                           NUMBER 13-12-00689-CR

                             COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                       CORPUS CHRISTI – EDINBURG


JOHN ORNELAS,                                                           Appellant,


                                         v.

THE STATE OF TEXAS,                                                       Appellee.


                   On appeal from the 117th District Court
                         of Nueces County, Texas.


                         MEMORANDUM OPINION

  Before Chief Justice Valdez and Justices Benavides and Longoria
           Memorandum Opinion by Chief Justice Valdez
      By two issues, appellant, John Ornelas, challenges his conviction for indecency

with a child. See TEX. PENAL CODE ANN. § 21.11(a)(1) (West 2011). Appellant contends

that (1) the evidence was insufficient to support the jury verdict, and (2)

the sentence imposed by the trial court was disproportionate to the seriousness of the
alleged offense, in violation of the Eighth and Fourteenth Amendments to the United

States Constitution. See U.S. CONST. amend. VIII, XIV. We affirm.

                                    I.   BACKGROUND

       Appellant was indicted for two counts of intentionally or knowingly engaging in

sexual contact with the victim, J.R., a child younger than seventeen years of age and

not his spouse, by touching her genitals with the intent to arouse or gratify his sexual

desire. See TEX. PENAL CODE ANN. § 21.11(a)(1). At trial, the State presented evidence

that, after attending a wedding and visiting two nightclubs, appellant returned to the

house of his friend, Randy Cantu. As discussed in more detail herein, Cantu’s sister,

J.R., then 15-years of age, testified that she awoke in the middle of the night with

appellant in her room and that appellant engaged in inappropriate sexual contact with

her.

       J.R., testified that in the morning of February 19th, 2012, she awoke to find

appellant standing in front of her bed and that appellant began asking her questions

about whether she had a boyfriend. She stated that appellant left the room and came

back several times because he heard noises. She then stated that appellant lay down

in bed beside her and that he put his hand “over her vagina” and then put her hand in

his shorts. She testified that appellant had an erection. The following exchange then

occurred between the prosecutor and J.R.:

       [Prosecutor]:       Did [appellant] ever put his hand down your shorts?
       J.R.:               Yes
       [Prosecutor:]       And when he put his hands down your shorts, did he
                           put his hands over or under your underwear?
       J.R.:               Under.
       [Prosecutor]:       And did he touch your vagina?
                                            2
      J.R.:                Yes.
      The State also called Officer Darrel Anderson, who testified that he arrested

appellant; J.R.’s mother, who testified that J.R. outcried to her; and Detective Jason

Smith, who testified that he interviewed J.R. and that she identified appellant as the

person that sexually assaulted her. The State called Randall Cantu, J.R.’s brother, who

testified that he and Appellant went to a wedding and two clubs on the eve of the

alleged assault and then returned to his home where J.R. also lives, and that in the

morning of February 19, around 3:30 a.m., he saw appellant exit his sister’s room. He

also testified that, in the afternoon of February 19th, after he learned about the alleged

assault from his mother, he drove to appellant’s extended-stay hotel, picked him up, and

had a brief altercation with him. On cross-examination, Cantu stated that he did not

purchase or use cocaine on the evening before or the morning of the alleged assault

and that there had been some past animosity between he and appellant and he and

appellant’s brother, but that he had no reason to seek retaliation against appellant. The

State also called J.C., J.R.’s eight-year-old nephew, who testified that he was sleeping

in bed with J.R. on the night of the alleged sexual assault and that appellant came in the

room and lied down with J.R. and was talking to her while she was crying.

      Appellant called his friend Melanie Gonzalez who testified that appellant called

her around 4:30 or 4:35 on the morning of the alleged assault and asked her to pick him

up from the house that the alleged incident occurred; she testified that she did so and

left him at his extended-stay motel. Next another friend of appellant, Eva Gonzalez,

testified that appellant had been at her daughter’s wedding the night before the alleged

incident. She also stated that appellant appeared at her house the morning of the

alleged incident and stated that he had been in a fight with J.R.’s brother, Randy Cantu.

