AFFIRM; Opinion issued December 4, 2012.

In The

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No. 05-11-01 069-CR

MARGARITO MENDOZA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court Number Four

Dallas County, Texas

Trial Court Cause No. Fl 1-51553-K

OPINION

Before Justices Morris, Richter, and Murphy

Opinion By Justice Richter

A jury found appellant Margarito Mendoza guilty of aggravated sexual assault of a

child younger than fourteen years of age and sentenced appellant to confinement for life and

a $10,000 tine. In three issues on appeal, appellant challenges the sufficiency of the

evidence to support his conviction, contends the trial court erred in failing to suppress the

transcription of his statements to the police, and argues the prosecutor committed reversible

error by urging jurors to consider the amount of punishment in determining whether to

convict appellant of aggravated sexual assauh or the lesser included offense of sexual

assault. Finding no reversible error, we affirm the judgment of the trial court.
BACKGROUND

Complainant, Alicia Garza, testified that when she was eleven years old, she lived

with hermother, Ana Sanchez, andMargarito Mendoza, hermother’s boyfriend [appellant].

On one occasion when Alicia was eleven yearn old, appellant touched her vagina with his

hand while hermother was at the store. He moved his band “up and down.” Alicia told him

to stop and ran to the back room until her mother returned.

Alicia testified that she overheard hermother and appellant talking aboutthe fact that

appellant wanted a child but her mother was unable to have more children. Not really

understandingwhat they were talking about and thinking appellantmeant a baby doll, Alicia

told her mother she would give appellant a baby. A couple months later, Alicia’s mother

told her it was time to do what she said she would do. Ana forced Alicia into the bedroom

with appellant Appellant threw Alicia on the bed and ordered her to remove her pants.

Appellant inserted his penis into Alicia’s vagina, causing her pain. When Alicia started

bleeding, she ran to the bathroom and screamed for her mother. Her mother laughed at her

and told her nothing was wrong. Alicia testified she wastwelve-and-a-halforthirteen years

old at the time.

Alicia testified that appellant sexually assaulted her evely few days. She said her

mother knew what was going on because An and appellant hit Alicia and pulled her hair

ifshe tried to resist going into the bedroom with appellant An stayed in the living room

during the assaults. The assaults continued even after Alicia’s brothers, Javier and Nick,

came to live with them. Javier Adame, complainant’s brother, testified that he saw his

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mother and appellant slap Alicia in the face, pull her hair, and yell at her, [Ic also saw his

mother and appellant lorce Alicia into the bedroom with appellant but he did not know about

the sexual abuse. Javier testified that when he heard Alicia yelling and crying, he asked his

mother what was going on. 1-us mother told him it was none ol his business and to get away

fioni the bedroom door.

Appellant continued sexually assaulting Alicia several times a week until she became

pregnant with appellant’s child at age fifteen. Alicia gave birth to a baby girl on June 5.

2003. Ana told her not to list appellant as the baby’s father on the birth certificate, Ana and

appellant named the baby Marissa Marie Garza, and raised her as their own child.

Alicia testified that the family moved to Florida when Alicia was seventeen.

Appellant began sexually assaulting Alicia again after the move. One year later, the family

returned to Texas but Alicia remained in Florida. In 2009, Alicia was convicted of the

federal offense of’ possession with Intent to distribute marijuana in Florida she served

thirteen months in a federal penitentiary and two months in a half-way house.

