Joe Richard Jasso v. State ( 2011 )

NUMBER 13-09-00554-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JOE RICHARD JASSO, Appellant,
v.
THE STATE OF TEXAS, Appellee,
On appeal from the 156th District Court
of Bee County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Benavides
Memorandum Opinion by Chief Justice Valdez
Appellant, Joe Richard Jasso, was convicted of six counts of aggravated sexual
assault, a first-degree felony, and pleaded guilty to one count of sexual assault, a
second-degree felony. See TEX. PENAL CODE ANN. §§ 22.011(a)(2), (f),
22.021(a)(1)(B)(i), (2)(A)(ii), (e) (Vernon Supp. 2010). Jasso was sentenced to ninety-
nine years‘ incarceration plus a $10,000 fine for each count of aggravated sexual
assault and twenty years‘ incarceration plus a $10,000 fine for the sexual assault count.
The trial court ordered that the sentences for four of the aggravated sexual assault
convictions (counts 1, 4, 8, and 9) be served concurrently after the completion of a prior
sentence in an unrelated case and that the remaining convictions (counts 7, 10, and 11)
be served consecutively upon the completion of the concurrent sentences in counts 1,
4, 8, and 9.1 By six issues, Jasso contends that: (1) the evidence is legally and
factually insufficient ―to support the conclusion that appellant is the ‗Joe Richard‘ the
subject of the jury‘s verdict of guilt in counts [1 and 4]‖; (2) the evidence is legally and
factually insufficient ―to support the jury‘s verdict of guilt regarding counts [1 and 4]‖; (3)
the trial court‘s cumulation of the sentences imposed for counts 7, 10, and 11
constitutes cruel and unusual punishment; and (4) the trial court erred in cumulating the
sentences with a prior sentence. We affirm.
I. BACKGROUND
In this case, the State alleged that Jasso sexually assaulted three girls: A.L.,
S.K., and S.S. At the time of the alleged incidents, the girls were four, thirteen, and
fourteen years old, respectively. The investigation into Jasso‘s involvement began
when Leo Campos, the stepfather of A.L., wrote the Bee County District Attorney‘s
Office (the ―District Attorney‘s Office‖) describing a conversation he had with A.L. when
she visited him in jail.2 In several letters written to the District Attorney‘s Office, Campos
1
The trial court ordered:
This sentence shall begin upon the completion of sentence in Bee County, Texas cause
no. B-04-2061-CR-B. The sentences in Counts 1, 4, 8 & 9 shall run concurrently. The
sentences in Counts 7, 10 & 11 shall run consecutively—with the sentence in Count 11 to
begin upon the completion of the concurrent sentences in Counts 1, 4, 8 & 9. The
sentence in Count 7 shall begin upon the completion of the sentence in Count 11. The
sentences in Count 10 shall begin upon the completion of the sentence in Count 7 . . . .
2
Campos is currently serving a thirty-five year prison sentence for what he described as ―a
cocaine charge.‖
2
stated that A.L. had told him that ―Joe‖ had touched her private parts and that ―Joe‖ told
her that he would hurt her if she told anyone. At trial, Campos testified that when A.L.
told him what had happened with ―Joe,‖ he noticed ―that something was wrong with her‖
and that she appeared to be upset.
After receiving the letters from Campos, the District Attorney‘s Office forwarded
the letters to the police, and the police began investigating A.L.‘s living situation. The
police later discovered that A.L. lived with several other individuals in a house in Bee
County, Texas. Among those living with A.L. was S.S., a girl whom A.L. refers to as her
sister even though the girls are not related. S.S. testified that she was fourteen years
old when she first began dating Jasso in May 2004. Jasso was twenty-two years old at
the time he and S.S. began their relationship. S.S. had recently attempted to commit
suicide by ingesting numerous medications found in the house, and she admitted that
she had low self-esteem and enjoyed smoking marihuana. Jasso provided S.S. with
marihuana regularly, and the two began having sexual intercourse shortly after meeting
one another in a park. S.S. and Jasso admitted at trial that Jasso penetrated S.S.‘s
sexual organ with his fingers and penis two or three times each day that they were
dating.
S.S. noted that she had problems with her mother; that her mother had ―stopped
paying attention to [her]‖; and that her mother, D.S., did not initially approve of her
dating Jasso. Despite D.S.‘s disapproval of Jasso, he regularly stayed overnight with
S.S. and woke in the morning to make A.L. breakfast. S.S. slept in very late each day,
not waking until 3:00 or 4:00 in the afternoon. S.S. also recalled that A.L. would often
accompany S.S. and Jasso when they would run errands for S.S.‘s mother. S.S.
3
admitted to smoking marihuana with Jasso while in front of A.L. and that she and Jasso
would buy A.L. candy and make her promise to keep S.S. and Jasso‘s smoking habits a
secret. S.S. testified that A.L. and Jasso ―always played together‖; however, S.S.
testified that shortly after she and Jasso broke up, A.L. told her mother that Jasso had
molested her. S.S. noticed that A.L. would masturbate when her mother was asleep
and that she would play ―dirty‖ with her dolls.3 S.S. recounted that her relationship with
Jasso ended when he began dating S.K., a girl who was several years younger than
S.S. S.S. stated that at the time A.L. described the alleged molestation incident to
Campos in September 2008, S.S. was dating Joe Richard Estrada and that A.L. was not
living with them.
