Full Opinion (html_with_citations)

             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
      ___________________________

           No. 02-23-00128-CR
      ___________________________

       JOHNNY ARNOLD, Appellant

                      V.

           THE STATE OF TEXAS


   On Appeal from the 462nd District Court
           Denton County, Texas
        Trial Court No. F22-194-462


 Before Sudderth, C.J.; Wallach and Walker, JJ.
Memorandum Opinion by Chief Justice Sudderth
                             MEMORANDUM OPINION

      Johnny Arnold appeals from his conviction for indecency with a child,

challenging (1) the sufficiency of the evidence to prove that he touched the

complainant’s genitals with the intent to arouse or gratify his sexual desire and (2) the

maximum 20-year sentence imposed by the trial court.              See
Tex. Penal Code Ann. §§ 12.33
(a), 21.11(a)(1), (c)(1), (d). We affirm the trial court’s judgment.

                  Sufficiency Standard of Review For Conviction1

      In his first issue, Arnold challenges the sufficiency of the evidence to support

the underlying conviction.

      In our evidentiary-sufficiency review, we view all the evidence in the light most

favorable to the verdict to determine whether any rational factfinder could have found

the crime’s essential elements beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307, 319
,
99 S. Ct. 2781, 2789
 (1979); Queeman v. State,
520 S.W.3d 616, 622
 (Tex.

Crim. App. 2017). This standard gives full play to the factfinder’s responsibility to

resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts. See Jackson,
443 U.S. at 319
,
99 S. Ct. at 2789
; Harrell v. State,
620 S.W.3d 910
, 914 (Tex. Crim. App. 2021). To determine

whether the State has met its burden to prove a defendant’s guilt beyond a reasonable

      1
       Because Arnold primarily challenges the evidence’s sufficiency, we will
dispense with a general background section and instead begin by setting forth the
proper standard of review for the underlying conviction and then summarizing the
evidence adduced at trial.


                                            2
doubt, we compare the crime’s elements as defined by a hypothetically correct jury

charge to the evidence adduced at trial. Hammack v. State,
622 S.W.3d 910
, 914 (Tex.

Crim. App. 2021); see also Febus v. State,
542 S.W.3d 568, 572
 (Tex. Crim. App. 2018)

(“The essential elements of an offense are determined by state law.”).

         The factfinder alone judges the evidence’s weight and credibility. See Tex. Code

Crim. Proc. Ann. art. 38.04; Martin v. State,
635 S.W.3d 672
, 679 (Tex. Crim. App.

2021).     Thus, we may not re-evaluate the evidence’s weight and credibility and

substitute our judgment for the factfinder’s. Queeman,
520 S.W.3d at 622
. Instead, we

determine whether any necessary evidentiary inferences are reasonable based on the

evidence’s cumulative force when viewed in the light most favorable to the verdict.

Braughton v. State,
569 S.W.3d 592, 608
 (Tex. Crim. App. 2018); see Villa v. State,
514 S.W.3d 227, 232
 (Tex. Crim. App. 2017) (“The court conducting a sufficiency review

must not engage in a ‘divide and conquer’ strategy but must consider the cumulative

force of all the evidence.”). We must presume that the factfinder resolved any

conflicting inferences in favor of the verdict, and we must defer to that resolution.

Braughton,
569 S.W.3d at 608
.

                           Indictment and Evidence at Trial

         Arnold waived a jury, so the case was presented to the trial court.         The

indictment tracked the indecency-with-a-child statute and required the trial court to

find that Arnold, “with the intent to arouse or gratify [his] sexual desire,” engaged in



                                             3
sexual contact with the under-17-year-old complainant by touching the complainant’s

genitals.