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Next Gracie Bocelli, appellant’s mother, testified that on the morning of the alleged

incident, appellant called the police and claimed that J.R.’s brother, Randy Cantu,

sexually assaulted him by kicking him in the groin. Appellant then took the stand and

testified that he had been at a wedding and two clubs with Randy Cantu and two other

men the night before the alleged assault. He testified that around 4:00 a.m., Cantu and

another man purchased cocaine. He testified that they returned to Cantu’s home at

around 4:15 a.m., and he called Melanie Gonzalez to pick him up. He stated that he left

the house around 4:45 a.m. and that he never entered J.R.’s room.                      He testified that

the next morning Cantu picked him up and took him back to his house where J.R.’s

mother confronted him concerning the alleged sexual assault and where he and Cantu

had an altercation.

        The jury found appellant guilty of indecency with a child and sentenced him to

five years in prison on each count.              The trial court ordered the sentences to run

concurrently. This appeal ensued.

                                     II.      LEGAL SUFFICIENCY

    A. Standard of Review

        “When reviewing a case for legal sufficiency, we view all of the evidence in the

light most favorable to the verdict and determine whether any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” 1 Winfrey

v. State, 323 S.W.3d 875, 878–79 (Tex. Crim. App. 2010) (citing Jackson v. Virginia,

        1
          Appellant contends that the evidence against him is factually insufficient. However, the court of
criminal appeals has 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, 323 S.W.3d 893, 902–03, 912 (Tex. Crim. App. 2010) (plurality op.).
Accordingly, we review appellant's claim of evidentiary sufficiency under "a rigorous and proper
application" of the Jackson standard of review. See id. at 906–07, 912.

                                                    4
443 U.S. 307, 319 (1979)).        Accordingly, “we ‘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.’” Id. at 879 (quoting

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (citing Hooper v. State,

214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007)). “It has been said quite appropriately,

that ‘[t]he appellate scales are supposed to be weighted in favor of upholding a trial

court's judgment of conviction, and this weighting includes, for example, the highly

deferential standard of review for legal-sufficiency claims.’”     Id. (quoting Haynes v.

State, 273 S.W.3d 183, 195 (Tex. Crim. App. 2008) (Keller J., dissenting) (citing

Jackson, 443 U.S. at 319)).      “We must therefore determine whether the evidence

presented to the jury, viewed in the light most favorable to the verdict, proves beyond a

reasonable doubt that appellant” committed the crime for which the jury found him

guilty. Id. “It is the obligation and responsibility of appellate courts ‘to ensure that the

evidence presented actually supports a conclusion that the defendant committed the

crime that was charged.’” Id. at 882 (quoting Williams v. State, 235 S.W.3d 742, 750

(Tex. Crim. App. 2007)).

       We measure the sufficiency of the evidence by the elements of the offense as

defined by the hypothetically correct jury charge. Coleman v. State, 131 S.W.3d 303,

314 (Tex. App.—Corpus Christi 2004, pet. ref’d) (citing Malik v. State, 953 S.W.2d 234,

240 (Tex. Crim. App. 1997)).       The hypothetically correct jury charge is one that

“accurately sets out the law, is authorized by the indictment, does not unnecessarily

increase the State's burden of proof or unnecessarily restrict the State's theories of




                                             5
liability, and adequately describes the particular offense for which the defendant was

tried.” Malik, 953 S.W.2d at 240.

       Additionally, in our analysis of the verdict, we recognize that the jury is the

exclusive judge of the credibility of the witnesses and the weight to be given their

testimony. Ozuna v. State, 199 S.W.3d 601, 610 (Tex. App.—Corpus Christi 2006, no

pet.). The jury may accept or reject all or part of the evidence. Id. The jury may also

draw reasonable inferences and make reasonable deductions from the evidence. Id.

