NO. 12-10-00284-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

ERNEST LAROE MAY, § APPEAL FROM THE 159TH

APPELLANT

V. § JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE § ANGELINA COUNTY, TEXAS

 

MEMORANDUM OPINION

A jury convicted Appellant, Ernest Laroe May, of the offenses of indecency with a child 

by exposure and indecency with a child by contact. After Appellant pleaded true to two 

enhancement paragraphs contained in the indictment, the jury assessed Appellant’s punishment 

at imprisonment for ninety-nine years. Appellant presents one issue in which he contends there 

is insufficient evidence to identify him as the perpetrator of the offenses.

BACKGROUND

K.O., the father of the victim, testified that he was at his residence when his four-year-old 

daughter, C.O., came in and told him that a man took her sister, Jane Doe, age eight, into a 

nearby trailer. C.O. pointed out the trailer house to her father, K.O. K.O. knocked on the door 

and yelled for his daughter. He saw a shirtless white man wearing gold shorts run across the end 

bedroom of the trailer. The father yelled again for Jane Doe. A male voice from inside the 

trailer shouted that there was nobody there by that name. The daughter then came to the door of 

the trailer. Her father asked her what she was doing in the house. She replied that “he gave her 

five dollars.” A person K.O. identified as Appellant came out of the house and said that nothing 

had happened.
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Hudson police officer Reuben Kimball appeared while K.O. and Appellant waited 

outside Appellant’s trailer. Appellant denied to Officer Kimball that any girl had been inside his 

trailer. Kimball noted Appellant was sweating profusely.

Officer Kimball then went to K.O.’s house to talk to Jane Doe. Doe told him that a man 

came to the door and asked if she wanted to come in. She said that, when she went in, they went 

to the front bedroom where the man took off his pants. The man then showed her his penis and 

wiggled it with his hand. He touched her on the outside of her panties in an attempt to touch her 

“private part.” She told Officer Kimball that the man had a dragon and skeleton on his legs. 

Officer Kimball recovered the five dollars that Appellant had allegedly given Jane Doe from 

Jane Doe’s mother.

Officer Kimball returned to Appellant’s trailer, but, as he approached, Appellant went 

inside the trailer and shut the door. Officer Kimball knocked but got no response. He entered 

the trailer and found Appellant lying on some sheets on the floor. Appellant became 

confrontational, and Officer Kimball struggled to place handcuffs on him. 

Hudson police officer James Caspar testified that, after obtaining a search warrant, he 

took photographs of Appellant’s body. He identified the tattoos on Appellant’s legs as a Mardi 

Gras mask, a sun with radiating points, a spider web, a Joker Mardi Gras mask, and two others 

that are not identifiable.

Jane Doe testified that she was playing with her sister and a friend when a man pulled her 

inside his trailer. He paid her five dollars and took her to a bedroom where he showed her his 

wrong place and wiggled his penis at her. The man, she said, grabbed her crotch area on the 

outside of her panties. She told the court that the man had a tattoo of a fire breathing dragon on 

his right leg and tattoos of a few skeletons on his legs. The State never asked Jane Doe to 

identify Appellant as the man in question.

C.O., the victim’s little sister, testified at trial that “[t]he boy gave [Jane Doe] five 

dollars” to go in the trailer. She told the court that he pulled her into the trailer. She 

immediately ran home and told her parents what had happened and pointed out Appellant’s 

trailer as the one where her sister was. At trial, C.O. was not asked to identify Appellant. There 

is no evidence that she identified Appellant on the day of the offense. She testified to no traits or 

characteristics that might help identify the man who pulled her sister into the trailer.
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Appellant testified that at the time in question, he was in the trailer with Jason Wright 

drinking and using amphetamine. Jason Wright had tattoos of dragons and skulls on his leg, 

Appellant told the court. He steadfastly denied that Jane Doe had ever been in his trailer. 

However, he testified that Jason left when the police arrived. On cross examination, he said his 

recollection of that day’s events was good. He could not remember, however, K.O.’s calling for 

Jane Doe and knocking on his door. He denied ever seeing Jane Doe.

Appellant admitted writing several letters to the judge saying that he did not remember 

any of the events of that day. He did not remember seeing or having anyone in his trailer. 

Appellant admitted that he lied in his letters to the judge. He also admitted that he had never 

mentioned Jason to the police or in his letters to the judge.

