Girgis Gorgy Salib Istfanous v. the State of Texas

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

No. 02-24-00164-CR
___________________________

GIRGIS GORGY SALIB ISTFANOUS, Appellant

V.

THE STATE OF TEXAS

On Appeal from County Criminal Court No. 7
Tarrant County, Texas
Trial Court No. 1756264

Before Sudderth, C.J.; Wallach, J.; and Lee Gabriel (Senior Justice, Retired, Sitting by
Assignment)
Memorandum Opinion by Justice Gabriel
MEMORANDUM OPINION

A jury convicted Girgis Gorgy Salib Istfanous of indecent assault, a Class A

misdemeanor. See Tex. Penal Code Ann. § 22.012(a), (b). The trial court sentenced

him to 45 days’ confinement in the Tarrant County Jail and ordered that he pay a $200

fine. See id. § 12.42(d). In his first issue, Istfanous argues that the trial court erred by

denying his motion to dismiss the information based on his claim that the charging

instrument failed to provide sufficient notice of the offense alleged. In his second

issue, he contends that there is insufficient evidence to support the conviction for

indecent assault. We find no merit as to either issue and affirm the judgment.

I. BACKGROUND

In November of 2022, Istfanous and the complainant, Tiraha Gentry, worked

in Terminal D of the DFW airport. Gentry was the manager of a Starbucks, while

Istfanous worked as a sanitation worker. One of his responsibilities was to collect

trash from the restaurants in the terminal. Since he performed his work duties in her

store, Gentry knew Istfanous and would sometimes give him and his co-worker free

coffee. She explained that airport personnel often came into the coffee shop to chat

and buy coffee.

Gentry testified that when they had the chance, the Starbucks’s employees

would move their trash outside the store so that the sanitation workers did not have

to come behind the counter to collect it. She described November 14, 2022, as a very

busy day in the Starbucks she managed and testified that she was short-staffed as well.

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As a result, they did not have the opportunity to move the trash outside the store

from behind the counter. Gentry explained that when Istfanous came into the store

that day, she was behind the counter training an employee. She related that when

Istfanous came behind the counter to pick up the trash, he grabbed her breast with an

open hand and without her consent. She demonstrated for the jury how it occurred.

She further stated that when Istfanous grabbed her breast, “He looked me in my face

and smiled.” Gentry told the jury that she interpreted the look to mean that “[h]e

meant to do that.” Gentry explained that her trainee saw this incident and asked,

“[Did] he just do that?”

Gentry testified that, after this encounter, Istfanous returned to the store for

more trash while she was sitting in the corner. He then came to where she was sitting

and “gripped [her] face” with his hands to move it from side to side and closer to

him. She stated that she believed he was trying to kiss her and she “jerked back.” She

explained that because Istfanous was wearing gloves that had trash on them when he

grabbed her face, she needed to wash her face after this encounter. Gentry testified to

her opinion that these two acts were “sexual” in nature.1 Gentry explained that

Istfanous had passed behind her counter many times before and had not grabbed her

At a later point in her testimony, Gentry was specifically asked if Istfanous
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“grabbed [her] breast in order to satisfy some sort of sexual desire of his.” Gentry
responded, “I don’t know.” When asked why people normally do that, she
responded, “[I]t’s sexual.”

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breast or face. She further explained that “this time fe[lt] different to” her and it

scared and annoyed her.

After these events, Gentry phoned Istfanous’s employer to report the assaults

by their employee. She testified that they would not listen to her and hung up on her.

After that, Gentry called the police to make a report. She stated that the report was

investigated.

Gentry did recount for the jury that there was an earlier occasion when

Istfanous touched her inappropriately while he was walking behind the counter. She

stated that while she was standing on a ladder and dusting, Istfanous passed by her

and touched her “butt.”2 She also testified that at the time it occurred and at the time

of trial, she believed the touching of her buttocks “was an accident.” Gentry agreed

that both instances of touching occurred over her clothes.

Gentry’s trainee on November 14, 2022, Lourae Crichton, also testified at trial.

