NUMBER 13-12-00558-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ISAAC GONZALEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 24th District Court
of Victoria County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Perkes
Memorandum Opinion by Chief Justice Valdez
A jury found appellant, Isaac Gonzalez, guilty of two counts of indecency with a
child, a second-degree felony, see TEX. PENAL CODE ANN. § 21.11(a)(1) (West 2011),
and one count of aggravated sexual assault of a child, a first-degree felony.1 See id. §
22.021 (a)(1)(B)(iii), (a)(2)(B) (West Supp. 2011). Appellant was sentenced to life
1
The jury acquitted appellant of a third count of indecency with a child.
imprisonment for the aggravated sexual assault of a child and fifteen years’ confinement
for each count of indecency with a child. The trial court ordered that the sentences run
concurrently. By two issues, appellant contends that: (1) the evidence was insufficient
to support his convictions; and (2) the sentence imposed “violates his US Constitutional
right to receive a sentence which is not more than necessary to accomplish all of the
objectives in the Texas Penal Code.” We affirm.2
I. SUFFICIENCY OF THE EVIDENCE
By his first issue, appellant attacks the sufficiency of the evidence on the basis
that there were no witnesses to the offenses, there was no medical, forensic or scientific
evidence, and “the State’s case was based solely on the testimony of the alleged victim,
whose testimony was shown to be unreliable at best.” To support his claim of
insufficient evidence, appellant merely cites portions of the testimony presented at trial,
which he believes contain inconsistencies.
A. Standard of Review and Applicable Law
In reviewing the sufficiency of the evidence to support a conviction, we view the
evidence in the light most favorable to the verdict to determine whether any rational trier
of fact could have found the essential elements of the crime beyond a reasonable
doubt. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.). A
complainant’s testimony alone is sufficient to support a conviction for indecency with a
child or aggravated sexual assault. Soto v. State, 267 S.W.3d 327, 332 (Tex. App.—
Corpus Christi 2008, no pet.); Connell v. State, 233 S.W.3d 460, 466 (Tex. App.—Fort
2
Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court’s decision and the basic reasons
for it. See TEX. R. APP. P. 47.4.
2
Worth 2007, no pet.); Perez v. State, 113 S.W.3d 819, 838 (Tex. App.—Austin 2003,
pet. ref’d) overruled on other grounds by Taylor v. State, 268 S.W.3d 571, 587 (Tex.
Crim. App. 2008); see TEX. CODE CRIM. PROC. ANN. art. 38.07(a), (b)(1) (West Supp.
2011) (requiring no corroboration of a child victim’s testimony when defendant is
accused of violating section 22.021 of the penal code); Tear v. State, 74 S.W.3d 555,
560 (Tex. App.—Dallas 2002, pet. ref’d). Furthermore, corroboration of the victim’s
testimony by medical or physical evidence is not required. Soto, 267 S.W.3d at 332;
Ozuna v. State, 199 S.W.3d 601, 606 (Tex. App.—Corpus Christi 2006, no pet.); see
TEX. CODE CRIM. PROC. ANN. art. 38.07(a), (b)(1).
A person commits indecency with a child if the person engages in sexual contact
with a child younger than seventeen or causes the child to engage in sexual contact.
TEX. PENAL CODE ANN. § 21.11(a)(1). “Sexual contact” means any touching by a person,
including touching through clothing, of the anus, breast, or any part of the genitals of a
child if committed with the intent to arouse or gratify the sexual desire of any person. Id.
§ 21.11(c). The specific intent required for the offense of indecency with a child may be
inferred from a defendant’s conduct. Bazanes v. State, 310 S.W.3d 32, 40 (Tex. App.—
Fort Worth 2010, pet ref’d) (citing McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim.
App. 1981)).
A person commits the offense of aggravated sexual assault, as charged in this
case, if the person intentionally or knowingly causes the sexual organ of a child to
contact the sexual organ of the actor and the child is younger than fourteen years of
age. TEX. PENAL CODE ANN. § 22.021 (a)(1)(B)(iii), (a)(2)(B).
B. The Evidence
3
The child stated that appellant touched her “middle part,” when she was ten
years old and that he told her not to tell anyone because he would “be taken away for a
long time.”3 The child testified that, on another occasion when she was ten years old,
around Easter, appellant touched her “middle part.” The child stated that when she
referred to her “middle part” she was talking about her “vaginal area.” Again, according
to the child, appellant warned her not to tell anyone what he had done. The child
testified that appellant had touched her “middle part” again on another occasion. The
child could not recall exactly when this incident occurred but “thought” that she was in
sixth grade. The child also testified that on a fourth occasion when she was either in
seventh grade or going to be in eighth grade, during the summer, appellant touched her
“middle part” again.
Finally, the child stated that, the year before appellant’s trial, when she was in the
eighth grade, appellant pulled her into his room while he was not wearing any pants.
