                                     In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-13-00187-CR
                              NO. 09-13-00188-CR
                              NO. 09-13-00189-CR
                              NO. 09-13-00190-CR
                              NO. 09-13-00191-CR
                           ____________________

                     ERIC EUGENE COOPER, Appellant

                                        V.

                      THE STATE OF TEXAS, Appellee
_______________________________________________________           ______________

                   On Appeal from the 258th District Court
                             Polk County, Texas
                     Trial Cause No. 21945 (Counts 1-5)
________________________________________________________           _____________

                         MEMORANDUM OPINION

      A jury found Eric Eugene Cooper guilty of five counts of sexual assault of

A.G., a fourteen year old child. 1 See Tex. Penal Code Ann. § 22.011(a)(2) (West


      1
       To protect the privacy of the child complainant, we identify the child by
using the initials of the pseudonym assigned to the child in the indictment, as the
Texas Constitution grants crime victims “the right to be treated with fairness and
with respect for the victim’s dignity and privacy throughout the criminal justice
process[.]” Tex. Const. art. I, § 30(a)(1).
                                        1
2011). Cooper pleaded “true” to the allegation of a prior felony conviction, and the

jury assessed punishment at ninety-nine years in prison for each count and assessed

a $10,000 fine. Cooper was ordered to serve the five sentences consecutively. He

raises nine issues on appeal.

                           SUFFICIENCY OF THE EVIDENCE

      In issues one through five, Cooper challenges the sufficiency of the evidence

supporting his convictions. He argues the evidence at trial was insufficient to prove

beyond a reasonable doubt that he sexually assaulted A.G. as alleged in the five-

count indictment. Essentially, Cooper maintains in his first five issues that, because

of the lack of physical evidence or a witness to the alleged sexual assaults, the

evidence is insufficient to support the convictions for sexual assault of a child. 2

      The “Jackson v. Virginia legal-sufficiency standard is the only standard that

a reviewing court should apply in determining whether the evidence is sufficient to



      2
        A person commits the offense of sexual assault of a child if the person
intentionally or knowingly (1) causes the penetration of the anus or sexual organ of
a child by any means; (2) causes the penetration of the mouth of a child by the
sexual organ of the actor; (3) causes the sexual organ of a child to contact or
penetrate the mouth, anus, or sexual organ of another person, including the actor;
(4) causes the anus of a child to contact the mouth, anus, or sexual organ of another
person, including the actor; or (5) causes the mouth of a child to contact the anus or
sexual organ of another person, including the actor. See Tex. Penal Code Ann. §
22.011(a)(2). “‘Child’ means a person younger than 17 years of age.” Id. §
22.011(c)(1) (West 2011).
                                           2
support each element of a criminal offense that the State is required to prove

beyond a reasonable doubt.” Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim.

App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). In evaluating

the legal sufficiency of the evidence, we review all the evidence in the light most

favorable to the verdict to determine whether any rational fact finder could have

found the essential elements of the offense beyond a reasonable doubt. Id. at 902

n.19; Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

      The jury is the ultimate authority on the credibility of witnesses and the

weight to be given their testimony. Brooks, 323 S.W.3d at 894; Penagraph v. State,

623 S.W.2d 341, 343 (Tex. Crim. App. 1981). We give full deference to the jury’s

responsibility to fairly resolve conflicts in the testimony, to weigh the evidence,

and to draw reasonable inferences from basic facts to ultimate facts. Hooper, 214

S.W.3d at 13. If the record contains conflicting inferences, we must presume that

the jury resolved such facts in favor of the verdict and defer to that resolution.

Brooks, 323 S.W.3d at 899 n.13; Clayton v. State, 235 S.W.3d 772, 778 (Tex.

Crim. App. 2007). We also determine whether the necessary inferences are

reasonable based upon the combined and cumulative force of all the evidence

when viewed in the light most favorable to the verdict. Clayton, 235 S.W.3d at

778. We may not substitute our judgment concerning the weight and credibility of


                                        3
the evidence for that of the fact finder. King v. State, 29 S.W.3d 556, 562 (Tex.

Crim. App. 2000).

      At trial, A.G. testified that she and Cooper attended the same church and that

he began talking to her about her family and how they had certain circumstances in

common because they were both adopted. According to A.G., she and Cooper

began secretly communicating through text messaging and cell phone calls. She

testified that on June 8, 2011, when she was fourteen years old and Cooper was

thirty-five years old, Cooper approached her in a classroom at the church and

sexually assaulted her with his sexual organ. Cooper threatened to kill A.G.’s

parents 3 if she told them about the sexual encounter.