She told the jury that she was “[v]ery close” in proximity to Gentry when she

observed a man who “actually took his open hand and brought it up across [Gentry’s]

breast.” Crichton acknowledged that she did not particularly like Gentry but that she

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Gentry gave conflicting testimony concerning whether the touching while she
was on the ladder and the touching of her breast occurred on the same day or a
different day. She explained that she got the timeline from two years before the trial
“mixed up.” She confirmed for the jury that her initial report that they occurred on
different days was correct.

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was there to testify “for [Gentry] to seek justice because of the circumstances. I don’t

think that was right, what occurred.”

Istfanous was charged by information with the offense of indecent assault. The

information alleges that:

Girgis Gorgy Salib Istfanous, hereinafter called Defendant, in the
County of Tarrant and State aforesaid, on or about the 14th day of
November 2022, did intentionally or knowingly, without the consent of
Tiraha Gentry, and with intent to arouse or gratify the sexual desire of
any person, touch the anus, breast, or any part of the genitals of another
person[.]

Counsel for Istfanous filed a motion to dismiss the information. The motion

argued a single theory by contending that the misdemeanor information failed to

provide sufficient notice of the offense charged because it failed to allege that proof

of skin-to-skin contact was an element of the offense. Istfanous argued that the

charging instrument failed to provide him with sufficient notice to determine the

alleged illegal conduct he was being charged with. Following a hearing, the trial court

denied the motion.

After hearing the evidence, a jury found Istfanous guilty of indecent assault.

The trial judge sentenced him to 45 days in the county jail and a $200 fine. Istfanous

appealed.

II. STANDARD OF REVIEW

The question of whether a charging instrument provides notice of an offense is

a question of law. Hughitt v. State, 583 S.W.3d 623, 626 (Tex. Crim. App. 2019) (citing

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State v. Mays, 967 S.W.2d 404, 406 (Tex. Crim. App. 1986)). A criminal defendant has

a right to notice under the United States and Texas Constitutions. U.S. Const.

amend VI; Tex. Const. art. I, § 10.

The Texas Code of Criminal Procedure also provides a defendant statutory

rights to notice:

Articles 21.03, 21.04, and 21.11 of the Texas Code of Criminal
Procedure contain requirements that (1) “[e]verything should be stated
in an indictment which is necessary to be proved,” Tex. Code Crim
Proc. art. 21.03; (2) “[t]he certainty required in an indictment is such as
will enable the accused to plead the judgment that may be given upon it
in bar of any prosecution for the same offense,” id. art. 21.04; and
(3) “[a]n indictment shall be deemed sufficient which charges the
commission of the offense in ordinary and concise language in such a
manner as to enable a person of common understanding to know what
is meant, and with that degree of certainty that will give the defendant
notice of the particular offense with which he is charged, and enable the
court, on conviction, to pronounce the proper judgment,” id. art. 21.11.

State v. Oakley, 706 S.W.3d 492, 497 (Tex. App.—Austin 2025, no pet.) (footnote

omitted) (first quoting Flores v. State, 536 S.W.3d 560, 568 (Tex. App.––San Antonio

2017, pet. ref’d); then citing State v. Zuniga, 512 S.W.3d 902, 906 (Tex. Crim.

App. 2017) (noting that Chapter 21 “provides legislative guidance concerning the

requirements and adequacy of notice”); and then citing Tex. Code Crim. Proc. Ann.

art. 21.23 (“The rules with respect to allegations in an indictment and the certainty

required apply also to an information.”)).

To satisfy the notice requirement, an information must allege facts sufficient to

give the accused notice of the particular offense with which he is charged. State v.

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Laird, 208 S.W.3d 667, 670–71 (Tex. App.—Fort Worth 2006, no pet.). We review a

trial court’s ruling on a motion to quash an information de novo. State v. Moff,

154 S.W.3d 599, 601 (Tex. Crim. App. 2004); Laird, 208 S.W.3d at 669.

III. MOTION TO DISMISS THE INFORMATION

Istfanous filed a motion to dismiss the charging instrument filed against him

for the misdemeanor offense of indecent assault. The indecent assault statute

provides:

(a) A person commits an offense if, without the other person’s
consent and with the intent to arouse or gratify the sexual desire
of any person, the person:

(1) touches the anus, breast, or any part of the genitals of
another person[.]

Tex. Penal Code Ann. § 22.012(a)(1).

