NO. 07-05-0427-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL D JUNE 14, 2006

______________________________ JAMES R. DEHART, APPELLANT

V. THE STATE OF TEXAS, APPELLE E

_________________________________ FROM THE 364TH DISTRICT COURT OF LUB BOCK COUNTY; NO. 2003-404153; HONORABL E BRADL EY S. UN DERWOOD, JUDGE

_______________________________ Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.
MEMORAND UM OPINION Following a not guilty plea, appellant James R. D ehart was c onvict ed by a jury of three counts of indecency wit h a chil d and pu nishment was asse ssed at te n years confinem ent. By two issues, appellant challenges the legal and factual sufficiency of the2

evidence to support his conviction. By his third and final i ssue, he allegesthe trial court abused i ts discre tion in a dmitting five pho tographs of S.B., th e victim. We affirm

. According to the evidence, S.B., appellant’s niece, frequently stayed with him an d her aunt while her mother was working. They were parent-like figures to her. At one time, appella nt, S. B.’s aunt, and their daughter lived with S.B. and her mother. On another occasion, appellant and his family resid ed at a group home that was operated by S.B.’s grandmother

and where S.B. spent

much time. It was not unusual for S.B. to stay the night with appellant and his family.
In February 2003, when S.B. was approximately ten years

old, her mother be came concerned about her grades, weight gain, and depression and sought counseling for her. In late Marc h 2003, S .B. outcri ed to her counselor that appellant had molested her w hen she was very

young. As the counseling sessions con tinued, S.B. revealed two more recent inciden ts of inapp ropriate sexual contact. The prop er authorities we re contacted, S.B. was given a sexual assault exam, and a forensi c intervi ew was conducted

. S.B. testified that when ever she s pent the night at appella nt’s, if t here wasnot a bedroom available, she wou ld sleep on the couch. She further testified that the first instance of abuse occurred when she was four or five ye a rs old. She testified she was taking a nap in appellant’s bedroom when he came in and laid down beside her, put his hand in her pants, rubbed her vagina, then left without speaking. According to S.B., when she was ten or eleve n, appel lant aga in put hi s hand i n her p ants an d rubbed her vagina3

while she was laying on the couc h. She turned to her side and pulled away, and appellant left.
The third incident occurred around the Thanksgiving h oliday in 2002, while appellan t and his family were living at the grandmother’s group home. S.B. ’s grand mo ther had suffered a stroke and was in the hospital. S.B. was on the couc h wa tching television on the nightof the incident when appellant came in complaining of a toothache. S.B. excused herself several times to go to the bathroom hoping appellant wou ld leave. He remained, and she decided to try to sleep on the couch. He tried to put his hand inside her pants, but she turne d away, a nd he ret urned to his bedr oom. Appellant

later returned to the living room and asked S.B. why she was not sleeping i n her gran dmother’s

bedroom. She answered tha t she was too tired . He left , returne d l ater, and carri ed her toher gran dmother’s bed. After he lef

t, S.B. go t out of b ed an d turned on the television and light. Shortly after, appellant re-entered the bedroom and turned off the television, after which S.B. got out of

bed and turned it on again and cl osed the bedroom door. At approximately 3:00 a.m., appellant returned, stood by the bed, and asked whatshe was watching . He reac hed into her pants and began rubbing her vagina with his fingers. As she turned and pulled away, she expresse d that she was uncomforta ble with what he was doin g. He left the bed room. Byhis first two iss ues , appellant maintains the evidence is lega lly and factually insufficientto suppo rt his con viction. We disagre e. When both th e legal and factual4

sufficiencyof the evidence are challenged, we must first determine whether the evidence is legally sufficient to support the verdict. Clewis v. State, 922 S.W.2d 126, 133 (Tex.Cr.App. 1996). In conducting a legal sufficiency review, we examine the verdict, after viewing the evidence in the light most favorable to the prosecution, to determine whether anyration al trier of

fact could have found the essential elements of the crime beyond a reasonable doubt. J ackson v. Virgini a, 443 U. S. 307, 3 19, 99 S. Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (197 9); Burden v. Stat e, 55 S.W.3d 60 8, 612 -13 ( Tex.Cr .App. 2001). In meas uri ng the legal sufficiency o f the evidenc e to sustain a conviction, w e me asure the element s of the offense as defined by a hyp othetically correct jury charg e. Ma lik v. Stat e, 953 S.W.2d 2 34, 240 (Tex.C r.App . 1997 ). This is done by considering all the evidence that was before the jury—whether