      A.G. testified that Cooper came over to her house when she was alone and

her parents were at church, but she could not remember the date. She explained

that Cooper “used his tongue” on her sexual organ, penetrated her sexual organ,

and fondled her breasts. She testified that the following Sunday they met at church

in the same classroom as the first encounter and that Cooper penetrated her again

with his sexual organ and his hand. After A.G. and her mother had an argument,

A.G. told her parents about the sexual assaults by Cooper. Her mother confiscated

A.G.’s phone, and then they contacted the police.
      3
       At trial, A.G. referred to her adoptive parents with whom she had lived
since she was two years old as her “mom and dad,” but explained that they were
not actually her biological parents.
                                          4
      A.G. further testified that Cooper let A.G. drive his truck, gave A.G. birth

control pills, jewelry, and two pair of boxer shorts, and that he told her that they

could move away and start a life together in Germany. A.G. turned over the birth

control pills, jewelry, and boxer shorts to law enforcement. A forensic scientist

testified that the DNA profile from the swabs of the two pair of boxer shorts was

consistent with a mixture of A.G. and Cooper. The forensic scientist was unable to

obtain a DNA profile from the other items A.G. provided to law enforcement.

Cooper’s wife identified the boxer shorts turned in by A.G. as the boxer shorts

Cooper’s wife had purchased for Cooper. She also identified two of the necklaces

A.G. provided to law enforcement.

      In sexual abuse cases involving a child, the testimony of the victim alone is

sufficient to support a conviction. See Garcia v. State, 563 S.W.2d 925, 928 (Tex.

Crim. App. 1978); West v. State, 121 S.W.3d 95, 111 (Tex. App.—Fort Worth

2003, pet. ref’d); Jensen v. State, 66 S.W.3d 528, 534 (Tex. App.—Houston [14th

Dist.] 2002, pet. ref’d). Furthermore, the jury is the sole judge of the credibility of

the witnesses and is free to accept or reject some, all, or none of the evidence

presented by either side. Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App.

2008). Viewing the evidence in the light most favorable to the verdict, we conclude




                                          5
that the evidence was legally sufficient to support Cooper’s convictions. See

Brooks, 323 S.W.3d at 902 n.19. We overrule issues one through five.

                   INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM

        In issue six, Cooper asserts that he was denied effective assistance of

counsel during the guilt/innocence phase of the trial. Specifically, Cooper

complains that his counsel “did not object to testimony regarding extraneous bad

conduct by Cooper, and elicited, in the course of cross-examination, testimony

regarding extraneous bad conduct by Cooper, and testimony suggesting that

Cooper had committed the offenses for which he was being tried.” To prevail on a

claim of ineffective assistance of counsel, an appellant must satisfy a two-pronged

test:

             First, the defendant must show that counsel’s
             performance was deficient. This requires showing that
             counsel made errors so serious that counsel was not
             functioning as the “counsel” guaranteed the defendant by
             the Sixth Amendment. Second, the defendant must show
             that the deficient performance prejudiced the defense.
             This requires showing that counsel’s errors were so
             serious as to deprive the defendant of a fair trial, a trial
             whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Hernandez v. State,

726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986). An appellant must demonstrate a

reasonable probability that, but for his counsel’s errors, the outcome would have


                                          6
been different. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).

“Appellate review of defense counsel’s representation is highly deferential and

presumes that counsel’s actions fell within the wide range of reasonable and

professional assistance.” Id.

      Cooper must prove that there was no plausible professional reason for the

specific acts or omissions of his counsel. See id. at 836. Furthermore, “[a]ny

allegation of ineffectiveness must be firmly founded in the record, and the record

must affirmatively demonstrate the alleged ineffectiveness.” Thompson v. State, 9

S.W.3d 808, 813 (Tex. Crim. App. 1999). The bare record on direct appeal is

usually insufficient to demonstrate that “counsel’s representation was so deficient

and so lacking in tactical or strategic decisionmaking as to overcome the

presumption that counsel’s conduct was reasonable and professional.” Bone, 77

S.W.3d at 833 (citation omitted).

