                           NUMBER 13-09-00597-CR

                             COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                       CORPUS CHRISTI - EDINBURG


VALENTINE REYES JR.,                                                    Appellant,

                                         v.

THE STATE OF TEXAS,                                                      Appellee,


                  On appeal from the 105th District Court
                        of Kleberg County, Texas.


                           MEMORANDUM OPINION

 Before Chief Justice Valdez and Justices Rodriguez and Benavides
           Memorandum Opinion by Chief Justice Valdez

      Appellant, Valentine Reyes Jr., was charged by indictment with one count of

aggravated sexual assault of a disabled individual, a first-degree felony.   See TEX.

PENAL CODE ANN. § 22.021(a)(1)(A), (2)(C), (e) (Vernon Supp. 2010). Pursuant to a

plea agreement with the State, Reyes pleaded ―nolo contendere‖ to one count of sexual

assault, a second-degree felony, in exchange for the State abandoning the disabled
individual element. See id. § 22.011(a)(1)(A), (f) (Vernon Supp. 2010). The trial court

found Reyes guilty of second-degree sexual assault and sentenced him to twenty years’

incarceration in the Institutional Division of the Texas Department of Criminal Justice.

This sentence was ordered to run consecutively with a separate twenty-five-year

sentence imposed against Reyes in another case involving the aggravated sexual

assault of a child. See id. § 22.021(a)(1)(A), (2)(B). By two issues, Reyes argues that:

(1) the evidence supporting his conviction is insufficient; and (2) the stacking of the

twenty-year sentence with the previously imposed twenty-five-year sentence violated

the Eighth Amendment to the United States Constitution prohibiting cruel and unusual

punishment. See U.S. CONST. amend. VIII. We affirm.

                                            I.       BACKGROUND

        Reyes’s conviction involves the alleged sexual assault of S.F., a seventeen-year-

old disabled girl.1       See TEX. PENAL CODE ANN. § 22.011(a)(1)(A).                     Pursuant to an

agreement with the State, Reyes entered a plea of ―nolo contendere‖ to the offense of

sexual assault and stipulated to the evidence contained in the record. See id. Among

the items included in the record are police reports documenting the alleged incident.

        As described in the reports included in the record, police were contacted on

February 22, 2008, by B.F., the mother of S.F. B.F. disclosed to police that S.F. was

three months’ pregnant and that S.F. revealed that she had been sexually assaulted by

Reyes three months earlier. B.F. noted that S.F. was enrolled as a high school senior,

but that she was ―hearing impaired‖ and had ―the mentality of an 11 year old.‖ Police

detectives described their conversation with B.F. as follows:

        1
          To protect the child’s privacy, we refer to her and her relatives by their initials. See TEX. R. APP.
P. 9.8; see also TEX. CODE CRIM. PROC. ANN. art. 57.02(h) (Vernon Supp. 2010).


                                                      2
        [B.F.] said [S.F.] told her [that] about three months ago, she was
        baby[]sitting across the hall at Melissa Reyes’s apartment . . . . [S.F.] told
        [B.F.] that a guy named Palonie was there and pushed her down on the
        bed and had sex with her. . . . I [the police] asked [B.F.] if she knew who
        Palonie was and [she] said he was Valentine Reyes. [B.F.] said she
        knows who Valentine is because he is the cousin of Melissa and Melissa
        is dating one of [B.F.’s] sons.[2]

        Police asked B.F. if she could bring S.F. to the police station to be interviewed;

B.F. complied. When questioned by police, S.F. stated that she was babysitting her

niece or nephew at Melissa’s apartment at the time of the incident. She recalled that

Melissa and Reyes came to the apartment to visit, and Melissa left shortly thereafter,

leaving Reyes, S.F., and the niece or nephew alone in the apartment. According to

S.F., once Melissa left, Reyes pushed S.F. into one of the bedrooms and locked the

door.   S.F. became scared and tried to open the door to the bedroom, but Reyes

pushed her onto the bed. As she fell onto the bed, S.F. purportedly hit her head on the

wall. Once on the bed, Reyes touched S.F.’s legs, even though she repeatedly told him