The Complainant’s Testimony2

       The complainant testified that when he was 15, Arnold––a long-time3 close

friend of the complainant’s mother (Mother)––touched his penis. The complainant

recounted the circumstances in detail. According to the complainant, he and Arnold

were on the couch4 in the complainant’s home, and Arnold was rubbing oil onto the

complainant’s head and into his hair.5 Eventually, Arnold moved down to feel the

complainant’s bicep, then his thigh, and then his penis; Arnold started rubbing the

complainant’s penis before grabbing it “a few times.”6 The complainant initially

testified, “And then he moved down to my crotch area, and then he started using his


      Arnold bases his sufficiency argument in part on inconsistencies in the
       2

complainant’s testimony. To highlight those inconsistencies––as well as to compare
and contrast the complainant’s testimony with the rest of the evidence––we will
summarize each witness’s testimony.
       3
        The complainant had known Arnold about two or three years.
       4
        The complainant initially testified that he was lying on the couch next to
Arnold. But on cross-examination, the complainant denied having so testified and
insisted that he had been sitting down on the couch with Arnold sitting next to him.
       5
        According to the complainant, Mother had started the oil treatment after
talking about his dry scalp; she then “handed it over” to Arnold, who continued
rubbing the oil into the complainant’s hair and scalp.
       6
        On cross-examination, the complainant agreed that no oil mark was left on his
shorts even though the scalp oil was greasy and Arnold had been using both hands to
apply it.


                                         4
thumb to play with my tip, I guess,” but he later answered “Yes,” without qualification,

when asked, “So this is not just the thumb brushing up against, but this is someone

holding onto the penis and moving the thumb along the tip?” [Emphasis added.]

      The complainant said that Mother was present while Arnold was touching him,

but she was “doing a whole bunch of things” in different locations.7 Except for “a

couple of seconds,” though, she was “in the same proximity” with the complainant

and Arnold.8    The complainant testified that although he tried to get Mother’s

attention, she did not see what happened. Additionally, even though the complainant

was both large and strong for his age, he said that he felt physically intimidated by

Arnold––who was also big and was older––and that he was uncomfortable with what

Arnold was doing to him. The complainant did not try to stop Arnold; he “just didn’t

know what to do.”

      On direct examination, the complainant first testified that Arnold stopped

touching him when Arnold and Mother left to go to a gas station; the complainant

explained that when Mother “came over,” Arnold “kind of stopped a little bit” and

“moved his hand a little bit . . . off.” But on cross-examination, the complainant

testified that Arnold stopped touching him when the complainant went to the

bedroom to get his laptop and then sat back down on the couch next to Arnold with

      7
       The approximately 1,200 square foot home had two bedrooms, two
bathrooms, an open-concept living room and kitchen, and a patio.
      8
       According to the complainant, Mother was looking at her laptop at times.


                                           5
the laptop over his lap.9 The complainant admitted that he did not tell the police

about getting his laptop when they later investigated the offense.

      According to the complainant, when Mother and Arnold left to go to the gas

station, the complainant wrote Mother a message10 on her laptop, which she had left

open. The trial court admitted a picture of the message into evidence:

      I do not want to talk about it and I did not expect it. When [Arnold]
      was doing that massage stuff he was touching me. He was feeling on my
      arms and chest and my crouch [sic]. He has to go home tonight to make
      up some excuse and we can deal with it later. When you read this do not
      freak out, just take him home and get him out of the house.

      The complainant also called Mother, and at one point, Arnold got on the

phone.11 The complainant used FaceTime’s Screen Record feature to capture video

from the call. That video recording––without audio––was admitted into evidence at

trial.12 The complainant testified that during the call, Arnold told him to keep the




      9
       According to the complainant, “at that point,” Mother and Arnold were “[i]n
the same positions” that they had been in when Arnold was touching him.
      10
          Mother testified that the message was typed in “Google docs.”

       The complainant first testified that Arnold “grabbed” the phone from
      11

Mother, but he later testified that Mother gave Arnold the phone.
      12
        The complainant testified that he could hear audio while on the call even
though the video recording admitted at trial had no corresponding audio. The
investigating detective later testified that the Screen Record function on FaceTime
“didn’t use to have audio” and that the lack of audio recording is normal for the time
when the video was made.


                                           6
door unlocked that night so that he could, according to the complainant, “[j]ust

continue feeling on me and doing other things, I guess.”

      The complainant left home before Mother and Arnold returned. When the

complainant did not hear from Mother for some time, he called the police.13 The

complainant also participated in a forensic interview a week later.

