NO. 07-10-00465-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
MARCH 9, 2012
JERROD ALVARADO, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2010-427,749; HONORABLE CECIL G. PURYEAR, JUDGE
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Jerrod Alvarado, appeals his conviction for the offense of aggravated
sexual assault,1 and sentence of imprisonment for life in the Institutional Division of the
Texas Department of Criminal Justice. We will affirm.
Background
At approximately 6:00 a.m. on March 1, 2009, Billy Vanier discovered a vehicle
on the road in an area northwest of Lubbock. After investigating, he discovered Amy
1
See TEX. PEN. CODE ANN. § 22.021(a) (West Supp. 2011).
Cahill asleep over the steering wheel of the vehicle. Cahill had no clothes on from the
waist down. Vanier saw that Cahill had injuries to her face. Cahill appeared to be
intoxicated. Vanier called the Lubbock Sheriff’s Office to report the incident. Once
officers arrived, Cahill was taken to the emergency room of University Medical Center in
Lubbock. Cahill was unable to remember the events that led to her being found asleep
in her vehicle and did not know how she had sustained the injuries.
A sexual assault examination was performed on Cahill. She had extensive
injuries across her entire body including fractures of the orbital floor and wall of her eye
and nasal bone fractures. Semen was found in Cahill’s vagina and anus. However,
Cahill could not recall having had sex with anyone. The semen that was found was
eventually matched by DNA to appellant. Appellant’s DNA was also discovered under
Cahill’s fingernails and in the front and back seats of Cahill’s vehicle.
During the investigation of how Cahill was injured, officers became aware that
Cahill had attended a party the preceding evening. Tiffany Kibiger was the host of the
party that Cahill had attended. Kibiger remembered that Cahill had attended the party
and had been among the last to leave. However, when Cahill left the party, she was
fully clothed and in control of her body. Kibiger did not know appellant and had not
seen him at the party.
On April 24, 2009, appellant was interviewed by Jason Stewart, an investigator
with the Lubbock Sheriff’s Office. Initially, appellant denied knowing Cahill. However,
after Stewart disclosed that DNA proved that appellant had sex with Cahill, appellant
admitted that he and Cahill had sex at the party but that it was consensual and that he
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did not injure Cahill. Appellant also indicated that he had received rides to and from the
party from two different friends, but both of these friends denied this assertion.
Appellant was charged by indictment with aggravated sexual assault against
Cahill. At the close of the State’s case-in-chief, appellant moved for a directed verdict
on the bases that the evidence was insufficient to prove a lack of consent, and that
appellant caused Cahill’s injuries. The trial court overruled this motion. The jury found
appellant guilty of the offense of aggravated sexual assault, and the case proceeded to
punishment.
During sentencing, the State sought to prove up an unadjudicated sexual assault
committed by appellant when he was a juvenile against a 16-year-old mentally
challenged female. A hearing was held outside the presence of the jury regarding the
admissibility of this evidence. Appellant objected on the basis that the risk of unfair
prejudice of the evidence substantially outweighed its probative value. Appellant did
briefly mention that the offense was an unadjudicated offense occurring when appellant
was a minor. The State presented argument and case law that the evidence was
admissible under Texas Code of Criminal Procedure article 37.07, section 3. The trial
court agreed with the State’s argument, overruled appellant’s objection, but granted
appellant a running objection “to those matters.” After hearing the punishment
evidence, the jury sentenced appellant to life imprisonment in the Texas Department of
Criminal Justice, Institutional Division.
By three issues, appellant appeals. By his first two issues, appellant challenges
the trial court’s denial of his motion for directed verdict. Specifically, appellant’s first
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issue contends that the evidence was insufficient to show that Cahill did not consent to
penetration. Appellant’s second issue contends that the evidence was insufficient to
show that appellant caused any of Cahill’s injuries. By his third issue, appellant
challenges the admission of evidence of the unadjudicated juvenile sexual assault
during punishment.
Standard of Review for Appellant’s First Two Issues
A contention that the trial court erred in denying a motion for directed verdict is
essentially a challenge to the legal sufficiency of the evidence. Williams v. State, 937
S.W.2d 479, 482 (Tex.Crim.App. 1996). In assessing the sufficiency of the evidence,
we review all the evidence in the light most favorable to the verdict to determine
whether any rational trier of fact could have found the essential elements of the offense
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App. 2010).
“[O]nly that evidence which is sufficient in character, weight, and amount to justify a
factfinder in concluding that every element of the offense has been proven beyond a
reasonable doubt is adequate to support a conviction.” Brooks, 323 S.W.3d at 917
(Cochran, J., concurring). We remain mindful that “[t]here is no higher burden of proof
in any trial, criminal or civil, and there is no higher standard of appellate review than the
standard mandated by Jackson.” Id. When reviewing all of the evidence under the
Jackson standard of review, the ultimate question is whether the jury’s finding of guilt
was a rational finding. See id. at 906–07 n.26 (discussing Judge Cochran’s dissenting
opinion in Watson v. State, 204 S.W.3d 404, 448–50 (Tex.Crim.App. 2006), as outlining
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the proper application of a single evidentiary standard of review). “[T]he reviewing court
is required to defer to the jury’s credibility and weight determinations because the jury is
the sole judge of the witnesses’ credibility and the weight to be given their testimony.”