The child said that she saw appellant’s “middle part.” The child agreed with the
prosecutor that a boy’s “middle part” is “what boys go to the bathroom with” and is
“known as a penis.” The child explained that she saw appellant’s penis because “his
boxers were down.” The child stated that appellant’s penis “was sticking up” and was
“hard.” The child said, “[appellant] started to pull my pants down, and he tried to put his
stuff into my middle part.”4 The prosecutor asked, “Was that skin to skin,” and the child
replied, “Yes, ma’am.” The child testified that appellant pulled her down to the ground
and “kept trying to put [his middle part] in [her] middle part” and that it hurt. The child
3
The child was born on December 9, 1997.
4
The child confirmed that appellant pulled her pants down.
4
stated that she yelled during the attack, but that appellant told her to stop yelling
because “he was going to get taken away and it’d be admit [sic] fault and [she] would
have nobody to help pay bills.” The child eventually escaped from appellant.
C. Discussion
Appellant’s attacks on the alleged inconsistencies in the testimony presented at
trial fail because the jury is the sole judge of the credibility of witnesses and is free to
accept or reject any or all of the evidence presented by either side. See Lancon v.
State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008). Therefore, even if appellant is
correct that there were inconsistencies in the testimony presented, it was up to the jury
to decide which part of the testimony to believe or disbelieve. Appellant’s argument that
there was no corroborating evidence also fails because the child’s testimony alone can
support the verdict and no corroborating evidence is required. See Soto, 267 S.W.3d at
332; Connell, 233 S.W.3d at 466; Ozuna, 199 S.W.3d at 606; Perez, 113 S.W.3d at
838; see also TEX. CODE CRIM. PROC. ANN. art. 38.07; Tear, 74 S.W.3d at 560.
Moreover, the jury was free to accept or reject some, all, or none of the child’s testimony
in this case. See Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010) (“[The
finder of fact] is entitled to believe or disbelieve all or part of the witness’s testimony-
even if that testimony is uncontroverted-because he has the opportunity to observe the
witness’s demeanor and appearance.”). Here, the child testified to four instances
wherein appellant allegedly touched her vagina and told her not to tell anyone. The
child also testified that appellant touched her vagina with his “hard” penis while
attempting to penetrate her vagina. Thus, the child’s testimony alone supports the
verdict in this case. We overrule appellant’s first issue.
5
II. PUNISHMENT
By his second issue, appellant contends that “the sentence imposed by the court
in this case violates his US constitutional right to receive a sentence which is not more
than necessary to accomplish all of the objectives in the Texas Penal Code.”5
Specifically, appellant argues that his sentence is inappropriate because it is at the top
of the statutory range of punishment.
To preserve a complaint of improper sentencing, the criminal defendant must
make a timely, specific objection to the trial court or raise the issue in a motion for new
trial. Kim v. State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet. ref’d) (citing
Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996)); Noland v. State, 264
S.W.3d 144, 151–52 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d); Trevino v. State,
174 S.W.3d 925, 927–28 (Tex. App.—Corpus Christi 2005, pet. ref'd); Quintana v.
State, 777 S.W.2d 474, 479 (Tex. App.—Corpus Christi 1989, pet. ref’d) (holding
defendant waived cruel and unusual punishment argument by failing to object); see also
TEX. R. APP. P. 33.1. Here, appellant did not object when the trial court imposed the
complained-of sentence or complain of the sentence in any post-trial motion. Moreover,
appellant’s sentences for aggravated sexual assault of a child and indecency with a
child are within the punishment ranges for each of the offenses.6 A punishment falling
within the limits prescribed by a valid statute, as in this case, is not per se excessive,
5
Appellant “acknowledges that this argument is foreclosed under current law but raises it in an
adversarial fashion for purposes of preserving error for possible further review.”
6
Aggravated sexual assault of a child is a first-degree felony. See TEX. PENAL CODE ANN. §
22.021 (e) (West Supp. 2011). A person found guilty of a first-degree felony can be imprisoned “for life or
for any term of not more than 99 years or less than 5 years.” See id. § 12.32 (West 2011). Appellant
received a life sentence for the aggravated sexual assault conviction. Indecency with a child is a second-
degree felony, see id. § 21.11(d) (West 2011), with a punishment range of two to twenty years. See id. §
12.33 (West 2011). Appellant received a sentence of fifteen years’ confinement for each count of
indecency with a child.
6
cruel, or unusual. See Trevino, 174 S.W.3d at 928. Therefore, because appellant failed
to object to the sentence and the sentence is within the punishment range, we overrule
appellant’s second issue. See TEX. R. APP. P. 33.1; Kim, 283 S.W.3d at 475; Noland,
264 S.W.3d at 151–52; Trevino, 174 S.W.3d at 927–28; Quintana, 777 S.W.2d at 479.
III. CONCLUSION
We affirm the trial court’s judgment.
__________________
ROGELIO VALDEZ
Chief Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
8th day of August, 2013.
7
Isaac Gonzalez v. State
Combined Opinion