                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-12-00192-CR

RODRIGO VILLALOBOS                                                  APPELLANT

                                         V.

THE STATE OF TEXAS                                                       STATE


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     FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

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                        MEMORANDUM OPINION1

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                                   I. INTRODUCTION

      A jury convicted Appellant Rodrigo Villalobos of one count of aggravated

sexual assault of a child under fourteen years of age and one count of indecency

with a child by contact and assessed his punishment at ten years‘ and five years‘

imprisonment, respectively. See Tex. Penal Code Ann. §§ 21.11(a)(1), 22.021(a)

(West 2011 & Supp. 2012). The trial court sentenced him accordingly, ordering

      1
       See Tex. R. App. P. 47.4.
that the sentences run concurrently. In three issues, Villalobos complains of the

sufficiency of the evidence, the denial of his motion for mistrial based on the

prosecutor‘s closing argument, and the disproportionality of his ten-year

sentence for his aggravated sexual assault of a child conviction.

                            II. FACTUAL BACKGROUND

      Villalobos, his wife, and his young son David lived two houses down from

Amy, her three sisters, and her mother in Arlington.2         Amy‘s parents were

divorced, and her father James lived a few miles away. When Amy was five and

six years old, she often walked down to the Villaloboses‘ house to play with

David, who is a couple of years older than Amy; many times, she went by herself.

      In August 2009, when Amy was six years old, she and her sisters were

staying with their father James when Amy made an outcry of sexual abuse to

him. James was bathing Amy and one of her sisters at the time, and Amy told

her father that the soap stung her ―down there.‖ She told James that Villalobos

had touched her privates inside her underwear in front of his truck and that she

had rubbed his privates in his upstairs bathroom.

      James told Amy‘s mother about the outcry, and the following week, they

took Amy to Alliance for Children, where Amy repeated what she had told James

to a child forensic interviewer.     A sexual assault nurse examiner at Cook

      2
        To protect the anonymity of the children in this case, we will use aliases to
refer to some of the individuals named herein. See Daggett v. State, 187 S.W.3d
444, 446 n.3 (Tex. Crim. App. 2005); McClendon v. State, 643 S.W.2d 936, 936
n.1 (Tex. Crim. App. [Panel Op.] 1982).


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Children‘s Medical Center also examined and interviewed Amy, who repeated to

the nurse what had happened with Villalobos.

                         III. SUFFICIENCY OF THE EVIDENCE

      In his first issue, Villalobos argues that insufficient evidence exists to

support his conviction for each count because Amy‘s testimony ―is suspect at

best,‖ because he had no opportunity to abuse her, and because he has always

maintained his innocence.

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of 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. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Wise v. State, 364 S.W.3d 900, 903 (Tex.

Crim. App. 2012). This standard gives full play to the responsibility of the trier of

fact to resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at

319, 99 S. Ct. at 2789; Blackman v. State, 350 S.W.3d 588, 595 (Tex. Crim. App.

2011).

      The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Wise, 364

S.W.3d at 903. Thus, when performing an evidentiary sufficiency review, we

may not re-evaluate the weight and credibility of the evidence and substitute our

judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.


                                         3
Crim. App. 2010). Instead, we determine whether the necessary inferences are

reasonable based upon the cumulative force of the evidence when viewed in the

light most favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex.

Crim. App. 2011). We must presume that the factfinder resolved any conflicting

inferences in favor of the verdict and defer to that resolution. Jackson, 443 U.S.

at 326, 99 S. Ct. at 2793; Wise, 364 S.W.3d at 903.

       A person commits aggravated sexual assault of a child younger than

fourteen years of age if the person causes the penetration of the child‘s sexual

organ by any means. Tex. Penal Code Ann. § 22.021(a). A person commits

indecency with a child by contact if the person engages in sexual contact with a

child younger than seventeen years of age or causes the child to engage in

sexual contact. Id. § 21.11(a)(1). Sexual contact includes any touching of any

part of the genitals of a person. Id. § 21.11(c)(2).

       In this case, Amy testified that one day when she was five or six years old,

she and Villalobos were standing between his garage and his truck when he told

her to pull down her skirt. He touched her on the inside of her ―tee-tee‖ with his

hand.3 On another occasion, Amy was with Villalobos in the closet in his upstairs

bathroom when he touched her ―tee-tee‖ with his hand and then asked, ―Can you

touch mine now[?]‖ She touched his ―tee-tee‖ and shook it. Villalobos said it felt



       3
       Amy identified a ―tee-tee‖ on a doll at trial and testified that it is used to
pee.


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good, moaned, and groaned.        Villalobos told Amy not to tell anyone what

happened.

