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 was indicted for the offense of indecency with a child.1

 

A jury found him guilty of the charged offense, and the court sentenced him to fifteen 

years confinement in prison. Challenging the admission of evidence over his hearsay 

objection and the legal and factual sufficiency of the evidence, appellant appeals. We 

will affirm. 

 1

 Tex. Penal Code Ann. ' 21.11(a)(1),(c)(2) (West Supp. 2010). The indictment 

alleged that appellant Adid then and there intentionally and knowingly with the intent to 

arouse and gratify the sexual desire of any person, engage in sexual contact by 

touching the breast of [L.F.], a child younger than 17 . . . years, and 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 grandmother was asleep in her bedroom. L.F. 

watched cartoons on television in the living room. She planned to sleep on a day bed in 

that room. The front door was not locked because the grandmother 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. onto the day bed. L.F. was on her back with appellant on 

top of her. He began unbuttoning 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 examination that she was embarrassed to describe the events. 

She then agreed with the prosecutor 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 reentered 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 the bathroom. Because of a scratching sound 

on the door she believed he had a knife. L.F. told the operator that appellant tried to 

Arape@ her. She added that he removed her bra Aand everything but that=s all.@ Police 
3 

officers were dispatched to the apartment. The first officer that arrived found appellant 

in the apartment. L.F. remained in the bathroom. Appellant was handcuffed and placed 

in a patrol car. 

After hearing this and other evidence, the 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 under an abuse of discretion 

standard meaning we will uphold the trial court=s decision if it is within Athe 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 officer arrived at 1:36 a.m. and questioned 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 argue, 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 exception 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 paralleled testimony admitted elsewhere 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 testified L.F. told him appellant pulled 

down her shirt, exposed her breasts, and began touching her breasts. 

In the opinion of the officer, L.F. appeared nervous and embarrassed. As they 

talked of the occurrence, she began crying. The officer agreed L.F. was emotional. 

Another officer on the scene at the same time described L.F. as Afairly 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 testified L.F. then appeared Anervous and real 

scared.@ And she was crying. After the officers left, L.F. Acried 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 excited 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 by 
5 

Bingham v. State, 915 S.W.2d 9 (Tex.Crim.App. 1994); Gonzalez v. State, 966 S.W.2d 

804, 808 (Tex.App.BAmarillo 1998), aff'd, 3 S.W.3d 915 (Tex.Crim.App. 1999). In other 

words, an appellate court must determine whether the declarant made the statement 

Aunder such circumstances as would reasonably 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 considered, and does not render the statement 

inadmissible. McFarland, 845 S.W.2d at 846. The trial court 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 conclusion that when L.F. 

spoke with police minutes after her 911 call she was still dominated by the emotions, 

excitement, fear or pain of the event. The trial court did not abuse its discretion by 

admitting the challenged testimony of the 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.App. 2010) (plurality op.). 

In that case, the court determined the sufficiency of the evidence should be reviewed 
6 

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 evidence, we view the evidence in the light 

most favorable to the verdict to determine whether a rational fact finder could have 

found each element of the offense 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)). This 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 inferences as long as each inference is 

supported by the evidence presented at trial). The trier of fact is the sole judge of the 

weight and credibility of the evidence. Tex. Code Crim. 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 sufficiency standard considers whether the 

evidence supporting guilt, though legally sufficient, 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 great 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.App. 2006). Under that standard, the ultimate question 

is whether, considering all the evidence in a neutral light, the jury 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 review of the evidence, we could not sustain appellant’s 

contention. From our review of the entire record, the finding of appellant’s guilt was 

neither clearly wrong and manifestly unjust 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.App. 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 long as the cumulative force of all the incriminating 

circumstances is sufficient to support the conviction. Hooper, 214 S.W.3d at 13. 

Circumstantial evidence is as probative as direct evidence in establishing the guilt of an 

actor, and circumstantial evidence 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 reasonable 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 that appellant, with intent to arouse or gratify the 

sexual desire of any person, intentionally and knowingly engaged in sexual contact with 

L.F., a child younger than seventeen 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 offense committed on or after September 1, 

2009, the State need no longer prove the actor was not the 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) (West Supp. 2010). 
8 

may infer the specific intent to arouse or gratify the sexual desire of a person by 

conduct, remarks, or all the 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.BFort 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 upstairs balcony at the apartment complex. It 

appeared he was drinking beer. When she returned, two other males had joined 

appellant on the balcony. They too appeared to be drinking beer. Appellant watched 

L.F. and waved. Early the following morning appellant forced his way into the 

apartment, knocked L.F. onto a bed on her back, got on top of her, began unbuttoning 

her shirt and tore her shirt when he reached the last button. According to L.F., as he did 

so, appellant acted forcefully. Viewed in the light most favorable to the verdict, the 

evidence showed he then reached under her shirt, unclasped her bra, pulled down her 

shirt exposing her breasts, and began touching her breasts with his hands. 

L.F. told the 911 operator appellant tried 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 testimony and in his incident report, 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 weight assigned their 

testimony. Fuentes v. State, 991 S.W.2d 267, 271 (Tex.Crim.App. 1999). As such, the 
9 

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.BSan Antonio 1991, no pet.). Having considered the 

entire record in the appropriate light, we find that a rational jury could have found, 

beyond a reasonable doubt, not only that appellant touched L.F.’s breasts as alleged 

but that he did so with an intent of arousing or gratifying sexual desire. 

Finding the evidence sufficient 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.