The motion was based on the argument that the indecent assault statute

“mirrors the [i]ndecency with a [c]hild[ statute] minus two elements[:] . . . the ‘of a

child’ element and ‘including touching through the clothing’ [language] were

removed.”

The sole ground alleged in the motion argues that the charging instrument

“fails to provide [Istfanous] with sufficient notice to determine the alleged illegal

conduct against him.” While the statute is silent on whether the touching must be

under the clothing or could be either over or under the clothing, Istfanous argues that

the legislative intent of the statute is clear that skin-to-skin contact must be made.

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Istfanous contends that while the State “copied the exact statutory language” of Texas

Penal Code Section 22.012(b)(1), the information “failed to allege the skin-to-skin

contact required under the charged offense.”

The indecency with a child statute provides:

(a) A person commits an offense if, with a child younger than 17 years
of age, whether the child is of the same or opposite sex and
regardless of whether the person knows the age of the child at the
time of the offense, the person:

(1) engages in sexual contact with the child or causes the
child to engage in sexual contact[.]

....

(c) In this section, ‘sexual contact’ means the following acts, if
committed with the intent to arouse or gratify the sexual desire of
any person:

(1) 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(a)(1), (c)(1).

In his motion, Istfanous argued that the “noticeable absence of ‘including

through the clothing’ in the [i]ndecent [a]ssault statute makes the legislative intent

clear” that skin-to-skin contact was required and therefore should have been

contained in the information. Without authority, Istfanous relies on an argument that

“one must assume the legislature intended to omit the additional language.”

[Emphasis added.] But we do not make rulings on unsupported assumptions.

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In the hearing on the motion, the State argued that the legislative intent of the

indecent assault statute was explained by the author of the bill. The intent was to

create an offense higher than Class C misdemeanor assault, which is based only on a

threat of imminent bodily injury or physical contact that is offensive or provocative.

See id. § 22.01 (a)(2), (3). The State argued that the author of the bill to create the

offense of indecent assault intended to make forced sexual touching punishable as a

Class A misdemeanor and not a felony.

The plain language of the relevant statute does not contain the additional

element Istfanous proposes. The Court of Criminal Appeals faced this basic question

prior to 2001, when the legislature added the language in question to the indecency

with a child statute. See Resnick v. State, 574 S.W.2d 558 (Tex. Crim. App. 1978)

(construing language of public-lewdness offense in Penal Code Section 21.07); see also

Act of May 23, 2001, 77th Leg., R.S., ch. 739, § 2, 2001 Tex. Gen. Laws 1463 (adding

the “including touching through clothing” language to Penal Code Section

21.11(c)(1)). “Sexual contact” was defined at that time as “any touching of the anus

or any part of the genitals of another person or the breast of a female 10 years or

older with the intent to arouse or gratify the sexual desire of any person.” Act of

May 24, 1973, 63rd Leg., R.S., ch. 399, § 1, sec. 21.01, 1973 Tex. Gen. Laws 883, 915

(current version at Tex. Penal Code Ann. § 21.02(2)).

In Resnick, the facts revolved around an undercover operation in an adult movie

house where the defendant “placed his hand on that portion of the officer’s trousers

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which covered his genitals.” 574 S.W.2d at 559. Although the defendant in Resnick

was charged with public lewdness, one of the elements was that the accused had

engaged in an act of “sexual contact.” Id.; Act of May 24, 1973, 63rd Leg., R.S., ch.

399, § 1, sec. 21.01, 1973 Tex. Gen. Laws 883, 915 (current version at Tex. Penal

Code Ann. § 21.02(2)). On appeal, the appellant argued that the evidence did not

show a “touching” under the definition of sexual contact. Id. The Court of Criminal

Appeals disagreed and held,

This definition makes it quite plain that the essence of the act of
touching is to perceive by the sense of feeling. It is a matter of the
commonest knowledge that the interposition of a layer of fabric between
a person’s hand and an object upon which the hand is placed will not
prevent that person from feeling the object thus concealed.