   B. Applicable Law

       A person commits indecency with a child if that person engages in sexual contact

with the child or causes the child to engage in sexual contact. TEX. PENAL CODE ANN. §

21.11(a)(1) (West 2011). "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. See id. §

21.11(c).   The indictment specifically charged appellant with touching the victim’s

genitals with the intent to gratify his own sexual desire.

       “A complainant's testimony alone is sufficient to support a conviction for

indecency with a child.” Connell v. State, 233 S.W.3d 460, 466 (Tex. App.—Fort Worth

2007, no pet.); Perez v. State, 113 S.W.3d 819, 838 (Tex. App.—Austin 2003, pet.

ref'd); see TEX. CODE CRIM. PROC. ANN. art. 38.07 (West Supp. 2011); Tear v. State, 74

S.W.3d 555, 560 (Tex. App.—Dallas 2002, pet. ref'd). The specific intent required for

the offense of indecency with a child may be inferred from a defendant's conduct as well

as the surrounding circumstances. 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.



                                              6
App. 1981)). The victim’s testimony need not be corroborated by medical or physical

evidence. Gonzalez Soto v. State, 267 S.W.3d 327, 332 (Tex. App.—Corpus Christi

2008, no pet.).

   C. Discussion

       Appellant argues that the evidence was legally insufficient to support the jury’s

verdict. Appellant concedes that the victim in this case testified that the alleged abuse

occurred. However, he claims that the facts that “the only witness to this alleged sexual

assault was the victim” and that the testimony suggested that there was past animosity

between appellant and the victim’s brother “should have raised reasonable doubt in the

jury’s mind that appellant may not have committed” the offense. Under Texas law,

however, a victim’s testimony alone is sufficient to support a guilty verdict in a child sex

abuse case, and in this case, it is undisputed and clear from the record that the victim

testified that the alleged abuse occurred. See TEX. CODE CRIM. PROC. ANN. art. 38.07

(West Supp. 2011); Connell, 233 S.W.3d at 466; Perez, 113 S.W.3d at 838; Tear, 74

S.W.3d at 560. J.R. specifically stated that appellant put his hand inside her shorts and

over her vagina and answered “yes” when the prosecutor asked her if appellant touched

her vagina.   She further testified that appellant put her hand in his shorts and that he

had an erection. This testimony is clearly sufficient to support the jury’s determination

that appellant touched J.R’s genitals with the intent to arouse his sexual desire, as

alleged in the indictment. See TEX. CODE CRIM. PROC. ANN. art. 38.07 (West Supp.

2011); Connell, 233 S.W.3d at 466; Perez, 113 S.W.3d at 838; Tear, 74 S.W.3d at 560.

       The appellant also asserts that evidence of past animosity between appellant

and the victim’s brother should have raised reasonable doubt, presumably as an



                                             7
argument that the witnesses may have had a motive to falsely accuse appellant of this

offense. However, the jury was entitled to disbelieve and determine how much weight

to be given to any testimony suggesting that the victim or any other witness had a

motivation to make false accusations. See Ozuna, 199 S.W.3d at 610. The jury, as the

ultimate finder of fact, was entitled to determine the witness’ credibility, and we cannot

replace its judgment with our own. See id. We overrule appellant’s first issue.

                       III.   CONSTITUTIONALITY OF THE SENTENCE

       In his second issue, appellant contends that the sentence imposed by the trial

court was disproportionate to the seriousness of the alleged offense, in violation of the

Eighth and Fourteenth Amendments to the United States Constitution. See U.S. CONST.

amend. VIII, XIV. Specifically, appellant argues that the sentence is cruel, unusual, and

grossly disproportionate to the severity of his crime.

       The Eighth Amendment provides that “[e]xcessive bail shall not be required, nor

excessive fine imposed, nor cruel and unusual punishment inflicted.” See U.S. CONST.

amend. VIII. The Eighth Amendment applies to punishments imposed by state courts

through the Due Process Clause of the Fourteenth Amendment.               See U.S. CONST.

amend. XIV. Yet, it is possible for this right, and every constitutional or statutory right,

to be waived by a “failure to object.” Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim.

