NO. 07-09-0294-CR 

 

IN THE COURT OF APPEALS 

FOR THE SEVENTH DISTRICT OF TEXAS 

 AT AMARILLO 

 PANEL D 

APRIL 22, 2010 

 ______________________________ 

DAVID GUERRERO AGUILAR, 

 Appellant 

 v. 

THE STATE OF TEXAS, 

 Appellee 

 _______________________________ 

FROM THE 242nd DISTRICT COURT OF HALE COUNTY; 

NO. B18054-0905; HON. ED SELF, PRESIDING 

 _______________________________ 

Memorandum Opinion

 _______________________________ 

Before QUINN, C.J., and CAMPELL and PIRTLE, JJ. 

 Appellant David Guerrero Aguilar appeals from his conviction for indecency with 

a child by contact. Via a single issue, he contends the evidence is factually insufficient 

to show that he was the person who committed the offense and that he had the 

requisite mental state due to his intoxication. We affirm. 
Background

 While emptying the trash at 9 p.m., the victim, who was eight at the time, 

encountered a man in her backyard. The man approached her, placed his hand 

underneath her clothing and touched her buttocks and vagina. The girl then began 

knocking on the back door of her house to gain entry. Apparently, her father had just 

locked it while not knowing she was outside. Upon his opening the door, he 

encountered a distraught daughter and appellant next to her. No one else was seen. 

 The child ran inside and told her mother what had occurred. Upon hearing this, 

the child’s father struck appellant and held him until the police arrived. When asked, 

the father testified that appellant appeared intoxicated. 

Issue – Factual Insufficiency

 According to appellant the evidence is factually, not legally, insufficient to identify 

him as the assailant since no one directly testified that he was the person who touched 

the child. Rather, the evidence simply placed him in the backyard, next to the girl when 

her father opened the door. So too does he question the factual sufficiency of the 

evidence illustrating that he had the requisite mens rea to commit the offense since he 

was drunk. We overrule each contention. 

 The standard of review for factual sufficiency issues is well established. We refer 

the parties to Watson v. State, 204 S.W.3d 404 (Tex. Crim. App. 2006) for its 

explanation. 

 As charged by the indictment, appellant could be found guilty of the offense if the 

State established, beyond reasonable doubt, that he engaged in sexual contact with the 

child. TEX. PENAL CODE ANN. §21.11 (Vernon Supp. 2009). Furthermore, sexual contact 

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consists of touching "any part of the genitals of a child" with "intent to arouse or gratify 

the sexual desire of any person." Id. §21.11(c). 

 As for the dispute regarding appellant’s identity as the assailant, the record 

illustrates that the offense occurred after dark as the child was returning from emptying 

the household trash. The dumpster wherein the trash was placed was located in the 

alley behind her house. After being touched, the child grew scared and attempted to 

enter her house. When her father responded to her knocking, appellant was the only 

one he saw in the yard, other than his daughter. Moreover, appellant was standing 

adjacent to the girl. It is beyond doubt that one can be convicted on the basis of 

circumstantial evidence that proves beyond reasonable doubt that appellant committed 

that with which he was accused. Laster v. State, 275 S.W.3d 512, 520-21(Tex. Crim. 

App. 2009). So direct evidence of appellant being the assailant was unnecessary if 

circumstantial evidence nonetheless existed establishing him as same. And, such 

circumstantial evidence existed here, given the aforementioned evidence. The latter is 

not weak. Nor does the entire evidentiary record render the verdict manifestly wrong or 

unjust. 

Regarding the matter of appellant’s mens rea, evidence of his intoxication did not 

ipso facto render factually insufficient the jury’s finding that he touched the child with the 

intent to arouse or gratify someone’s sexual desire. Indeed, the court in Smock v. 

State, No. 11-03-00376, 2005 Tex. App. LEXIS 3612 (Tex. App.–Eastland May 12, 2005, 

no pet.) (not designated for publication) (wherein appellant contended that the evidence 

was factually insufficient to prove he had the intent to commit burglary by committing or 

attempting to commit indecency with a child due to his intoxication), found the evidence 

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factually sufficient to support conviction even though appellant was drunk. Id. at *10. 

And, because one’s intent may be inferred from his conduct and words, Shamm v. 

State, 280 S.W.3d 271, 277 (Tex. App.–Amarillo 2007, no pet.) (involving whether the 

State sufficiently proved that appellant exposed himself with the intent to arouse or 

gratify the sexual desire of any person); accord, Esquivel v. State, No. 04-06-0695-CR, 

2007 Tex. App. LEXIS 8640 (Tex. App.–San Antonio October 31, 2007, pet. dism’d) (not 

designated for publication) (stating that the specific intent to arouse or gratify the sexual 

desire of any person can be inferred from the defendant’s conduct, remarks and the 

surrounding circumstances), the jury was entitled to conclude that appellant had the 

requisite specific intent to arouse and gratify his sexual desire from the evidence that he 

approached the child in her backyard at night, slipped his hands under her clothes and 

touched both her genitalia and buttocks. Such a conclusion is not supported by weak 

evidence. Nor is it manifestly unjust simply because appellant also may have been 

drunk. 

The judgment of the trial court is affirmed. 

 Brian Quinn 

 Chief Justice 

Do not publish.