After she was placed on supervised release, Alicia returned to Texas and visited her

relatives. During a family conversation about Marissa, Alicia told a relative, Carmen

Rodriguez, that Marissa was her daughter. At the time, Marissa was living with Ana and

appellant. When Alicia learned that appellant had taken Marissa out of school, she told

Carmen “everything.” Carmen Rodriguez testified that she encouraged Alicia to go to the

Dallas Police Department in January, 2011, and tell the police everything she had

experienced.
Detective Lisette Rivera, a detective in the Dallas Police Department Child Abuse

mit. testitied that she investitated Alicia’s case. She interviewed Alicia and Carmen. and

collected DNA samples from Alicia and Marissa. Detective Rivera obtained arrest warrants

for Ana and appellant, and following their arrests, she interviewed Ana while [)etective Abel

Lopez interviewed appellant, Detective Rivera also collected a DNA sample from appellant,

and submitted the three DNA samples for testing and analysis at the Southwestern Institute

of Forensic Services (SWIFS) in Dallas.

Detective Abel Lopez, a detective with the Dallas Police Department Child Abuse

Unit, testified that he interviewed appellant. Detective Lopez testified that he advised

appellant of his constitutional rights and appellant stated that he understood his rights.

Appellant then agreed to speak with Detective Lopez. Initially, appellant denied Ana was

his girlfriend and told I)etective Lopez that Ana was his motherin—law. Appellant admitted

he had lived with Ana for fifteen or sixteen years and later in the interview, admitted that he

had “relations” with Ana until she got sick. Appellant told Detective Lopez that Alicia

wanted to have sexual relations with him and said they had sex to have a baby. Appellant

told Detective Lopez that he did not have sex with Alicia until she was fourteen or fifteen

years old because he did not want any problems with the law. Detective Lopez testified that

appellant admitted Marissa was his daughter.

Angela Fitzwater, a forensics biologist at the Southwestern Institute of Forensic

Sciences (SWIFS), testified that she conducted DNA testing on samples from three

individuals—Alicia Garza, Marissa Garza, and Margarito Mendoza. Based on the results

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of her testing, she concluded the probability that Margarilo Mendoza was the father of

Marissa (iarz.i was greater that ).9 percent.

Appellant did not present evidence, The jury fbund appellant guilty of aggravated

sexual assault of a child as alleged in the indictment. After hearing punishment evidence.

the jury sentenced appellant to confinement br life in the l’exas Department of Criminal

Justice and a $10,000 fine. This appeal followed.

1)1 SC U S SION

A. Sufficiency of the Evidence

In his first issue, appellant challenges the sufficiency of the evidence supporting his

conviction for aggravated sexual assault of a child. We review the sufficiency of the

evidence under the standard set out in Jackson .Viiginia, 443 U.S. 307 (1979). Adames

v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011). We examine all the evidence in the

light most favorable to the verdict and determine whether any rational trier of fact could

have found the essential elements ofthe offense beyond a reasonable doubt. Jackson, 443

U.S. at 319; A dames, 353 S.W.3d at 860. This standard recognizes “the responsibility ofthe

trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319; see

Adames, 353 S.W.3d at 860. The jury is the sole judge ofthe witnesses’ credibility and the

weight to be given their testimony and therefore, is free to accept or reject any or all

evidence presented by either side. See Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim.

App. 2010); see also Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008).

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A person commits aggravated sexual assault of a child if he intentionally or

knowingly causes the contact or penetration of the sexual organ of a child with his sexual

oigm and the ‘ it1m is youniu th tn fowtecn years of age I L\ Pt N C Ofli ANN

22 021 (a)( 1 )(13)(i), (a)( I )(B)(iii), (b)( 1) (WLSt Supp 2012) fhe testimony ofa child sexual

abuse victim alone is sufficient to support a conviction for aggravated sexual assault. TEx.

CODE CRIM. PROC. ANN, art. 38.07 (West Supp. 2012) (requirement that victim inform

another person within one year does not apply to person under seventeen at the time of the

offense); see also Revels v. State, 334 S.W.3d 46, 52 (Tex. App.—Dallas 2008, no pet.);

Tear v. State, 74 S.W.3d 555, 560 (Tex. App.—Dallas 2002, pet. reFd). Here, appellant

does not challenge the State’s evidence that he intentionally or knowingly contacted or

penetrated Alicia’s sexual organ with his sexual organ; appellant challenges the evidence

that Alicia was younger than fourteen years of age when the sexual contact began.