D.S., S.S.‘s mother and the foster mother of A.L., testified that she was aware of
Jasso sneaking into the house to have sex with S.S. and that she allowed it because
she ―didn‘t want to lose [S.S. after her suicide attempt] so I just let her do it.‖ D.S.
stated that A.L. always slept in D.S.‘s bedroom and that she did not suspect that
anything had happened to A.L. until A.L. made her outcry. D.S. recalled that A.L. first
told her about the molestation incident after S.S. had told A.L. that she had seen Jasso
at the jail. A.L. told D.S. that she did not say anything about the incident for several
years because Jasso had threatened to hurt A.L. or her family if she said anything. D.S.
then testified to the following:
After [S.S.] had said that she seen [sic] Joe [at the jail], a few days later
[A.L.] said that when she was living in Navy housing Joe Jasso had
touched her or touched her private area. She said that he made her
breakfast and took her to the garage and told her to lay [sic] down and
3
S.S. explained that playing ―dirty‖ with the dolls meant getting ―them naked, and there were
times when she [A.L.] would put their heads between their legs . . . [b]etween—the male doll‘s head
between the girl‘s legs.‖
4
take her pants down. Then he started touching her around her vagina
area. Another time she said that he put his fingers inside her vagina.
After telling D.S. about the incident, A.L. became very afraid. A.L. did not want to go to
the bathroom by herself or sleep by herself. She also began to have nightmares about
Jasso. D.S. stated that she was very upset about the incident but that she did not have
an opportunity to file a complaint with police before Campos did.
S.K., a young girl who also had previously attempted to commit suicide, testified
that she and Jasso began dating when she was thirteen years old and was in the
seventh grade. Their relationship began shortly after Jasso left S.S. S.K.
acknowledged that she and Jasso drank alcohol and smoked marihuana together and
that Jasso would provide her with the alcohol and marihuana. S.K. and Jasso dated for
approximately two months and had vaginal and/or oral sex between two and four times
a day. S.K. noted that Jasso penetrated her sexual organ with his fingers and penis
when she was thirteen years old.
Carol Anne McLaughlin, a forensic nurse with the Driscoll Children‘s Hospital,
examined A.L. after A.L. made her outcry. McLaughlin testified that A.L. told her the
following during their interview:
The history that I received from [A.L.] stated whenever we were at
Capeheart that was when it happened. Those are her words. Then she
stated—and these are her words, not mine—my mom was asleep. I was
getting up and he, Joe, made me pancakes.
....
He took me to the garage and then he pulled my pants down. I told him
no. He wouldn’t listen. He started playing with—he started rubbing me on
my middle, and she indicated her female sexual organ by pointing. He
5
sticked [sic] his fingers inside me. That’s when I yelled ow [sic]. He told
me to shut up or he would hit me. He did this a lot of times.
(Emphasis in original). McLaughlin noted that A.L. appeared to be truthful and acted
―very age appropriate.‖ A.L. ―looked [McLaughlin] in the eye. She [A.L.] didn‘t look at
the floor. She didn‘t look past [McLaughlin], and she talked well with [McLaughlin].‖
McLaughlin then conducted an examination of A.L.‘s body and found no trauma.
However, McLaughlin noted that the area surrounding the female sexual organ is
membrane that heals very quickly and that the incident had occurred about four years
prior to her meeting with A.L.
Steve Liman, an investigator with the Bee County Sheriff‘s Office, testified that he
received Campos‘s letters that were forwarded along by the District Attorney‘s Office.
After receiving the letters, Liman visited Campos and took a statement from him. Liman
also spoke to D.S. about A.L.‘s outcry. Liman acknowledged that there were two
individuals involved in this case that are named ―Joe Richard.‖ Liman determined that
Jasso is the ―Joe Richard‖ who dated S.S. and lived at the Capeheart house when the
alleged incidents took place and that Estrada is S.S.‘s current boyfriend. Estrada was
ruled out as the ―Joe Richard‖ who allegedly molested A.L. because during 2004, when
the alleged incidents took place, Estrada was incarcerated. Because of Estrada‘s
incarceration at the time of the alleged incidents, Liman concluded that Jasso was the
perpetrator of these crimes. Liman also interviewed S.S. and S.K., both of whom
admitted to having sexual intercourse with Jasso. These admissions led to additional
charges filed against Jasso.
Liman later recounted the arrest of Jasso for the alleged crimes. Liman
discovered that Jasso fled Texas shortly after finding out that he had been indicted.
6
Jasso was eventually apprehended in Nebraska for stealing liquor from a grocery store,
and he was extradited to Texas. During an interview with Liman, Jasso admitted to
having sexual intercourse with S.S. but denied molesting A.L. Liman also testified that
he was present during A.L.‘s interview with McLaughlin. He recalled that A.L. ―was
worried or seemed worried that she was going to have to confront Mr. Jasso. . . . She
didn‘t want to see him. . . . Because I got the impression she is afraid of him from the
threats he made.‖
A.L., nine years old at the time of trial, testified that she lived in a house located
in the Capeheart subdivision with several people, including D.S., S.S., and, for a time,
Jasso. A.L. noted that she would wake up early in the morning, while D.S. was still
asleep. A.L. recalled that at the time of the incidents, she usually went into the living
room to watch cartoons when she awoke. A.L. noted that Jasso would awake at about
the same time as she and would go to the restroom. He would then call for her to follow
him, and he would make her pancakes for breakfast. A.L. remembered that after
breakfast, Jasso would take her into the garage and ―pull up [her] nightgown . . . take
down [her] underwears [sic]‖ and then ―lay [her] down‖ on the sofa in the garage. Jasso
would then ―start rubbing‖ A.L. with his fingers on the outside of A.L.‘s sexual organ.
A.L. then testified that Jasso stuck his finger inside her sexual organ one time, which
caused her to scream. When A.L. screamed, Jasso put his hand over A.L.‘s mouth and
told her to shut up. A.L. later noted that Jasso took her into the garage and molested
her ―more than once‖ and that he stuck his finger inside her ―[p]robably two or three
[times].‖ A.L. testified that Jasso threatened her and told her that ―he would kill my
family and my sister and me‖ if she told anyone about what was happening. A.L.
