Affirmed and Memorandum Opinion filed January 31, 2012.

In The

Fourteenth Court of Appeals

NO. 14-11-00064-CR

NO. 14-11-00065-CR

NO. 14-11-00066-CR

ROLANDO MALDONADO GARCIA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 177th District Court

Harris County, Texas

Trial Court Cause Nos. 1284893, 1290775 & 1290776

M E M O R A N D U M O P I N I O N

Appellant Rolando Maldonado Garcia was convicted by a jury of one count of 

aggravated sexual assault of a child and two counts of indecency with a child by sexual 

contact. The trial court assessed appellant‘s punishment for the conviction for aggravated 

sexual assault of a child at thirty-five years‘ incarceration and fifteen years‘ incarceration 

for each count of indecency with a child, to run consecutively. Appellant challenges the 

legal sufficiency of the evidence supporting his convictions for indecency with a child. 

We affirm.
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BACKGROUND

Noemi Orellano Garcia moved from El Salvador to the United States in 1994. 

Garcia met appellant in December 1995. Garcia‘s son, K.C., was about two and one-half 

years old when he came to the United States at the beginning of 1996. Garcia and 

appellant started sharing a home in 1996, and married in February 1997. Garcia and 

appellant separated in 2004 or 2005, after Garcia found out that appellant was bisexual or 

homosexual and cheated on her with men during their marriage. Garcia continued to let 

appellant take care of her children. 

K.C., who was seventeen at the time of the trial, testified the first incident with 

appellant occurred when he was in the fifth grade. The family had been watching a 

movie, and K.C.‘s sisters had fallen asleep. Appellant told K.C. that he wanted to hug 

him and started talking to K.C. about sex and touching K.C.‘s penis inside his clothes. At 

first, K.C. thought it was normal because appellant was teaching him about sex. The next 

incident occurred when appellant woke K.C. on a Sunday to have K.C. shower with him 

where he touched K.C.‘s penis. Appellant told K.C. he had ―to do it back and he did it to 

me . . . .‖ This made K.C. feel ―[p]retty uncomfortable.‖ Appellant would take showers 

with K.C. once a week. K.C. never told Garcia that appellant was taking showers with 

him because he thought she knew. 

The first time appellant put his mouth on K.C.‘s penis was when K.C. was in the 

sixth or seventh grade before they took a shower. ―It was the same almost every Sunday. 

[Appellant] would wake me up first and then he would go over and get in bed with me 

and then he will touch my penis. And then . . . he just went down and put his mouth on 

my penis.‖ Appellant had K.C.‘s penis in his mouth for ten minutes at a time. Appellant 

put K.C.‘s penis in his mouth five times. Appellant would touch K.C.‘s penis two or 

three times a week for ―an hour or 30 minutes‖ at a time. 

When he was thirteen, K.C. went to live with his father in Maryland. K.C realized 

that what appellant was doing to him was not right because when he was with his father, 
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he ―was surrounded by a lot of guys and [he] learned some stuff is wrong.‖ When K.C. 

returned from Maryland, appellant continued to touch his penis. K.C. did not tell Garcia 

because he thought it was going to affect his sisters and that they would hate him for 

telling. K.C. did not tell appellant to stop because he thought appellant was going to 

threaten him. K.C. was embarrassed and scared.

After K.C. returned from Maryland, appellant took him fishing. Appellant took 

his and K.C.‘s clothes off, started kissing K.C. on the mouth, touching K.C.‘s penis, and 

putting his mouth on it. When K.C. realized that what appellant was doing to him was 

wrong, he tried to avoid appellant. K.C. eventually told Garcia about the abuse in 2009.

K.C. testified that only once did appellant say he was touching K.C. to teach him about 

sex. Garcia took K.C. to the Children‘s Assessment Center (CAC) where a forensic 

interviewer interviewed K.C. 

