Opinion filed April 4, 2019

In The

Eleventh Court of Appeals __________

No. 11-17-00102-CR

__________

EDGAR HERNANDEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 244th District Court

Ector County, Texas

Trial Court Cause No. C-16-0859-CR

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

Appellant, Edgar Hernandez, appeals from his conviction for the first-degree 

felony offense of continuous sexual abuse of a young child. Following the jury’s 

verdict of “guilty,” the trial court assessed Appellant’s punishment at confinement 

for a term of seventy-five years in the Institutional Division of the Texas Department 

of Criminal Justice and sentenced him accordingly. In two issues on appeal, 

Appellant contends that (1) the evidence at trial was insufficient to support his 
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conviction and (2) his sentence of confinement for seventy-five years amounts to 

cruel and unusual punishment. We affirm.

Background Facts

The grand jury indicted Appellant for the offense of continuous sexual abuse

of a young child. The indictment alleged that Appellant:

Did then and there, during a period that was 30 or more days in duration, 

to-wit: from on or about December 14th, 2008 through April 18th, 2011, 

when [Appellant] was 17 years of age or older, commit two or more 

acts of sexual abuse against a child younger than 14 years of age 

namely, Aggravated Sexual Assault of a Child by intentionally or 

knowingly caus[ing] the penetration of the anus of [I.H.], a child, by 

the means of the sexual organ of [Appellant].

I.H., the alleged child victim, testified at trial. I.H. explained that, in 2007, he 

was living in Ector County in a mobile home with his mother, brothers, and a family 

friend and her son. Appellant lived on the same property in another mobile home

with Appellant’s mother and her husband. I.H. regularly visited the mobile home

that Appellant lived in to play video games with Appellant in Appellant’s bedroom.

On one such occasion, while I.H. was lying on Appellant’s bed on his stomach 

playing video games, Appellant came up from behind I.H., straddled him, and sat on 

his legs. Although I.H. thought Appellant was “just trying to hop over” him, 

Appellant instead ran both his hands up I.H.’s legs and “started touching [I.H.’s] 

butt.” I.H. testified that Appellant would grab, and then let go of, his butt. I.H.

testified that he could feel Appellant’s erection. When I.H. asked Appellant, “What 

are you doing?” Appellant responded, “Just go with it.” I.H. claimed that Appellant 

sat on top of him for a “minute or so” and then got off. I.H. also testified that 

Appellant told him to “[j]ust keep this to ourselves” and not to tell anyone.

Regarding “the next time this happened,” I.H. explained that “the second time

. . . was pretty much the same as the first time,” except the “second time is when 

[Appellant] actually started pulling [I.H.’s] pants down.” I.H. explained that, once 
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again, I.H. was lying on the bed when Appellant braced the door shut, sat on I.H.’s 

legs, and started feeling I.H. with his hands. Appellant then pulled I.H.’s pants down

and told I.H. to “keep playing and stay still.” As before, I.H. could feel that 

Appellant had an erection. I.H. testified that Appellant pulled his own pants down

and placed lubricant on the tip of his penis. I.H. then felt Appellant’s penis enter his 

“butt.” I.H. testified that Appellant had him bite down on a sock to “suppress the 

sound” because I.H. was making a lot of noise due to the pain. I.H. testified that, at 

the time, he was “[g]oing into the first grade” and was six or seven years old. 

When next asked, “Did it happen again?” I.H. stated that “it happened again” 

a “week or so” later and that it was “pretty much the same scenario.” Although I.H.

could not remember the total number of times “it” happened, I.H. testified that “it” 

happened during the time he was in the second, third, fourth, and fifth grades. I.H.

testified that the abuse stopped “when [I.H.] was around eleven or so.” Additionally, 

the evidence established that Appellant was eight years older than I.H.