7
explained that she did not tell anyone about the incident for a long time because she
was scared that Jasso would ―watch‖ her and kill her family.
A.L. finally told her family about the incidents when S.S. mentioned that she had
seen Jasso in jail. When she first told her story, A.L. identified the perpetrator as ―Joe,‖
not ―Joe Richard‖ or ―Joe Jasso.‖ On cross-examination, A.L. admitted that she learned
the word, ―Jasso,‖ from S.S. and D.S. and that she did not know Jasso‘s full name.
However, in open court, A.L. identified Jasso as the man who molested her. A.L.
testified that when she told Campos that she was molested by S.S.‘s boyfriend, she did
not mean Estrada. A.L. further testified that Estrada had not made her breakfast or
pancakes, nor had he touched her inappropriately. A.L. stated that Estrada never lived
with the family in the Capeheart subdivision; that Jasso did, for a time, live with the
family in the Capeheart subdivision; and that the molestation occurred when the family
lived in the Capeheart subdivision.
Jasso testified in his own defense. Jasso noted that he was previously employed
as a breakfast ―chef‖ at the ―My Country Kitchen Restaurant.‖ Jasso denied ever living
at the house in the Capeheart subdivision and, instead, noted that he ―visited every
once in a while.‖ Jasso admitted to having sexual intercourse with S.S. three or four
times; however, he denied touching A.L. inappropriately or having sexual intercourse
with S.K. Jasso acknowledged that he had been arrested several times before and that
he ―absconded‖ shortly after being indicted because he had a ―dirty UA‖ that would have
resulted in a probation violation. Jasso testified that he only made A.L. pancakes once
and that after making the pancakes, he had to leave quickly because he was running
late for work.
8
On cross-examination, Jasso admitted that he was twenty-two years old when
the alleged incidents transpired, even though he told police that he was nineteen.
Jasso did not believe that there was anything wrong with having sex with S.S. because
he was allegedly told by D.S. that S.S. was seventeen years old. Also on cross-
examination, Jasso acknowledged several other inconsistencies between his trial
testimony and statements made to police, including the description of incidents where
Jasso stole money and property from the families of the girls he was dating and how
often he made pancakes for S.S.‘s family.4
After hearing all of the above-mentioned evidence, the jury convicted Jasso of six
counts of aggravated sexual assault, and Jasso pleaded guilty to one count of sexual
assault. Jasso received ninety-nine-year sentences for each of the aggravated sexual
assault counts and a twenty-year sentence for the sexual assault count. The trial court
ordered some of the counts to run concurrently, while other counts were ordered to run
consecutively.
On August 25, 2009, Jasso filed a pro se motion for new trial arguing that he did
not receive a fair trial and that his trial counsel was ineffective. Because the trial court
did not rule on Jasso‘s pro se motion for new trial, it is deemed overruled by operation
of law. See TEX. R. APP. P. 21.8(a), (c); see also State v. Gutierrez, 143 S.W.3d 829,
831 (Tex. App.–Corpus Christi 2004, no pet.). This appeal ensued.
II. SUFFICIENCY OF THE EVIDENCE
In his first two issues, Jasso asserts that the evidence supporting his conviction
for counts 1 and 4 is legally and factually insufficient because the record demonstrates
4
With respect to the pancakes, Jasso stated at trial that he only made the family pancakes once;
however, he told police that he made the family pancakes ―a couple times.‖
9
that in addition to Jasso, S.S. dated another individual with a similar name, Estrada, and
that A.L.‘s outcry, which was made several years after the alleged incident, actually
referenced Estrada rather than Jasso.5 In his third and fourth issues, Jasso contends
that the evidence supporting his conviction for counts 1 and 4 is legally and factually
insufficient because the record does not demonstrate that Jasso used his finger to
penetrate A.L.‘s sexual organ on two different occasions.
A. Applicable Law
The court of criminal appeals has recently held that there is ―no meaningful
distinction between the Jackson v. Virginia legal sufficiency standard and the Clewis
factual-sufficiency standard‖ and that the Jackson standard ―is the only standard that a
reviewing court should apply in determining whether the evidence is sufficient to support
each element of a criminal offense that the State is required to prove beyond a
reasonable doubt.‖ Brooks v. State, No. PD-0210-09, 2010 Tex. Crim. App. LEXIS
1240, at **25-26, *57 (Tex. Crim. App. Oct. 6, 2010) (plurality opinion). Accordingly, we
review Jasso‘s claims of evidentiary sufficiency under ―a rigorous and proper
application‖ of the Jackson standard of review. Id. at *37, *57.
Under the Jackson standard, ―the relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.‖ Jackson v.
Virginia, 443 U.S. 307, 319 (1979); see Brooks, 2010 Tex. Crim. App. LEXIS 1240, at
*14 (characterizing the Jackson standard as: ―Considering all of the evidence in the
5
On appeal, Jasso does not challenge the sufficiency of the evidence pertaining to his
convictions for the aggravated sexual assault of S.K.—counts 7, 8, 9, and 10—or for the sexual assault of
S.S.—count 11.
10
light most favorable to the verdict, was a jury rationally justified in finding guilt beyond a
reasonable doubt‖). ―[T]he fact[-]finder‘s role as weigher of the evidence is preserved
through a legal conclusion that upon judicial review all of the evidence is to be
considered in the light most favorable to the prosecution.‖ Jackson, 443 U.S. at 319
(emphasis in original); see TEX. CODE CRIM. PROC. ANN. art. 38.04 (Vernon 1979) (―The
jury, in all cases is the exclusive judge of facts proved and the weight to be given to the
testimony . . . .‖); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) (―The
jury is the exclusive judge of the credibility of witnesses and of the weight to be given
testimony, and it is also the exclusive province of the jury to reconcile conflicts in the
evidence.‖).
