NO. 07-10-00465-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL C MARCH 9, 2012

JERROD ALVARADO, APPELLANT

v. THE STATE OF TEXAS, APPELLEE

FROM THE 137TH DISTRICT CO URT OF LUBBOCK COUNTY; NO. 2010-427,749; HONORABLE CECIL G. PURYEAR, JUDGE

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ. MEMORANDUM OPINION Appellant, Jerrod Alvarado, appeals his conviction for the offense of aggravated sexual assault, 1 and sentence of imprisonment for life in the Institutional Division of the Texas Department of Criminal Justice. We will affirm. Background At approximately 6:00 a.m. on March 1, 2009, Billy V anier discovered a vehicle on the road in an area northwest of Lubbock. After investigating, he discovered Amy

1 See T EX

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. C ODE A NN . § 22.021(a) (West Supp. 2011).2 Cahill asleep over the steering wheel of the vehicle. Cahi ll had no clothes on from the waist down. Vanier saw that Cahill had inju ries to her face. C ahill appeared to be intoxicated. Vanier called the Lubbock Sheri ff’s Office to report the incident. Once officers arrived, Cahill was taken to the em ergency room of University Medical Center in Lubbock. Cahill was unable to re member the events that led to her being found asleep in her vehicle and did not know how she had sustained the injuries.

A sexual assault examination was performed on Cahill. She had extensive injuries across her entire body including fractu res of the orbital floor and wall of her eye and nasal bone fractures. Semen was found in Cahill’s vagina and anus. However, Cahill could not recall havin g had sex with anyone. The semen that was found was eventually matched by DNA to appellant. A ppellant’s DNA was also discovered under Cahill’s fingernails and in the front and back seats of Cahill’s vehicle. During the investigation of how Cahill wa s injured, officers became aware that Cahill had attended a party the pr eceding evening. Tiffany Ki biger was the host of the party that Cahill had attended. Kibiger re membered that Cahill had attended the party and had been among the last to leave. However, when Cahill left the party, she was fully clothed and in control of her body. Kibiger did not know appellant and had not seen him at the party. On April 24, 2009, appellant was interv iewed by Jason Stew art, an investigator with the Lubbock Sheriff’s Office. Initially, appellant denied knowing Cahill. However, after Stewart disclosed that DNA proved t hat appellant had sex wit h Cahill, appellant admitted that he and Cahi ll had sex at the party but that it was consensual and that he3 did not injure Cahill. Appellant also indicat ed that he had received rides to and from the party from two different fri ends, but both of these friend s denied this assertion. Appellant was charged by indictment with aggravated sexual assault against Cahill. At the close of the State’s case-i n-chief, appellant moved for a directed verdict on the bases that the evidence was insuffici ent to prove a lack of consent, and that appellant caused Cahill’s injuries. The trial c ourt overruled this motion. The jury found appellant guilty of the offense of aggravated sexual assaul t, and the case proceeded to punishment. During sentencing, the State sought to prove up an unadjudicated sexual assault committed by appellant when he was a juv enile against a 16-year-old mentally challenged female. A hearing was held outsi de the presence of the jury regarding the admissibility of this evidence. Appellant obj ected on the basis that the risk of unfair prejudice of the evidence substantially out weighed its probative va lue. Appellant did briefly mention that the o ffense was an unadjudicated off ense occurring when appellant was a minor. The State pr esented argument and case la w that the evidence was admissible under Texas Code of Criminal Procedure article 37. 07, section 3. The trial court agreed with the State’s argument, ove rruled appellant’s objection, but granted appellant a running objection “to those matters.” A fter hearing the punishment evidence, the jury sentenced appellant to lif e imprisonment in th e Texas Department of Criminal Justice, In stitutional Division. By three issues, appellant appeals. By his first two issues, appellant challenges the trial court’s denial of his motion for dire cted verdict. Specifically, appellant’s first4 issue contends that the evidence was insufficient to show that Cahill did not consent to penetration. Appellant’s sec ond issue contends that the evidence was insufficient to show that appellant caused any of Cahill’s injuries. By his third issue, appellant challenges the admission of evidence of t he unadjudicated juvenile sexual assault during punishment. Standard of Review for Appellant’s First Two Issues

A contention that the trial court erred in denying a motion for directed verdict is essentially a challenge to the legal suffici ency of the evidence. Williams v. State , 937 S.W.2d 479, 482 (Tex.Crim.App. 1996). In a ssessing the 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 essent ial 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 (1979); Brooks v. State , 323 S.W.3d 893, 912 (Tex.Crim.App. 2010). “[O]nly that evidence which is sufficient in character, wei ght, and amount to justify a factfinder in concluding that every elemen t of the offense has been proven beyond a reasonable doubt is adequate to support a conviction.” Brooks , 323 S.W.3d at 917 (Cochran, J., concurring). We remain mindfu l that “[t]here is no higher burden of proof in any trial, criminal or civil, and there is no higher standard of appellate review than the standard mandated by Jackson .” Id . When reviewing all of the evidence under the Jackson standard of review, the ultimate question is whether the jury’s finding of guilt was a rational finding. See id . at 906–07 n.26 (discussing Judge Cochran’s dissenting opinion in Watson v. State , 204 S.W.3d 404, 448–50 (Tex.Crim. App. 2006), as outlining5 the proper applicati on of a single evidentiary standard of review). “[T]he reviewing court is required to defer to the jury’s credibility and weight determinations because the jury is the sole judge of the witnesses’ credibility a nd the weight to be given their testimony.” Id . at 899. Appellant was charged with aggravated sexual assault. To prove appellant guilty of the offense as indicted, the State had to prove that appellant int entionally or knowingly caused the penetration of Cahill’s vagina without Cahill’s consent, and, in the course of the same criminal episode, caused Ca hill serious bodily in jury or attempted to cause Cahill’s death. See T EX