proper o r imprope r—so that we can ma ke an ass essment f r om the jury's perspective. Miles v. State, 918 S.W.2d 511, 512 (Tex.Cr.App. 199 6). As an appella te court, we may not sit as a thirtee nth juror, but must uphold the jury's verdict unless it is irrational or unsupported by more than a “mere modicum” of evidence. Moreno v. State, 755 S.W.2 d 866, 86 7 (Tex.C r.App. 19 88).
After conducti ng a leg al suffic iency rev iew unde r Jackson , we may proceed with a factual sufficie ncy review. Clewis , 922 S.W.2d at 133. As an appellate court, we view all the evidence without the prism of “in the light most fav orable to the prosecution” and set aside the verdi ct only i f it is so contrary to the overwhe lming we ight of th e eviden ce as to be clearly

wrong an d unjust. Johnson v. State, 2 3 S.W.3d 1 , 9 (Tex. Cr.App. 2 000). We mustdetermine after considering all the evidence in a neutral light, whether the j ury was5

rationallyjustifie d in find ing guil t beyond a reasona ble doub t. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Cr.App. 2004). It is the exclusive provi nce of the jury to deter mine th e credibil ity

of the witnesses and the weight to be gi ven their testimony, and unl ess the re cord
c lear lydemonstrates a different result is appropriate, we must defer to the jury’s determina tion. Johnson , 23 S.W.3 d at 8. Appellant

was charged wi th three counts of indecen cy with achild re quiring the State to prove he intentio nally en gaged in sexual contact b y touchin g the gen itals of S.B., while she was under age 17 and not his spouse, with the intent to arouse and gratify the sexual desireof any pe rson. See Tex. Pen. Code Ann. § 21.22(c). Intent to arouse or gratify the
s exual desire of a person can be i nferred fr om conduc

t, remarks, or all th e surroundin g circumstances. McKenzie v. State, 617 S.W.2d 211, 216 (Tex.Cr.App. [Pan el Op.] 1981 ).
Altho ug h appellant argues there is no testimony to support his conviction, he focuses his argument

on the e lement of

intent. He contends that three incidents over an eigh t-year

period do not constitute a pattern. Testimony of similar acts, ho wev er, i s admissible as tendi ng to prove int ent. See Ferguson v. State, 579 S.W.2 d 2, 4 (Tex.Cr.App. 1979). S.B. testified that appellant put his hand in her pants and rubbed her vaginal area with his fing ers o n three separate occasions. Although she testified that he
never said an ything a nd alway s left when she pulled away, an oral expressi on of intent is notrequired to prove arousal or gratification

. SeeTyler v. State, 950 S.W.2d 787, 7896

(Tex

. App.–For

tWorth 1997, no pet.). S.B.’s testimony of appellant’s conduct on three similar o ccurrence s is suffi cient to infer intent. Id

. To support h is factua l insuffi ciency a rgument, h e assertsS.B . informed her counselor

that he only attempted to put his hand in her pants and that on one occasion S.B. admitted to her counselor that nothing happened between them. He also p oi nts out inconsistencies during S.B.’s forensic interview. Hecontends the inconsistencies render the evid ence ins ufficien t to suppo rt his con viction.
The testimony of a child victim alone is sufficient to support a conviction for indecencywith a c hild. See Perez v. State, 113 S.W.3d 819, 838 (Tex.App.–Austin 2003, pet. ref’d). Additionally, evidence isnot rendered insufficient when conflicting evidence is p res ented. Matchett v. State, 941 S.W.2 d 922, 93 6 (Tex.C r.App. 19 96) (en b anc), cert denied , 521 U.S. 1107, 11 7 S.Ct. 24 87, 138 L .Ed.2d 994 (1997). I t is the province of the jury to resol ve confli cts or inconsistencies in the evidence. Bow den v. State, 628 S.W.2d 782, 784 (Tex .Cr.App. 1 982) (en banc); Hi ttv. State, 53 S.W.3d 697, 709 (Tex.App.–Austin 2001, pet. ref’d). Additionally, as the judge of the credibility of the witnesses, the jury can believe all, som e, or non e of the testimony. Chambersv. State, 805 S.W.2d 459, 461 (Tex.Cr.A pp. 1991 ) (en ban c).
I n addition to S.B.’s testimony of the three incidents detail ed above, the f orensi c interviewer

testified that S.B. circled the vagina on a drawi ng to indicate where appellant had inappropriately

touched her. The nurse who conducted a sexu al assault exam on S.B.7

testified that S.B. had a healed tear on her hymen consistent with having the arearubbed with fingers. There was no indica tion the i njury could have been caused by non-sexual contact. We conclude the evidence presented is legally and factually sufficient to support appellant’s conviction. Issues one and two are overruled. Byhis thir