Sufficiency of the evidence is measured by the elements of the offense as
defined by a hypothetically correct jury charge. Curry v. State, 30 S.W.3d 394, 404
(Tex. Crim. App. 2000); Adi v. State, 94 S.W.3d 124, 131 (Tex. App.–Corpus Christi
2002, pet. ref‘d). Under a hypothetically correct jury charge, the State was required to
prove beyond a reasonable doubt that Jasso (1) intentionally or knowingly (2) ―cause[d]
the penetration of the anus or sexual organ of a child by any means.‖ 6 TEX. PENAL CODE
ANN. § 22.021(a)(2)(B)(i). ―A person acts intentionally, or with intent, with respect to the
nature of his conduct or to a result of his conduct when it is his conscious objective or
desire to engage in the conduct or cause the result.‖ Id. § 6.03(a) (Vernon 2003). ―A
person acts knowingly with respect to a result of his conduct when he is aware that his
conduct is reasonably certain to cause the result.‖ Id. § 6.03(b). Intent may ―be inferred
6
A ―child‖ is defined as ―a person younger than 17 years of age.‖ TEX. PENAL CODE ANN. §§
22.011(c), 22.021(b)(1) (Vernon Supp. 2010). Count 1 of the indictment states that Jasso used his finger
to penetrate A.L.‘s sexual organ on or about May 16, 2004, and count 4 of the indictment alleges the
same offense occurring on or about May 18, 2004.
11
from circumstantial evidence[,] such as acts, words, and the conduct of the appellant.‖
Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004); see Hart v. State, 89
S.W.3d 61, 64 (Tex. Crim. App. 2002) (stating that a fact-finder may infer both
knowledge and intent from the defendant‘s acts, words, or conduct and from the nature
of the wounds inflicted on the victim); Hernandez v. State, 819 S.W.2d 806, 810 (Tex.
Crim. App. 1991); Ledesma v. State, 677 S.W.2d 529, 531 (Tex. Crim. App. 1984)
(noting that the requisite culpable mental state may be inferred from the surrounding
circumstances).
The State is not required to present direct evidence to establish guilt. See
Guevara, 152 S.W.3d at 49. ―Circumstantial evidence is as probative as direct evidence
in establishing the guilt of the actor, and circumstantial evidence alone can be sufficient
to establish guilt.‖ Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); see
Guevara, 152 S.W.3d at 49. The law does not require that each fact ―point directly and
independently to the guilt of the appellant, as long as the cumulative effect of all the
incriminating facts is sufficient to support the conviction.‖ Hooper, 214 S.W.3d at 13;
see Guevara, 152 S.W.3d at 49.
B. Identity
In his first two issues, Jasso complains that the evidence is insufficient to support
the jury‘s finding that he was the perpetrator of the alleged offenses. Essentially, Jasso
challenges the identity element of the aggravated sexual assault offenses charged in
counts 1 and 4. The identity of a perpetrator in a sexual assault case may be proven by
either direct or circumstantial evidence. See Earls v. State, 707 S.W.2d 82, 85 (Tex.
Crim. App. 1986); Roberson v. State, 16 S.W.3d 156, 157 (Tex. App.–Austin 2000, pet
12
ref‘d); Couchman v. State, 3 S.W.3d 155, 162 (Tex. App.–Fort Worth 1999, pet ref‘d);
see also Ficarro v. State, No. 13-03-00439-CR, 2007 Tex. App. LEXIS 3166, at *11
(Tex. App.–Corpus Christi Apr. 26, 2007, pet. ref‘d) (mem. op., not designated for
publication).
Here, Campos, D.S., and McLaughlin testified that A.L. identified the individual
who molested her as ―Joe‖ and that the incidents transpired during the summer of 2004.
At that time, Jasso was living in, or, at least, was a frequent visitor to, the same
household as S.S., A.L., and D.S. S.S. did not begin to date Estrada until several years
after the incident transpired, and Detective Liman testified that Estrada was
incarcerated in 2004, meaning Estrada could not have committed the alleged offenses.
Furthermore, A.L., in her outcry statement, noted that ―Joe‖ made her pancakes and
then proceeded to molest her in the garage. Jasso testified that he was a breakfast
―chef‖ and that he made A.L. and the rest of the family pancakes on one occasion, even
though he expressed to police shortly after being extradited back to Texas that he had
made pancakes for the family several times. Moreover, and perhaps most importantly,
A.L. testified at trial that Estrada was not the individual who molested her, and she
identified Jasso in open court as the perpetrator.
Nevertheless, Jasso asserts that the evidence is insufficient to support the jury‘s
conclusion that he was the perpetrator because A.L.‘s outcry statements were made in
the present tense, suggesting that the offenses did not occur until 2007, when Estrada
was S.S.‘s boyfriend.7 Jasso also argues that A.L. was supplied the name, ―Jasso,‖ by
7
A.L. testified that the perpetrator of the offenses made her pancakes for breakfast before he
would molest her, and A.L. testified that Estrada never made her pancakes or breakfast; thus, a rational
fact-finder could conclude that the alleged offenses were not committed in 2007, nor by the other ―Joe
Richard‖ in this case—Estrada. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also Brooks v.
13
S.S. and D.S. and that neither S.S. nor D.S. believed A.L. at first. Jasso‘s arguments
touch on the weight of the evidence and the credibility of the witnesses, especially A.L.
