COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-11-00363-CR

FERNANDO RUIZ APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY

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MEMORANDUM OPINION1

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A jury convicted Appellant Fernando Ruiz of indecency with a child by 

exposure. The trial court sentenced him to eight years’ confinement. Appellant 

brings two issues on appeal, challenging the sufficiency of the evidence to prove 

his intent to arouse or gratify a person’s sexual desire and arguing that the trial 

court improperly admitted “extraneous evidence.” Because the evidence is 

sufficient to support Appellant’s conviction and the trial court did not abuse its 

 

1See Tex. R. App. P. 47.4.
2

discretion by admitting evidence of extraneous acts of misconduct, we affirm the 

trial court’s judgment.

Appellant and the complainant, A.R., were next door neighbors. A.R. was 

a fourteen-year-old female. Appellant is and was an adult male. He had told 

both A.R. and her mother that he loved them. Appellant had tapped on A.R.’s 

window a couple of nights.

One day, she was sitting on a tree stump alone in her backyard. Through 

a missing slat in the fence, A.R. saw Appellant pull his penis out of his pants and 

begin “moving it around.” A.R. used a cell phone she had with her to record a 

video of Appellant moving his penis. A.R. called the police from inside her home. 

The State had the video enhanced, and the video was admitted into evidence. At 

trial, when A.R. described the incident, she also testified that Appellant had 

exposed his genitals to her more than five times before that incident.

In his first issue, Appellant contends that the evidence is insufficient to 

support his conviction because it is insufficient to prove that he intended to 

arouse and gratify any person’s sexual desire. In our due-process review of the 

sufficiency of the evidence to support a conviction, we view all of the evidence in 

the light most favorable to the verdict to determine whether any rational trier of 

fact could have found the essential elements of the crime beyond a reasonable 

doubt.2

 

2

Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);

Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
3

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.3 The trier of fact is the sole judge of 

the weight and credibility of the evidence.4 Thus, when performing an evidentiary 

sufficiency review, we may not re-evaluate the weight and credibility of the 

evidence and substitute our judgment for that of the factfinder.5 Instead, we 

“determine whether the necessary inferences are reasonable based upon the 

combined and cumulative force of all the evidence when viewed in the light most 

favorable to the verdict.”

6

 We must presume that the factfinder resolved any 

conflicting inferences in favor of the verdict and defer to that resolution.7

The standard of review is the same for direct and circumstantial evidence 

cases; circumstantial evidence is as probative as direct evidence in establishing 

the guilt of an actor.8 In determining the sufficiency of the evidence to show an 

appellant=s intent, and faced with a record that supports conflicting inferences, we 

 

3

Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Isassi, 330 S.W.3d at 638.

4See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Brown v. State, 

270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075 

(2009).

5Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

6Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007).

7

Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Isassi, 330 S.W.3d at 638.

8

Isassi, 330 S.W.3d at 638; Hooper, 214 S.W.3d at 13.
4

Amust presume—even if it does not affirmatively appear in the record—that the 

trier of fact resolved any such conflict in favor of the [verdict], and must defer to 

that resolution.@

9

A.R. testified that Appellant had exposed his penis to her on more than 

five occasions. On the date in question, she saw Appellant move his penis from 

side to side. She also testified that he would say “creepy stuff” over the fence. 

The “creepy stuff” included statements such as “I love you, baby” or “I dream of 

you at night.” He would say similar things to A.R.’s mother. In addition to the 

testimony describing Appellant’s words, actions, and demeanor, the jury had the 

opportunity to view the video of Appellant’s act of exposing himself. Applying the 

appropriate standard of review, we hold that the evidence was sufficient to permit 

a rational jury to find beyond a reasonable doubt that when Appellant exposed 

himself in front of A.R., he did so with intent to arouse or gratify his own sexual 

desire as alleged in the indictment.10

In his second issue, Appellant argues that the trial court abused its 

discretion by admitting extraneous offense evidence over his timely objection. 

Before trial, Appellant received notice of the State’s intent to offer evidence of 

extraneous bad acts. Appellant objected to their admission into evidence on 

notice grounds before trial and generally when the evidence was first admitted. 

 

9Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991).

10See Tex. Penal Code Ann. § 21.11(a)(2) (West 2011).
5

The trial court overruled the objections, issued a timely limiting instruction, and 

allowed Appellant a running objection after overruling his general objection.

On appeal, Appellant argues that the trial court abused its discretion by 

admitting the evidence because the State offered it to show character conformity. 

Appellant contends that, while the bad acts may have been admissible to defeat 

a defensive theory, in the case now before this court, he had set up no defensive 

theory and had not even cross-examined A.R. He argues that as a 

consequence, there was no defensive theory to rebut. The State is correct that 

Appellant’s objection on appeal does not conform to his objection at trial.11

Appellant has therefore forfeited his issue. In the interest of justice, we point out 

that the evidence was properly admitted as evidence of the relationship between 

the parties to show Appellant’s intent.12 We therefore overrule Appellant’s 

second issue.

Having overruled both of Appellant’s issues, we affirm the trial court’s 

judgment.

LEE ANN DAUPHINOT

 

11See Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009) 

(“Whether a party’s particular complaint is preserved depends on whether the 

complaint on appeal comports with the complaint made at trial.”); Reyna v. State,

168 S.W.3d 173, 179 (Tex. Crim. App. 2005).

12See Tex. Code Crim. Proc. Ann art. 38.37, §§ 1(1)(A), 2 (West Supp. 

2011); Jones v. State, 119 S.W.3d 412, 420 (Tex. App.—Fort Worth 2003, no 

pet.).
6

JUSTICE

PANEL: DAUPHINOT, MCCOY, and MEIER, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: June 21, 2012