Alicia testified that she was twelve-and-a-half or thirteen years old when appellant

tirst sexually assaulted her. Appellant argues that Alicia’s testimony is unreliable because

she was not sure of the exact date when the sexual assaults commenced, However,

according to the record, Alicia consistently testified that she was younger than fourteen

when the sexual assaults began. Alicia’s uncorroborated testimony alone is sufficient to

support a conviction for aggravated sexual assault. See Thx. CODE CRIM. PROC. ANN. art.

38.07; see also Tear. 74 S.W.3d at 560.

Appellant also contends that other factors diminish the credibility of Alicia’s

testimony, such as her felony conviction, and the eight year delay in reporting the sexual
assault Asthe solejudge ofthe credibility ofthe witnesses and the weight to be given their

testimony, the jury was free to accept or reject any or all evidence presented by either side.

See Isacs!, 330 S.W.3d at 638; Lancon, 253 S.W.3d at 707. The jury was free to believe

Alicia’stestimony that appellant began sexually assaulting her when she was twelve-and-ahalf or thirteen years old. The jury was free to reject appellant’s statement to Detective

Lopez that he did not have sexual relations with Alicia until she was fourteen orfifteen years

old. We conclude the jury could have found the essential elements of the offense of

aggravated sexual assault of a child beyond a reasonable doubt. See Jackson, 443 U.S. at

319; Adames, 353 S.W.3d at 860. Appellant’s first issue is overruled.

B. Miranda Violation

Appellant asserts the trial court erred in failing to suppress the written transcription

ofhis interview with Detective Lopez. Appellant claims that he did not waive his Miranda

rights with a full awareness of those rights and the consequences of the waiver. In

reviewing claims ofMiranda violations, we conduct a bifurcated standard ofreview. A(ford

v. State, 358 S.W.3d 647,652 (rex. Crim. App. 2012). We give almost total deference to

the trial court’s rulings on questions of historical fact and on application of law to fact

questions that turn upon an evaluation of credibility and demeanor. Id.; see aLso Leza v.

State, 351 S.W.3d 344, 349 (rex. Crim. App. 2011); Ripkowski v. State, 61 S.W.3d 378,

38142 (rex. Crim. App. 2001) (citing Guzman v. State, 955 S.W.2d 85, 89 (rex. Crim.

App. 1997)). We review de novo the trial court’s rulings on application of law to fact

questions that do not turn upon credibility and demeanor. A(/brd, 358 S.W.3d at 652;

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Ripkowski. 61 S.W.3d at 38142.

The State has the burden ofshowing that a defendant knowingly, intelligently, and

voluntarily waived his Miranda rights. See Miranda v. Arizona, 384 U.S. 436,444(1966);

Joseph v. State, 309 S.W.3d 20,24 (Tex. Crim. App. 2010). Article 38.22 ofthe Texas

Code of Criminal Procedure establishes procedural safeguards for securing the privilege

against self-incrimination. TEX. CODE CRIM. PRoc. ANN. art. 38.22 (West 2005). Among

its requirements, it provides that no oral statement of a defendant made as a result of

custodial interrogation shall be admissible against the defendant in a criminal proceeding

unless the defendant was warned ofhis rights and knowingly, intelligently, and voluntarily

waived those rights. Id. §3. The defendant must be informed ofthe following rights:

(I) he has the right to remain silent and not make any statement at all and that

any statement he makes may be used against him at his trial;

(2) any statement he makes may be used as evidence against him in court;

(3) he has the right to have a lawyer present to advise him prior to and during

any questioning;

(4) if he is unable to employ a lawyer, he has the right to have a lawyer

appointed to advise him prior to and during any questioning; and

(5) he has the right to terminate the interview at any time.