Such determinations are solely within the province of the jury, and we must defer to the
jury‘s resolution of the inconsistent testimony. See Jackson, 443 U.S. at 318-19;
Wesbrook, 29 S.W.3d at 111; see also Render v. State, 316 S.W.3d 846, 859 (Tex.
App.–Dallas 2010, pet. ref‘d) (―An appellate court must give deference to a jury‘s
decision regarding what weight to give contradictory testimonial evidence because the
decision is most likely based on an evaluation of credibility and demeanor, which the
jury is in a better position to judge.‖) (citing Lancon v. State, 253 S.W.3d 699, 706 (Tex.
Crim. App. 2008)). Moreover, it was not incumbent upon the State to exclude ―every
reasonable hypothesis other than guilt‖ for the evidence to be considered sufficient.
See Geesa v. State, 820 S.W.2d 154, 157-61 (Tex. Crim. App. 1991), overruled on
other grounds by Paulson v. State, 28 S.W.3d 570, 571 (Tex. Crim. App. 2000); see
also Lopez v. State, 267 S.W.3d 85, 97-98 (Tex. App.–Corpus Christi 2008, no pet.)
(citing Harris v. State, 133 S.W.3d 760, 763-65 (Tex. App.–Texarkana 2004, pet. ref‘d);
Richardson v. State, 973 S.W.2d 384, 387 (Tex. App.–Dallas 1998, no pet.) (―[T]he
mere existence of an alternative reasonable hypothesis does not render the evidence . .
. insufficient. . . . [E]ven when an appellant identifies an alternative reasonable
hypothesis raised by the evidence, the standard of review remains the same.‖); Orona
v. State, 836 S.W.2d 319, 322 (Tex. App.–Austin 1992, no pet.)).
Therefore, viewing all of the evidence in the light most favorable to the
prosecution, we conclude that the jury was rationally justified in determining that Jasso
State, No. PD-0210-09, 2010 Tex. Crim. App. LEXIS 1240, at *14 (Tex. Crim. App. Oct. 6, 2010) (plurality
opinion).
14
was the perpetrator of the alleged offenses against A.L. beyond a reasonable doubt.
See Jackson, 443 U.S.at 319; Earls, 707 S.W.2d at 85; Roberson, 16 S.W.3d at 157;
Couchman, 3 S.W.3d at 162; see also Brooks, 2010 Tex. Crim. App. LEXIS 1240, at
*14; Ficarro, 2007 Tex. App. LEXIS 3166, at *11. Accordingly, we overrule Jasso‘s first
and second issues.
C. Evidence of Digital Penetration
By his third and fourth issues, Jasso argues that the evidence is insufficient to
support his convictions as to both counts 1 and 4. Count 1 of the indictment provided
that, on or about May 16, 2004, Jasso intentionally or knowingly caused the penetration
of A.L.‘s sexual organ with his finger, and he threatened or placed A.L. ―in fear that
death would be imminently inflicted on [A.L.] or [D.S.].‖ See TEX. PENAL CODE ANN. §
22.021(a)(1)(B)(i), (2)(A)(ii). Count 4 of the indictment mirrored count 1 except that it
alleged that the offense occurred on or about May 18, 2004. See id. The State
essentially alleged in the indictment that Jasso penetrated A.L.‘s sexual organ and
threatened her at least on two occasions. On appeal, Jasso contends that the evidence
demonstrates that A.L. was only penetrated once; he does not challenge the second
portion of each count pertaining to the threats. Jasso also suggests that the ―rubbing‖ of
A.L.‘s sexual organ that allegedly occurred several times really amounted to indecency
with a child, an offense which was not alleged in the indictment. See id. § 21.11(a)
(Vernon Supp. 2010).8
In the instant case, A.L. first testified that Jasso penetrated her sexual organ only
one time. However, she later clarified that the penetration occurred ―more than once.‖
8
Section 21.11, entitled ―Indecency With a Child‖ provides that: ―[a] person commits an offense
if, with a child younger than 17 years of age . . . the person . . . [e]ngages in sexual contact with the child
or causes the child to engage in sexual contact.‖ TEX. PENAL CODE ANN. § 21.11(a) (Vernon Supp. 2010).
15
When asked to describe the incidents for a third time, A.L. stated that the penetration
took place ―probably two or three times.‖ In addition, McLaughlin testified earlier that
A.L. told her that: ―[Jasso] sticked [sic] his fingers inside me. That‘s when I yelled ow
[sic]. He told me to shut up or he would hit me. He did this a lot of times.‖ By stating
that Jasso ―did this a lot of times,‖ A.L. confirmed to McLaughlin that Jasso penetrated
her sexual organ with his finger many times.
We first note that the testimony of a child victim typically is sufficient to support a
conviction for aggravated sexual assault. See TEX. CODE CRIM. PROC. ANN. art. 38.07
(Vernon 2005); Perez v. State, 113 S.W.3d 819, 838 (Tex. App.–Austin 2003, pet. ref‘d),
overruled in part on other grounds by Taylor v. State, 268 S.W.3d 571 (Tex. Crim. App.
2008); Karnes v. State, 873 S.W.2d 92, 96 (Tex. App.–Dallas 1994, no pet.) (―[T]he
testimony of a sexual assault victim alone is sufficient evidence of penetration to
support a conviction, even if the victim is a child.‖); see also Fernandez v. State, No. 13-
09-168-CR, 2010 Tex. App. LEXIS 6741, at *11 (Tex. App.–Corpus Christi Aug. 19,
2010, no pet.) (mem. op., not designated for publication). Further, courts give wide
latitude to the testimony given by child victims of sexual abuse. See Villalon v. State,
791 S.W.2d 130, 134 (Tex. Crim. App. 1990) (en banc). ―The victim‘s description of
what happened to [her] need not be precise, and [she] is not expected to express
[herself] at the same level of sophistication as an adult.‖ Ozuna v. State, 199 S.W.3d
601, 606 (Tex. App.–Corpus Christi 2006, no pet.) (citing Villalon, 791 S.W.2d at 134).