Micky Stephens Miller with the Houston Police Department juvenile sex crimes 

observed the interview with K.C. at the CAC and believed a potential offense had 

occurred. Miller then interviewed appellant. According to Miller, appellant was nervous 

and had a ―smirk on his face.‖ Appellant claimed he had only touched K.C. in a fatherly 

way. Appellant admitted that he had taken baths with K.C. until he was ten years old, but 

denied taking baths with his own daughters. Appellant‘s taking baths with K.C. until he 

was ten years old ―raised a red flag‖ with Miller. Miller believed that appellant was lying 

about most of what he was telling her. Appellant ―basically admitted to some of the 

things that were being accused,‖ but was trying to ―make it less than what it really is.‖ 

Appellant said he touched K.C, but he explained that because K.C. was sexually active,

he was trying to teach K.C ―about how he shouldn‘t be with girls and they‘ll give him 

diseases and things like that.‖ Appellant told Miller that he was trying to give K.C.

sexual instructions. 

Appellant admitted at trial that he touched K.C. on the penis and, at the time, he 

thought ―it was normal.‖ Appellant explained that he ―just wanted teach him about, you 
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know, being a man,‖ although he also testified that he did not touch K.C. for sexual 

instruction. Appellant stated that he had taken showers with K.C. since ―he was a little 

kid,‖ from age three to age ten. Appellant thought it was ―normal‖ to take showers with 

K.C, although he denied taking K.C.‘s penis in his hand in the shower or washing K.C.‘s 

private area or having K.C. wash his private area. Appellant stopped taking showers with 

K.C. when he went to live with his father, and did not take showers with K.C. when he 

returned. Appellant denied putting his mouth on K.C.‘s penis. 

Appellant did not tell Garcia that he was giving K.C. lessons on sex because he 

did not think it was necessary. Appellant testified that he did not tell K.C. not to tell 

anyone what he was doing or threaten him that if he did tell someone he would punish 

him. Appellant claimed that he did not touch K.C. for sexual gratification. 

The jury found appellant guilty of aggravated sexual assault of a child and two 

counts of indecency with a child by sexual contact. The trial court assessed punishment 

at thirty-five years‘ incarceration for the conviction for aggravated sexual assault of child 

and fifteen years‘ incarceration for each conviction for indecency with a child, to run 

consecutively. This appeal followed. 

ANALYSIS

In his two issues on appeal, appellant contends that the evidence is legally 

insufficient to support his two convictions for indecency with a child because the State 

did not prove that he had the requisite intent to arouse or gratify his sexual desire. 

We review the sufficiency of the evidence in this case under a rigorous and proper 

application of the Jackson v. Virginia, 443 U.S. 307 (1979), legal sufficiency standard. 

Brooks v. State, 323 S.W.3d 893, 906 (Tex. Crim. App. 2010) (plurality opinion). When 

reviewing the sufficiency of the evidence, we view all of the evidence in the light most 

favorable to the verdict and determine, based on that evidence and any reasonable 

inferences from it, whether any rational fact finder could have found the elements of the 

offense beyond a reasonable doubt. Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. 
5

App. 2011); see also Jackson, 443 U.S. at 319. The jury is the exclusive judge of the 

credibility of witnesses and the weight to be given to the evidence. See Isassi v. State, 

330 S.W.3d 633, 638 (Tex. Crim. App. 2010). Further, we defer to the jury‘s 

responsibility to fairly resolve or reconcile conflicts in the evidence. Id. We draw all 

reasonable inferences from the evidence in favor of the verdict. Id. This standard applies 

to both circumstantial and direct evidence. Id.

To prove that appellant committed the offense of indecency with a child by 

contact, the State had to establish that appellant engage in sexual contact with K.C., a 

child younger than seventeen, by touching his genitals with the intent to arouse or gratify 

his sexual desire. TEX. PENAL CODE ANN. § 21.11 (West 2011). The requisite specific 

intent to arouse or gratify can be inferred from the defendant‘s conduct and remarks and 

all the surrounding circumstances. McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. 

App. 1981); Bazanes v. State, 310 S.W.3d 32, 40 (Tex. App.—Fort Worth 2010, pet. 

ref‘d); Villanueva v. State, 209 S.W.3d 239, 246 (Tex. App.—Waco 2006, no pet.). A 

stated expression of intent is not required; the conduct itself is sufficient to infer intent. 

Bazanes, 310 S.W.3d at 40; Villanueva, 209 S.W.3d at 246. The testimony of a child 

victim alone is sufficient to support a conviction for indecency with a child. Navarro v. 