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. C ODE A NN . § 22.021(a)(1)(A)(i), (2)(A)(i). By his first issue, appellant challenges the sufficiency of the evidence to establish that he penetrated Cahill’s vagina wit hout her consent. By hi s second issue, appellant challenges the sufficiency of the evidence t hat he caused Cahill serious bodily injury.

Consent By his first issue, appellant contends t hat the trial court e rred in overruling his motion for directed verdict because the evidence was insufficient to establish that Cahill did not consent to sex with appellant. Since Cahill remains unable to remember the critical events of that nigh t, appellant contends that the only evidence about the sexual encounter between appellant and Cahill is appellant’s stat ement that he and Cahill had consensual sex at the par ty hosted by Kibiger.

Lack of consent is an element of the offense of aggravated sexual assault as alleged against appellant. T EX

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. C ODE A NN . § 22.021(a)(1)(A)(i). As relevant to this case, an action is without a person’s consent if: (a) the actor compels the person to6 submit or participate by the use of physical force or violence, (b) the actor knows the person is unconscious or physically unable to resist, or (c) the person is unaware of the sexual assault occurring. Id . § 22.011(b)(1), (3), (5) (West 2011).

The evidence in this case establishes t hat Cahill suffered se vere bodily injuries between the hours of 2:00 a.m., when she wa s seen leaving the party without any visible injuries, and 6:00 a.m., when she was di scovered in her vehicle. The nature and extent of Cahill’s in juries allow for a reasonable infere nce that she was forced to submit to sexual activity by physical force and viol ence. Likewise, the evidence suggests that the injuries to Cahill’s sexual organs we re more likely the result of nonconsensual sexual activity. Appellant’s contention t hat he had consensual sex with Cahill at the party is refuted by evidence that Cahill did not know appel lant, appellant was not seen by anyone at the party, the bedroom in whic h appellant claimed he had sex with Cahill was highly trafficked throughout the party yet none of the partygoers saw anyone having sex in that bedroom, and no semen was found in Cahill’s pa nties. Additionally, neither of appellant’s friends that he claimed gave him rides to and from the party corroborated appellant’s attendance at the party. By cont rast, the evidence est ablished that semen containing appellant’s DNA was found in bot h the front and back seats of Cahill’s vehicle. Certainly, when all of this evidence is consider ed, it is not only a reasonable inference that appellant had sex with Cahill in her vehicle rather than at the party, but it is actually the more reasonab le inference. Thus, we c onclude that the evidence is sufficient to allow a rational trie r of fact to conclude that Ca hill did not cons ent to sexual7 intercourse with appellant, but that appellant compelled Cahill to submit to sex by the use of physical force or violence. 2 The arguments asserted by appellant to es tablish that Cahill consented to sexual intercourse with appellant would require this Court to turn the applicable standard of review on its head by indulging all reasonable in ferences in opposition to the verdict. Appellant argues that there was no evidence that “fu lly contradict[s] Appellant’s statement that he had sex with [Cahill] at the party.” The evidence, as addressed above, strongly implies that appellant and Cahill did not have sex at the party. Appellant also points to the te stimony of two of the State’s experts as indicating that Cahill’s sexual injuries “could have related to consensual sex.” While this testimony can be found in the record, both expe rts also testified that the nature of the genital injuries sustained by Cahill would be uncommon in normal sexual intercourse. Finally, appellant argues that appellant’s semen that was found in Cahill’s vehicle could have gotten there due to Cahill urinati ng in her car. However, to make that inference, the fact finder would have to overlook the evidence that appellant’s sem en was found on both the front and back seats of the vehicle and t hat appellant’s semen could not be found on Cahill’s panties.