Here, there is only one instance where A.L. alleged that Jasso penetrated her
sexual organ on one occasion. A.L. made two other statements later in her testimony,
and she conveyed to McLaughlin that Jasso penetrated her sexual organ several times.
16
Regardless, this apparent inconsistency in A.L.‘s testimony was within the province of
the jury to resolve, and, once again, we are to defer to the jury‘s resolution of the
inconsistency. See Jackson, 443 U.S. at 318-19; Lancon, 253 S.W.3d at 706;
Wesbrook, 29 S.W.3d at 111; see also Render, 316 S.W.3d at 859. In convicting Jasso
of both counts 1 and 4, the jury clearly accorded more weigh to A.L.‘s later testimony
and statements to McLaughlin that Jasso penetrated her sexual organ on a number of
occasions rather than her apparently imprecise initial statement that the penetration
only occurred once. See Villalon, 791 S.W.2d at 134; see also Ozuna, 199 S.W.3d at
606.
Viewing all of the evidence in the light most favorable to the prosecution, we
conclude that the jury was rationally justified in concluding that Jasso penetrated A.L.‘s
sexual organ using his fingers on more than one occasion. See TEX. PENAL CODE ANN.
§ 22.021(a)(1)(B)(i); Jackson, 443 U.S.at 319; Perez, 113 S.W.3d at 838; see also
Brooks, 2010 Tex. Crim. App. LEXIS 1240, at *14; Fernandez, 2010 Tex. App. LEXIS
6741, at *11. Moreover, because we have concluded that the evidence supporting
Jasso‘s convictions for the aggravated sexual assault of A.L. is sufficient, and because
―[s]exual contact or exposure that occurs in the course of an act of sexual penetration is
subsumed in the completed act,‖ we need not address his contention regarding
indecency with a child. Soto v. State, 267 S.W.3d 327, 343 (Tex. App.–Corpus Christi
2008, no pet.) (citing Patterson v. State, 152 S.W.3d 88, 92 (Tex. Crim. App. 2004));
see TEX. R. APP. P. 47.1 (―The court of appeals must hand down a written opinion that is
as brief as practicable but that addresses every issue raised and necessary to final
disposition of the appeal.‖). Accordingly, we overrule Jasso‘s third and fourth issues.
17
III. JASSO’S PUNISHMENT AND THE EIGHTH AMENDMENT
OF THE UNITED STATES CONSTITUTION
By his fifth issue, Jasso asserts that the cumulation of his sentences violates the
Eighth Amendment‘s ban of cruel and unusual punishments. See U.S. CONST. amend.
VIII. He also argues that the punishment was grossly disproportionate to the
seriousness of the offenses. The Eighth Amendment of the United States Constitution
provides that ―[e]xcessive bail shall not be required, nor excessive fines imposed, nor
cruel and unusual punishment inflicted.‖ Id.; see Robinson v. California, 370 U.S. 660,
675 (1962). The Eighth Amendment is applicable to punishments imposed by state
courts through the Due Process Clause of the Fourteenth Amendment. Robinson, 370
U.S. at 675; see U.S. CONST. amend. XIV.
In the instant case, Jasso did not object to his sentence in the trial court, and he
did not file any post-trial motions or objections complaining that his sentence was either
disproportionate to the seriousness of the offenses, or complaining about the disparity,
cruelty, unusualness, or excessiveness of the sentence. To preserve 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); Dixon v. State, 2
S.W.3d 263, 265 (Tex. Crim. App. 1998). The failure to specifically object to an alleged
disproportionate sentence in the trial court or in a post-trial motion waives any error for
our review. Jacoby v. State, 227 S.W.3d 128, 130 (Tex. App.–Houston [1st Dist.] 2006,
pet. ref‘d); see Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App.–Houston [14th Dist.]
2001, pet. ref‘d) (holding that a failure to complain to the trial court about a consecutive
sentence waives error); 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
18
violative of the Eighth Amendment was forfeited by failing to object in the trial court);
see also Trevino v. State, Nos. 13-07-737-CR & 13-07-738-CR, 2008 Tex. App. LEXIS
5123, at *3 (Tex. App.–Corpus Christi July 3, 2008, pet. ref‘d) (mem. op., not designated
for publication). Because he did not object to the alleged disproportionality of his
sentence in the trial court or raise the issue in a post-trial motion, we conclude that
Jasso has not preserved this issue for appellate review. See TEX. R. APP. P. 33.1(a);
see also Jacoby, 227 S.W.3d at 130.
Assuming, however, that Jasso had preserved the issue for appellate review, we
conclude that his consecutive sentence did not violate the Eighth Amendment and was
not disproportionate to the serious of the offenses. Jasso argues that his sentence is
grossly disproportionate and constitutes cruel and unusual punishment because, by
stacking his sentences, the trial court imposed ―a term of over 300 years.‖ Jasso
asserts that this punishment amounts to ―[l]ife without parole‖ and, therefore, ―is not
within the punishment range for these types of offenses.‖
The cumulation of sentences does not constitute cruel and unusual punishment.