Multiple clips of a recorded interview between Appellant and a former Ector 

County Sheriff’s Department investigator, Oscar Lamon, were also played for the 

jury. In the interview, Appellant admitted to penetrating I.H.’s anus with 

Appellant’s penis and to having I.H. bite down on a sock or towel to tolerate the 

pain. Initially, Appellant claimed that he only had sex with I.H. two or three times 

when Appellant was thirteen or fourteen years old. However, in response to 

Lamon’s questions, Appellant also acknowledged that the assaults may have 

occurred over a four- or five-year period. 

Appellant also testified at trial. Appellant denied that he ever touched I.H.’s 

butt, had sex with, or otherwise sexually assaulted I.H. To explain his admissions

heard in the recorded interview, Appellant testified that, shortly after Appellant was 

released from prison for a probation violation, Lamon contacted him and informed 

him of the accusations against him. Appellant claimed that Lamon pressured him 
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into admitting to the accusations by repeatedly asking Appellant the same questions 

“over and over.” Appellant claimed that Lamon also threatened to use Appellant’s 

criminal history and gang affiliation against him to take his kids away and send him 

to prison for life without parole if Appellant “didn’t go with this.” Appellant claimed 

that Lamon told him that he would “leave [Appellant’s] kids out of this and that he 

would highly recommend probation” if Appellant admitted to the charges. Appellant 

testified that he felt like he had “no choice but to . . . give in.” 

After hearing all the evidence, the jury found Appellant guilty of the offense 

of continuous sexual abuse of a young child. 

During the punishment phase of the trial, I.H. described the pain he felt during 

the assaults, as well as the anger, worry, and other aftereffects he has suffered since. 

Detective Jeffrey Gibson of the El Paso County Sheriff’s Department testified that 

he believed Appellant was a member of the Barrio Azteca criminal gang and 

described the gang’s violent nature and history. Detective Gibson explained that, 

according to the gang’s own rules, “once you’re in, you can’t get out.” A video clip 

of Appellant admitting to being a member of Barrio Azteca was also played for the 

jury. 

After considering the evidence, the trial judge assessed Appellant’s 

punishment at confinement for seventy-five years and sentenced him accordingly. 

This appeal followed. 

Analysis

In two issues on appeal, Appellant contends that (1) the evidence presented 

at trial was insufficient to support his conviction and (2) his sentence of confinement 

for seventy-five years is cruel and unusual punishment. 

Issue One - Legal Sufficiency

In his first issue, Appellant challenges the sufficiency of the evidence 

supporting his conviction. Specifically, Appellant contends that the State failed to 
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prove that Appellant was at least seventeen years of age at the time of the sexual 

assaults because the only direct testimony regarding penetration involved an event 

that occurred when Appellant was fifteen years old. Appellant also contends that 

the State failed to prove that Appellant committed two or more acts of sexual assault 

because the State’s use of the word “it” when questioning I.H. about subsequent 

assaults was too vague to distinguish between the first incident—where Appellant 

only grabbed I.H.’s butt—and the second incident—where Appellant penetrated 

I.H.’s anus. We disagree. 

We review a challenge to the sufficiency of the evidence, regardless of 

whether it is denominated as a legal or factual sufficiency challenge, 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 

review all of the evidence in the light most favorable to the verdict and determine 

whether any rational trier of fact could have found the 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). When conducting a sufficiency review, we 

consider all the evidence admitted at trial, including pieces of evidence that may 

have been improperly admitted. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. 

App. 2013); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We 

defer to the factfinder’s role as the sole judge of the witnesses’ credibility and the 

weight their testimony is to be afforded. Brooks, 323 S.W.3d at 899. This standard 

accounts for the factfinder’s duty 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; Clayton, 235 S.W.3d at 778. When the record supports 

conflicting inferences, we presume that the factfinder resolved the conflicts in favor 
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of the verdict, and we defer to that determination. Jackson, 443 U.S. at 326; Clayton, 

235 S.W.3d at 778.

As relevant to this case, a person commits the offense of continuous sexual 

abuse of a young child if, during a period that is thirty or more days in duration, the 

person commits two or more acts of sexual abuse and, at the time of the commission 

of each of the acts of sexual abuse, the actor is seventeen years of age or older and 

the victim is a child younger than fourteen years of age. TEX. PENAL CODE ANN.