Mother’s Testimony

      Mother testified that when Arnold and the complainant were in the living room

together, she was cleaning around the house and spent most of that time in the

kitchen. She had allowed Arnold to put oil in the complainant’s hair because Arnold

“used to do hair.” She admitted that Arnold had been “drinking quite a bit that day,”

but she denied having more than one drink herself. She did not remember seeing the

complainant with his laptop.

      Mother confirmed that the complainant had called her via FaceTime while she

was at the gas station with Arnold; Mother thought it “was a little odd” that the

complainant called because he usually texted her. She also thought it was odd that

Arnold stayed in the car and talked to the complainant while she was inside the

store.14 When Mother came home, she thought the complainant was in the shower


      13
        The complainant’s 911 recording was admitted into evidence. He told the
dispatcher that Arnold had sexually assaulted him––“I guess”––and that it had
happened about an hour before the call.
      14
        Mother testified on direct that she had given Arnold the phone while she was
inside the store. But on cross-examination, she denied saying that and testified that

                                           7
because she heard the water running; she did not realize until later that he had left

without turning off the water first. Mother found the complainant’s message on her

laptop.

      Mother went looking for the complainant, and while she was doing so, Mother

received a call from a police officer, who brought her to the complainant. The

complainant was upset, “in distress[, and] shaking.” He did not want to talk to her

about what had happened. Mother authorized the police to give Arnold a no-trespass

warning that night.

      While Mother was talking to the police, she got a text from Arnold’s number.

A video recording of the text message was admitted into evidence15 and reads as

follows (without alteration of grammar or punctuation):

      Omg I’ have been so drunk I don’t even know my name I am so sorry
      for any indecency I have been, it’s not ok I would never be that way I’m
      so sorry for any way I have been or acted it’s a shame, I’m sorry please
      know it’s not the way I do things so embarrassed totally I understand the
      trespassing it’s understood, I in no way wanted this to be the order for
      us . . . It should’ve never been but drunk people do drunk things, I’m
      soooo sorry this should never happen…..Well now it’s been settled that
      I must be aliminated from your life for good reason…….sorry this hurts
      u guys but I know it’s for the best, I luv y’all and I’m ok to be
      away….because valid treatment u deserve . . . .

Arnold never got out of the car, and she had “left the phone in the car so [that she]
could hurry up . . . and get back.” The investigating detective later testified that
Mother told her Arnold waited in the car while she went into the store.
      15
        Although Mother kept the text message, she deleted Arnold’s name from her
contacts; thus, the exhibit shows only a phone number and not a contact name.
Mother testified that she recognized the number as Arnold’s.


                                          8
Responding Police Officer’s Testimony

       The police officer who responded to the complainant’s 911 call testified that

when he arrived, the complainant “looked kind of in disbelief.” The complainant told

the officer that Arnold had “inappropriately touched” him.                Specifically, the

complainant said “that over his clothes, his genital area was touched by” Arnold. The

complainant told the officer that he was unsure about what to do.

       After Mother arrived, the responding officer went to the residence, and Arnold

answered the door. Arnold “appeared to be intoxicated,” and “he looked out of

sorts[,] . . . had glassy eyes[,] . . . had the odor of . . . alcoholic beverage coming from

his breath[, and] was speaking a little slow.” According to the officer, “it looked like

he’d just woke[n] up and had been drinking before he had gone to sleep.”

       Arnold was forthcoming when telling the officer what he had done earlier in

the day, but he “didn’t recollect” most of anything having to do with the complainant

other than that Arnold had suggested an oil treatment for his hair. Arnold told the

officer that he did not touch the complainant anywhere other than his head. He also

denied answering Mother’s phone while at the gas station.

The Investigating Detective’s Testimony

       The investigating detective testified, without objection, that she was able to

watch the complainant’s forensic interview and that she found the complainant

credible.



                                             9
      The investigating detective also interviewed Arnold and thought that he was

being deceptive.16 Despite having told the responding officer that he did not touch

anything other than the complainant’s hair,17 Arnold told the investigating detective

that while rubbing the oil in the complainant’s hair, he had rested his elbow on the

complainant’s hip and his arm across the complainant’s thigh. And although he

denied intentionally touching the complainant’s penis, he admitted that he could have

touched it accidentally. Arnold told the detective that the day of the incident was

“[o]ne of the . . . times he’s been most intoxicated.”

