Opinion filed August 29, 2014

In The

Eleventh Court of Appeals __________

No. 11-12-00231-CR

__________

ROBERT LEE TREVINO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 385th District Court

Midland County, Texas

Trial Court Cause No. CR39682

M E M O R A N D U M O P I N I O N

The jury convicted Robert Lee Trevino of indecency with a child by contact. 

See TEX. PENAL CODE ANN. § 21.11(a)(1), (c) (West 2011). After finding the 

enhancement paragraph to be true, the jury assessed Appellant’s punishment at 

confinement for a term of thirty-five years and a fine in the amount of $10,000. 

The trial court sentenced him accordingly. We affirm.
2

Appellant presents three issues for our review. In his first issue, he 

challenges the sufficiency of the evidence to support his conviction for indecency 

with a child by contact. Appellant argues in his second issue that the trial court 

erred when it refused to allow Appellant’s wife to testify about her own personal 

history of sexual abuse as a child. And, in his final issue, Appellant asserts that the 

sentence imposed against him of thirty-five years is cruel and unusual punishment 

for a conviction of indecency with a child by contact.

We first examine Appellant’s complaint that the evidence is insufficient to 

support his conviction of indecency with a child by contact because the child’s 

testimony was not credible. We review the sufficiency of the evidence under the 

standard of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. 

State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 

286, 288–89 (Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, 

we examine all of the evidence in the light most favorable to the verdict and 

determine whether, based on that evidence and any reasonable inferences from it, 

any rational trier of fact could have found the essential elements of the offense 

beyond a reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 

633, 638 (Tex. Crim. App. 2010). 

To prove that Appellant committed the offense of indecency with a child by 

contact, the State had to show that Appellant touched, either directly or through 

clothing, the anus, breast, or any part of the genitals of a child younger than 

seventeen years of age with the intent to arouse or gratify the sexual desire of any 

person. See PENAL § 21.11(a)(1), (c). A.V., Appellant’s stepdaughter, testified 

that Appellant came into the living room where she and her stepsister slept and 

poked her with his finger in her private part. She explained that her private part 

was the place where she would go pee. She said that he would poke her about 

three times, she would turn over, he would stop, and then he would continue to get
3

ready for work. A.V. testified that Appellant probably touched her on four 

occasions during one week and then never touched her again. He touched her early 

in the morning, when everyone else in the apartment was still asleep. The touching 

occurred outside her clothes. She was eleven when the incidents occurred.

On cross-examination, defense counsel asked A.V. if she ever told her 

mother that Appellant did not touch her and that she was sorry that she lied. A.V. 

responded that she did not tell her mother that, but that her mother wanted her to 

tell the district attorney’s office that Appellant had not touched her.

A.V.’s father testified that A.V. made her outcry statement about the 

incidents when he, her mother, and Appellant were confronting her regarding her 

relationship with Appellant’s son. The two had apparently been cuddling together 

and kissing, and all three adults were upset about that behavior. Appellant’s son 

was also present, and Appellant confronted him about the relationship. Appellant 

reminded him that A.V. was only eleven years old. A.V.’s father told A.V. to pack 

her things because he was going to take her back to his house. A.V. came back out 

of her room and said, “[Y]eah, [Appellant] . . . remember that, I’m 11 years old, 

you should remember that.” A.V. then told everyone that Appellant had been 

touching her. Everyone was shocked, and Appellant kept saying, “[T]his is false, 

this is false.” A.V.’s father took her home and then took her to the emergency 

room to be examined.

While A.V. and her father were waiting at the hospital, A.V. told him that 

Appellant had touched her on top of her clothes in her vaginal area. She told him 

that it happened in the mornings before Appellant woke her up for school and that 

it happened three times. On a fourth occasion, Appellant tried to go into her pants. 

Appellant stopped touching her each time when she rolled over and pretended to be

waking up.
4

A.V.’s father testified that he never coached A.V. on what to say regarding 

the incident, but only told her to tell the truth. He said that he never manipulated 

her or made threats to her about what would happen if she recanted her story.

Detective Steven Sanders testified that Appellant told him that he 

accidentally touched A.V. inappropriately on her thigh near her vaginal area when 

he was trying to wake her up. Appellant explained that the room was dark and that

he could not see where he was touching her. Appellant told police it only 

happened one time.

When asked whether A.V.’s mother was supportive of A.V. or of Appellant 

after the incident, Detective Sanders said that she was supportive of Appellant. 