§ 21.02(b) (West Supp. 2018). An “act of sexual abuse” includes, among other 

things, acts of aggravated sexual assault of a child. Id. § 21.02(c)(4). As relevant to 

this case, a person commits an act of aggravated sexual assault of a child if he 

intentionally or knowingly causes the penetration of the anus or sexual organ of a 

child by any means. Id. § 22.021(a)(1)(B)(i). The testimony of a child victim alone 

is sufficient to support a conviction for continuous sexual abuse of a young child.

TEX. CODE CRIM. PROC. ANN. art. 38.07 (West Supp. 2018).

First, Appellant argues that the State failed to prove that Appellant was 

seventeen years of age or older when he committed the alleged acts of sexual abuse

because the only direct testimony regarding penetration occurred when Appellant 

was fifteen years old. We disagree. 

In Villarreal, an appellant challenged the evidence supporting his conviction 

for aggravated sexual assault of a child by arguing that the evidence failed to 

establish he was seventeen years of age or older when he committed the alleged

sexual assault. Villarreal v. State, 470 S.W.3d 168, 170 (Tex. App.—Austin 2015, 

no pet.). At trial, the child victim, the defendant’s cousin C.A., testified that she 

moved into a home with her family when she was six or seven years old and later 

moved into a second home with her family when she was ten or eleven years old. 

Id. at 169–71. The defendant lived with C.A.’s family at both homes until he moved 

out of the second home shortly after his eighteenth birthday. Id. at 171. C.A.
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testified that she was sexually assaulted a number of times by the defendant at both 

the first and the second homes. Id. Although C.A. could not recall the total number 

of times she was assaulted, C.A. testified that the assaults occurred approximately 

once a month and continued until the defendant moved out of the second home when 

C.A. was “[p]robably about 11” years old. Id. The evidence at trial established that 

the defendant was six years older than C.A. Id. at 170, 172. 

The defendant argued that, because C.A.’s “testimony focused on acts that 

occurred when [the defendant] was a juvenile,” the evidence was insufficient to

establish that he had committed an act of sexual assault after he turned seventeen 

years old. Id. at 172. However, although the majority of C.A.’s testimony recounted 

assaults that occurred while the defendant was under the age of seventeen, given 

C.A.’s testimony that the assaults occurred for a number of years up until she was 

eleven years old, and because the evidence established that the defendant was six 

years older than C.A., the court found that the jury could have reasonably inferred

that the defendant had committed the assault alleged in the indictment after he had 

turned seventeen years old. Id. at 171–72. Therefore, the evidence was not 

insufficient to support the defendant’s conviction. Id. at 172.

Here, I.H. testified that, sometime close to when he was about to enter the first 

grade, he was playing video games in Appellant’s bedroom when Appellant braced 

the bedroom door shut and then penetrated I.H.’s anus with his penis. I.H. testified 

that he was six or seven years old during first grade. Given that Appellant is eight 

years older than I.H., Appellant was fourteen or fifteen at the time of the first assault. 

However, like C.A.’s testimony in Villarreal, I.H.’s testimony established a pattern 

of assaults over multiple years. Id. at 169–72. I.H. testified that the assaults occurred 

throughout the time that he was in the first, second, third, fourth, and fifth grades

and stopped when he was “eleven or so.” Appellant turned seventeen during the 

year that I.H. was in the third grade. Therefore, although much of I.H.’s testimony 
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focused on assaults that occurred while Appellant was under the age of seventeen, 

the jury could have reasonably inferred that Appellant continued to sexually assault 

I.H. for a number of years, including, at a minimum, one time each during the years 

I.H. was in the fourth and fifth grade—a time by which Appellant had already 

reached the age of seventeen. See id. at 171–72. 

