NO. 07-00-0424 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L C DECEM BER 7, 2 001

______________________________ RICHARD HENRY PELFREY, Appellant
v. THE STATE OF TEXAS , Appellee

_________________________________ FROM THE 251 stDISTRICT COURT OF RANDALL COUNT Y; NO. 12,585-C; HON. PATRICK A. PIRTLE, PRESIDING

_______________________________ Before QUINN , REAV IS and JOHN SON, JJ. Richard Henry Pelfrey

(appellant) appeals his conviction for attempted indecency with a child. Via one issue, heconten ds that the ev idence is lega lly insufficient to supp ort hi s c on vi ct i on . W e a ff i rm. Backgr ound The victim, B .W . (an eight year old fem ale) was playing outside the apa rtment s whe re ap pellant resided on a warm May day. She was playing with her sister and tw o fri ends, when app ellan t de cide d B .W. w as cold a nd in str ucted h er s iste r togo in to h is2

apartment to retrieve a shirt for him touse to cover B .W . The sister complied and gave the shirt to appellant. Appellant sat B.W. on his lap and placed the shirt around her, buttoning it at the back. He then placed his hand on B.W.’s left thigh and on her stom ach. He began ru bbing her t high and t he outs ide of her “private p art.” B.W. bec ame uncom for

tab le and attem pted twice to get up from appellant’s lap. He continued to pull her back onto his lap and told her that she w as still cold. He continued to leave his hand on her leg and stom ach. This interaction took place for approxim ately 30 m inutes before B.W. left the lap of appellant on the pretext th at she wanted to go and play w ith her sister. B.W. late r to ld her sister and one of the friends w ho was p resentduring this incident aboutwha t a pp el la nt ha d d on e. App ro xima te ly two weeks later, B.W.’s mother learned of the incident, and she questioned B.W. about it. According to her m other, B.W. stated that appellant ha d touch ed her in t he “groin ar ea.” The St ate indic

ted app ellan t fo r ind ece ncy w ith achil d. H e ele cted to have the accusations tried by the court. The latter conv icted him of attempte d indecenc y with a child. He was sentenced to 10 years i n priso n. H oweve r, t he t rial cour t su spe nde d his sentence and placed hi m on com munity supervisi on for ten years. Ap pella nt, the n, t im ely not iced his des ire to ap pea l. Standard of Review As previously stat ed, appell ant questio ns the legal insuffi ciency of the evi dence underlying the court’s finding of guilty. I n de ter m ining w het her theevid enc e is lega lly sufficient, we review

it in the light most favorab l e to the verdict and ask whether any rational trier of fact cou ld have found the essential eleme nts of the crim e beyond a3

reasonable doubt. Ja cks on v. V irg inia , 443 U.S. 30 7, 99 S. Ct. 2781, 2789, 61 L. E d.2d 560 (1979); Johnson v. St ate , 23 S.W.3d 1, 7 (Tex.Crim .App.2000). If the answer is yes, then the evidence underlying the conviction is legally sufficient. Next, one comm its the offense of indecency w ith a child when, w ith a child under 17 years of age and not his spouse, he engages in sex ual contact with the child. T EX . P EN . C ODE A NN . §21.11(a)(1) (Verno n Supp . 2001). Furtherm ore, sexual contac t is defined as touching theanu s, b rea st, or a ny p art of t he g enit als o f another person w ith intent to arouse or gratifythe sex ual desire of any person. Id. at §21.01(2). Yet, since appellant
was fo und guilty of attem pted indecency, the evidence need not show that he actu all y engaged in sexual contact. Rat her , it suf fice s if it illu str ate s th at h e, w ith s pec ific intent to
com m ittheoff

enc e of inde cen cy w ith achil d, performed an act am ounting to m ore than
m ere preparation that tends but fails to effect the com mission of the offense intended. T EX . P EN . C ODE A NN . §15.01( a). Finally, t he re quisite int ent can be established by circumstantial evidence and inferre d from the accused’s acts, words, o r conduct. Slomba
v. State , 997 S.W.2d 781, 783 (Tex. App. --Texarkana 1999, pet . ref’d.). This includes the intent to arouse or gratify sexual desire. Cunningham v. State , 726 S.W.2d 151, 154-55 (Tex. Crim . App. 1987). Analysis Appearing of record is the following evidence. On a“hot d ay” in May, appellant sug ges ted tha t B .W. w as cold a nd s ecu red a s hirt to s upp ose dly

use as a cover f

or her. He placed the shirt around the child with thebuttons in the back, th erebyconcealing the frontof her torso and his handswhe n placed u nder theshirt. Th ereafte r, appellant set the4

child on his lap, placed his hands under the covering, and beg an touching various parts of her body such as her leg, stomac h and “up under her cut-offs. ” W hen asked about the particularareas, B.W. indicated that his hand was 1) on “her groin, ” 2) “[b] etween [her ] leg and [her] private part,” 3) “under her shor ts but on the outs ide of her panties,” and 4)
mov ing. The chil d als o sa id th at w hile h is ha nd w as o n he r leg , “[ i]t w

as r ubb ing t he s kin of [her] private.” Additionally, when the child sought to relea se herself fr om appellant’s grasp, he would tell her that she was s till cold and retain hi s hold. This occ urred ov er a thirty minute period. Fi nall y, this was not the first time appellant had been seen touching fem ale children. One witness testifi ed that she saw him place his hand unde r the dress of a not her

girl. The evidence of appellant’s inducing B.W. to sit on his lap through what could be viewed as a pretense, sec reting of his hands from pub lic v iew w hile he rubbed the chi ld’s gro in area and “pri vate” over a thi rty m inute period , refusing to release the child, and placing his hand underneath thedre ss of a not her girl p erm it on e torat iona llyinfer, beyond
reaso na ble doubt, that he acte d with the intent to arous e or gratify som eone’s sex ual desire and that

he intended to engage in sex ual contact. Indeed, w e know of no legitimate remedy to hypoth ermia (supp osedly occurring on a hot day) involving contact w ith the gro in ar ea of

th e p er so n a l l eg ed l y s uffe ri ng fr om lowered bod y tem perature. Nor has appellant sug ges ted tha t on e ex ists . Th us, thefac t-finde r was e ntit led to re aso nab ly deduce that appellant engaged in that activity w ith the requisite mens rea . So too d oes the fo regoing des cription of the evide nce evince m ore than m ere pre par atio n tointe ntio nally

tou ch t he c hild’ s ge nita lia with the requisite lascivious intent.5

Not only had he developed what could be reasonably viewed as a ruse to get the girl on his lap but also he proceeded to rub the area surrounding her groin while hiding his hands from publi c view. In short, his pl an was in action and near frui tion by t he time the girl extricated herself fromhis grasp. Si mp lyput, the fact-fi nder had befor e it some evidence upon which it could have rat iona llyconcluded, b eyond reasonable doubt, that appellant com mitted attempted indecency with a child, if not indecency itself. Thus, w e affirm thejudgm ent.

Brian Quinn Justice Do not publish.