State, 241 S.W.3d 77, 81 (Tex. App.—Houston [1st Dist.] 2007, pet. ref‘d); Connell v. 

State, 233 S.W.3d 460, 467 (Tex. App.—Fort Worth 2007, no pet.). 

K.C. testified about the numerous incidents of appellant‘s touching his penis. 

Appellant admitted that he touched K.C.‘s penis, although he tried to characterize such 

conduct as done in a ―fatherly way.‖ Despite appellant‘s insistence that touching K.C.‘s 

penis and showering with K.C. was ―normal,‖ the jury could infer that, from appellant‘s 

repeated incidents of touching K.C. over a number of years, and his failure to tell Garcia 

what he was doing to K.C., appellant‘s actions were taken with the specific intent to 

arouse or gratify his sexual desires. See Connell, 233 S.W.3d at 467 (observing that the 

complainant testified that ―the rubbing of his bottom occurred  ̳a lot more than once‘‖ and 
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noting that ―[e]vidence of a common pattern of similar acts is admissible as tending to 

prove intent‖). Although appellant denied at trial that he touched K.C.‘s penis for his 

own sexual gratification, an admission of such intent is not necessary to find that 

appellant engaged in that conduct with the specific intent to arouse or gratify his sexual 

desires. See Couchman v. State, 3 S.W.3d 155, 163 (Tex. App.—Fort Worth 1999, pet. 

ref‘d) (holding evidence was legally sufficient to support a finding that appellant acted 

with intent to arouse or gratify his sexual desire where he claimed that he touched the 

complainant‘s genitals for ―hygienic purposes‖ and denied that he touched her with 

sexual intent). Here, the jury was the sole judge of the credibility of the witnesses and 

the weight to be given the evidence. See Isassi, 330 S.W.3d at 638. 

Appellant argues there is direct evidence of his legitimate intent because K.C. 

testified that, on at least one occasion, appellant was teaching him about sex. However, 

K.C. testified that it was only ―[j]ust one time‖ that appellant told K.C. that he was 

touching him in order to teach him about sex. K.C. testified as to numerous occasions 

over several years that appellant touched him without offering the excuse that it was for 

educational purposes.

Viewing all of the evidence in the light most favorable to the verdict, we hold that 

the evidence is legally sufficient to show that appellant engaged in sexual contact with 

K.C. with the specific intent to arouse or gratify his sexual desires. See Bazanes, 310

S.W.3d at 40–41 (holding that evidence was sufficient to support a finding that the 

appellant acted with the intent to arouse or gratify his sexual desire where he tried to kiss 

the complainant, put his tongue in her mouth, put his hand under her underwear and 

touched her genitals, put his hand under her shirt and touched her breast, and took her 

hand and placed it on his penis); Connell, 233 S.W.3d at 467 (holding that the jury could 

infer that touching the complainant‘s anus was done with the intent to arouse and gratify 

the appellant‘s sexual desire where he massaged the complainant‘s bottom to help him 

sleep, touched his anus on one occasion, pulled the complainant‘s boxers down during 
7

those massages, and touched his genitals during a ―knot‖ check). We overrule 

appellant‘s first and second issues.1 

Having overruled both of appellant‘s issues, we affirm the trial court‘s judgment.

/s/ Sharon McCally

Justice

Panel consists of Chief Justice Hedges and Justices Jamison and McCally.

Do Not Publish — TEX. R. APP. P. 47.2(b).

 

1 Although not raised as a separate issue, appellant appears to complain that, without citation to 

the record, the charge for aggravated sexual assault of a child should have been tried separately from the 

charges for indecency with a child. However, because the record does not show that appellant objected to 

the consolidation of the charges for prosecution or requested a severance, appellant has waived any 

complaint on appeal. See Darling v. State, 262 S.W.3d 913, 915 (Tex. App.—Texarkana 2008, pet. 

ref‘d); Gaffney v. State, 940 S.W.2d 682, 686 (Tex. App.—Texarkana 1997, pet. ref‘d); Wedlow v. State, 

807 S.W.2d 847, 851 (Tex. App.—Dallas 1991, pet. ref‘d).