      According to the detective, Arnold could not consistently remember whether

he went to the gas station with Mother that night. And although Arnold “was very

detailed when talking about the process of twisting the [complainant’s] hair, [he] then

couldn’t remember other parts of the night.” When asked about the text he sent to

Mother, Arnold told the detective that “if someone is upset with something, he’s

going to apologize no matter if he did it or didn’t. It’s just right to apologize to


      16
         The trial court admitted a recording of this interview. Arnold’s statements are
consistent with the detective’s testimony. He professed to being more drunk than he
had ever been in his life, and he could not remember certain details such as the trip to
the gas station. Yet he was able to describe in detail how he had oiled the
complainant’s hair and the way he was leaning on the complainant at the time, and he
adamantly denied touching the complainant in any way other than accidentally. He
attributed the complainant’s and Mother’s reactions to the possible accidental
touching to Mother’s past experiences and to the complainant’s being offended.

       According to the detective, Arnold was the only person who gave inconsistent
      17

statements about what happened that night.


                                           10
someone.” Arnold told the detective that he did not think the complainant and

Mother are liars; he thought that the complainant and Mother had overreacted.

                                 Sufficiency Analysis

      In addition to pointing out inconsistencies in the complainant’s testimony,

Arnold bases his sufficiency challenge on two main points: (1) that the complainant’s

repeated use of the phrase, “I guess,” when testifying shows that he was uncertain

about whether or how Arnold touched his penis and, thus, that any inferences the trial

court made regarding guilt were not reasonable but were instead improperly

speculative; and (2) no evidence exists as to whether Arnold intended to arouse or

gratify his sexual desire because no evidence showed he was actually aroused. We

conclude that the evidence is sufficient to support the trial judge’s finding that Arnold

touched the complainant’s penis with the intent to arouse or gratify his sexual desire.

      First, even though the complainant frequently used the phrase “I guess” when

testifying,18 the trial judge was authorized to interpret that usage in context. Although

sometimes the complainant’s use of the phrase appeared to indicate uncertainty, such

as when the complainant was testifying about what he did when he came home from

school that day, at other times it appeared to be part of his pattern of speech––such as


      18
          The complainant used this phrase at least 22 times. For example, when
describing what he had done earlier in the day, the complainant said he went to
school, came home and ate, and “then, yeah, I guess played video games” and “[d]id a
little review over some math, I guess.” He also said “I guess we started talking about
my hair. . . . [Mother’s] always talking about how, I guess, I have a dry scalp.”


                                           11
when he stated, “I guess I always have, like, a dry scalp.” He used the phrase only

twice when describing how Arnold had touched him, and his guesses can be

reasonably interpreted to be about the exact placement of Arnold’s hand and thumb

when he first started touching the complainant’s penis and whether Arnold was

“play[ing] with” the complainant’s penis before grabbing it.19 The trial judge was

entitled to believe the rest of the complainant’s detailed testimony about the way

Arnold touched him, which testimony is consistent with the content of the message

the complainant sent to Mother that very night, the complainant’s statements in the

911 call and to the responding officer, his upset demeanor that night, and the fact that

the complainant left home before Mother and Arnold could return.

      The trial judge also could have inferred from the complainant’s and Mother’s

testimony about the residence’s layout and about Mother’s activities while the incident

occurred that it was believable that Arnold had taken advantage of the situation, that

Mother had not seen what he was doing, and that the complainant was so shocked

that he was uncertain how to respond. Finally, the trial judge was entitled to believe

from the totality of the evidence that Arnold knew what he had done and had

exhibited a consciousness of guilt in his text message to Mother and in his interview

with the investigating detective.



      19
        Additionally, when asked on cross-examination which hand Arnold used to
touch him, the complainant answered, “I guess, right.”


                                          12
      Although there were some inconsistencies in the complainant’s testimony and

in Mother’s testimony––specifically about the timing of the offense20 and the

surrounding events and whether the complainant had gotten up from the couch to get

his laptop––the trial judge was permitted to resolve those inconsistencies and

nevertheless believe the complainant’s detailed testimony about the way Arnold

touched him, as well as the other evidence supporting a finding that Arnold

intentionally touched the complainant’s penis.

