NO. 07-09-00151-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D APRIL 15, 2011

JULIAN VASQUEZ, APPELLANT

v. THE STATE OF TEXAS, APPELLEE

FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2008-421,066; HONORABLE CECIL G. PURYEAR, JUDGE

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

MEMORANDUM OPINION Appellant Julian Vasquez wa s indicted for the offense of indecency with a child. 1 A jury found him guilty of t he charged offense, and the c ourt sentenced him to fifteen years confinement in prison. Challenging the admission of evidence over his hearsay objection and the legal and fact ual sufficiency of the evidenc e, appellant appeals. We will affirm.

1 Tex. Pena l Code Ann. ' 21.11(a)(1),(c)(2) (West S upp. 2010). The indictment alleged that appellant A did then and there int entionally and knowingly with the intent to arouse and gratify the sexual desire of any person, engag e in sexual contact by touching the breast of [L.F.], a child younger than 17 . . . years, an d not the spouse of the said defendant. @2 Background Early in the morning of July 20, 2008, L. F., a thirteen-year-old girl, and her eightyear-old cousin were at the apartment of L.F. = s grandmother. The cousin was asleep on a couch in the living room and the grandmo ther was asleep in her bedroom. L.F. watched cartoons on television in the living r oom. She planned to sl eep on a day bed in that room. The front door wa s not locked because the grandm other expected a friend to drop by with food. After hearing knocking on a living room window, L.F. opened the front door expecting her grandmother = s friend. Instead, appellant pushed his way into the apartment and knocked L.F. ont o the day bed. L.F. was on her back with appellant on top of her. He began unbuttoni ng her shirt and at the final button ripped her shirt. Appellant reached into L.F. = s shirt and unhooked her bra. He touched her chest. L.F. acknowledged on direct examin ation that she was embarrass ed to describe the events. She then agreed with the prosec utor that appellant touched her in the area of her chest covered by her bra. L.F. kicked and pushed appellant and he left the apartment. She did not lock the apartment door but grabbed her cell phone and ran to the bathroom. Locking the bathroom door, she called 911. Appellant reent ered the apartment through the unlocked front door. The 911 operator received L.F. = s call at 1:24 a.m. L.F. reported appellant was back in the apartment and trying to enter th e bathroom. Because of a scratching sound on the door she believed he had a knife. L.F. told the oper ator that appellant tried to

A rape @ her. She added that he removed her bra A and everything but that = s all. @ Police3 officers were dispatched to the apartment. The first officer that arrived found appellant in the apartment. L.F. remained in the bat hroom. Appellant was handcuffed and placed in a patrol car. After hearing this and other evidence, t he jury found appellant guilty of indecency with a child. Appellant timely appealed. Analysis In his first issue, appellant argues the trial court erred by admitting certain hearsay statements of L.F. over his objection.

We review the trial court = s evidentiary rulings un der an abuse of discretion standard meaning we will uphold the trial court = s decision if it is within A the zone of reasonable disagreement. @ Montgomery v. State, 810 S.W.2d 372, 390-91 (Tex.Crim.App. 1990) (op. on reh = g). Appellant was in the apartment and L.F. in the bathroom when the first police officer arrived. Another offi cer arrived at 1:36 a.m. and ques tioned L.F. At trial, the court overruled appellant = s hearsay objection to the officer = s recount of L.F. = s depiction of appellant’s actions. The State did not ar gue, and the court did not express, a ground for admission of the testimony. 2 Appellant requested and was granted a running objection.

