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 244 th 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 “ g uilty,” the trial court assessed Appellant’s punishment at confinement
for a term of se venty

- 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 his2 conviction and (2) his sent ence 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 Appe llant : D id then and there, during a period that was 30 or more days in duration, to

- wit: from on or about December 14 th , 2008 through April 18 th , 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 th e same property in another mobile home with Appellant’s mother and her husband. I.H. regularly visit ed 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 hand s 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
, “ W hat are you doing? ” Appellant responded
, “ J ust 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 seco nd time

. . . w as 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, once3 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 d own 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
, “D id 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 grade s

. I.H. testified that the abuse stopped “when [ I .H.] was around eleven or so.” Additionall y, the evidence established that Appellant was eight years older than I.H. Multiple clips of a recorded interview between Appellant and a former E ctor County Sheriff ’s Department i nvestigator
, 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 hav ing 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 thirtee n 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 him4 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 sen d 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

w ould highly recom mend 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 Gibs on 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, “on ce 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 punish ment at confinement for seventy

- five years and sentenced him accordingly. This appeal followed. Analysis In two issues on app eal, 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 i s c ruel 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 to5 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
tha t occurred when Appellant was fifteen years old

. Appellant also contends that
the State failed to prove that Appellant c ommitted 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 disting uish between the first incident

— where Appellant only grabbed I.H. ’s butt

— and the second incident

— wh ere 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
de fer 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 stand ard
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 favor6 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 year s of age

. T EX

. P ENAL C ODE A NN

. § 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

. T EX

. C ODE C RIM

. P ROC

. A NN . 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.
, test ified 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 defend ant 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.7 testified that she was sexually assaulted a number of times by the defendant at both
the first and the second home s

. Id. Although C.A. c ould not recall the total number of times she was assaulted, C.A. testified that the assaults occurred approximately
once a month and continued until t he defendant moved out of the second home when
C.A. was “[p]robably about 11” years old. Id. The eviden ce at trial established that
the defendant was six years older than C.A. Id. at 170, 172.
The defendant argued that, b ecause C.A. ’s “testimony focused on acts that occurred when [the defendant ] was a juvenile,” the evidence was insufficient to
establis h that he had committed an act of sexual assault after he turned seventeen years old. Id. at 172. However, a lthough 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 infer red
that the de fendant 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.
H ere , I.H. testified that, sometime close to when he was about to enter the first grade, he was playing video games in Appellant’s bed room 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 grade s 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 testimony8 focused on assault s that occurred wh ile Appellant was under the age of seventeen, the jury could have reasonably inferred that Appellant continued to sexually assault
I.H. for a num ber of years
, including, at a minimum, o ne time each during the years
I.H. w as in the fourth and fifth grad e

— a time by which Appellant had already reached the age of seventeen. See id. at 171

– 72. Second, Appellant assert s 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 r eferring 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.” I nstead, 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 A ppellant again touching I.H.’s butt, the jury instead chose to construe the testimony as referring to subsequent sexual9 assault s 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, w hile 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. T hus, 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, w hen 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 als o P ENAL § 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. C ONST . 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 , n either
at the time of sentenci ng 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. T EX

. R. A PP

. 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) (Eighth10 Amendment issues are forfeited if not raised in the trial court); Solis v. State , 945 S.W.2d 300, 301

– 02 (Tex. App.

— Hou ston [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, n otwithstanding Appellant’ s wai ver, 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. P ENAL § 21.02(h)

. The Eighth Amendment to the Constitution of the United States provides: “Excessive bail shall not be required, nor excessive fine s imposed, nor cruel and unusual pu nishments inflicted.” U.S. C ONST . 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, i t is w ell 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 ge neral 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) ).11 “To determine whether a s entence for a term of years is grossly disproportio nate 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 a djudicated 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 t he 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 ini tial 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 P ENAL § 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. P ENAL § 21.02(h)

. Appellant’ s sentence of seventy

- five years falls within this range of punishment established by the legi slature. 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 othe r 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.12 In view of these fact s, 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 Sole m , 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 Ap pellant’ 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 sev enty

- five years. We overrule Appel lant’ s second issue.
Conclusion We affirm the judgment of the trial court.

KEITH STRETCHER
JUSTICE

April 4, 2019 Do not publish. See T EX

. R. A PP

. 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.