      Arnold’s second sufficiency-related argument ignores well-established case law

holding that in indecency cases the factfinder may infer the intent to arouse or gratify

sexual desire from conduct alone as well as from remarks or other surrounding

circumstances. See Stephenson v. State,
673 S.W.3d 370
, 384 (Tex. App.—Fort Worth

2023, pet. ref’d) (citing McKenzie v. State,
617 S.W.2d 211, 216
 (Tex. Crim. App. [Panel

Op.] 1981)); Scott v. State,
202 S.W.3d 405, 408
 (Tex. App.––Texarkana 2006, pet.

ref’d) (also citing McKenzie and noting, “Rarely will there be direct evidence of what an

accused intended at the time of the incident.”).        Here, Arnold’s conduct while

touching the complainant––starting with an innocuous touch but then gradually


      20
        Mother testified that Arnold and the complainant had been on the couch
from around 9:30 to 10:30 p.m., but she was unsure of the exact time. She thought
she and Arnold had left for the gas station at around 10:30 p.m. and were gone for 15
minutes. But the FaceTime call was recorded at 12:33 a.m. the next day, and the
responding officer was dispatched to the complainant’s call around 1:26 to 1:30 a.m.
Mother later testified that it was possible she was mistaken about the time she and
Arnold went to the gas station.


                                           13
moving down the complainant’s body until he touched and then grabbed the

complainant’s penis––as well as his later conduct––his request that the complainant

leave his door unlocked that night, his text message to Mother indicating a

consciousness of guilt, and his detailed recall of some events but not others in his

interview with the investigating detective (despite a professed unusual intoxication

level)––sufficiently supports a reasonable inference that Arnold had the intent to

arouse or gratify his sexual desire when he touched the complainant’s penis.

      As a whole, the evidence supports the trial court’s determination that Arnold

acted with the intent to arouse or gratify his sexual desire when he touched the under-

17-year-old complainant’s penis. We therefore overrule Arnold’s first issue.

                      Punishment Complaint Not Preserved

      In his second issue, Arnold complains about the factual sufficiency of the

evidence to support the trial court’s imposition of the maximum sentence of

confinement for a second-degree felony conviction.         But the factual sufficiency

standard of review does not apply to complaints about the length of a sentence,21 and



      21
        Arnold’s brief cites Clewis v. State,
922 S.W.2d 126, 128
 (Tex. Crim. App.
1996), for the factual sufficiency standard of review formerly applicable to
convictions. Clewis was overruled by Brooks v. State,
323 S.W.3d 893
 (Tex. Crim. App.
2010). Although Arnold’s brief cites Brooks in the footnote immediately following the
footnote in which Clewis is cited, there is no indication that Clewis has been overruled
and no discussion about why it would nevertheless still be applicable to punishment
challenges. See, e.g., Ex parte Chavez,
213 S.W.3d 320
, 323–24 (Tex. Crim. App. 2006)
(“Subject only to a very limited, ‘exceedingly rare,’ and somewhat amorphous Eighth
Amendment gross-disproportionality review, a punishment that falls within the

                                          14
such complaints must be preserved at trial for us to consider them on appeal, see Kim

v. State,
283 S.W.3d 473, 475
 (Tex. App.—Fort Worth 2009, pet. ref’d); see also Burt v.

State,
396 S.W.3d 574, 577
 (Tex. Crim. App. 2013) (“A sentencing issue may be

preserved by objecting at the punishment hearing, or when the sentence is

pronounced.”). Arnold did not object to the sentence in the trial court. Thus, he has

failed to preserve any complaint about the sentence’s length. We overrule his second

issue.

                                       Conclusion

         Having overruled both of Arnold’s issues, we affirm the trial court’s judgment.

                                                       /s/ Bonnie Sudderth

                                                       Bonnie Sudderth
                                                       Chief Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: December 28, 2023




legislatively prescribed range, and that is based upon the sentencer’s informed
normative judgment, is unassailable on appeal.” (footnotes omitted)).


                                            15