Affirmed and Memorandum Opinion filed May 14, 2019.

In The 

Fourteenth Court of Appeals 

NO. 14-17-00802-CR

JAMES ALSUP HILL, Appellant 

V.

THE STATE OF TEXAS, Appellee 

On Appeal from the 56th District Court 

Galveston County, Texas 

Trial Court Cause No. 16-CR-2042 

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

 Appellant James Alsup Hill challenges his conviction for indecency with a 

child, asserting that the State’s proof on each element of the offense is insufficient 

to support his conviction. We affirm. 

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant, walking cane-assisted on his daily neighborhood stroll, stopped 

for a rest on a bench in front of a daycare center. Next door, Eric, a new resident 
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in the neighborhood, was doing yard work. Appellant had introduced himself to 

Eric before. Gordon,1 Eric’s eleven-year old stepson, was outside playing and 

helping Eric with chores. When Gordon noticed appellant resting on a swinging 

bench outside in his neighbor’s yard, he offered to get him water. Appellant 

accepted, and when Gordon gave appellant the water he asked if appellant would 

like to come inside and watch television to get out of the heat. According to 

Gordon, appellant responded, “I haven’t seen your room,” and proceeded in 

unsuccessful attempts to open the back gate himself. Gordon told appellant to go 

through the garage instead. As Eric was busy mowing the lawn, Eric did not see 

Gordon show appellant inside their home. 

A short time later Gordon ran out of the house alone “extremely upset” and 

“crying.” Eric noted these “are two things that never happen with this kid.” 

Between his emotion and tears Gordon reported to Eric that appellant had been 

inappropriate with him in the house. 

Gordon’s family made a complaint and the League City Police Department 

investigated. An indictment followed, charging appellant with indecency with a 

child. The jury found appellant guilty and assessed his punishment. The trial court 

sentenced appellant to four years’ confinement. 

In a single appellate issue, appellant challenges the sufficiency of the 

evidence to support his conviction for indecency with a child. 

II. SUFFICIENCY OF THE EVIDENCE

In evaluating a challenge to the sufficiency of the evidence, we view the 

evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 

103, 111 (Tex. Crim. App. 2000); Torres v. State, 424 S.W.3d 245, 251 (Tex. 

 

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 To protect the privacy of the child-complainant, we identify him by the pseudonym 

“Gordon.” 
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App.—Houston [14th Dist.] 2014, pet. ref’d). The issue on appeal is not whether 

we, as a court, believe the State’s evidence or believe that appellant’s evidence 

outweighs the State’s evidence. Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim.

App. 1984). Rather, the verdict may not be overturned unless it is irrational or 

unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 

839, 846 (Tex. Crim. App. 1991). The trier of fact is the sole judge of the 

credibility of the witnesses and of the strength of the evidence. Fuentes v. State, 

991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The trier of fact may choose to 

believe or disbelieve any portion of the witnesses’ testimony. Sharp v. State, 707 

S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with conflicting evidence, 

we presume the trier of fact resolved conflicts in favor of the prevailing party. 

Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Therefore, if any 

rational trier of fact could have found the essential elements of the crime beyond a 

reasonable doubt, we must affirm. See Jackson v. Virginia, 443 U.S. 307, 319, 99 

S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); McDuff v. State, 939 S.W.2d 607, 

614 (Tex. Crim. App. 1997). 

A person commits the offense of indecency with a child if the person 

“engages in sexual contact with the child or causes the child to engage in sexual 

contact.” See Tex. Penal Code Ann. § 21.11(a)(1). “Sexual contact” is an act 

committed with “the intent to arouse or gratify the sexual desire of any person,” 

and includes a person’s “touching through clothing of . . . any part of the genitals 

of a child.” See Tex. Penal Code Ann. § 21.11(c)(1). The indictment alleged that 

on or about June 13, 2016, when Gordon was a child younger than 17, appellant 

engaged in sexual contact with Gordon by touching the genitals of Gordon with an 

intent to arouse or gratify the sexual desire of appellant. 

At trial, Gordon, his mother, and his stepfather (Eric) testified, along with 
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two investigating police officers. Appellant did not testify at trial. 

Gordon, who was twelve years old at the time of trial, testified in detail 

about his encounter with appellant, describing the event as follows: 

Q. So he sits on the -- Mr. Hill sits down on your bed. What happens 

next? 