      Cooper filed a motion for new trial in which he stated that trial counsel

provided ineffective assistance. No affidavit was filed with the motion. The record

does not reflect that Cooper obtained a hearing on his motion. The record is silent

as to defense counsel’s reason for the following allegations of ineffectiveness

raised by Cooper on appeal: (1) not objecting to Cooper’s wife’s testimony that

Cooper impersonated a peace officer when she met him and that Cooper had


                                        7
assaulted her when she confronted him about his questionable internet activities;

(2) eliciting testimony during cross-examination of a witness that the witness had

been concerned when he saw Cooper embrace A.G.; and (3) eliciting testimony

during cross-examination of A.G.’s adoptive mother that she believed A.G.’s

sexual assault allegations against Cooper.

      With a silent record, we cannot presume that counsel’s conduct constituted

ineffective assistance. See Thompson, 9 S.W.3d at 813-14; Bone, 77 S.W.3d at

833. Furthermore, Cooper has failed to establish that, but for counsel’s alleged

errors and omissions, the outcome of his trial would have been different. See Bone,

77 S.W.3d at 833, 836-37. Even if trial counsel had objected to the complained-of

testimony of Cooper’s wife, and even if counsel had not elicited the complained-of

testimony during cross-examination of the witness and A.G.’s mother, the evidence

was still legally sufficient, based on A.G.’s testimony alone, for the jury to have

found Cooper guilty. See Tex. Code Crim. Proc. Ann. art. 38.07; Garcia, 563

S.W.2d at 928; West, 121 S.W.3d at 111; Jensen, 66 S.W.3d at 534. Issue six is

overruled.

                EXCLUSION OF TESTIMONY AT PUNISHMENT PHASE

      In issue seven, Cooper argues that the trial court erred during the trial’s

punishment phase in sua sponte preventing Cooper from testifying regarding the


                                         8
circumstances giving rise to his acquaintance and telephone conversations with

A.G. Cooper contends that the trial court prevented Cooper from testifying about

evidence that he initiated his relationship with A.G. to help her, because it was

evidence tending to mitigate punishment.

      During the punishment phase, the following exchange occurred between

defense counsel and Cooper:

            [Defense Counsel]:       Did you have telephone
                                     conversations with [A.G.]?
            [Cooper]:                Yes.
            [Defense Counsel]:       And some of those were late in
                                     the evening, correct?
            [Cooper]:                Correct.
                  ....
            [Defense Counsel]:       And can you tell the jury a little
                                     bit about how did you and
                                     [A.G.] become acquainted or
                                     become to the point where you
                                     were talking on the telephone?
                                     How did that come about?
            [Cooper]:                Just in church there was a time
                                     that it was brought up in church
                                     that [A.G.’s adoptive parents]
                                     were having problems with
                                     [A.G.], and we’re looking to
                                     find her another place to live if
                                     they couldn’t solve the
                                     problem. I stood up in church
                                     and told them don’t give up
                                     because I’m adopted. I’ve went
                                     through some of the same
                                     things she was going through,
                                     even though I was adopted by

                                       9
                                      my grandparents and she was
                                      adopted by another member of
                                      her biological mother’s family,
                                      that there was things I went
                                      through. Like in school - -

At that point, the trial court stopped the testimony and instructed defense counsel

that “this is not what this Court finds to be punishment testimony” and that defense

counsel should limit his questions to those “relating to the punishment hearing

portion of this trial.” Defense counsel did not object to the exclusion of the

testimony.

      Prior to this exchange, Cooper had already denied having a sexual encounter

with A.G. at the church, denied ever being at A.G.’s house, denied telling A.G.

they would run away to Germany, and denied giving A.G. a diamond ring or his

boxer shorts. He agreed that the boxer shorts admitted at trial belonged to him, but

he testified that he had donated them to the church because they did not fit. He was

allowed the opportunity to explain how he and A.G. began having phone

conversations. He was also allowed to testify that he had spoken up for A.G. at

church, and that he identified with the problems A.G. had experienced because he

too had been adopted.

      Based upon the record before us, we disagree with Cooper’s contention that

he was prevented from testifying so that the jury could “have understood that


                                        10
Cooper’s initial instinct was to help [A.G.,]” or that he was denied the opportunity

to present mitigating evidence that he “initiated his relationship with [A.G.] . . . out

of concern for her well-being[.]” Furthermore, at the time the trial court stopped

Cooper’s testimony and directed defense counsel to only ask questions relating to

punishment, the trial court could have reasonably believed that Cooper was

beginning to discuss a topic that the trial court could have determined was not

relevant to the punishment proceeding, and defense counsel did not argue at that

time that the excluded testimony was evidence tending to mitigate punishment.