Second, Appellant asserts that, because there was only direct testimony as to 

one event of penetration, the State’s use of the word “it” when asking I.H. about 

subsequent assaults was too vague to establish whether I.H. was referring to 

subsequent events of penetration or, instead, was referring to subsequent events

where Appellant had only grabbed I.H.’s butt. Specifically, Appellant points to the 

following testimony by I.H., which was given shortly after I.H. described the event

involving penetration: 

Q. Okay. Now, did this happen again? 

A. I’m sorry? 

Q. Did it happen again? 

A. Oh. Yes, sir. 

Q. About how long was it before it happened again? 

A. I’d say about a week or so before it happened again. 

Q. Was it pretty much the same scenario? 

A. Yes, sir. 

Appellant argues that “this unclear testimony cannot support a guilty verdict on the 

offense alleged in the indictment because it is not clear that the jury based its verdict 

on ‘it’ meaning aggravated sexual assault.” Instead, Appellant argues that “‘it’ 

happening again could easily be construed by the jury to be that Appellant had again 

touched the butt of the alleged victim.” However, in reaching their verdict, while 

the jury could have construed “it” to refer to Appellant again touching I.H.’s butt, 

the jury instead chose to construe the testimony as referring to subsequent sexual 
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assaults involving penetration. Given that this testimony occurred after I.H. had 

described the specific incident involving penetration, we cannot say that the jury’s 

inference in concluding that two or more additional acts of sexual abuse occurred 

was unreasonable. 

Additionally, while I.H.’s testimony alone would be sufficient to support a 

conviction, Appellant admitted in the recorded interview that he had sexual 

intercourse with I.H. on multiple occasions and that, on those occasions, his penis 

penetrated I.H.’s anus. Thus, Appellant’s admission corroborated I.H.’s testimony. 

Although, at trial, Appellant denied that he had ever sexually assaulted I.H., we 

presume that the jury resolved any conflicts in the testimony in favor of the verdict. 

Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778. 

Thus, when viewing the evidence in the light most favorable to the verdict, 

we conclude that a rational trier of fact could have found the elements of the offense 

of continuous sexual assault of a young child beyond a reasonable doubt. See 

Jackson, 443 U.S. at 319; see also PENAL § 21.02(b). We overrule Appellant’s first

issue.

Issue Two – Cruel and Unusual Punishment

In his second issue, Appellant argues that his sentence of confinement for 

seventy-five years is cruel and unusual punishment in violation of the Eighth 

Amendment. See U.S. CONST. amend. VIII. Appellant contends that his sentence is 

“clearly disproportionate to the ambiguous evidence presented at trial.”

We note that Appellant did not object to his sentence on any grounds, neither 

at the time of sentencing nor in any posttrial motion. To preserve an error for 

appellate review, a party must present a timely objection to the trial court, state the 

specific grounds for the objection, and obtain a ruling. TEX. R. APP. P. 33.1(a). 

Therefore, Appellant 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) (Eighth 
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Amendment issues are forfeited if not raised in the trial court); Solis v. State, 945 

S.W.2d 300, 301–02 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d) (holding that 

a claim of a grossly disproportionate sentence in violation of the Eighth Amendment 

was forfeited by failure to object). Nonetheless, notwithstanding Appellant’s 

waiver, we conclude that Appellant’s sentence does not constitute cruel and unusual 

punishment.

When we review a trial court’s sentencing determination, “a great deal of 

discretion is allowed the sentencing judge.” Jackson v. State, 680 S.W.2d 809, 814 

(Tex. Crim. App. 1984). We will not disturb a trial court’s decision as to punishment 

absent a showing of abuse of discretion and harm. Id. The statutory range of 

punishment for a person convicted of continuous sexual abuse of a young child is 

confinement for life or for a term of not more than ninety-nine years or less than 

twenty-five years. PENAL § 21.02(h). 