A. I put the remote down and then he grabs me.

Q. How does he grab you?

A. By the elbow.

Q. And after he grabs you, what happens next?

A. He pulls me on his lap. 

Q. And when you are sitting on his lap, what happens? 

A. He starts rubbing my genitals. 

Q. Okay. And what do you do? 

A. Try to get back up. 

Q. And are you able to get back up? 

A. No, ma'am. 

Q. And do you remember what you guys were talking about? What 

was Mr. Hill saying to you? 

A. “Is it big.” 

Gordon testified that he did not know what appellant meant by that question. 

Gordon further explained that the rubbing he described occurred over his clothes, 

and that appellant persisted in controlling Gordon’s hand to make Gordon touch 

appellant’s genitals. Gordon explained that he resisted, and ultimately managed to 

leave by telling appellant he had to go to the bathroom. Gorton testified that 

appellant responded “Okay. Be quick.” Gordon said he did not go to the bathroom 

but instead went outside to see Eric. 

As Gordon’s outcry witness, Eric testified that Gordon told him that 

appellant “was touching him inappropriately” and that “he needed [Eric] to help 
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him.” Eric further testified Gordon told him that “[appellant] made [Gordon] touch 

him inappropriately.” According to Eric, Gordon reported that “[appellant] sat 

down on the bed and he pulled him down next to him and wouldn’t let [Gordon] up 

and that he made [Gordon] touch his private area.” Eric testified that while 

Gordon was telling him these things, he saw appellant exit the house “rushing” in a 

way that made it seem like appellant did not need the cane. 

Eric testified he did not call Gordon’s mother immediately after the incident 

because he did not want her to have a car accident on the way home. Eric testified 

that he tried to get Gordon to calm down, to make it through the rest of the 

afternoon until Gordon’s mother arrived home from work. Eric testified that he 

called the police department directly and left a voice message reporting the 

incident. The police could not confirm receipt of the message. When Gordon’s 

mother arrived, she learned of the incident, picked up her keys, and directed 

everyone to the car to go to the police department. As the three walked outside, 

appellant was walking down the street. At trial, Gordon’s mother testified about 

her exchange with appellant: 

Q. So you see Mr. Hill walking. Is he walking towards you or away 

from you? 

A. Towards our house. 

Q. Towards your house. What happens next? 

A. I got really pissed off, and I ran up to him. 

Q. And did you confront him about something? 

A. I did. 

Q. And what did he say in response? 

A. He said, "Yes, I did." 

Q. And did he say anything else? 

A. I said several things to him and he kept saying "yes" and that he 

was sorry and I had said that he needed to get off of the street, he 
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couldn't be around my house, my son anymore. And he said he didn't 

have to, it was his street. 

Q. And what happened after that? 

A. I'm sure I said some other curse words and we got in the car and 

we drove straight to the police department. 

Q. And at the police department did you make a report? 

A. Yes. 

Eric testified that he overheard appellant apologize to Gordon’s mother and 

say that he had problems. When asked if Gordon had ever had any issues as far as 

his credibility, Eric answered, “No. He's a kid. But he'll be honest if you ask him 

direct questions. And sometimes he'll volunteer honest answers even if you don't.”

The jury could have relied on Gordon’s testimony alone to find the requisite 

elements of touching and intent to arouse or gratify appellant or Gordon. See Tex. 

Code Crim. Proc. Ann. art. 38.07; Sansom v. State, 292 S.W.3d 112, 122–23 (Tex.

App.--Houston [14th Dist.] 2008, pet. ref'd) (“The uncorroborated testimony of a 

child victim, standing alone, is sufficient to support a conviction for indecency 

with a child.”); see also Bautista v. State, 474 S.W.3d 770, 776 (Tex. App.—

Houston [14th Dist.] 2014, pet. ref'd) (finding child-complainant’s testimony 

sufficient for conviction even in the absence of physical evidence or a prior history 

of sexual abuse by defendant). Although courts consider the testimony of childcomplainants with an understanding that they may not relay events with the same 

clarity and ability as is expected of adults, Gordon’s testimony is not lacking in 

clarity. See Carr v. State, 477 S.W.3d 335, 340 (Tex. App.—Houston [14th Dist.] 

2015, pet. ref'd). 

Appellant contends that the only evidence of the contact for which he was 

charged — the touching of Gordon’s genitals — was Gordon’s own testimony, 

cited above, which appellant sums up as a statement that appellant “started rubbing 
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my genitals . . . over my clothes.” To the extent appellant raises an issue as to 

whether the sexual contact occurred under Gordon’s clothes or through them, it 

does not matter. The statutory definition of the offense specifically includes 

touching “through clothing.” See Tex. Penal Code Ann. § 21.11(c)(1). 

