Christopher Lee Outley v. State

Outley v. State AFFIRMED APRIL 19, 1990  NO. 10-90-028-CR Trial Court # 90-248-C IN THE COURT OF APPEALS FOR THE TENTH DISTRICT OF TEXAS AT WACO * * * * * * * * * * * * * CHRISTOPHER LEE OUTLEY,    Appellant v. THE STATE OF TEXAS    Appellee * * * * * * * * * * * * * From 54th Judicial District Court McLennan County, Texas * * * * * * * * * * * * * This is an extradition case. Appellant Christopher Lee Outley is sought by the State of California on a charge of murder committed on October 16, 1989 at approximately 4:40 P.M. His application for writ of habeas corpus challenging the extradition warrant was rejected by the trial court. This appeal resulted. We affirm the trial court's order.      Appellant tacitly concedes that the state presented a prima facie case for extradition by introducing the Governor's Warrant and supporting extradition documents and by fingerprint identification. He contends that the trial court erred in overruling his application for writ of habeas corpus because he established that he was not in the State of California at the time the offense was committed. We overrule his contention and we affirm the judgment. Appellant used the testimony of relatives to establish that he was not in California at the time the offense was committed. The testimony was inconclusive in that no witness could positively identify the date appellant arrived at his mother's home in Texas. His mother testified that she was not even sure of the month in which he showed up unannounced at her home. Appellant's cousin testified that she thought it was "a Thursday" when he called her from the San Diego airport. She said she knew he was in California when he called because "He told me." When asked about the date she received the phone call, she stated that she knew that it was in the year 1989 but that she did not remember the month or the year. She could not even conclusively establish that it was the month of October but stated that it "could have been." Appellant's sister then testified that her brother was in town [Waco, Texas] on October 26, 1989. She said she just "knew" that it was October 26th, but she neither gave nor established a credible reason for having knowledge of that particular date. She stated that she returned from work on Tuesdays and Thursdays around 10:30 p.m. so it had to be a Thursday on which he arrived. She never conclusively established that it was a Thursday and not a Tuesday. Another sister testified that it was a Thursday night in October when her brother returned home and that she believed it could have been the 26th. However, she failed to remember the subsequent date of her brother's arrest, indicating an inability to retain dates. Finally, appellant's mother testified that she did not remember the exact date that he came home. She then testified that it was a Thursday in October. She later testified that she was not sure if it was October or November, but she "knew it was way before Thanksgiving" although she was not positive of the day. Appellant's witnesses were all family members: his mother, two sisters and a cousin. All were interested witnesses. Testimony only from interested witnesses is insufficient to rebut the presumption raised from the extradition papers that appellant was in the demanding state when the offense was committed. Ex parte Harrison, 469 S.W.2d 571, 572 (Tex.Cr.App. 1971), wife; Ex parte Mackerman, 376 S.W.2d 350, 351 (Tex.Cr.App. 1964) wife; Ex parte Castillo, 700 S.W.2d 350, 352 (Tex.App. 2 Dist. 1985, no pet.) wife and brother. Moreover, the testimony of appellant's witnesses did not establish with factual certainty that appellant was not in California when the offense was committed. The judgment is affirmed.                   VIC HALL DO NOT PUBLISHJustice ing a conversation about “stranger danger” that she had been touched inappropriately. She pointed to her vaginal area when telling her foster mother about the touching. After the allegation was reported to the authorities, J.L. was interviewed by Teresa Evans at the Gingerbread House, Ellis County’s Child Advocacy Center. J.L. told Evans that her “real dad’s dad” touched her private, which she indicated on a drawing was her genitals, under her clothes. J.L. also told Evans that it happened at Lyon’s house in Waxahachie in his bedroom while they watched television. She said he touched her with a rubbing motion on her skin. At trial, although she was unable to provide details about the event or the name of the person who touched her, J.L. identified Lyon as the person who touched her, said that it happened more than once, and said that no one other than Lyon had touched her.            In a counseling session with Caroline Von Helms, and while talking about a stuffed animal given to J.L., J.L. told Helms about the interview she had gone to. J.L. drew a doll on a white board and started coloring in different parts of the doll, primarily the genitals. When asked what she was doing, J.L. responded that those were the areas where her papa touched her. When Helms stated that she did not know who her papa was, J.L. explained that he was her father’s father. When asked whether he touched her above or below her clothes, she said “below.” Helms further testified that it was not unusual for children J.L.’s age to have a hard time remembering the specifics of what happened because their memory has not developed fully and, specifically with J.L., because she was no longer in the abusive environment and had moved beyond it. Helms also stated that it was not uncommon to have no medical evidence of inappropriate touching.            In two issues, Lyon argues that the evidence was legally and factually insufficient to support his conviction because there was no medical evidence of abuse, and because J.L. could not tell the jury the name of the person who touched her, could not provide details about the incident, and could not recall when or where the incident happened. He also argues that because the touching described was consistent with applying medication to the genital area, a theory that was only mentioned in argument to the jury, the evidence was legally and factually insufficient to prove intent to arouse and gratify his sexual desire. See Tex. Penal Code Ann. § 21.11(a), (c) (Vernon 2003).            A conviction for indecency with a child is supportable on the uncorroborated testimony of the victim of the sexual offense. See Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon 2005). The requisite specific intent of the offense can be inferred from the defendant's conduct and remarks and all the surrounding circumstances. McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. [Panel Op.] 1981). Additionally, the lack of physical or medical evidence does not necessarily render the evidence insufficient to support a conviction. See Murphy v. State, 4 S.W.3d 926, 930 (Tex. App.—Waco 1999, pet. ref'd). And further, there is no evidence in this record that Lyon was in the process of applying medication to J.L. when the incident occurred or that Lyon was a caregiver that would be responsible for such activity.            Viewing the evidence under the appropriate standards of review, we find the evidence legally and factually sufficient to support the conviction. See Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979); Castillo v. State, 221 S.W.3d 689, 693 (Tex. Crim. App. 2007); Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006).  Lyon’s issues are overruled.              The trial court’s judgment is affirmed.                                                                         TOM GRAY                                                                        Chief Justice  Before Chief Justice Gray,            Justice Vance, and            Justice Reyna Affirmed Opinion delivered and filed May 21, 2008 Do not publish [CR25]