―no‖ and to stop. Reyes then ―undid‖ S.F.’s belt and pants and ―pulled down her blue

jeans and panties to her knees.‖ S.F. tried to fight Reyes off, and she tried to ―hold her

knees shut,‖ but Reyes forced her legs open and then got on top of her. S.F. recounted

that Reyes ―pushed his private parts against her front private parts and it caused her a

lot of pain.‖ She stated that it ―went on for a few minutes and then Palonie stopped and

got off of her.‖ Once Reyes was finished, S.F. picked up her pants and panties and

went to the bathroom. She recalled feeling ―very wet on her front private parts and

wiped herself with toilet paper in the bathroom.‖ When she looked at the toilet paper,




        2
            Subsequent police reports state that ―Peloni‖ and ―Palonie‖ are known aliases for Valentine
Reyes Jr.

                                                    3
she noticed there was blood on it. Police noted that S.F. denied being on her period at

this time. She then cleaned herself up and left the apartment.

       In June 2008, S.F. gave birth to a baby girl. DNA tests were conducted on the

baby and Reyes, and it was determined that Reyes is the father of this child. Reyes

was subsequently charged with aggravated sexual assault of a disabled person, a first-

degree felony. See id. § 22.021(a)(1)(A), (2)(C), (e).

       After several plea offers were made, Reyes agreed to plead ―nolo contendere‖ to

the offense of sexual assault and stipulated to the evidence contained in the record in

exchange for the State dropping the disabled individual element of the originally-

charged offense of aggravated sexual assault of a disabled individual.                   See id. §

22.011(a)(1)(A); see also id. § 22.021(a)(1)(A), (2)(C). On October 8, 2009, the trial

court conducted a hearing on the matter. The trial court admonished Reyes about his

plea, concluded that the evidence to which Reyes stipulated proved that he was guilty of

sexual assault, and sentenced him to twenty years’ confinement with the sentence to

run consecutively with a previously imposed twenty-five year sentence for aggravated

sexual assault of a child.3 See id. § 22.011(a)(1)(A). The trial court certified Reyes’s

right to appeal, and this appeal ensued.

                               II.     SUFFICIENCY OF THE EVIDENCE

       In his first issue, Reyes argues that the evidence supporting his conviction is

factually insufficient to sustain his conviction. Specifically, Reyes contends that the

evidence demonstrates that he had a prior relationship with the victim and that the

sexual intercourse was consensual; thus, the ―overwhelming weight of the evidence


       3
          At the October 8, 2009 hearing, Reyes claimed that he and S.F. were dating and acknowledged
that the alleged incident transpired while he was on probation for another criminal offense.

                                                 4
creates reasonable doubt.‖ Reyes notes that he only pleaded nolo contendere ―to avoid

a punishment for a first[-]degree felony.‖

   A. Standard of Review

       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 Reyes’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

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 also 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



                                              5
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 Reyes (1) intentionally or knowingly (2) ―cause[d]

the penetration of the anus or sexual organ of another person by any means, without

that person’s consent.‖ See TEX. PENAL CODE ANN. § 22.011(a)(1)(A). ―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 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 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).

   B. Discussion

       Ordinarily, the testimony of a child sexual abuse victim alone is sufficient to

support a conviction for sexual assault. See TEX. CODE CRIM. PROC. ANN. § 38.07(a),



                                              6
(b)(1) (Vernon 2005) (providing that ―[a] conviction under Chapter 21, Section 22.011, or

Section 22.021, Penal Code, is supportable on the uncorroborated testimony of the

victim of the sexual offense if the victim informed any person, other than the defendant,

of the alleged offense within one year after the date on which the offense is alleged to

have occurred,‖ but if the victim is seventeen years of age or younger at the time of the

alleged offense, ―[t]he requirement that the victim inform another person of an alleged

offense does not apply‖); see also Soto v. State, 267 S.W.3d 327, 332 (Tex. App.–

Corpus Christi 2008, no pet.).     In the instant case, Reyes did not proceed to trial;

therefore, the record does not contain trial testimony from S.F. Nevertheless, the record

contains numerous police reports documenting S.F.’s recollection of the alleged sexual

assault and a report stating that DNA testing confirmed that Reyes is the father of the

baby S.F. gave birth to in June 2008. None of this evidence was controverted.

