                                   NO. 07-06-0356-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL B

                               FEBRUARY 27, 2008
                         ______________________________

                        AUBREY JOE JOHNSON, APPELLANT

                                            V.

                         THE STATE OF TEXAS, APPELLEE
                       _________________________________

             FROM THE 251ST DISTRICT COURT OF POTTER COUNTY;

              NO. 53,981-C; HONORABLE PATRICK A. PIRTLE, JUDGE
                       _______________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                               MEMORANDUM OPINION


       Appellant, Aubrey Joe Johnson, appeals his conviction for the offense of attempted

indecency with a child by contact, enhanced by two prior felonies, and sentence of twenty

five years contending that the evidence was legally insufficient. We affirm.


                                      Background


       On April 22, 2005, appellant drove his vehicle near an apartment residence where

three girls were present; the girls’ ages were from 12 to 14. After circling the area for a
while, appellant stopped his vehicle and called the girls over. When the girls arrived,

appellant asked the girls if any of them wished to pet or see his dog. One of the girls

rejected the offer because she was afraid that the dog would bite; however, appellant said,

“No, not that dog–the dog in my pants.” Appellant then followed that remark by looking

down at his crotch area. One of the girls contacted her mother and the mother confronted

appellant. Appellant denied any such remarks and claimed to be searching for a friend of

his who lived in the neighborhood. The girls and the mother reported the incident to the

police who arrested appellant a few days later.


       At trial, the three girls testified to the encounter with appellant. At the close of the

State’s case, appellant requested an instructed verdict which was denied.                At the

conclusion of the jury trial, the jury returned a verdict of guilty and the trial court sentenced

appellant to twenty-five years incarceration in the Institutional Division of the Texas

Department of Criminal Justice. Appellant now appeals contending that the evidence

presented at trial is legally insufficient to support the conviction because it does not show

an act amounting to more than mere preparation that tends but fails to effect the

commission of the intended offense.


                                     Standard of Review


       In reviewing the legal sufficiency of the evidence, we review all 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 offense beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560, 573 (1979); Ross v. State, 133


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S.W.3d 618, 620 (Tex.Crim.App. 2004). The standard of review applicable to the denial

of a motion for directed verdict is the same as that applied in reviewing the legal sufficiency

of the evidence. Williams v. State, 937 S.W.2d 479, 482 (Tex.Crim.App. 1996); Madden

v. State, 799 S.W.2d 683, 686 (Tex.Crim.App. 1990) (challenge to the trial judge's ruling

on a motion for an instructed verdict is a challenge to the sufficiency of the evidence).

However, the jury is the sole judge of the weight and credibility of the evidence. Clewis

v. State, 922 S.W.2d 126, 132 n.10 (Tex.Crim.App. 1996) (citing Chambers v. State, 805

S.W.2d 459, 461 (Tex.Crim.App. 1991). As an appellate court, we may not sit as a

thirteenth juror, but must uphold the jury’s verdict unless it is irrational or unsupported by

more than a “mere modicum” of evidence. See Moreno v. State, 755 S.W.2d 866, 867

(Tex.Crim.App. 1988). We resolve inconsistencies in the evidence in favor of the verdict.

Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App. 2000). Circumstantial evidence is as

probative as direct evidence in establishing the guilt of an actor. Guevara v. State, 152

S.W.3d 45, 49 (Tex.Crim.App. 2004). Furthermore, the standard of review is the same for

both direct and circumstantial evidence. Id.


                                      Law and Analysis


       The sole focus of appellant’s argument is the denial of his motion for instructed

verdict. Appellant argued that the State failed to show that his actions were not mere

preparatory actions that tended to but failed to effect the commission of the crime charged.

A person attempts a criminal offense if, with specific intent to commit an offense, he does

an act amounting to more than mere preparation that tends but fails to effect the



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commission of the offense intended. See TEX . PENAL CODE ANN . § 15.01 (Vernon 2003).1

A person commits indecency with a child if, with a child younger than 17 years and not the

person's spouse, engages in sexual contact with the child or causes the child to engage

in sexual contact. See § 21.11. Thus, this case turns on whether appellant’s actions were

more than just preparation. In this case, the State had the three girls testify to the

conversation appellant had with one of the girls. The girl who spoke to appellant testified

that appellant asked her if she wanted to see his dog - the dog in his pants. The other two

girls testified that appellant asked if the first girl wanted to pet the dog in his pants.

Additionally, two of the girls testified that appellant was driving up and down the street and

would, on occasion, look at them. Further, the two girls testified that appellant asked if they

could meet him somewhere, with one of the girls testifying that appellant specifically asked

the girls if they wanted to go to a park with him. All three girls testified that appellant spoke

to the first girl and then glanced down to his pants indicating his private area. Through

cross examination, appellant’s version of the encounter indicated that he was searching

for an acquaintance that lived in the neighborhood.


       However, the jury is the sole weight of the credibility of the evidence. Clewis, 922

S.W.2d at 132 n.10. Though the girls’ testimony had some inconsistencies, we must view

the evidence in favor of the verdict. Curry, 30 S.W.3d at 406. Appellant contends that his

action of glancing down to his pants, at most, can only be viewed as preparatory action that

tends to but fails to effect the commission of the offense. See § 15.01. However, we

believe that this act, though circumstantial, can be viewed in the totality of the evidence as


       1
           Further references to the Texas Penal Code Annotated will be by “§ ___.”

                                               4
indicative of appellant’s intent.       See Christensen v. State, 240 S.W.3d 25, 31

(Tex.App.–Houston [1st Dist.] 2007, pet. ref’d) (appellate court to view all evidence

combined coupled with reasonable inferences from the evidence). Taken together, the

appellant’s conversation of going to the park and petting his dog, the repetitive trips by the

girls’ location, and his glancing gesture toward his pants can establish the criminal intent

to commit the charged offense beyond mere preparation. The multiple trips by the girls’

location could have been interpreted by the jury as appellant seeking a victim; appellant’s

request and glancing gesture could have been interpreted by the jury as appellant’s

directive to the girl or girls to commit the sexual contact. In viewing the evidence in favor

of the verdict, it would be a reasonable inference to believe that appellant’s failure to

complete a criminal offense of indecency with a child was not due to appellant’s lack of

action beyond the preparation stage, but to the girls’ refusal to go with appellant to the park

or to pet the dog in his pants. We conclude that the evidence viewed in the light most

favorable to the verdict is legally sufficient.


                                          Conclusion


       For the foregoing reasons, we affirm.




                                     Mackey K. Hancock
                                          Justice



Do not publish.


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