Id. at 560. Applying this common-sense standard contradicts the argument that

Istfanous did not receive sufficient notice of the charge against him. Cf. Guia v. State,

723 S.W.2d 763 (Tex. App.—Dallas 1986 pet. ref’d) (relying on Resnick and Section

21.07 and holding that “[i]f the mere imposition of a layer of fabric does not prevent

occurrence of sexual contact for the offense of public lewdness, it should not prevent

the occurrence of sexual contact for the offense of indecency with child”).

In Edwards v. State, the Dallas court of appeals rejected the appellant’s argument

that the evidence was legally insufficient to support the conviction for indecent assault

based on the argument that the indecent assault statute does not apply when the

evidence shows the accused touched the complainant’s genitals over the clothing.

No. 05-23-00169-CR, 2024 WL 4879683, at *2 (Tex. App.—Dallas Nov. 25, 2024, no

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pet.) (mem. op., not designated for publication). Like the court in that case, “[w]e

reject the argument that a ‘touch’ must be flesh-to-flesh and conclude that in the

context of indecent assault, a ‘touch’ may occur through clothing.” Id. at *4. Thus,

the missing element claimed by Istfanous is not missing.

The language of a charging instrument is sufficient if it tracks the penal statute

in question unless the statutory language is not completely descriptive of the offense.

Mays, 967 S.W.2d at 406. We conclude that the information’s allegation that Istfanous

did intentionally or knowingly, without the consent of Tiraha Gentry, and with the

intent to arouse or gratify the sexual desire of any person, touch her anus, breast, or

any part of her genitals provided sufficient information in plain and intelligible

language to make him aware that he was accused of touching her breast and to enable

him him to prepare a defense. See Oakley, 706 S.W.3d at 499.

Under this same issue, Istfanous argues that “[t]he State elicited testimony of

potentially two separate offenses against [him] – a touching of the breast and a

touching of the anus.” Istfanous did not include this argument in the motion to

dismiss the information that he filed. Even during the hearing on the motion to

dismiss, he never argued that the charging instrument failed to give fair notice of the

specific offense charged based on this reasoning. After trial counsel made his

argument concerning his position that the indecent assault statute required proof of

skin-to-skin contact, the trial judge asked him if “there [was] anything else [he’d] like

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to add to the record for appellate purposes.” Trial counsel replied, “No, Your

Honor.”

To preserve a complaint for our review, a party must have presented to the trial

court a timely request, objection, or motion sufficiently stating the specific grounds, if

not apparent from the context, for the desired ruling. Tex. R. App. P. 33.1(a)(1);

Montelongo v. State, 623 S.W.3d 819, 822 (Tex. Crim. App. 2021). Further, the party

must obtain an express or implicit adverse trial-court ruling or object to the trial

court’s refusal to rule. Tex. R. App. P. 33.1(a)(2); Dixon v. State, 595 S.W.3d 216, 223

(Tex. Crim. App. 2020).

Because Istfanous failed to meet any of the preservation of error requirements

as to his second complaint under his first issue, we hold that he has forfeited that

complaint. We overrule Istfanous’s first issue.

IV. SUFFICIENCY OF THE EVIDENCE

In his second issue, Istfanous argues that the evidence was insufficient to

support his conviction because (1) the complainant’s testimony was inconsistent and

partially contradicted by Crichton’s testimony; (2) the testimony of Melissa Webb,

another airport worker, about an extraneous act was uncorroborated and did not

involve a sex offense; and (3) “there was virtually no evidence at all that [Istfanous]

intended to arouse or gratify a sexual desire.”

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

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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).

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). 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 the necessary 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.

To determine whether the State has met its burden to prove a defendant’s guilt

beyond a reasonable doubt, we compare the crime’s elements as defined by a

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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.”). Such a charge is one that accurately sets out the law, is authorized by the

indictment, does not unnecessarily increase the State’s burden of proof or restrict the

State’s theories of liability, and adequately describes the particular offense for which

the defendant was tried. Hammack, 622 S.W.3d at 914. The law as authorized by the

indictment means the statutory elements of the offense as modified by the charging

instrument’s allegations. Curlee v. State, 620 S.W.3d 767, 778 (Tex. Crim. App. 2021);

see Rabb v. State, 434 S.W.3d 613, 616 (Tex. Crim. App. 2014)

The standard of review is the same for direct and circumstantial evidence cases;

circumstantial evidence is as probative as direct evidence in establishing guilt. Carter v.

