Roy Gene Robinson v. the State of Texas

Affirmed and Memorandum Opinion filed July 2, 2024.

In The

Fourteenth Court of Appeals

NO. 14-23-00181-CR

ROY GENE ROBINSON, Appellant
V.

THE STATE OF TEXAS, Appellee

On Appeal from the 300th District Court
Brazoria County, Texas
Trial Court Cause No. 90150-CR

MEMORANDUM OPINION

In a single issue, appellant Roy Gene Robinson contends the evidence is
legally insufficient to support his conviction for indecency with a child by contact
because there is no credible evidence that “any contact between [the complainant]
and the appellant occurred with an intent to arouse or gratify a sexual desire of any
person.” We affirm.
Background

A grand jury indicted appellant for the offense of indecency with a child by
contact. The following evidence was presented at appellant’s trial.

Appellant was the live-in boyfriend of Margarita, grandmother of the four-
year-old complainant “Anna.”1 Anna regularly stayed with Margarita when Anna’s
mother—Margarita’s daughter—went to work. When Anna stayed with Margarita,
she slept in the same bed as her grandmother; sometimes appellant slept in the bed
with them but most of the time he slept on a couch in the living room. Anna knew
appellant as “Babe” or “Junior.”

On the morning of April 25, 2020, appellant knocked on the door of
Margarita’s apartment because he did not have his key with him. Margarita left
Anna in bed sleeping and went to answer the door. Anna was wearing a two-piece
pajama set with a pull-up diaper under the pajama bottoms because she occasionally
had night-time accidents. When Margarita let appellant into the apartment, his shirt
and pants were wet with what Margarita presumed was beer because appellant had
a bottle of beer in hand. Margarita described appellant as “drunk or high” because
he seemed “too happy” and “too energetic.” Appellant went to the bathroom and
then went into the bedroom, where Anna was in the bed, to sleep.

Margarita started making coffee in the kitchen, but she heard Anna scream
from the bedroom. She ran into the bedroom, but she could not see Anna. She pulled
the covers off the bed and found appellant and Anna underneath the blankets.
Anna’s pajama bottoms and diaper were down around her ankles. She saw appellant
on top of Anna; he was awake, wearing only his boxer shorts, and Margarita
observed that he had an erection. Anna was crying in the fetal position, with her

1
We refer to the minor complainant by this pseudonym. See Tex. R. App. P. 9.10.

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back against appellant’s stomach. Margarita asked appellant and Anna what
happened. Appellant said “nothing,” but Anna said, “Babe did it.” Margarita picked
Anna up, told appellant to leave, pulled Anna’s pants up, and called the Freeport
Police Department (“FPD”). Margarita went downstairs with Anna to wait for the
police to arrive.

FPD Officers Lorena Huerta and Angela Cantrell arrived in response to
Margarita’s call. Officer Huerta’s body camera recorded their interactions, and the
video was played for the jury. Officer Huerta described Margarita as upset and
shaking; Margarita was holding Anna and continually patting her. Margarita
explained what she had seen to the officers when she found appellant and Anna in
her bed. Officers Huerta and Cantrell, along with FPD Sergeant Curtis Land, then
spoke to appellant. Officers Huerta and Cantrell observed that appellant had what
appeared to be a bulge in his pants that they believed was an erection when they first
made contact with him. Additionally, Sergeant Land stated that he “observed . . .
during the pat-down that [appellant] had an erection.” The sergeant stated that he
“actually felt” that appellant had an erection when he patted appellant’s waistline.
Appellant denied any wrongdoing, claiming that he was awoken by Anna’s
screaming, and saw that Anna’s pajama pants and pull-up diaper had been pulled
down.

Officers collected DNA swabs from appellant’s hands and a buccal swab with
his consent. They did not collect appellant’s underwear or his pants. Officers also
collected Anna’s pull-up diaper, pajamas, and socks, as well as the bedsheets from
Margarita’s bed. The diaper was forensically tested, but the bedsheets were not; no
semen was detected on the items tested. DNA analysis of the swab from appellant’s
right hand indicated a profile that likely included DNA from both appellant and
Anna; the swab from his left hand contained only appellant’s DNA profile.