The Eighth Amendment to the Constitution of the United States provides: 

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and 

unusual punishments inflicted.” U.S. CONST. amend. VIII. This provision was made 

applicable to the states by the Due Process Clause of the Fourteenth Amendment. 

Robinson v. California, 370 U.S. 660, 675 (1962). However, it is well settled in 

Texas that, when a sentence falls within the statutory range of punishment, it is 

generally not unconstitutional. State v. Simpson, 488 S.W.3d 318, 323 (Tex. Crim. 

App. 2016). However, a very narrow exception to the general rule exists—an 

individual’s sentence may be unconstitutional, despite falling within the statutory 

range, if it is grossly disproportionate to the offense. Solem v Helm, 463 U.S. 277,

287–90 (1983). Nonetheless, “[o]utside the context of capital punishment, 

successful challenges to the proportionality of particular sentences [will be] 

exceedingly rare.” Id. at 289–90 (alterations in original) (quoting Rummel v. Estelle, 

445 U.S. 263, 272 (1980)).
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“To determine whether a sentence for a term of years is grossly 

disproportionate for a particular defendant’s crime, a court must judge the severity 

of the sentence in light of the harm caused or threatened to the victim, the culpability 

of the offender, and the offender’s prior adjudicated and unadjudicated offenses.”

Simpson, 488 S.W.3d at 323 (citing Graham v. Florida, 560 U.S. 48, 60 (2010)).

“In the rare case in which this threshold comparison leads to an inference of gross 

disproportionality, the court should then compare the defendant’s sentence with the 

sentences received by other offenders in the same jurisdiction and with the sentences 

imposed for the same crime in other jurisdictions.” Id. (citing Graham, 560 U.S. at 

60). “If this comparative analysis validates an initial judgment that the sentence is 

grossly disproportionate, the sentence is cruel and unusual.” Id.

In this case, Appellant committed the first-degree felony offense of 

continuous sexual abuse of a young child. See PENAL § 21.02(b). As stated 

previously, the punishment range for this offense is imprisonment for a term of 

twenty-five to ninety-nine years or life. PENAL § 21.02(h). Appellant’s sentence of 

seventy-five years falls within this range of punishment established by the 

legislature. Id. Although Appellant’s sentence of seventy-five years is severe, given 

the harm caused to the victim, Appellant’s culpability for the crime, and Appellant’s 

prior adjudicated and unadjudicated criminal history, we cannot say that Appellant’s 

sentence is grossly disproportionate to the offense. See Simpson, 488 S.W.3d at 323. 

Indeed, I.H. suffered serious harm as a result of the offense—I.H. described both the 

physical pain he suffered during the sexual assaults and the anger, worry, and other 

aftereffects he has suffered since. See id. Furthermore, Appellant acted alone in 

committing the sexual assaults; he alone is culpable for I.H.’s injuries. See id. 

Lastly, Appellant had a previous criminal conviction for misprision of a felony and 

admitted to being a member of a known, violent criminal gang. See id.
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In view of these facts, Appellant’s sentence is not grossly disproportionate to

his conviction of the offense of continuous sexual abuse of a young child. See id.; 

see also Solem, 463 U.S. at 287–90. Even if Appellant’s sentence could be 

considered harsh, it is not unconstitutional. See, e.g., Randall v. State, 529 S.W.3d 

566, 569 (Tex. App.—Houston [14th Dist.] 2017, no pet.). Because we conclude 

that there is no inference of disproportionality, we need not compare Appellant’s 

sentence to those imposed on other offenders. See Simpson, 488 S.W.3d at 323; 

Randall, 529 S.W.3d at 569. The trial court did not abuse its discretion when it 

sentenced Appellant to confinement for seventy-five years. We overrule Appellant’s 

second issue.

Conclusion

We affirm the judgment of the trial court. 

KEITH STRETCHER

JUSTICE

April 4, 2019

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

Panel consists of: Bailey, C.J.,

Stretcher, J., and Wright, S.C.J.1

Willson, J., not participating. 

 1

Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, 

sitting by assignment.