2 We will affirm the trial court = s evidentiary ruling if the evidence is admissible on any ground. Kipp v. State, 876 S.W.2d 330, 337 (Tex.Crim.App. 1994). In their briefs, the parties focus on the excited utterance exc eption to the hearsay rule as the basis for admission of the officer = s testimony. See Tex. R. of Evid. 803(2).4 According to the officer, he asked L.F. to tell him what happened, beginning with the moment she initially had contact with appellant. He then recalled L.F. = s depiction. This included details of appellant = s entering the apartment and pushing L.F. onto the bed. The description parallel ed testimony admitted elsewher e without objection. But the officer = s recall of what happened next in the sequence was clearer and more detailed than L.F. = s trial testimony. The officer testif ied L.F. told hi m appellant pulled down her shirt, exposed her breasts , and began touching her breasts. In the opinion of the offi cer, L.F. appeared nervous an d embarrassed. As they talked of the occurrence, she began crying. The officer agreed L.F. was emotional. Another officer on the scene at t he same time described L.F. as A fairly calm @ but shaking. She cried as they spoke. After speaking with police, L.F. spoke with her grandmother, who remained in her bedroom on oxygen. Her grandmother testifi ed L.F. then appeared A nervous and real scared. @ And she was crying. Afte r the officers left, L.F. A cried on and off all night. @ She described L.F. as quiet and shy but added her granddaughter liked to laugh and have fun. Texas Rule of Evidence 803(2) provides that a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition is not excluded by the hearsay rule . The critical factor in determining whether a statement is an excit ed utterance is whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event. McFarland v. State, 845 S.W.2d 824, 846 (Tex.Crim.App. 1992) overruled on other grounds by5 Bingham v. State, 915 S.W.2d 9 (Tex.C rim.App. 1994); Gonzalez v. State, 966 S.W.2d 804, 808 (Tex.App.

B Amarillo 1998), aff'd, 3 S.W.3d 915 (Tex.Crim.App. 1999). In other words, an appellate court must determine w hether the declarant made the statement

A under such circumstances as would reasonabl y show that it resulted from impulse rather than reason and reflection. @ Zuliani v. State, 97 S.W.3d 589, 596 (Tex.Crim.App. 2003) (quoting Fowler v. State, 379 S.W.2d 345, 347 (Tex.Crim. App. 1964)). The time elapsed between the occurrence of the event and the utterance is one factor considered in determining the admissibility of the utterance. That the declaration was a response to questions is likewise only one factor cons idered, and does not render the statement inadmissible. McFarland, 845 S.W.2d at 846. The trial c ourt may also consider the nature of the declarant and whether the statement is self-serving. Apolinar v. State, 155 S.W.3d 184, 186-87 (Tex.Crim.App. 2005). The trial court heard evidence supporting a reasonable conclusi on that when L.F. spoke with police minutes after her 911 call she was still dominat ed by the emotions, excitement, fear or pain of the event. T he trial court did not abuse its discretion by admitting the challenged testimony of t he interviewing officer. Appellant = s first issue is overruled. By his second issue, appellant challenges the legal and factual sufficiency of the evidence tending to establish that he acted with intent to arouse or gratify the sexual desire of any person. Since appellant’s brief was filed, the Texas Court of Criminal Appeals decided Brooks v. State, 323 S.W.3d 893 (Tex.Crim.A pp. 2010) (plurality op.). In that case, the court determined the suffi ciency of the evidence should be reviewed6 only under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). 3 In reviewing the sufficiency of the eviden ce, we view the evidence in the light most favorable to the verdic t to determine whether a rati onal fact finder could have found each element of the offens e beyond a reasonable doubt. Swearingen v. State, 101 S.W.3d 89, 95 (Tex.Crim.App. 2003); Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App. 2001) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). Th is standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. See also Hooper v. State, 214 S.W.3d 9, 15 (Tex .Crim.App. 2007) (juries are permitted to draw multiple reasonable in ferences as long as each inference is supported by the evidence present ed at trial). The trier of fa ct is the sole judge of the weight and credibility of the evidence. Tex. Code Cr im. Proc. Ann. art. 38.04 (West 1979); Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim. App. 2000). Thus, when reviewing the sufficiency of the evidence, we may not re-evaluate the weight and