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Margarita took Anna to the hospital, where Anna’s mother joined them. A
sexual assault nurse examiner (“SANE”) examined Anna. In her report, which was
admitted into evidence, the SANE described Anna’s statement:

Babe pulled my Pamper down; and my mom say, no, don’t touch my
daughter. He touch me. He touched my bunt there, right there, like
that. Patient places arm to her back and puts her index finger over the
anus area over her jean shorts. Clarified what -- what was used to touch
her. With hand. He touched right here. Neck. She pointed to the front
of the neck. Like this. Patient demonstrated bending her elbow to the
front of her neck. It hurt. I couldn’t bead. That clarified meaning
breathe. Mom called the police because I cried. During the genital
exam the patient placed her index finger on her vulva to indicate where
she was touched.

During the exam, the SANE saw redness and swelling on Anna’s genitals, and she
reported that Anna said it was painful in that area. The SANE agreed that Anna’s
injury was due to “trauma of some sort.”

Anna, who was seven years old at the time of trial, testified and identified
appellant. She stated, “He touched me in the private. That’s bad.” Anna did not
remember waking up and screaming, but she remembered going to the hospital,
although she did not recall what she told any medical professionals. She
remembered telling someone at the hospital that appellant put his hand over her
throat and squeezed her neck; when asked, “Did that really happen[?],” she nodded
her head and said, “Yes.” According to Anna, she did not pull her pajama bottoms
down. She also stated that, when appellant had lived with her grandmother, she liked
being around him and did not want him to go away.

The jury found appellant guilty as charged in the indictment and assessed his
punishment at eight years’ confinement in the Texas Department of Criminal Justice,
Institutional Division. The trial court signed a judgment in accordance with the
jury’s verdict, and this appeal timely followed.

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Analysis

Appellant was charged with and convicted of indecency with a child by
contact. As relevant here, a person commits this offense if, with a child younger
than seventeen years of age, the person, “engages in sexual contact with the child.”
Tex. Penal Code § 21.11(a)(1). “Sexual contact” includes, “if committed with the
intent to arouse or gratify the sexual desire of any person[,] any touching by a person,
including touching through clothing, of the anus, breast, or any part of the genitals
of a child.” Id. § 21.11(c)(1); see also Romano v. State, 612 S.W.3d 151, 156-57
(Tex. App.—Houston [14th Dist.] 2020, pet. ref’d).

Appellant challenges his conviction on legal-sufficiency grounds. According
to appellant, the State failed to show beyond a reasonable doubt that he “engaged in
sexual contact with [Anna] by failing to present credible testimony or other evidence
that any contact between [Anna] and the appellant occurred with an intent to arouse
or gratify a sexual desire of any person.”

When reviewing the sufficiency of the evidence, we view all the evidence in
the light most favorable to the verdict and determine whether a rational factfinder
could have found the elements of the offense beyond a reasonable doubt. See Gear
v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia,
443 U.S. 307, 318-19 (1979)); Cantu v. State, 604 S.W.3d 590, 593 (Tex. App.—
Houston [14th Dist.] 2020, pet. ref’d). Although we consider all evidence presented
at trial, we do not re-evaluate the weight and credibility of the evidence or substitute
our judgment for that of the factfinder. Cantu, 604 S.W.3d at 593. A factfinder may
accept one version of the facts and reject another, and the factfinder may accept or
reject any part of a witness’s testimony. Febus v. State, 542 S.W.3d 568, 572 (Tex.
Crim. App. 2018). We defer to the factfinder’s resolution of conflicts in the
evidence, weighing of the testimony, and drawing of reasonable inferences from

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basic facts to ultimate facts. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App.
2010). Finally, we note that the testimony of a child complainant alone is sufficient
to support a conviction for indecency with a child. See Tex. Code Crim. Proc. art.
38.07(a), (b)(1) (uncorroborated testimony of child victim is sufficient to support
conviction under Penal Code chapter 21 if child victim was seventeen years of age
or younger at time of offense).