d issue, appella nt mainta ins the t rial cou rt ab used its discretion in admitting, over his objections, State’s Exhibits 4 through 8, which are pho tographs depicting S.B. atdifferent ages. We agree. We recognize that admissibility of photographs is within the sound discreti on of thetrial co urt. Rayfo rd v. State, 125 S.W.3d 521, 529 (Tex.Cr.App. 2003), cert. denied , 543 U.S. 823, 125 S.Ct. 39, 160 L.Ed.2d 35 (2004). The trial court does not

abuse its discretion unless it acts arbitrarily and unreasonab ly, without reference to any g uid ing rules and principles. Breeding v. S tate, 809 S.W.2d 661, 663 (Tex.App.–Amarillo 1991, pet. ref'd). As long as the trial court's ruling wa s within the zone of reasonable disagreement, there is no abuse of discretion and the trial court's ruling will be upheld. See Rachal v. State, 917 S.W.2d 79 9, 807 (Tex.Cr. App.1996 ), cert. denied , 519 U.S. 104 3, 117 S. Ct. 614, 1 36 L.Ed.2 d 539 (19 96). But, if itcannot be concluded from common, reasonable experience that the evidence has a tendency to make the existence of a fact of consequence more or less probable, then the trial court's deci sion was not within t he zone of reasona ble disa greement and was an abuseof discre tion. Id

. S. B.’s mother testified at trial that she became concerned when S.B. ’s grade s dropped, and she became w ithdrawn and gai ned weig ht. She testified to five photographs8

depicting different stages of S.B.’s growth from ages fo ur or five through eleven. The photographs are portrait type and p ortray S.B. in a soccer uniform and casual apparel. When the State offered the photographs for admis sion into evidence, defense counsel objected under Ru les 401, 402, and 403 of th e TexasRules of Ev idence. Following the State’s argument that the photographs showe d S.B.’s weight gain and the differences in her appearance from the time the allegationsbegan to the present, the trial court overruled the objections.
On appeal, appella nt limits his argu ment tothe relevancy of the photographs under Rule 401. H e argues the photographs depicting S.B. as a child ove r a span of approximatelyeight

years show

normal growth. He further argues that under the definition of relevan ce, i.e. , evidence having any tendency to make the existence of any fact that is of consequence to the determination of theaction more probable or lessprobable than it would be without the evide nc e, the photographs should not have been admitted. H e contends S.B.’s weight gain is not supported b y the photographs because they were all taken prior to the time S.B. made her outcry in 2003, when she was almost 12 years old.
The State responds that the photographs were admitted to show S.B.’sweight gain and maturity which were “signs and symptoms” triggering her mother’sconcern. The Sta te also notes that evidence was presented that S.B. was larger than an average child her ag e. No e vidence, however, was presented that S.B.’s weight gain was relevant to th e allegations of sexu al abuse . We agre e with appellant that S.B.’s size or weight gain was9

notrelevantto a determination that he committed the charged offense. Thus, we conclude the trial court abused its discretion in admittin g State’s Exhibi ts 4 throu gh 8 into evidence.
Our conclus ion requ ires us to determine whether appellant was harmed by thetrial court’s error. A violatio n of an e videntia ry rule th atresults in the erroneous admission of evidence is not co nstitutio nal error

. Johnson v. State, 967 S.W.2d 410, 417 (Tex.Cr.App. 1998). When non-cons titutio nal error is made during trial, it will be disregarded as harmless if

the error did not

affect the substantial rights of the defendant. Tex. R. Ap p. P. 44.2(b); King v. State, 953 S.W.2d 266, 271 (Tex.Cr.App. 1997). A substantial right is not affected by the erroneous admission of evidence “if the appellate court, after examining the
rec or d as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect.” J ohnson v . State, 9 67 S.W.2d 410, 417(Tex.Cr. App. 199 8). Appellant

argues the admission of the photographs had a substantial influence in the outcome of

the tria l because it was the only consistent evide nce the jury could have used to convicthim. We disagree. S.B. testified that appellant had inappropriate sexua l contactwith her on three different occasi ons beginning at a very young age. She discusse d the thre e incide nts during a forensic interview and indicated on a drawing that appellant

had touc hed her vaginal a rea. Medical evidence demonstrated that a healed tear to S.B.’s vaginal area was consistent with sexual abuse. Having ex amined the record as
a whole and finding the evidence sufficient to support appellant’s convi ction, we conclude10

the trial court’s erroneous admission of S.B.’s photographs was harmless. Issue three is overruled. Accordingly, the trial court’s judgment is affirmed.
Don H. Reavis Justice Do not publish.