Opinion
NUMBER 13-15-00073-CR
02-04-2016
EDUARDO CORONADO, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 94th District Court of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Benavides
Memorandum Opinion by Chief Justice Valdez
Appellant, Eduardo Coronado, was convicted of continuous sexual abuse of a young child or children, a first-degree felony and sentenced to fifty years' confinement. See TEX. PENAL CODE ANN. § 21.02(b), (h) (West, Westlaw through 2015 R.S.). By two issues, appellant contends that the evidence was insufficient to support his conviction and that the punishment assessed was disproportionate to the seriousness of the alleged offense in violation of the Eighth Amendment and Fourteenth Amendment of the United States Constitution. We affirm.
As this is a memorandum opinion and because all issues of law presented by this case are well settled and the parties are familiar with the facts, we will not recite the law and the facts in this opinion except as necessary to advise the parties of the Court's decision and the basic reasons for it. See TEX. R. APP. P. 47.4.
I. SUFFICIENCY OF THE EVIDENCE
By his first issue, appellant contends that the evidence is insufficient to support the trial court's finding that he committed the offense of continuous sexual abuse of a child beyond a reasonable doubt. Specifically, appellant argues that the two children who testified against him were not truthful, that the children's parents and grandparents were "dubious regarding [his] guilt," and that evidence was presented that the children had previously been "purveyors of falsehoods in school and at home." In addition, appellant argues that his confession to the offense was an "irrational need to blame himself for the criminal conduct set forth in the indictment" and that his "short-temper and emotional outbursts contributed to an atmosphere which had invited immature vendettas against him by these children."
We note that appellant's video-taped confession was admitted at trial. Appellant confessed that he had sexually assaulted his six-year-old niece in three separate incidents occurring from February 2014 until March 2014, by touching her sexual organ, making her touch his sexual organ, and putting his sexual organ in her sexual organ. Appellant's niece, who was seven at the time of appellant's trial, testified that appellant had penetrated her sexual organ and her anus with his sexual organ and that he had done this to her more than five times when she was five and six years old. Thus, the State presented evidence addressing each element of continuous sexual assault of a child. See TEX. PENAL CODE ANN. § 21.02(b) (West, Westlaw through 2015 R.S.)
A bench trial was held in this case.
To determine whether the evidence is legally sufficient, we consider all of the evidence in the light most favorable to the verdict and determine whether a rational fact finder could have found the essential elements of the crime beyond a reasonable doubt based on the evidence and reasonable inferences from that evidence.Whatley v. State, 445 S.W.3d 159, 166 (Tex. Crim. App. 2014); Brooks v. State, 323 S.W.3d 891, 898-99 (Tex. Crim. App. 2010) (explaining that we consider "all of the evidence in the light most favorable to the verdict" and determine whether the fact finder was rationally justified in finding guilt beyond a reasonable doubt). We measure the legal sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. Coleman v. State, 131 S.W.3d 303, 314 (Tex. App.—Corpus Christi 2004, pet. ref'd) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). The elements of the offense of continuous sexual abuse of a child are:
Appellant also argues that the evidence is factually insufficient to support his conviction for continuous sexual abuse of a child. However, because the court of criminal appeals has determined that the Jackson legal sufficiency standard is the only standard that we should apply in determining whether the evidence is sufficient to support each element of a criminal offense, we will not address appellant's complaint that the evidence is factually insufficient to support the verdict. See Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010) (plurality op.) ("[W]e eventually came to realize that the Clewis factual-sufficiency standard is 'barely distinguishable' from the Jackson v. Virginia legal-sufficiency standard. We now take the next small step in this progression and recognize that these two standards have become essentially the same standard and that there is no meaningful distinction between them that would justify retaining them both. We, therefore, overrule Clewis and decide that the Jackson v. Virginia legal-sufficiency standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt.").
(1) during a period that is 30 or more days in duration, the person commits two or more acts of sexual abuse, regardless of whether the acts of sexual abuse are committed against one or more victims; and (2) at the time of the commission of each of the acts of sexual abuse, the actor is 17 years of age or older and the victim is a child younger than 14 years of age. Thus, to convict the appellant of this offense, the jury must have found that appellant committed at least two acts of sexual abuse over a period of at least thirty days.Render v. State, 316 S.W.3d 846, 857 (Tex. App.—Dallas 2010, pet. ref'd) (citing TEX. PENAL CODE ANN. § 21.02(b)).
Appellant has not challenged any specific element of the charged offense. Instead, several of appellant's complaints go to the fact finder's determinations of the witnesses' credibility and the weight to be given to their testimony. However, in our sufficiency review, we must defer to the fact finder's credibility and weight determinations because the fact finder is the sole judge of the witnesses' credibility and the weight to be given their testimony. Brooks, 323 S.W.3d at 899. In addition, we are not allowed to engage in a second evaluation of the weight and credibility of the evidence and must only ensure that the jury reached a rational decision. Reyes v. State, 267 S.W.3d 268, 275 (Tex. App.—Corpus Christi 2008, pet. ref'd). Therefore, we overrule appellant's complaints relating to the fact finder's determination of the witnesses' credibility and the weight it gave their testimony.