Id. at 899.
Appellant was charged with aggravated sexual assault. To prove appellant guilty
of the offense as indicted, the State had to prove that appellant intentionally or
knowingly caused the penetration of Cahill’s vagina without Cahill’s consent, and, in the
course of the same criminal episode, caused Cahill serious bodily injury or attempted to
cause Cahill’s death. See TEX. PEN. CODE ANN. § 22.021(a)(1)(A)(i), (2)(A)(i). By his
first issue, appellant challenges the sufficiency of the evidence to establish that he
penetrated Cahill’s vagina without her consent. By his second issue, appellant
challenges the sufficiency of the evidence that he caused Cahill serious bodily injury.
Consent
By his first issue, appellant contends that the trial court erred in overruling his
motion for directed verdict because the evidence was insufficient to establish that Cahill
did not consent to sex with appellant. Since Cahill remains unable to remember the
critical events of that night, appellant contends that the only evidence about the sexual
encounter between appellant and Cahill is appellant’s statement that he and Cahill had
consensual sex at the party hosted by Kibiger.
Lack of consent is an element of the offense of aggravated sexual assault as
alleged against appellant. TEX. PEN. CODE ANN. § 22.021(a)(1)(A)(i). As relevant to this
case, an action is without a person’s consent if: (a) the actor compels the person to
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submit or participate by the use of physical force or violence, (b) the actor knows the
person is unconscious or physically unable to resist, or (c) the person is unaware of the
sexual assault occurring. Id. § 22.011(b)(1), (3), (5) (West 2011).
The evidence in this case establishes that Cahill suffered severe bodily injuries
between the hours of 2:00 a.m., when she was seen leaving the party without any
visible injuries, and 6:00 a.m., when she was discovered in her vehicle. The nature and
extent of Cahill’s injuries allow for a reasonable inference that she was forced to submit
to sexual activity by physical force and violence. Likewise, the evidence suggests that
the injuries to Cahill’s sexual organs were more likely the result of nonconsensual
sexual activity. Appellant’s contention that he had consensual sex with Cahill at the
party is refuted by evidence that Cahill did not know appellant, appellant was not seen
by anyone at the party, the bedroom in which appellant claimed he had sex with Cahill
was highly trafficked throughout the party yet none of the partygoers saw anyone having
sex in that bedroom, and no semen was found in Cahill’s panties. Additionally, neither
of appellant’s friends that he claimed gave him rides to and from the party corroborated
appellant’s attendance at the party. By contrast, the evidence established that semen
containing appellant’s DNA was found in both the front and back seats of Cahill’s
vehicle. Certainly, when all of this evidence is considered, it is not only a reasonable
inference that appellant had sex with Cahill in her vehicle rather than at the party, but it
is actually the more reasonable inference. Thus, we conclude that the evidence is
sufficient to allow a rational trier of fact to conclude that Cahill did not consent to sexual
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intercourse with appellant, but that appellant compelled Cahill to submit to sex by the
use of physical force or violence.2
The arguments asserted by appellant to establish that Cahill consented to sexual
intercourse with appellant would require this Court to turn the applicable standard of
review on its head by indulging all reasonable inferences in opposition to the verdict.
Appellant argues that there was no evidence that “fully contradict[s] Appellant’s
statement that he had sex with [Cahill] at the party.” The evidence, as addressed
above, strongly implies that appellant and Cahill did not have sex at the party.
Appellant also points to the testimony of two of the State’s experts as indicating that
Cahill’s sexual injuries “could have related to consensual sex.” While this testimony can
be found in the record, both experts also testified that the nature of the genital injuries
sustained by Cahill would be uncommon in normal sexual intercourse. Finally,
appellant argues that appellant’s semen that was found in Cahill’s vehicle could have
gotten there due to Cahill urinating in her car. However, to make that inference, the fact
finder would have to overlook the evidence that appellant’s semen was found on both
the front and back seats of the vehicle and that appellant’s semen could not be found on
Cahill’s panties.
When all of the evidence is viewed in the light most favorable to the verdict, we
conclude that a rational trier of fact could have found that Cahill did not consent to
2
We also conclude that the evidence would allow for a reasonable inference that
Cahill was unconscious, unable to resist, and unaware that appellant was sexually
assaulting her, and that appellant was aware of Cahill’s impairment.
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penetration by appellant beyond a reasonable doubt. As such, we overrule appellant’s
first issue.
Serious Bodily Injury
By his second issue, appellant contends that the trial court erred in overruling his
motion for directed verdict because the evidence was insufficient to establish that
appellant caused Cahill serious bodily injury. Appellant points to evidence that, during
the party, Cahill came in contact with two other males that could have caused Cahill’s
bodily injuries.