Accordingly, the jury was free to credit this evidence to find that the requisite 

statutory physical contact occurred. See Tex. Code Crim. Proc. Ann. art. 38.07; 

Sansom v. State, 292 S.W.3d 112, 122–23 (Tex. App.—Houston [14th Dist.] 2008, 

pet. ref’d).

Appellant also contends that the lack of evidence showing he had a history 

of grooming Gordon or of inappropriate contact with Gordon suggests an 

insufficiency of proof. The requisite intent to arouse or gratify the sexual desire of 

a person can be inferred from conduct, remarks, and all the surrounding 

circumstances. Gregory v. State, 56 S.W.3d 164, 171 (Tex. App.—Houston [14th 

Dist.] 2001, pet. granted). The law does not require proof of grooming or prior 

inappropriate contact.

Appellant also complains that the record lacks evidence showing what part 

of appellant’s body rubbed Gordon, what position the two were in when the 

rubbing happened, or the duration of the rubbing event. Appellant contends these 

were “essential” facts. Appellant has not cited any authority to support this 

argument, and the Texas Penal Code does not provide that such facts are 

“essential” to the offense charged. See Tex. Penal Code Ann. § 21.11(a), (c)(1). 

Appellant’s duration-of-contact contention is based on Morgan, a case in 

which the child-complainant testified that the defendant had picked her up, touched 

her “where she goes to the bathroom” for a duration that was “pretty quick,” and 

ultimately denied on direct examination that “rubbing” occurred. See Morgan v. 

State, 692 S.W.2d 877, 878 (Tex. Crim. App. 1985) (stating that absent other 
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evidence of extraneous acts, “we would be compelled to agree that the evidence is 

insufficient.”). Gordon testified that appellant grabbed him by his elbow and that 

appellant pulled him to his lap—that is where the factual similarities with the 

Morgan case end. Unlike the complainant in Morgan, Gordon unequivocally 

testified that appellant began rubbing his genitals above his clothing, that appellant 

asked “if it was big,” and commandeered Gordon’s hand toward his own genitals. 

Gordon did not deny on direct examination that “rubbing” occurred. The facts of 

this case differ significantly from the facts in Morgan. See id. Thus, to the extent 

appellant contends the contact was not shown to be anything other than accidental, 

the record evidence shows otherwise. Based on the evidence, the jury reasonably 

could have concluded that the contact was not accidental and that appellant acted 

with an intent to arouse or gratify himself or Gordon. 

Appellant contends that the record contains no evidence of “any sexual 

comments or suggestions to Gordon.” Even putting aside appellant’s “Is it big?” 

inquiry, we could find no factual or legal merit in this argument. The statute 

requires no oral expression of intent. Gregory v. State, 56 S.W.3d 164, 171 (Tex. 

App.—Houston [14th Dist.] 2001, pet. granted). Appellant also argues the lack of 

evidence of an erect penis suggests the lack of specific intent. This argument also

lacks merit. Id. (“Nor is there a requirement that a male offender’s penis be 

erect”). The jury was free to conclude from appellant’s “Is it big?” inquiry in the 

context of the rubbing, that appellant had an intent to arouse or gratify. Likewise, 

the jury was free to consider the evidence of appellant’s apology to Gordon’s 

mother and Eric’s testimony as to the speed of appellant’s departure following 

Gordon’s outcry as probative evidence of appellant’s guilt. See Yost v. State, 222 

S.W.3d 865, 877 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d) (holding that 

defendant’s statements in letter sent from jail that “I am sorry for everything” and 
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“please forgive me” were circumstance indicating guilt); Clayton v. State, 235 

S.W.3d 772, 780 (Tex. Crim. App. 2007) (stating that a “factfinder may draw an 

inference of guilt from the circumstance of flight”).

III. CONCLUSION

We conclude the evidence is sufficient on each of the essential elements of 

appellant’s indecency-with-a-child conviction. Accordingly, we overrule 

appellant’s sole appellate point and affirm the judgment of the trial court.

 

 

 /s/ Kem Thompson Frost

 Chief Justice

Panel consists of Chief Justice Frost and Justices Zimmerer and Hassan.

Do not publish — TEX. R. APP. P. 47.2(b).