Considering the trial court’s broad discretion to control its proceedings, the trial

court did not err in stopping the testimony and directing defense counsel to proffer

questions related to the punishment proceeding. See Tex. Gov’t Code Ann. §

21.001(b) (West 2004) (“A court shall require that proceedings be conducted with

dignity and in an orderly and expeditious manner and control the proceedings so

that justice is done.”); State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 199 (Tex.

Crim. App. 2003). Issue seven is overruled.

                                     PUNISHMENT

      In issues eight and nine, Cooper contends the trial court lacked authority to

order, and erred in ordering, Cooper to serve his five sentences consecutively.

Cooper concedes that section 3.03(b)(2)(A) of the Texas Penal Code provides that


                                          11
the sentences of a defendant convicted of more than one sexual-assault-of-a-child

offense arising out of the same criminal episode may run concurrently or

consecutively. See Tex. Penal Code Ann. § 3.03(b)(2)(A) (West Supp. 2013). 4 He

argues, however, that the language of section 3.03 does not specifically authorize a

trial court to make that determination, that the language is “sufficiently broad to

encompass the defendant making that determination[,]” and that he requested that

his sentences be served concurrently. He further maintains that article 42.08(a) of

the Texas Code of Criminal Procedure gives the trial court discretion to order

sentences to be served consecutively when “the same defendant has been convicted

in two or more cases[,]” and he contends he was convicted in only one case. See

Tex. Code Crim. Proc. Ann. art. 42.08(a),(c) (West Supp. 2013).

      Cooper also argues that, by ordering that Cooper’s sentences be served

consecutively, the court violated his right to trial by jury under both article I,

section 10 of the Texas Constitution, and article 37.07, section 2(b) of the Texas

Code of Criminal Procedure. See Tex. Const. art. I, § 10; Tex. Code Crim. Proc.

Ann. art. 37.07 (West Supp. 2013).

      We review a trial court’s decision to “stack” or cumulate sentences for an

abuse of discretion. See Tex. Code Crim. Proc. Ann. art. 42.08(a); Nicholas v.

      4
       Because the amendments are not material to this case, we cite to the current
version of the relevant statutes.
                                        12
State, 56 S.W.3d 760, 765 (Tex. App. —Houston [14th Dist.] 2001, pet. ref’d). As

long as the law allows the imposition of cumulative sentences, the trial judge has

absolute discretion to stack sentences. Nicholas, 56 S.W.3d at 765. Under article

42.08, the trial judge has the discretion to cumulate the sentences for two or more

convictions. Tex. Code Crim. Proc. Ann. art. 42.08(a). A trial court’s ability to

cumulate sentences, however, is limited by section 3.03(b) of the Texas Penal

Code:

                  (b) If the accused is found guilty of more than one
            offense arising out of the same criminal episode, the
            sentences may run concurrently or consecutively if each
            sentence is for a conviction of:
                  ....
                  (2) an offense:
                          (A) under Section 33.021 or an offense
                          under Section 21.02, 21.11, 22.011, 22.021,
                          25.02, or 43.25 committed against a victim
                          younger than 17 years of age at the time of
                          the commission of the offense regardless of
                          whether the accused is convicted of
                          violations of the same section more than
                          once or is convicted of violations of more
                          than one section[.]

Tex. Penal Code Ann. § 3.03(b)(2)(A). On appeal, Cooper “does not dispute that

he was convicted of five offenses arising out of the same criminal episode, or that

the offenses were all sexual assault of a child.” We conclude that Cooper was




                                        13
convicted of offenses for which the trial court may cumulate sentences under

section 3.03(b)(2)(A). See id.; Tex. Code Crim. Proc. Ann. art. 42.08(a).