A.V.’s mother, Chanda, testified for the defense. She said that A.V. recanted her 

story on four separate occasions. The first occasion occurred when A.V. came to 

visit her and they were talking in her room. She testified that A.V. told her that she 

did a bad thing. A.V. said that she had blamed Appellant for touching her but that 

Appellant had never touched her and she was so sorry. Chanda told A.V. that she 

needed to tell someone, especially her father. Chanda testified that she told A.V.’s 

father about the recantation but that she did not tell anyone else. She explained 

that the reason that she did not tell anyone else was because she thought that A.V. 

was going to tell her therapist the truth. A.V. had told her that she was going to tell 

her therapist that she had lied about the incident.

Appellant argues that A.V.’s actions were not consistent with a child who 

claims to have been sexually assaulted because she never told her parents about the 

alleged touching and because she continued to live in the same home with her 

mother and Appellant for four months after the alleged incidents. Appellant also 

points out that A.V.’s mother testified that A.V. recanted her accusation against 

Appellant and reiterated her recantation on three separate occasions. Thus, 

Appellant argues that A.V.’s testimony was not credible. 
5

The jury, as the trier of fact, was the sole judge of the credibility of the 

witnesses and of the weight to be given their testimony. TEX. CODE. CRIM. PROC.

ANN. art. 36.13 (West 2007), art. 38.04 (West 1979). As such, the jury was 

entitled to accept or reject any or all of the testimony of any witness. Adelman v. 

State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992). Thus, it was within the jury’s 

province to determine the credibility of A.V. and her mother and resolve 

inconsistencies between the two witnesses’ testimony. The jury obviously found 

that A.V. was more credible than Chanda. 

Appellant also asserts that the evidence is insufficient to support his 

conviction because the State did not offer any physical evidence or any evidence 

other than the child’s accusation. Further, Appellant claims that, even if the State 

proved that he touched A.V., the State failed to prove that he touched her with the 

intent to arouse or gratify the sexual desire of any person. The complainant’s 

testimony alone is sufficient to support a conviction for indecency with a child. 

CRIM. PROC. art. 38.07 (West Supp. 2013); Chapman v. State, 349 S.W.3d 241, 245 

(Tex. App.—Eastland 2011, pet. ref’d). Therefore, A.V.’s testimony that 

Appellant came into the living room and poked her in her private part outside her 

clothes is sufficient to show that Appellant touched A.V. on a part of her genitals 

through her clothing. 

As to whether the State showed that Appellant touched A.V. with the intent 

to arouse or gratify the sexual desire of any person, the jury can infer intent to 

arouse or gratify the sexual desire from conduct, remarks, or all the surrounding 

circumstances of the incident. McKenzie v. State, 617 S.W.2d 211, 216 (Tex. 

Crim. App. [Panel Op.] 1981). “An oral expression of intent is not required, and a 

defendant’s conduct alone is sufficient to infer intent.” Cruz v. State, No. 11-05-

00112-CR, 2006 WL 572002, at *3 (Tex. App.—Eastland Mar. 9, 2006, no pet.) 

(not designated for publication) (citing Tyler v. State, 950 S.W.2d 787, 789 (Tex. 
6

App.—Fort Worth 1997, no pet.)). Here, A.V. testified that Appellant poked her 

on four separate occasions in her private area when no one else in the apartment 

was awake. Thus, the jury could have inferred that Appellant touched A.V. with 

the intent to arouse or gratify his sexual desires based on the evidence that he 

touched her on multiple occasions when no one was looking. We have reviewed 

the evidence in the light most favorable to the verdict, and we hold that a rational 

trier of fact could have found beyond a reasonable doubt that Appellant committed 

the offense of indecency with a child by contact. We overrule Appellant’s first

issue on appeal. 

In his second issue, Appellant contends that the trial court erred when it 

refused to allow A.V.’s mother to testify about her personal history of sexual abuse 

as a child. We review a trial court’s decision to admit or exclude evidence under 

an abuse of discretion standard. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. 

Crim. App. 1991) (op. on reh’g). We will reverse a trial court’s ruling only if it is 

outside the “zone of reasonable disagreement.” Id. 

The State objected to Chanda testifying about the sexual abuse that she 

suffered as a child; it claimed that the evidence was not relevant. The trial court 

sustained the State’s objection. In an offer of proof, defense counsel asked 

Chanda, “[I]f you believed [A.V.]’s allegations of sexual abuse by [Appellant] 

were true, would you come in here and lie for him?” Chanda responded, “I 

wouldn’t come in here and lie for him, no.” Defense counsel then asked Chanda

about the sexual abuse she suffered as a child. The trial court made it clear that 

defense counsel’s first question—the one quoted above—was admissible and that 

defense counsel was free to ask that question in front of the jury. However, the 

trial court ruled that defense counsel could not ask the subsequent questions. 