App. 1986). Generally, 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).     The failure to specifically object to an alleged

disproportionate or cruel and unusual sentence in the trial court or in a post-trial motion

waives any error for our review. Noland v. State, 264 S.W.3d 144, 151 (Tex. App.—



                                             8
Houston [1st Dist.] 2007, pet. ref’d) (“[I]n order to preserve for appellate review a

complaint that a sentence is grossly disproportionate, constituting cruel and unusual

punishment, a defendant must present to the trial court a timely request, objection, or

motion stating the specific grounds for the ruling desired.”); Trevino v. State, 174

S.W.3d 925, 928 (Tex. App.—Corpus Christi 2005, pet. ref’d) (providing that “by failing

to object to the trial court’s sentence, [the appellant] forfeited his complaint” that the

sentence was cruel and unusual); see also Daliet v. State, No. 13-11-00611-CR, 2013

Tex. App. LEXIS 3871, at *5 (Tex. App.—Corpus Christi Mar. 28, 2013, pet. ref’d)

(mem. op., not designated for publication) (holding in regards to an appeal on

proportionality of sentencing that, “appellant acknowledges that no objection was made

to the sentence in the trial court, but invites us to review the sentence under our

inherent power. The error being unpreserved, we decline the invitation.”).

       Appellant complains for the first time on appeal that his eighth amendment rights

have been violated because the sentence imposed by the trial court is cruel, unusual,

and grossly disproportionate to the offense committed. In his appellate brief, appellant

claims that he “raised this specific issue to ensure there was no waiver of an

anticipatory claim in Federal Court.” The record reveals, however, that appellant did not

object to the sentence at the punishment hearing or in any post-trial motion. Moreover,

appellant’s sentence was within the punishment range of a second-degree felony.2                 A

punishment falling within the limits prescribed by a valid statute is not per se excessive,

cruel, or unusual. Trevino, 174 S.W.3d at 928. Therefore, because appellant failed to

object to the proportionality of a sentence that was not unconstitutional per se,

       2
        A second-degree felony has a punishment range of two to twenty years’ confinement. See TEX.
PENAL CODE ANN. § 12.33(a) (West Supp. 2011).


                                                 9
appellant’s argument is waived.3 See TEX. R. APP. P. 33.1(a); Noland, 264 S.W.3d at

151; Trevino, 174 S.W.3d at 928; see also Daliet, 2013 Tex. App. LEXIS 3871, at *5.

We overrule appellant’s second issue.

                                         IV.     CONCLUSION

        We affirm.

                                                         __________________
                                                         ROGELIO VALDEZ
                                                         Chief Justice


Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
25th day of July, 2013.




        3
          Appellant also claims that “it was within a court’s power to review a sentence imposed by judge
or jury and to determine whether such sentence passed [c]onstitutional muster, even if no objections were
made during trial.” We note that this argument seems to suggest that a trial court has discretion to make
a ruling in this situation, not that a defendant need not make a proper objection at trial to preserve
argument for appeal. Additionally, to support this claim, appellant cites two cases in which Texas courts
considered a court’s power to adjudicate challenges to the constitutionality of legislative acts and not
whether disproportionate sentencing arguments were preserved for appeal. See Lovejoy v. Lillie, 569
S.W.2d 501, 503 (Tex. Civ. App.—Tyler 1978, writ ref'd n.r.e); Houston Chronicle Publ’g Co. v. City of
Houston, 531 S.W.2d 177, 185 (Tex. Civ. App.—Houston [14th Dist.] 1975, writ ref’d). Appellant does not
explain, and we fail to see, the relevance of these citations to the present case. Instead, we rely on the
case law cited in the body of this opinion in determining that, because he did not make an objection,
appellant waived his argument on appeal that the sentence imposed is disproportionate. See Noland,
264 S.W.3d at 151; Trevino, 174 S.W.3d at 928; see also Daliet, 2013 Tex. App. LEXIS 3871, at *5.

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