When all of the evidence is viewed in the light most favorable to the verdict, we conclude that a rational trier of fact c ould have found that Cahill did not consent to

2 We also conclude that the evidence w ould allow for a reasonable inference that Cahill was unconscious, unable to resist, and unaware that appellant was sexually assaulting her, and that appellant was aware of Cahill’s impairment.8 penetration by appellant beyond a reasonable doubt. As su ch, we overrule appellant’s first issue. Serious Bodily Injury By his second issue, appellant contends that the trial c ourt erred in overruling his motion for directed verdict because the evidence was insufficient to establish that appellant caused Cahill serious bodily injury. Appellant points to evidence that, during the party, Cahill came in contact with two other males that could have caused Cahill’s bodily injuries. As discussed above, the evidence in this case establishes that Cahill suffered serious bodily injuries 3 between the hours of 2:00 a.m ., when she was seen leaving the party without any visible injuries, and 6: 00 a.m., when she wa s discovered in her vehicle. The most logical inference from the evidence is that these injuries were inflicted upon Cahill as a means of forcing her to submit to sexual activity. As such, the presence of semen containi ng appellant’s DNA in Cahil l’s vagina and anus strongly indicate that appellant caused Cahill’s seriou s bodily injury in the course of committing sexual assault. Further supporting that the se xual assault occurred in Cahill’s vehicle, where her bodily injuries were inflicted, is the presence of appellant’s semen on both the front and back seats of the vehicle. Th e evidence that appellant’s DNA was found under Cahill’s fingernails allows for a r easonable inference that Cahill fought back against appellant’s assault. We conclude t hat the evidence is sufficient to allow a

3 Appellant does not contest the sufficiency of the evidence establishing that the injuries suffered by Cahill were serious bodily injuries.9 rational trier of fact to conclu de that appellant caus ed Cahill’s serious b odily injuries in the course of sexually assaulting her. As with appellant’s first issue, appell ant’s arguments in s upport of his second issue would require this Court to indulge inferences in opposition to the verdict. Appellant argues that there were two other men that had cont act with Cahill at the party and that could have caused her bodily injuries. However, Cahill was seen leaving the party without any visible injuries. Further, th e only person other than Cahill linked to her vehicle on the night in question is appellant. Thus, it is unlikel y that another person could have caused the extent of injuries C ahill suffered without leaving DNA evidence on her body or in her vehicle. Appellant al so argues that Cahill’s injuries could have been the result of falling due to her extreme intoxication. In order for Cahill to have sustained the injuries as the result of falling down, she would have had to have repeatedly fallen with at least one such fall c ausing fractures of her orbital floor and wall and nasal bone. While this is arguably possible , the more likely inference to draw from the serious bodily injuries suffered by Cahill is that she was extensively and severely beaten.

When all of the evidence is viewed in the light most favorable to the verdict, we conclude that a rational trier of fact c ould have found that appellant caused serious bodily injuries to Cahill in the course of committing sexual assault beyond a reasonable doubt. As such, we overrule appellant’s second issue.10 Unadjudicated Juvenile Offense By his third issue, appellant contends t hat the trial court abused its discretion by admitting evidence during sentencing of an unadj udicated sexual assault offense that appellant committed when he was a juvenile. In his brief, appellant contends that the trial court incorrectly construed Texas Code of Criminal Procedure article 37.07, section 3(a)(1), as allowing th e admission of evidence of unadjudi cated juvenile offenses during the punishment phase of trial. See T EX

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. A NN . art. 37.07, § 3(a)(1) (West Supp. 2011). Initially, a fair reading of appellant’s tria l objection to this evidence was based on the probative value of the evid ence being substantially out weighed by the danger of unfair prejudice. Such an objection does not comport with an appellate argument regarding the proper stat utory construction of article 37.07. See Heidelberg v. State , 144 S.W.3d 535, 537 (Tex.Crim.A pp. 2004) (when trial objec tion does not comport with issue raised on appeal, the appellate issu e has not been preserved for our review). However, based on the State’s argument and the author ity presented by it as well as the trial court’s statements im mediately preceding its granti ng of a running objection to appellant, we conclude that t he trial court was aware of appellant’s complaint regarding the construction of article 37.07, and grant ed appellant a running objection on that basis. See T EX

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. P. 33.1(a)(1)(A). However, even if properly preserved, appellant’s th ird issue has been decided against him by the Texas courts. Addressi ng the specific argument raised by appellant in this issue, the Eastland and the Texarkana courts have rejected the construction of11 article 37.07, section 3(a)(1), advanced by appellant. See Strasser v. State , 81 S.W.3d 468, 470 (Tex.App.—Eastl and 2002, pet. ref’d); Rodriguez v. State , 975 S.W.2d 667, 687 (Tex.App.—Texarkana 1998, pet. ref’d). We agree with our sister courts that article 37.07, section 3(a), allows ev idence of an unadjudicated juvenile offense to be admitted so long as it is relevant and shown beyon d a reasonable doubt that it was the defendant that committed the offense. See T EX

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. C ODE A NN . art. 37.07, § 3(a)(1); Strasser , 81 S.W.3d at 469; Rodriguez , 975 S.W.2d at 687; see also McMillan v. State , 926 S.W.2d 809, 813 (Tex.App.—Eastland 1996, pet. ref’d). Appellant does not challenge the sufficiency of the evidence to establish that he committed the unadjudicated sexual assault of which he complains. Consequently, we overrule appellant’s third issue.

Conclusion Having overruled each of appellant’s thr ee issues, we affirm the judgment of the trial court.

Mackey K. Hancock Justice Do not publish.