he pointed out an apartment for Megan to look into for the dog, while he and Karen went to another one. There he suggested climbing some stairs to the second floor; once there they were shortly accosted by Wilhelm who, having heard the sound of their movements, ⁶ had come to investigate. The man, when asked his business, represented he was thinking about renting a duplex, and Wilhelm pointed out the rental office in another building and went back to his station, hearing the sounds of their departing promptly thereafter. ⁷

Still purportedly looking for the dog, the man told Karen and Megan to go with him back behind the Cleaners. Once again, as she was sitting on a "bench" and Megan was standing nearby on "a long piece of wood," the man asked Karen to remove her tennis shoes, which she did. Kneeling down before her, the man remarked that he was "a child's doctor," was going "to see if she were clean," undid her pants, pulled them down to knee level and touched her "in front there," ⁸ demonstrating to the jury with one of her favorite dolls that it was "(r)ight here (indicating)." ⁹

The incident was over in a moment. The man told her and Megan to go, got in his car and parted saying, "I'll meet you tomorrow about 2:00 o'clock...." Denying she felt "scared" after he touched her, Karen said, "I felt silly at the first."

Appellant was identified by Karen and Wilhelm as the man. No other witness to the events could or did. ¹⁰ Appellant did not present any defensive testimony.

Now, in asserting "no evidence" of the requisite intent to arouse or gratify his sexual desire, which the jury was charged it must believe from the evidence beyond a reasonable doubt, appellant reports that exhaustive research has not discovered any prior decision under the old law ¹¹ there being none on sufficiency of evidence since enactment of the present penal code when the brief was filed in the trial court ¹² "where there was not some evidence of lascivious intent," ¹³ and argues that the proof here is devoid of that kind of evidence. ¹⁴ In its turn the State points to old Article 535c, indecent exposure to a child, and cases deciding sufficiency issues under it which held "lascivious intent can be inferred from the defendant's conduct," ¹⁵ it reads Ball v. State, supra, differently than appellant, and argues that the "scenario in the instant case lends itself to a similar interpretation." ¹⁶ While the specific intent may be derived from inferences, the closeness of the factual issue before us must be conceded. ¹⁷

The primary constant we note is that the man directed the girls to go to and meet him at some particular location; they always walked while he drove in his car never were the girls invited to, nor did they, ride with him. From this, competing inferences occur, but when that circumstance is coupled with another common characteristic one begins to believe that the man was avoiding being seen with the girls in areas where the members of the public might be on that Sunday morning. Thus, every location to which he directed the girls was invariably behind a building ¹⁸ except the duplexes then under construction, where presence of other persons was unlikely.

The next point of significant conduct by the man is the whole scene at the construction site. First, he manages to separate the two girls, sending Megan to one unit by herself and taking Karen to another, and climbing stairs to a second story. Thus he farther isolated Karen and, for the first time ever, made physical contact with her: he placed his hands around her waist and lifted her up to look in the "basement," ostensibly for a lost dog. Though Wilhelm seems not to have seen this movement, he was informed immediately upon inquiry that the man was looking around with the thought of renting nothing about a lost dog. Then, again according to Karen, as they were leaving with Megan, the trio went by Wilhelm and this time the man said he may want to rent and also had the conversation about a lost dog and one Wilhelm had seen by the Promenade Center. A perfectly reasonable inference from all of this is that the first explanation to Wilhelm in the unfinished unit was a pretext and the second conversation purely a cover to coincide with what he had been telling the girls the venture was about. A jury could at this point deduce that neither stated purpose was real, and the whole thing a ruse.

From the Promenade Center, they met again behind the Cleaners, the first location to which the man had initially directed the girls. (Had he been all along scouting the territory and, evicted from the duplex unit, decided to return to the rear of the Cleaners?) Here the bit about having Karen take off her shoes becomes an intriguing piece of the entire business. She had already earlier removed them once for his inspection while they were near the Promenade Center the first time. Such a repetition of professed inordinate interest in a child's tennis shoes surely suggests that it too is a ploy with something else in mind.

So, when the man kneels down in front of the shoeless child, makes a statement of what he is going to do in order "to see if she is clean" ¹⁹ and touches her genitalia, and then promptly rises to leave immediately in his car, a permissible deduction is that he did so with the intent to arouse and gratify his own sexual desire.

Finally, his parting comment, that he would meet Karen the next day at a given time, indicates clearly that this forty one year old man had in mind a repeat performance one having nothing to do with a lost dog or renting a duplex.

We adhere to the general proposition reiterated in Bowles v. State, 550 S.W.2d 84 at 85-86, and hold that in a prosecution under § 21.11(a)(1) as well as one pursuant to § 21.11(a)(2), the requisite specific intent to arouse or gratify the sexual desire of any person can be inferred from the defendant's conduct, his remarks and all surrounding circumstances. See also Turner v. State, 600 S.W.2d 927 (Tex.Cr.App.1980). Accordingly, we find that the State discharged its burden of proving, and that the jury had before it sufficient evidence to support its conclusion that the man, who it found to be appellant, touched the genitals of Karen with the specific intent to arouse and gratify his sexual desire. The first ground of error is overruled. Turner v. State, supra, and Bowles v. State, supra.

In his second ground of error appellant complains that the trial court erred in overruling his motion for a directed verdict at the close of evidence. Particularly, appellant contends that since he did not testify, the State, having elicited from its witnesses his representation that he was a child's doctor and his remark that he wanted to or was going to see "if she were clean" as he touched the genitals of Karen, had the burden of proving their falsity. He cites Otts v. State, 135 Tex.Cr.R. 304, 116 S.W.2d 1084 (1938); commendably acknowledges that Simon v. State, 480 S.W.2d 439 (Tex.Cr.App.1972) is "contra;" and says Grady v. State, 466 S.W.2d 770 (Tex.Cr.App.1971) is distinguishable. For its part, the State naturally relies on Simon v. State, supra, and Asner v. State, 138 Tex.Cr.R. 420, 136 S.W.2d 822 (1939),...