SUFFICIENCY OF THE EVIDENCE OF IDENTITY

Appellant argues that the victim, in her testimony, never identified Appellant as the 

person who molested her. Throughout her testimony she refers to her assailant only as “that 

man.” There is no evidence that she identified him at the scene. Appellant contends the 

conglomeration of tattoos on his legs do not match the victim’s description of them as dragons 

and skeletons. The State never asked Jane Doe’s little sister to identify Appellant as the person 

who pulled Jane Doe into Appellant’s trailer. Therefore, Appellant argues there is a total lack of 

direct evidence that he committed the crime alleged.

Appellant maintains that his mere presence at the scene of the incident is insufficient to 

sustain the jury’s verdict. Neither the testimony of the father, K.O., nor that of Officer Kimball 

negated the possibility that another person was in the trailer. Therefore, Appellant argues that 

there is nothing in the record to contradict his testimony that another man with tattoos more 

nearly matching those Jane Doe described was in the trailer at the time the crime occurred.

Standard of Review

In reviewing the sufficiency of the evidence, the appellate court must determine whether, 

considering all of the evidence in the light most favorable to the verdict, the jury was rationally 

justified in finding the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 

U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 

899 (Tex. Crim. App. 2010). Considering the evidence “in the light most favorable to the 
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verdict” under this standard requires the reviewing court to defer to the jury’s credibility and 

weight determinations, because the jury is the sole judge of the witnesses’ credibility and the 

weight to be given their testimony. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Brooks, 323 

S.W.3d at 899.

Applicable Law

The State must prove beyond a reasonable doubt that the defendant is the person who 

committed the charged offense. Johnson v. State, 673 S.W.2d 190, 196–97 (Tex. Crim. App. 

1984), overruled on other grounds by Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991). 

Identity may be proved by direct or circumstantial evidence. Earls v. State, 707 S.W.2d 82, 85 

(Tex. Crim. App. 1986). When there is no direct evidence of the perpetrator’s identity elicited at 

trial, no formalized procedure is required for the State to prove identity as an element of an 

offense. Roberson v. State, 16 S.W.3d 156, 167 (Tex. App.–Austin 2000, pet. ref’d); Sepulveda 

v. State, 729 S.W.2d 954, 957 (Tex. App.–Corpus Christi 1987, pet. ref’d). For the purpose of 

proving guilt beyond a reasonable doubt, direct and circumstantial evidence are equally 

probative. McGee v. State, 774 S.W.2d 229, 238 (Tex. Crim. App. 1989). The sufficiency of 

the evidence is determined from the cumulative effect of all the evidence; each fact in isolation 

need not establish guilt. Alexander v. State, 740 S.W.2d 749, 758 (Tex. Crim. App. 1987). The 

absence of in-court identification does not render the evidence insufficient if there is other 

evidence sufficient to identify the defendant as the perpetrator. Couchman v. State, 3 S.W.3d 

155, 162 (Tex. App.–Fort Worth 1999, pet. ref’d).

Discussion

The victim’s little sister pointed out to her father, K.O., the trailer that her sister had 

entered. After a great deal of knocking on the trailer door, his daughter emerged followed 

shortly by Appellant who told K.O. that nothing happened. However, this was only after K.O. 

had seen a white man running through the bedroom in shorts. Appellant admitted he had been 

wearing shorts that day. The two came to the door only after someone in the house had yelled

that there was no Jane Doe in there. When her father asked her what she was doing in the trailer, 

Jane Doe told her father that “he gave me five dollars.” Later, Appellant denied Jane Doe had 

ever been in his trailer.

The jury’s refusal to believe Appellant’s testimony is understandable and well warranted. 
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His testimony contradicted not only that of the State’s witnesses but also contradicted what he 

had previously claimed. Appellant admitted that he lied in the letters he wrote the judge. He 

admitted that he had never before mentioned Jason Wright’s presence in the trailer to either the 

police or the judge. The jury was entitled to consider the Jason story as a fiction contrived in 

desperation.

The father’s testimony regarding the circumstances surrounding his discovery of his 

daughter in the trailer with Appellant, her explanation that she was there because “he gave me 

five dollars,” which she still had, her description of Appellant’s tattoos, and the photographs of 

the tattoos, taken together, are sufficient evidence to circumstantially prove that Appellant was 

the person who exposed himself and touched the child. Appellant’s sole issue is overruled.

DISPOSITION

The judgment of the trial court is affirmed.

BILL BASS

 Justice

Opinion delivered March 31, 2011.

Panel consisted of Worthen, C. J., Griffith, J., and Bass, Retired J., Twelfth Court of Appeals, sitting by assignment.

(DO NOT PUBLISH)