       In support of his argument that the evidence is insufficient to sustain his

conviction, Reyes directs us to the statement he made at the October 8, 2009 hearing

after the trial court found him guilty, whereby he declared that he and S.F. were dating

at the time of the incident. This statement is not supported by any evidence contained

in the record. Regardless, Reyes has not adequately explained on appeal how such a

relationship, if it truly existed, undermines the sufficiency of the evidence supporting his

conviction, especially in light of the numerous statements that S.F. made to police

describing that she was forced to have sexual intercourse with Reyes and that she

repeatedly said ―no‖ and tried to fight off his advances. In any event, the weighing of

this supposedly contradicting evidence was within the province of the fact-finder to

resolve. See Jackson, 443 U.S. at 326 (noting that a ―court faced with a record of



                                             7
historical facts that supports conflicting inferences must presume—even if it does not

affirmatively appear in the record—that the trier of fact resolved any such conflicts in

favor of the prosecution, and must defer to that resolution‖); Wesbrook, 29 S.W.3d at

111; see also Brooks, 2010 Tex. Crim. App. LEXIS 1240, at *16 n.13. Viewing all of the

evidence in the light most favorable to the prosecution, we conclude that a rational fact-

finder could have found beyond a reasonable doubt that Reyes was guilty of sexually

assaulting S.F. See Jackson, 443 U.S. at 319; Brooks, 2010 Tex. Crim. App. LEXIS

1240, at *14; see also TEX. PENAL CODE ANN. § 22.011(a)(1)(A).            Accordingly, we

overrule Reyes’s first issue.

                    C. REYES’S PUNISHMENT AND THE EIGHTH AMENDMENT

       By his second issue, Reyes asserts that the stacking of his twenty-year

punishment assessed in this case with the twenty-five-year sentence assessed in

another case violates the Eighth Amendment’s ban of cruel and unusual punishments.

See U.S. CONST. amend. VIII. He also argues that his punishment was disproportionate

to the seriousness of the offense.      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, Reyes 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 offense, or complaining about the disparity,



                                             8
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

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

Reyes has not preserved this issue for appellate review. 4 See TEX. R. APP. P. 33.1(a);

see also Jacoby, 227 S.W.3d at 130.

       Even assuming Reyes preserved this complaint, we note that his twenty-year

sentence is within the statutorily-prescribed punishment range. Reyes pleaded ―nolo

contendere‖ to, and the trial court found him guilty of, sexual assault, a second-degree

felony. See TEX. PENAL CODE ANN. § 22.011(a)(1)(A). The punishment range for a
       4
         At the October 8, 2009 hearing, the trial court admonished Reyes about his plea of ―nolo
contendere‖; among the admonishments given was that the trial court has the discretion to order any
sentence imposed in this case to run concurrently or consecutively with sentences imposed in other
cases. Reyes indicated that he understood this admonishment, and the record reflects that no objection
was made.


                                                  9
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

Reyes to twenty years’ incarceration. 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

by a valid statute is not excessive, nor cruel or unusual);5 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.

       Essentially, Reyes 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

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



       5
           On appeal, Reyes does not challenge the validity of section 12.33 of the penal code—the
provision prescribing the punishment range for second-degree felonies. See TEX. PENAL CODE ANN. §
12.33 (Vernon Supp. 2010).