Appellant has neither mentioned the elements of continuous sexual abuse of a child in his brief nor stated that the evidence is insufficient to support any one of the elements. --------
Appellant also appears to point out some conflicts in the evidence. However, the fact finder must exclusively reconcile any conflicts in the evidence. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2009). And, the introduction of conflicting evidence does not render the evidence insufficient as we must assume that the fact finder resolved any conflicts in the evidence in favor of the verdict. Wheaton v. State, 129 S.W.3d 267, 271-72 (Tex. App.—Corpus Christi 2004, no pet.) (acknowledging the conflicts existing in the evidence and concluding that the fact finder resolved the conflicts and conflicting inferences in favor of the verdict) (citing Matchett v. State, 941 S.W.2d 922, 936 (Tex. Crim. App. 1996) ("That conflicting evidence was introduced does not render evidence insufficient; indeed, the reviewing court must assume that the factfinder resolved conflicts in the evidence in favor of the verdict reached.")). Accordingly, we overrule appellant's first issue.
II. PUNISHMENT
By his second issue, appellant contends that the punishment assessed by the trial court was disproportionate to the seriousness of the alleged offense in violation of the Eighth and Fourteenth Amendments of the United States Constitution.
Generally, to complain on appeal about errors in the trial, those alleged errors must be brought to the trial court's attention in order to afford the trial court an opportunity to correct the error, if any. Kim v. State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, no pet.). A complaint that a sentence is grossly disproportionate, constituting cruel and unusual punishment, must be preserved by an appellant by presenting to the trial court a timely request, objection, or motion stating the specific grounds for the ruling desired. Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) (en banc) (holding that a complaint of cruel and unusual punishment under Texas Constitution was waived because defendant presented his argument for first time on appeal); Kim, 283 S.W.3d at 475; Noland v. State, 264 S.W.3d 144, 151-52 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd) (explaining that the appellant failed to preserve his Eighth Amendment complaint that the punishment assessed was "grossly disproportionate and oppressive"); Wynn v. State, 219 S.W.3d 54, 61 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (providing that when a defendant fails to object to his life sentence of imprisonment as cruel and unusual punishment, error is waived); see also Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986) (stating that, as a general rule, when the appellant failed to object or otherwise raise such error in the trial court, he may not complain on appeal of error, if any, pertaining to his sentence or punishment); Dimick v. State, No. 13-14-00426-CR, 2016 WL 105936, at *9 (Tex. App.—Corpus Christ Jan. 7, 2016, no pet. h.) (mem. op., not designated for publication) ("Texas courts have consistently held that a defendant waives a proportionality claim by failing to object in the trial court."); Lopez v. State, No. 13-09-00101-CR, 2010 WL 2643084, at *1 (Tex. App.—Corpus Christi June 29, 2010, pet. ref'd) (mem. op., not designated for publication); Guzman v. State, No. 13-09-00132-CR, 2010 WL 2011524, at *1 (Tex. App.—Corpus Christi May 20, 2010, no pet. h.) (mem. op., not designated for publication) (holding that failure to object to disproportionate sentencing or to raise the issue in a motion for new trial waives the issue on appeal); Figueroa v. State, No. 13-08-00115-CR, 2009 WL 3489842, at *1 (Tex. App.—Corpus Christi Oct.29, 2009, pet. ref'd) (mem. op., not designated for publication) (same); Valadez v. State, No. 13-09-00062-CR, 2009 WL 2914260, at *4 (Tex. App.—Corpus Christi Aug.31, 2009, no pet.) (mem. op., not designated for publication) (same).
Appellant's complaint about the alleged disproportionality of his sentence was not raised at the time it was imposed or in a motion for new trial. Therefore, he has not preserved this issue for our review. Rhoades, 934 S.W.2d at 120; Kim, 283 S.W.3d at 475; Noland, 264 S.W.3d at 151-52; Wynn, 219 S.W.3d at 61; Acosta v. State, 160 S.W.3d 204, 211 (Tex. App.— Fort Worth 2005, no pet.) (holding that defendant's failure to raise the issue in the trial court forfeited his Texas constitution-based complaint that his sentence was grossly disproportionate). Moreover, appellant's sentence is within the statutory punishment range for the charged offense. See TEX. PENAL CODE ANN. § 21.02(h) (establishing that the punishment range for continuous sexual abuse of a young child or children is twenty-five through ninety-nine years imprisonment). A punishment within the limits prescribed by a valid statute is per se not excessive, cruel, or unusual. See Trevino v. State, 174 S.W.3d 925, 928 (Tex. App.—Corpus Christi 2005, pet. ref'd). Accordingly, we overrule appellant's second issue.
III. CONCLUSION
We affirm the trial court's judgment.
/s/ Rogelio Valdez
ROGELIO VALDEZ
Chief Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 4th day of February, 2016.