Id. §2(a); see Miranda, 384 U.S. at 444. There are two facets to any inquiry with respect to

the adequacy ofa purported waiver ofMiranda rights. Leza, 351 S.W.3d at 349. First, the

waiver must be voluntary in the sense that it was the product ofa free and deliberate choice

rather than intimidation, coercion, or deception. Id.; see also Joseph, 309 S.W.3d at 25

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(citing Moran .Thirhinc, 475 U.S. 41 2, 42 I (1 96)). Second. the waiver must he made

with a full awareness of the nature of the right being abandoned, and the consequences of

the decision to abandon it. See Rip/couski, 61 S.W.3d at 384 (citing Colorado v. $prtng. 479

U.S. 564, 573 (1987)). Only if the “totality of the circumstances surrounding the

interrogation” reveals both an uncoerced choice and the requisite level of comprehension

may a court properly conclude that the Miranda rights have been waived. Joseph. 309

S.W.3d at 25 (quoting Fare v. Michael C,, 442 U.S. 707, 725 (1979)). Appellant does not

assert he was not warned of his rights. Rather, appellant argues that he did not waive his

rights with the full awareness ot’those rights and of the consequences of the waiver.

According to the record, Detective Lopez gave appellant the Miranda warning and

asked appellant if he understood his rights. Appellant responded that he understood all of

his rights, and then stated: “Yes, that...yes that if I speak (sic) that I stay silent, that they

don’t use it against me and...! have the right to look for a lawyer.” Appellant now argues

that this statement reflects that appellant did not understand that he had the right to have a

lawyer present to advise him during the interrogation. At the pre-trial hearing, appellant

challenged the voluntariness and admissibility of any oral or written statements made during

the course of his interrogation by Detective Lopez. The State offered into evidence a video

of the interview between Detective Lopez and appellant, and a transcript of the interview

from Spanish into English. Detective Lopez testified for the State, explaining that he

advised appellant of his constitutional rights, including the right to an appointed attorney,

and that appellant understood each of the rights and the effect of waiving those rights. On
crosscxamination, Detective Lopez was asked about appellant’s statement, “1 have the right

to look for a lawyer,” and whether that statement reflected an accurate understanding of

appdllant’s rights Detcctive Lopez testified that th remark was a statement made by

appellant and not a question. l)etective Lopez explained that he interpreted appellant’s

remark as follows:

Again, you know, when he said that to me, he is reiterating — to me, he is

understanding that he has the right to look for an attorney, and at that point in

time if he wanted an attorney he could have asked for one, and he did not.

That’s the way I understood his response, that he knew he had the right to it,

yet he didn’t even ask for one.

The record reflects that appellant was adequately advised of his rights in Spanish. When

asked by [)etective Lopez if he understood his rights, appellant stated that he did.

immediately after being told that he had the right to remain silent, that he did not have to

make any statement to anyone, and that any statement he made would be used against him,

he willingly participated in an interview with Detective Lopez. He did not remain silent, did

not discontinue his dialogue with Detective Lopez, and did not ask for an attorney at any

time during the interrogation. Based on the totality ofthe circumstances, as reflected by the

transcription of the video, the trial court was clearly within its discretion in finding that

appellant understood his rights and the effect of waivrng those rights. See Leza, 351 S.W.3d

at 353; see also Joseph, 309 SW.3d at 27. We conclude the trial court did not err in

overruling appellant’s objection to the introduction of the transcription of appellant’s

statements to Detective Lopez. See Joseph, 309 S.W.3d at 27. Appellant’s second issue is

overruled.

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C. Prosecutor Irror

in his third issue on appeal, appellant contends that “during the guilt-innocence stage

of the trial, the prosecutor committed reversible error by urging the jurors not to bud

appellant guilty of the lesser-included offense of sexual assault because it carried lesser

pumshrnenl than the offense of aggravated sexual assault.” The State responds there was

no reversible error because the prosecutor did not urge the jury to convict appellant based

on a punishment range instead of the facts.