See Stevens v. State, 667 S.W.2d 534, 538 (Tex. Crim. App. 1984); Quintana v. State,
777 S.W.2d 474, 480 (Tex. App.–Corpus Christi 1989, pet. ref‘d); see also Rueda v.
State, No. 13-07-517-CR, 2008 Tex. App. LEXIS 5121, at *5 (Tex. App.–Corpus Christi
July 3, 2008, pet. ref‘d) (mem. op., not designated for publication). ―Normally, the trial
judge has absolute discretion to cumulate sentences.‖ Smith v. State, 575 S.W.2d 41,
41 (Tex. Crim. App. 1979); see Green v. State, 706 S.W.2d 653, 656 (Tex. Crim. App.
1986); Quintana, 777 S.W.2d at 480. A trial court has the discretion to either order a
defendant‘s sentence to begin when his previous sentence ends, or to allow the
19
defendant‘s sentence to run concurrently with his previous sentence. See TEX. CODE
CRIM. PROC. ANN. art. 42.089; Quintana, 777 S.W.2d at 480. Further, a criminal
defendant does not have a right to a concurrent sentence. Carney v. State, 573 S.W.2d
24, 27 (Tex. Crim. App. 1978); Quintana, 777 S.W.2d at 480.
Jasso was convicted of six counts of aggravated sexual assault, a first-degree
felony, and one count of sexual assault, a second-degree felony. See TEX. PENAL CODE
ANN. §§ 22.011(a)(2), (f), 22.021(a)(2)(B), (e). The punishment range for a first-degree
felony is ―imprisonment . . . for life or for any term not more than 99 years or less than 5
years,‖ id. § 12.32(a) (Vernon Supp. 2010), and the range for a second-degree felony is
―imprisonment . . . for any term of not more than 20 years or less than 2 years.‖ Id. §
12.33(a) (Vernon Supp. 2010). Here, the trial court sentenced Jasso to ninety-nine
years‘ imprisonment for each first-degree felony and twenty years‘ imprisonment for the
second-degree felony. Further, to the extent that Jasso argues that the cumulation of
his sentences amounts to a life sentence, such sentence is within the punishment range
for a first-degree felony, and as previously stated, Jasso was convicted of six first-
degree felonies. See id. § 12.32(a). Punishment assessed within the statutory limits is
generally not cruel and unusual punishment. See Harris v. State, 656 S.W.2d 481, 486
(Tex. Crim. App. 1983) (holding that a punishment that falls within the limits prescribed
9
The Texas Code of Criminal Procedure provides:
When the same defendant has been convicted in two or more cases, judgment and
sentence shall be pronounced in each case in the same manner as if there had been but
one conviction. . . . [I]n the discretion of the court the judgment in the second and
subsequent convictions may either be that the sentence imposed or suspended shall
begin when the judgment and the sentence in the preceding conviction has ceased to
operate, or that the sentence imposed or suspended shall run concurrently with the other
case or cases, and sentence and execution shall be accordingly. . . .
TEX. CODE CRIM. PROC. ANN. art. 42.08(a) (Vernon 2006).
20
by a valid statute is not excessive, nor cruel or unusual)10; Samuel v. State, 477 S.W.2d
611, 614 (Tex. Crim. App. 1972); Swinney v. State, 828 S.W.2d 254, 259 (Tex. App.–
Houston [1st Dist.] 1992, no pet.); see also Trevino, 2008 Tex. App. LEXIS 5123, at *4.
Jasso also argues that his sentences are disproportionate and essentially asks
this Court to apply the Solem proportionate analysis test to his sentence. See Solem v.
Helm, 463 U.S. 277, 290-92 (1983). This Court has previously recognized that ―the
viability and mode of application of proportionate analysis . . . has been questioned
since the Supreme Court‘s decision in Harmelin v. Michigan, 501 U.S. 957 (1991).‖
Trevino v. State, 174 S.W.3d 925, 928 (Tex. App.–Corpus Christi 2005, pet. ref‘d) (citing
McGruder v. Puckett, 954 F.2d 313, 315-16 (5th Cir. 1992) (discussing the various
opinions issued in Harmelin and their impact on the Solem decision)); see Sullivan v.
State, 975 S.W.2d 755, 757-58 (Tex. App.–Corpus Christi 1998, no pet.) (discussing the
implications of the Harmelin opinion and reviewing the proportionality of appellant‘s
sentence under the Solem and McGruder tests). Assuming, arguendo, the viability of
proportionality review, we will apply both the Solem and McGruder tests to the facts of
this case. See Sullivan, 975 S.W.2d at 757-58; see also Trevino, 2008 Tex. App. LEXIS
5123, at *5. In both Solem and McGruder, we look first at the gravity of the offense and
the harshness of the penalty. Solem, 463 U.S. at 290-91; McGruder, 954 F.2d at 316.
A. Gravity of the Offense
Jasso asserts that his punishment is disproportionate to the gravity of the offense
because he engaged in ―consensual sex with teenage girls, self-described by one as
‗wild‘‖ and ―was never accused of physically abusing, dominating or intimidating [S.K.] or
10
On appeal, Jasso does not challenge the validity of sections 12.32 and 12.33 of the penal
code—the provisions prescribing the punishment range for first and second-degree felonies. See TEX.
PENAL CODE ANN. §§ 12.32, 12.33 (Vernon Supp. 2010).
21
[S.S.].‖ Jasso‘s sexual assault convictions are derived from his sexual relationships
with four-year-old, A.L., thirteen-year-old, S.K., and fourteen-year-old, S.S. In Texas, ―a
child under fourteen cannot legally consent to sex.‖ May v. State, 919 S.W.2d 422, 424
(Tex. Crim. App. 1996). However, affirmative defenses to sexual assault are available if
the child is at least fourteen, such as when the accused is no more than three years
older than the child, or when the accused is the child‘s spouse. See TEX. PENAL CODE
ANN. § 22.011(e). In the present case, no such defenses were asserted. Thus, Jasso‘s
assertion that his sexual relationships with A.L., S.K., or S.S. were consensual is
unfounded. See id.; see also May, 919 S.W.2d at 424.