Defense counsel did not ask Chanda, in the presence of the jury, the question that 

the trial court ruled was admissible. 
7

Appellant argues that the evidence was relevant because it tended to show 

that Chanda would not have ignored A.V.’s allegations of sexual abuse and that it 

was relevant to rebut the State’s challenges to Chanda’s credibility based on her 

prior felony conviction and her financial reliance on Appellant. Rule 401 defines 

“relevant evidence” as “evidence having any tendency to make the existence of any 

fact that is of consequence to the determination of the action more probable or less 

probable than it would be without the evidence.” TEX. R. EVID. 401. 

In determining whether evidence is relevant, we look to the purpose for 

offering the evidence and whether there is a direct or logical connection between 

the offered evidence and the proposition sought to be proved. Reed v. State, 59 

S.W.3d 278, 281 (Tex. App.—Fort Worth 2001, pet. ref’d) (citing Fletcher v. 

State, 852 S.W.2d 271, 276 (Tex. App.—Dallas 1993, pet. ref’d)). When a 

witness’s credibility has been attacked by impeachment, the sponsoring party may 

rehabilitate the witness but only in direct response to the attack. Michael v. State, 

235 S.W.3d 723, 726 (Tex. Crim. App. 2007). Rule 608(a) permits the 

rehabilitation of a witness’s character for truthfulness in the form of opinion or 

reputation evidence. TEX. R. EVID. 608(a); Michael, 235 S.W.3d at 725. 

Appellant offered Chanda’s testimony about her abuse as a child to show 

that she would have been less likely to ignore A.V.’s allegations if she believed 

that they were true and to rebut the State’s attacks on Chanda’s

credibility. However, whether Chanda believed A.V.’s allegations or whether 

Chanda would have been less likely to ignore A.V.’s allegations had she believed 

them do not show whether Appellant touched A.V. Her mother’s belief is not a 

fact of consequence; thus, her testimony that she was abused as a child is not 

relevant. It is also not relevant to rebut the State’s attack on her credibility. The 

State attacked her credibility by showing that she was a convicted felon and 

alleging that she relied on Appellant for financial support. Whether she was 
8

abused as a child is not evidence that rehabilitates her in direct response to the 

State’s attacks on her credibility, nor does it show that she has a character or 

reputation for truthfulness as permitted under Rule 608(a). Furthermore, while it 

may show that she would be less likely to ignore A.V.’s allegations, it does not 

necessarily show that she would be less likely to lie for Appellant or that she is a 

credible witness. Therefore, we cannot say that the trial court acted outside the 

zone of reasonable disagreement when it found the evidence irrelevant and 

excluded it. We overrule Appellant’s second issue.

Appellant argues in his final issue that the imposition of a 35-year sentence 

for a nonviolent “sexual” crime constitutes cruel and unusual punishment in 

violation of U.S. CONST. amend. VIII; TEX. CONST. art. I, § 13; and CRIM. PROC.

art. 1.09 (West 2005). Specifically, Appellant asserts that the 35-year sentence is 

grossly disproportionate to the offense charged and that the sentence substantially 

exceeded the length of sentences usually imposed in cases of indecency with a 

child by contact. The State argues that Appellant has waived this issue on appeal 

because he failed to object to his punishment in the trial court. We agree.

To preserve error on appeal, Appellant must make a timely and specific 

objection to the trial court, and the trial court must rule on the objection. See 

TEX. R. APP. P. 33.1. Appellant did not contend at trial that his sentence 

constituted cruel and unusual punishment, nor did he object to the imposition of his 

sentence. Therefore, he has failed to preserve error and has waived his complaint 

on appeal. See id.; Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995)

(failure to object that sentence constitutes cruel and unusual punishment waives 

error on appeal). But see Garza v. State, No. PD-1596-12, 2014 WL 2589770, at 

*3 (Tex. Crim. App. June 11, 2014) (recognizing an exception to procedural 

default for certain Eighth Amendment claims not applicable here). Appellant’s 

third issue is overruled.
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We affirm the judgment of the trial court.

 

JIM R. WRIGHT

CHIEF JUSTICE

August 29, 2014

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J.,

Willson, J., and Bailey, J.