State, 620 S.W.3d 147, 149 (Tex. Crim. App. 2021). We must scrutinize circumstantial

evidence of intent as stringently as other types of evidence. Laster v. State, 275 S.W.3d

512, 519–20 (Tex. Crim. App. 2009). When the record supports conflicting

inferences, a reviewing court must presume—even if it does not affirmatively appear

in the record—that the trier of fact resolved any such conflicts in favor of the

prosecution and must defer to that resolution. Petetan v. State, 622 S.W.3d 321, 337

(Tex. Crim. App. 2021).

The first argument is that there were inconsistencies in Gentry’s testimony and

contradictions between Gentry’s testimony and other witness testimony. Istfanous

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offers several instances where Gentry’s testimony was not consistent or differed from

Crichton’s testimony. For example, at one point Gentry said she could not remember

which breast was touched, and at another she said it was her left breast. Crichton

testified that Istfanous touched Gentry’s right breast. At one point, Gentry testified

that Istfanous touched her buttocks while she was on a ladder on the same day that he

touched her breast, but at another point she claimed the ladder incident took place

weeks before he touched her breast. Crichton testified that the two incidents

occurred on the same day.

Istfanous argues that the details of Gentry’s testimony are inconsistent and vary

from the testimony of Crichton. This argument deviates from the appropriate

standard of review. We may not evaluate a witness’s credibility as that is the sole

province of the fact-finder. See Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim.

App. 2013). “Thus, in accordance with this review standard, we look to the

cumulative force of the admitted evidence in the deferential light most favorable to

the jury’s verdict.” Escamilla v. State, No. 02-13-00317-CR, 2014 WL 4463121, at *3

(Tex. App.—Fort Worth Sept. 11, 2014, no pet.) (mem. op., not designated for

publication).

Gentry’s testimony at trial showed that Istfanous touched Gentry’s breast

without her consent. Crichton’s testimony corroborated that allegation. Despite a

bad working relationship with Gentry, Crichton clearly testified that Istfanous

touched Gentry’s right breast with an open-handed sweeping movement. The

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cumulative force of this evidence shows that the jury’s verdict was based on the

reasonable inference that Istfanous committed the offense of indecent assault when

he touched Gentry’s breast. See, e.g., Torres v. State, 424 S.W.3d 245, 253–54 (Tex.

App.—Houston [14th Dist.] 2014, pet. ref’d); Montgomery v. State, 415 S.W.3d 580, 582

(Tex. App.—Amarillo 2013, pet. ref’d); Martinez v. State, 313 S.W.3d 358, 363 (Tex.

App.—Houston [1st Dist.] 2009, pet. ref’d).

Istfanous also challenges the sufficiency of the evidence based on Webb’s

testimony, which he claims was uncorroborated and did not involve a sex offense.

The evidence was sufficient without considering Webb’s testimony at all, so we find

no need to address this argument because it is unnecessary to the disposition of this

case. See May v. State, 765 S.W.2d 438, 439 (Tex. Crim. App. 1989); see also Tex. R.

App. P. 47.1.

In his final assertion on his sufficiency of the evidence challenge, Istfanous

argues that there is insufficient evidence as to the element that he intended to arouse

or gratify a sexual desire when he allegedly touched Gentry’s breast. While it is true

that Gentry gave somewhat conflicting evidence on what she believed his intent was,

it is also true that any conflicting evidence is for the jury to weigh and to determine

credibility. Viewing Istfanous’s conduct and all the surrounding circumstances, we

note that he had passed Gentry behind the counter on a frequent basis and never

grabbed her breast prior to November 14, 2022. When he did grab her breast, he

looked Gentry in the face and smiled. Later that same day, he returned to her place of

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employment, gripped her face and pulled it towards his as if to kiss her. The jury

weighed this evidence, observed the witnesses, and determined the credibility and

weight to be given to their testimony. Again, we defer to their resolution which was

clearly resolved by their verdict of guilty.

We overrule Istfanous’s second issue.

V. CONCLUSION

Having overruled both of Istfanous’s issues, we affirm the trial court’s

judgment.

/s/ Lee Gabriel

Lee Gabriel
Justice

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

Delivered: August 7, 2025

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