As previously discussed, the evidence at trial was sufficient to prove that, on
more than one occasion, Jasso penetrated A.L.‘s sexual organ with his fingers. Further,
Jasso does not argue that the evidence is insufficient to support his four convictions for
the aggravated sexual assault of S.K., and Jasso pleaded guilty to sexually assaulting
S.S. Neither aggravated sexual assault nor sexual assault requires physical abuse,
domination, or intimidation. See TEX. PENAL CODE ANN. §§ 22.011(a)(2),
22.021(a)(2)(B). Moreover, we judge the gravity of the offense in light of the harm
caused or threatened to society and the offender‘s culpability. Moore v. State, 54
S.W.3d 529, 542 (Tex. App.–Fort Worth 2001, pet. ref‘d) (citing Solem, 463 U.S. at 291-
92). Jasso‘s six aggravated sexual assault convictions and one sexual assault
conviction were based on evidence that he preyed on young, under-aged girls and
engaged in sexual acts with these girls on numerous occasions within approximately a
one to two month time period. Based on the foregoing, we conclude that the gravity of
the offense weighs in favor of a finding that the punishment was not excessive.
22
B. Harshness of the Penalty
When conducting an Eighth Amendment proportionality analysis, we may
consider the sentence imposed in light of the accused‘s prior offenses. Winchester v.
State, 246 S.W.3d 386, 390 (Tex. App.–Amarillo 2008, pet. ref‘d); Culton v. State, 95
S.W.3d 401, 403 (Tex. App.–Houston [1st Dist.] 2002, pet. ref‘d). At the punishment
phase of trial, the State presented evidence that Jasso was previously convicted of
eight counts of forgery, a state-jail felony. See TEX. PENAL CODE ANN. § 32.23(b), (d)
(Vernon Supp. 2010). In light of the seriousness of Jasso‘s six aggravated sexual
assault and one sexual assault conviction, as well as the evidence of his eight prior
forgery offenses, we cannot say that his ―life sentence‖ is excessive. We therefore
conclude that his punishment is not grossly disproportionate to the offense for which he
was convicted.
Moreover, because there is no evidence in the appellate record of the sentences
imposed for other similar crimes in Texas or for the same crimes in other jurisdictions,
we cannot perform a comparative evaluation using the remaining Solem factors. See
Solem, 463 U.S. at 292; see also Sullivan, 975 S.W.2d at 757-58. Therefore, we
conclude that Jasso‘s sentence is neither grossly disproportionate nor cruel and
unusual. Accordingly, Jasso‘s fifth is overruled.
IV. THE TRIAL COURT’S CUMULATION OF THE SENTENCES WITH A PRIOR SENTENCE
By his sixth issue, Jasso asserts that the trial court abused its discretion by
ordering his sentence in this case to run consecutive to a prior sentence received in trial
court cause number B-04-2061-0-CR-B for eight counts of forgery. Specifically, Jasso
23
contends that the State failed to affirmatively prove that Jasso was the individual
sentenced on the forgery counts.
At the time of sentencing, the record must contain at least ―some evidence‖
linking the defendant to the prior conviction. Miller v. State, 33 S.W.3d 257, 261 (Tex.
Crim. App. 2000). The burden is on the State to present this evidence, and the
defendant has no obligation to prove he has no prior convictions. Turner v. State, 733
S.W.2d 218, 223 (Tex. Crim. App. 1987). During the punishment phase of the trial, the
State introduced a copy of Jasso‘s conviction for eight counts of forgery in trial court
cause number B-04-2061-0-CR-B. The copy of the judgment was admitted without
objection; the State did not offer testimony that Jasso is the same defendant convicted
in trial court cause number B-04-2061-0-CR-B. However, before the trial court ordered
trial court cause number B-09-2120-0-CR-B to run consecutive to trial court cause
number B-04-2061-0-CR-B, the following exchange occurred:
The Court: All right. . . . I think the State had filed a motion to
have the sentence [in trial court cause number B-09-
2120-0-CR-B] accumulated.
[State]: Yes, your Honor, we did.
The Court: I‘m going to review your motion.
[State]: Yes, ma‘am.
The Court: What is on 04-2061? Is that the—
[State]: That‘s the state jail felony, your Honor. May I
approach, your Honor?
The Court: Is he serving time on that now?
[State]: He was revoked on both of those.
The Court: I know, but are you done? Are you done with those?
24
[State]: He has been getting credit for time, Judge. It was
revoked.
[Defense Counsel]: He‘ll probably discharge that this month or next
month.
In Miller, the Texas Court of Criminal Appeals held that admissions by the
defendant‘s lawyer that the defendant ―was currently serving 30 years for two prior
convictions‖ constituted admissions that the defendant ―indeed had the two prior
convictions‖ set out in the State‘s motion to cumulate. See Miller, 33 S.W.3d at 262.
Similarly, in the present case, defense counsel‘s admission that Jasso would be
discharging the forgery sentence imposed in trial court cause number B-04-2061-0-CR-
B constitutes an admission that Jasso is the defendant named in the present case. See
id. Thus, we conclude the trial court did not abuse its discretion because there was
sufficient evidence before it to properly order the sentences to run consecutively. We
overrule Jasso‘s sixth issue.
V. CONCLUSION
Having overruled all of Jasso‘s issues on appeal, we affirm the judgment of the
trial court.
_________________
ROGELIO VALDEZ
Chief Justice
Do not publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
6th day of January, 2011.
25