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 242 nd DISTRICT COURT OF HALE COUNTY; NO. B18054-0905; HON. ED SELF, PRESIDING

__________________ _____________ Memorandum Opinion

_______________________ ________ Before QUINN, C.J., a nd CAMPELL and PIRTLE, JJ. Appellant David Guerrero Aguilar appeal s from his conviction for indecency with a child by contact. Via a single issue, he c ontends the evidence is factually insufficient to show that he was the person who co mmitted the offense and that he had the requisite mental state due to hi s intoxication. We affirm.Background While emptying the trash at 9 p.m., the victim, w ho was eight at the time, encountered a man in her backyard. Th e man approached her, placed his hand underneath her clothing and touched her butto cks and vagina. The girl then began knocking on the back door of her house to gai n entry. Apparently, her father had just locked it while not knowing she was ou tside. 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 appe llant and held him unt il the police arriv ed. When asked, the father testified that appellant appeared intoxicated. Issue – Factual Insufficiency According to appellant the evidence is factually, not legally, in sufficient 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 sufficien cy 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 indictm ent, appellant could be found guilty of th e offense if the State established, beyond r easonable doubt, that he engaged in sexual contact with the child. T EX

. P ENAL C ODE A NN

. §21.11 (Vernon Supp. 2009). Fu rthermore, sexual contact

2consists 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 a ssailant, the record illustrates that the offense occurred after dark as the child was retu rning from emptying the household trash. The dumpster wherein the trash was placed was located in the alley behind her house. After being touch ed, 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 daught er. Moreover, appel lant was standing adjacent to the girl. It is beyond doubt that one can be convicted on the basis of circumstantial evidence that proves bey ond 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 appell ant being the assailant was unnecessary if circumstantial evidence nonethel ess existed establishing him as same. And, such circumstantial evidence existed here, given t he aforementioned evidence. The latter is not weak. Nor does the entire evidentiary reco rd 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 se xual desire. Indeed, the court in Smock v. State , No. 11-03-00376, 2005 Tex. App. L EXIS 3612 (Tex. App.

– Eastland May 12, 2005, no pet.) (not designated for publication) (where in appellant contended that the evidence was factually insufficient to prove he had th e intent to commit burglary by committing or attempting to commit indecency with a child due to his intoxication) , found the evidence

34 factually sufficient to support conv iction even though appellant was drunk. Id. at *10. And, because one’s intent may be in ferred 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 expos ed himself with the intent to arouse or gratify the sexual des ire of any person); accord, Esquivel v. State , No. 04-06-0695-CR, 2007 Tex. App. L EXIS 8640 (Tex. App.

– San Antonio October 31, 2007, pet. dism’d) (not designated for publication) (stating that the spec ific 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 ent itled to conclude t hat appellant had the requisite specific intent to arouse and gratify his sexual des ire from the evidence that he approached the child in her bac kyard at night, slipped his hands under her clothes and touched both her genitalia and bu ttocks. Such a conclusion is not supported by weak evidence. Nor is it manifestly unjust si mply because appellant also may have been drunk. The judgment of the tria l court is affirmed.

Brian Quinn Chief Justice Do not publish.