As discussed above, the evidence in this case establishes that Cahill suffered
serious bodily injuries3 between the hours of 2:00 a.m., when she was seen leaving the
party without any visible injuries, and 6:00 a.m., when she was discovered in her
vehicle. The most logical inference from the evidence is that these injuries were
inflicted upon Cahill as a means of forcing her to submit to sexual activity. As such, the
presence of semen containing appellant’s DNA in Cahill’s vagina and anus strongly
indicate that appellant caused Cahill’s serious bodily injury in the course of committing
sexual assault. Further supporting that the sexual assault occurred in Cahill’s vehicle,
where her bodily injuries were inflicted, is the presence of appellant’s semen on both the
front and back seats of the vehicle. The evidence that appellant’s DNA was found
under Cahill’s fingernails allows for a reasonable inference that Cahill fought back
against appellant’s assault. We conclude that the evidence is sufficient to allow a
3
Appellant does not contest the sufficiency of the evidence establishing that the
injuries suffered by Cahill were serious bodily injuries.
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rational trier of fact to conclude that appellant caused Cahill’s serious bodily injuries in
the course of sexually assaulting her.
As with appellant’s first issue, appellant’s arguments in support of his second
issue would require this Court to indulge inferences in opposition to the verdict.
Appellant argues that there were two other men that had contact with Cahill at the party
and that could have caused her bodily injuries. However, Cahill was seen leaving the
party without any visible injuries. Further, the only person other than Cahill linked to her
vehicle on the night in question is appellant. Thus, it is unlikely that another person
could have caused the extent of injuries Cahill suffered without leaving DNA evidence
on her body or in her vehicle. Appellant also argues that Cahill’s injuries could have
been the result of falling due to her extreme intoxication. In order for Cahill to have
sustained the injuries as the result of falling down, she would have had to have
repeatedly fallen with at least one such fall causing fractures of her orbital floor and wall
and nasal bone. While this is arguably possible, the more likely inference to draw from
the serious bodily injuries suffered by Cahill is that she was extensively and severely
beaten.
When all of the evidence is viewed in the light most favorable to the verdict, we
conclude that a rational trier of fact could have found that appellant caused serious
bodily injuries to Cahill in the course of committing sexual assault beyond a reasonable
doubt. As such, we overrule appellant’s second issue.
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Unadjudicated Juvenile Offense
By his third issue, appellant contends that the trial court abused its discretion by
admitting evidence during sentencing of an unadjudicated sexual assault offense that
appellant committed when he was a juvenile. In his brief, appellant contends that the
trial court incorrectly construed Texas Code of Criminal Procedure article 37.07, section
3(a)(1), as allowing the admission of evidence of unadjudicated juvenile offenses during
the punishment phase of trial. See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1)
(West Supp. 2011).
Initially, a fair reading of appellant’s trial objection to this evidence was based on
the probative value of the evidence being substantially outweighed by the danger of
unfair prejudice. Such an objection does not comport with an appellate argument
regarding the proper statutory construction of article 37.07. See Heidelberg v. State,
144 S.W.3d 535, 537 (Tex.Crim.App. 2004) (when trial objection does not comport with
issue raised on appeal, the appellate issue has not been preserved for our review).
However, based on the State’s argument and the authority presented by it as well as
the trial court’s statements immediately preceding its granting of a running objection to
appellant, we conclude that the trial court was aware of appellant’s complaint regarding
the construction of article 37.07, and granted appellant a running objection on that
basis. See TEX. R. APP. P. 33.1(a)(1)(A).
However, even if properly preserved, appellant’s third issue has been decided
against him by the Texas courts. Addressing the specific argument raised by appellant
in this issue, the Eastland and the Texarkana courts have rejected the construction of
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article 37.07, section 3(a)(1), advanced by appellant. See Strasser v. State, 81 S.W.3d
468, 470 (Tex.App.—Eastland 2002, pet. ref’d); Rodriguez v. State, 975 S.W.2d 667,
687 (Tex.App.—Texarkana 1998, pet. ref’d). We agree with our sister courts that article
37.07, section 3(a), allows evidence of an unadjudicated juvenile offense to be admitted
so long as it is relevant and shown beyond a reasonable doubt that it was the defendant
that committed the offense. See TEX. CRIM. PROC. CODE ANN. art. 37.07, § 3(a)(1);
Strasser, 81 S.W.3d at 469; Rodriguez, 975 S.W.2d at 687; see also McMillan v. State,
926 S.W.2d 809, 813 (Tex.App.—Eastland 1996, pet. ref’d). Appellant does not
challenge the sufficiency of the evidence to establish that he committed the
unadjudicated sexual assault of which he complains.
Consequently, we overrule appellant’s third issue.
Conclusion
Having overruled each of appellant’s three issues, we affirm the judgment of the
trial court.
Mackey K. Hancock
Justice
Do not publish.
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