      In Barrow v. State, the Court of Criminal Appeals held that “placing the

decision whether to run multiple sentences concurrently or consecutively with the

trial court instead of the jury does not violate the Sixth Amendment right to a jury

trial.” Barrow v. State, 207 S.W.3d 377, 380 (Tex. Crim. App. 2006). In deciding

this issue, the Court of Criminal Appeals explained:

             It is well established that the constitutional right to a jury
             trial does not encompass the right to have the jury assess
             punishment. Texas is one of the few states that allow
             defendants the privilege, by statute, of opting for jury
             assessment of punishment. Even so, it is left to the trial
             court to determine whether multiple sentences will run
             consecutively or concurrently. As the court of appeals
             pointed out, the Texas Legislature has assigned the
             decision to cumulate, vel non, in Section 3.03 of the
             Penal Code and Article 42.08 of the Code of Criminal
             Procedure, to the trial court.

See id. (footnotes omitted). The Court of Criminal Appeals also noted in its

discussion of the procedural history of the case that the court of appeals, in an

unpublished opinion and in response to Barrow’s argument that section 3.03 fails

to designate who makes the decision to run the sentences consecutively rather than

concurrently (the same argument made by Cooper), explained that article 42.08

vests discretion in the trial court to order concurrent or consecutive sentences. See


                                          14
Barrow, 207 S.W.3d at 378. Cooper acknowledges this holding in Barrow, but

urges us to “revisit” it in light of his argument that “placing the decision with the

trial court violates article I § 10 of the Texas Constitution.” We decline to do so.

      Cooper fails to cite any case law in support of his argument that the trial

court did not have authority to stack the sentences because Cooper was convicted

in “only one case – No. 21945[,]” and not in “two or more cases.” And, his

argument is directly contradictory to the decision in Barrow. See id. at 378-80

(affirming trial court’s decision to order defendant’s sentences on his convictions

on two counts of sexual assault of a child to run consecutively after jury assessed

punishment at fifteen years for one count and twenty years for the other count).

      Cooper asserts that even if the court had the authority to order Cooper’s five

sentences to be served consecutively, the court erred in doing so because “[w]ithin

the context of sexual assault of a child, the offenses for which Cooper was

convicted were not so horrible as to justify 495 years confinement.” The decision

to impose concurrent or cumulative sentences was within the discretion of the trial

court, and “so long as the law authorizes the imposition of cumulative sentences, a

trial judge has absolute discretion to stack sentences.” Nicholas, 56 S.W.3d at 764-

65 (Abuse of discretion generally will be found only if trial court imposes

consecutive sentences where the law requires concurrent sentences, where the


                                          15
court imposes concurrent sentences but the law requires consecutive ones, or

where the court otherwise fails to observe statutory requirements pertaining to

sentencing.).

      As a general rule, punishment that is assessed within the statutory range for

an offense is neither excessive nor unconstitutionally cruel or unusual. Kirk v.

State, 949 S.W.2d 769, 772 (Tex. App.—Dallas 1997, pet. ref’d); see also Jackson

v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984) (General rule is that as long

as sentence is within proper range of punishment, it will not be disturbed on

appeal.). “Subject only to a very limited, ‘exceedingly rare,’ and somewhat

amorphous Eighth Amendment gross-disproportionality review, a punishment that

falls within the legislatively prescribed range, and that is based upon the

sentencer’s informed normative judgment, is unassailable on appeal.” Ex parte

Chavez, 213 S.W.3d 320, 323-24 (Tex. Crim. App. 2006) (footnote omitted); see

also Jarvis v. State, 315 S.W.3d 158, 162 (Tex. App.—Beaumont 2010, no pet.).

The trial court imposed punishment within the statutory range for each of the

offenses for which Cooper was convicted. See Tex. Penal Code Ann. § 12.32

(West 2011) (First-degree felony shall be punished by imprisonment for life or for

any term of not more than ninety-nine years or less than five years.). The sentence




                                        16
is not subject to a sufficiency of the evidence review on appeal. See generally

Jarvis, 315 S.W.3d at 161-62.

       Moreover, a complaint that a sentence is grossly disproportionate,

constituting cruel and unusual punishment, must be preserved for appellate review

by a timely request, objection, or motion stating the specific grounds for the ruling

desired. 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)); see

Tex. R. App. P. 33.1(a). His complaint was not preserved for appellate review.

Issues eight and nine are overruled.

      We affirm the trial court’s judgment.

      AFFIRMED.



                                                    _________________________
                                                       LEANNE JOHNSON
                                                             Justice

Submitted on May 15, 2014
Opinion Delivered July 9, 2014
Do Not Publish

Before McKeithen, C.J., Kreger and Johnson, JJ.




                                         17