                                               10
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

       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). Here, the trial court

concluded that Reyes was guilty of sexually assaulting S.F., a seventeen-year-old girl

that is ―hearing impaired‖ and has ―the mentality of an 11 year old.‖ The stipulated facts

represent that Reyes forcibly removed S.F.’s jeans and panties and penetrated her

sexual organ to the point that it was bleeding afterwards.        Furthermore, appellant

pleaded ―nolo contendere‖ to the offense, rather than ―not guilty,‖ and stipulated to

evidence clearly indicating his guilt.   See TEX. CODE CRIM. PROC. ANN. § 27.02(5)

(Vernon 2006) (―A plea of nolo contendere, the legal effect of which shall be the same

as that of a plea of guilty, except that such plea may not be used against the defendant

as an admission in any civil suit based upon or growing out of the act upon which the

criminal prosecution is based.‖); Lucero v. State, 502 S.W.2d 750, 752 (Tex. Crim. App.

1973); see also In re State ex rel. Villalobos, No. 13-05-370-CR, 2006 Tex. App. LEXIS

109, at *5 (Tex. App.–Corpus Christi Jan. 3, 2006, no pet.) (mem. op., not designated

for publication) (―A plea of nolo contendere, or no contest, is the equivalent of a plea of

guilty insofar as criminal prosecution is concerned.‖).     Based on the foregoing, we

conclude that the gravity of the offense weighs in favor of a finding that the punishment

was not excessive.

   B. Harshness of the Penalty



                                            11
      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).           Based on the

stipulated evidence, the trial court found Reyes guilty of sexually assaulting S.F., which

constituted a second-degree felony punishable by two to twenty years’ incarceration.

See TEX. PENAL CODE ANN. §§ 12.33(a), 22.011(a)(1)(A). Reyes, who has a history of

felony convictions involving sexual offenses, was sentenced to twenty years’

incarceration for this offense to run consecutively with a twenty-five-year sentence

imposed for aggravated sexual assault of a child.       Based upon his conviction, his

criminal history, and the fact that the punishment falls within the statutorily prescribed

range, we conclude that Reyes’s twenty-year sentence is not grossly disproportionate to

his crime. This finding ends our analysis under McGruder. See McGruder, 954 F.2d at

316; see also Sullivan, 975 S.W.2d at 757.

      Because there is no evidence in the appellate record of the sentences imposed

for other crimes in Texas or for the same crime in other jurisdictions, we may not

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, based on our

application of the Solem factors to this case, we cannot say that Reyes’s sentence is

grossly disproportionate or cruel and unusual. See Solem, 463 U.S. at 292; see also

Sullivan, 975 S.W.2d at 757-58.

      Moreover,    to   the   extent   that   Reyes   argues   that   his   punishment   is

disproportionate because it was ordered to run consecutively with his twenty-five-year



                                              12
sentence for aggravated sexual assault of a child, we note that an accused has no right

to concurrently serve sentences imposed for different offenses; rather, the decision to

cumulate sentences lies within the trial court’s discretion. DeLeon v. State, 294 S.W.3d

742, 745 (Tex. App.–Amarillo 2009, no pet.); Macri v. State, 12 S.W.3d 505, 511 (Tex.

App.–San Antonio 1999, pet. ref’d); see TEX. CODE CRIM. PROC. ANN. art. 42.08(a)

(Vernon Supp. 2010).      This discretion is absolute so long as the law authorizes

cumulative sentencing. DeLeon, 294 S.W.3d at 745. Clearly, Reyes was convicted of

two separate offenses involving two different people—aggravated sexual assault of a

child and sexual assault. Further, he does not cite, nor are we aware of, authority

limiting the trial court’s discretion to cumulate sentences in these circumstances.

Therefore, we cannot say that the trial court abused its discretion in cumulating the

sentence for Reyes’s conviction for sexual assault in this case with the sentence for his

prior conviction for aggravated sexual assault of a child. See DeLeon, 294 S.W.3d at

745; see also Macri, 12 S.W.3d at 511. Based on the foregoing, we overrule Reyes’s

second issue.

                                      D. CONCLUSION

        Having overruled both of Reyes’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
16th day of December, 2010.




                                           13