3 The previously-applied factual suffi ciency standard considers whether the evidence supporting guilt, though legally sufficien t, is so weak that the jury’s verdict seems clearly wrong and manifestly unjust, or evidence contrary to the verdict is such that the jury’s verdict is against the gr eat weight and preponderance of the evidence. Grotti v. State, 273 S.W.3d 273, 283 (Tex.Crim.App. 2008); Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.A pp. 2006). Under that standar d, the ultimate question is whether, considering all the evidence in a neutral light, the ju ry was rationally justified in finding guilt beyond a reasonable doubt. Grotti, 273 S.W.3d at 283. Even had we applied such a standard to revi ew of the evidence, we c ould not sustain appellant’s contention. From our review of the entire record, the find ing of appellant’s guilt was neither clearly wrong and manifestly unju st nor against the great weight and preponderance of the evidence.7 credibility of the evidence and substitute our judgment for that of the fact-finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.A pp. 1999). We resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App. 2000). Each fact need not point directly and independently to the guilt of the appellant, as l ong as the cumulative forc e of all the incriminating circumstances is sufficient to support the conviction. Hooper, 214 S.W.3d at 13. Circumstantial evidence is as pr obative as direct evidence in establishing the guilt of an actor, and circumstantial ev idence alone can be sufficient to establish guilt. Id. On appeal, the same standard of review is used for both circumstantial and direct evidence

cases. Id. If, however, based on all the evidence , a reasonably-minded jury must necessarily entertain a reas onable doubt of the defendant’ s guilt, due process requires that we reverse and order a judgment of acquittal. Swearingen, 101 S.W.3d at 95 (citing Narvaiz v. State, 840 S.W.2d 415, 423 (Tex.Crim.App. 1992)). To convict appellant for indecency with a child as indicted, it was for the State to prove beyond a reasonable doubt t hat appellant, with intent to arouse or gratify the sexual desire of any person, intentionally and knowingl y engaged in sexual contact with L.F., a child younger than se venteen years and not appellant = s spouse, by touching her breast. See Tex. Penal Code Ann. ' 21.11(a), (c) (West Supp. 2010). 4 The trier of fact

4 By amendment applicable for an offens e committed on or after September 1, 2009, the State need no longer prove the actor was not t he spouse of the victim. Rather, a marital relationship between the actor and victim is now an affirmative defense. See Tex. Penal Code Ann. ' 21.11(a),(b-1) (W est Supp. 2010).8 may infer the specific intent to arouse or gratify the se xual desire of a person by conduct, remarks, or all t he surrounding circumstances. See Bowles v. State, 550 S.W.2d 84, 85 (Tex.Crim.App. 1977); Tyler v. State, 950 S.W.2d 787, 789 (Tex.App.-- Fort Worth 1999, no pet.). No oral expression of the actor’s intent is required; intent may be inferred from the conduct itself. Connell v. State, 233 S.W.3d 460, 471 (Tex.App.

B Fort Worth 2007, no pet.).

L.F. testified that earlier in the day on July 20, as she took out her grandmother = s trash, she noticed appellant on an upstair s balcony at the apartment complex. It appeared he was drinking beer. When she re turned, two other males had joined appellant on the balcony. T hey too appeared to be drinking beer. Appellant watched L.F. and waved. Early the following morn ing appellant forced his way into the apartment, knocked L.F. onto a bed on her back, got on t op of her, began unbuttoning her shirt and tore her shirt when he reached the la st button. According to L.F., as he did so, appellant acted forcefully. Viewed in t he light most favorabl e to the verdict, the evidence showed he then reached under her shirt, unclasped her bra, pulled down her shirt exposing her breasts, and began touc hing her breasts with his hands. L.F. told the 911 operator appellant tr ied to rape her, and added he removed her bra. Although the details of appellant’s touching of L.F. were described somewhat differently in the interviewing officer’s testim ony and in his incident r eport, and L.F.’s trial testimony was less explicit than her description to the interviewing officer, the jury was the exclusive judge of the credibility of the witnesses and the we ight assigned their testimony. Fuentes v. State, 991 S.W.2d 267, 271 (Tex.Crim.App. 1999). As such, the9 jury was free to accept or reject any part of a witness’s testimony. Alvarado v. State, 818 S.W.2d 100, 105 (Tex.App.

B San Antonio 1991, no pet.). Having considered the entire record in the appropriate light, we fi nd that a rational jury could have found, beyond a reasonable doubt, not onl y that appellant touched L. F.’s breasts as alleged but that he did so with an intent of arousing or gr atifying sexual desire. Finding the evidence suffici ent to support the jury = s verdict, we overrule appellant = s second issue.

Conclusion Having overruled each of appellant = s issues, we affirm the judgment of the trial court.

James T. Campbell Justice Do not publish.