Appellant does not deny that he contacted Anna’s genitals; instead, he focuses
on whether there was sufficient evidence that any contact occurred with the requisite
intent. In an indecency case, a trier of fact may infer the requisite intent to arouse or
gratify sexual desire from conduct, remarks, or all surrounding circumstances. See
McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. [Panel Op.] 1981).
Although no visible evidence of sexual arousal is necessary to reasonably infer
intent, see Gregory v. State, 56 S.W.3d 164, 171 (Tex. App.—Houston [14th Dist.]
2001, pet. dism’d), in today’s case we have testimony from Margarita, who testified
that she came into the room immediately when Anna screamed and discovered Anna
with her pants and diaper down around her ankles, and Margarita observed that
appellant had an erection. The jury could have reasonably inferred from this
evidence that when appellant touched Anna, he did so with the intent to arouse or
gratify his sexual desire. The jury could rationally make this inference from Anna’s
testimony that appellant touched her genitals and from Margarita’s testimony that
appellant had an erection—i.e., was in a sexually aroused state—around the time
that he touched Anna’s genitals. E.g., Vizcaino v. State, No. 08-22-00062-CR, 2023
WL 377906, at *2-3 (Tex. App.—El Paso Jan. 24, 2023, no pet.) (mem. op., not
designated for publication) (“That the Appellant had an erection from sexual arousal
is a rational inference from the ‘bump’ S.G. described with regard to Appellant’s
genitals while rubbing himself on her.”).

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Additionally, three police officers who observed appellant shortly after the
incident occurred all testified that they saw that appellant had an erection. Appellant
complains that neither Officer Huerta nor Officer Cantrell were “familiar with his
genitals” and neither “inspect[ed] his possible erection.” He argues that Sergeant
Land admitted on cross-examination that he did not in fact pat down appellant’s
genitals and “tried to dismiss his contradictory testimony by claiming to have felt
the erection in the appellant’s waistline.” Appellant sums up his sufficiency
complaint as follows:

According to the State’s theory of the case, a momentary possible
touching of [Anna] by the appellant led to an erection that lasted over
an hour and was observed by multiple police officers. No rational trier
of fact could have found that the appellant had time to undress [Anna],
touch her genitals or anus, and arouse himself as [Margarita]
momentarily left the room to make coffee and then maintained that
erection for over an hour.2

Appellant’s arguments are impermissible attacks on the jury’s assessment of
the credibility of the witnesses rather than the sufficiency of the evidence of his
arousal. Moreover, “[t]he jury may use common sense and apply common
knowledge, observation, and experience gained in ordinary affairs when drawing
inferences from the evidence.” Carmona, 610 S.W.3d at 615 (citing Acosta v. State,
429 S.W.3d 621, 630 (Tex. Crim. App. 2014)). It is certainly common knowledge
that an erection most often indicates sexual arousal. The jury reasonably could have
based its verdict on Margarita’s testimony alone that she observed appellant in a

2
Appellant also complains, “[Anna] did testify to the appellant, whom she called Babe,
touching her but she did not clarify when the touching occurred, and she further supplied no
evidence that the appellant became aroused while in the bed with her.” Expecting Anna, a four-
year-old child at the time of the incident and only seven years old at the time of trial, to supply
evidence that appellant became aroused when touching her is meritless: “The law recognizes the
limitations of child witnesses and does not expect them to recount events that occurred when they
were children with the same level of clarity and precision as adults.” Carmona v. State, 610
S.W.3d 611, 615 (Tex. App.—Houston [14th Dist.] 2020, no pet.).

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visibly aroused state at the time of the incident. Whether appellant remained aroused
and for how long—although also supportive of the verdict—are not additional facts
necessary to uphold the verdict.

In sum, viewing the evidence in the light most favorable to the jury’s verdict,
we conclude that a rational juror could have found beyond a reasonable doubt that
appellant touched Anna’s genitals to arouse or gratify his sexual desire. In other
words, a rational juror could have found beyond a reasonable doubt the elements of
the offense of indecency with a child by contact.

We overrule appellant’s sole issue.

Conclusion

We affirm the trial court’s judgment.

/s/ Kevin Jewell
Justice

Panel consists of Justices Jewell, Bourliot, and Poissant.
Do Not Publish — Tex. R. App. P. 47.2(b).

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