The four generally approved areas for jury argument are: (1> summation of the

evidence. (2) reasonable deductions from the evidence. (3) answer to argument of opposing

counsel, and (4) plea for law enforcement, Davis v. State, 329 S.W.3d 798, 821 (Tex. Grim,

App. 2010): Berrvv. State. 233 S.W.3d $47, $59 (Tex. Grim. App. 2007). During the guiltinnocence stage oftrial, “a plea to the jury to consider the amount of punishment, rather than

the facts, in determining the offense for which an appellant should be convicted is manifestly

improper.” MeCulie,, v. Slate, 659 S.W.2d 455, 459 (Tex. App.—-Dallas 1983, no pet.)

(citing McClure v. State, 544 S.W.2d 390, 393 (Tex. Grim. App. 1976), overruled on other

grounds by Werner v. State, 711 S.W.2d 639, 646 (Tex. Grim. App. 1986)); see also Wright

v. State, 178 S.W.3d 905, 930 (Tex. App.—Houston [14th Dist.] 2005, pet. ref d). But the

harm from such remarks will ordinarily be cured by an instruction to disregard, unless the

statements were so manifestly improper as to inflame and prejudice the minds of the jury.

See McClure, 544 S.W.2d at 393; see also Bruton v. State, 921 S.W.2d 531, 536 (Tex.

App.—Fort Worth 1996, pet. ref d).

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In reviewing the record, we do not find the prosecutor’s argument was such that it

required the jury to convict on one offense over the other because of the difference in

punishment. The argument complained ofwas made in the course of explaining why the

facts showed the commission ofaggravated sexual assault andwhy appellant’s defense that

he was guilty only ofthe lesser included offense ofsexual assault of a child was weak in

relation to the facts in evidence. The prosecutor asked the jury to convict appellant ofthe

charged offense, stating:

I explained to you it was aggravated because it happened before she was 14.

There is no doubt that it happened when she was under the age of 17. We

know that because ofMarissa. We know thatbecause ofthe DNA. We know

that because of his own confession that, yes, he had a daughter by the victim

in this case,Alicia. There is no doubt that he is guiltyofSexual Assault ofa

Child but there is also no doubt that he is guilty ofAggravated Sexual Assault

of a Child. You see, Sexual Assault of a Child is what we call a lesser

included offense. It is lesser. It is less serious. It is a second degree felony.

It has a lot of consequences. And he is the one who committed —

Appellant’s counsel objected to the prosecutortalking about the consequences ofthejury’s

verdict, and the trial court ovemiled the objection. The prosecutor did not continue to

discuss the classification ofsexual assault ofa child as a second degree felony, and instead

focused on appellant’s guilt based on the facts ofthe case. The prosecutor’s argumentmade

no mention ofthe punishmentrange for aggravated sexual assault ofa child orsexual assault

of a child. Thus, the record does not support the conclusion that the prosecutor was

suggesting appellant should be convicted ofthe greater offense because ofthe amount of

punishment. We conclude the prosecutor’s statements were not so manifestly improper as

to constitute reversible enor. SeeMcCullen, 659 S.W.2d at 459. Appellant’s third issue is

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overruled.

CONCLUSION

Having overruled appellant’s issues, we affirm the trial court’s judgment

Do Not Publish

TEX, R. App, P.47

11 1069F.U05

JUSTICE

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Imirt øf Apprztls

.fift1! Jiitrtct nf axa at i11ai

JUDGMENT

M ARGAR1TO MEN i)OZA, Appellant

No. 05-1 1-01069-CR v

Ill F STATE OF ThIXAS, Appellee

Appeal from the Criminal District Court

Number Four of Dallas County, Texas.

(Tr.CLNo, Fl 1-51553-K).

Opinion delivered by Justice Richter,

Justices Morris and Murphy participating.

Based on the Court’s opinion of this (late, the judgment of the trial court is AFFiRMED.

Judgment entered December 4. 2() 12.