      Amy‘s testimony is sufficient to establish the elements of the offenses for

which the jury found Villalobos guilty. See Garcia v. State, 563 S.W.2d 925, 928

(Tex. Crim. App. [Panel Op.] 1978) (holding testimony of complainant regarding

sexual offense was sufficient, standing alone); Connell v. State, 233 S.W.3d 460,

466 (Tex. App.—Fort Worth 2007, no pet.) (same); see also Tex. Code Crim.

Proc. Ann. art. 38.07 (West Supp. 2012) (providing that convictions for sexual

offenses are supportable on the uncorroborated testimony of a child victim under

seventeen years of age). Additionally, testimony of Amy‘s mother, Amy‘s father,

the Alliance for Children child forensic interviewer, and the sexual assault nurse

examiner corroborated Amy‘s testimony. Evidence also showed that Villalobos

worked from his home, that Amy walked over to the Villaloboses‘ house

unsupervised, and that she often walked into the Villaloboses‘ home

unannounced.

      Viewing the evidence in the light most favorable to the jury‘s verdict on

each count, we hold that a rational trier of fact could have found beyond a

reasonable doubt that Villalobos committed aggravated sexual assault of Amy by

inserting his finger into her female sexual organ and that Villalobos committed

indecency with a child by causing Amy to touch his penis. Consequently, we

hold that the evidence is sufficient to support Villalobos‘s convictions, and we




                                        5
overrule his first issue. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton

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

                            IV. MOTION FOR MISTRIAL

      In his second issue, Villalobos argues that the trial court abused its

discretion by denying his motion for mistrial after the prosecutor stated during the

State‘s closing argument at the punishment stage of trial, ―[T]he hardest part

about all this every single time I do these types of cases is you can never

understand why, like why someone would ever want to do this to a child.‖

      To be permissible, the State‘s jury argument must fall within one of the

following four general areas: (1) summation of the evidence; (2) reasonable

deduction from the evidence; (3) answer to argument of opposing counsel; or

(4) plea for law enforcement. Felder v. State, 848 S.W.2d 85, 94–95 (Tex. Crim.

App. 1992), cert. denied, 510 U.S. 829 (1993); Alejandro v. State, 493 S.W.2d

230, 231 (Tex. Crim. App. 1973).

      In determining whether a trial court abused its discretion by denying a

mistrial, we balance three factors: (1) the severity of the misconduct (prejudicial

effect); (2) curative measures; and (3) the certainty of the punishment assessed

absent the misconduct. Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App.

2004); Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on

reh‘g), cert. denied, 526 U.S. 1070 (1999). Only in extreme circumstances, when

the prejudice caused by the improper argument is incurable, i.e., ―so prejudicial

that expenditure of further time and expense would be wasteful and futile,‖ will a


                                         6
mistrial be required. Mosley, 983 S.W.2d at 259; see also Simpson v. State, 119

S.W.3d 262, 272 (Tex. Crim. App. 2003), cert. denied, 542 U.S. 905 (2004).

      Here, even assuming the prosecutor‘s comment—that she does not know

―why someone would ever want to do this to a child‖—was improper,4 the trial

court sustained defense counsel‘s objection that the prosecutor‘s argument was

outside the record and promptly instructed the jury to disregard the statement.

The complained-of comment, even if improper, was not so prejudicial as to

render the timely curative instruction ineffective.      See Archie v. State, 340

S.W.3d 734, 741 (Tex. Crim. App. 2011). Absent some evidence to the contrary,

which does not exist in this case, we assume the jury followed the trial court‘s

instruction and disregarded the argument. See Colburn v. State, 966 S.W.2d

511, 520 (Tex. Crim. App. 1998); see also Archie, 340 S.W.3d at 741; Wilkerson

v. State, 881 S.W.2d 321, 327 (Tex. Crim. App.) (explaining that instruction to

disregard generally cures any error from an improper jury argument); cert.

denied, 513 U.S. 1060 (1994). Villalobos received a ten-year sentence for the

aggravated assault of a child conviction, well below the maximum of ninety-nine

years‘ or life imprisonment, and a five-year sentence for the indecency with a

      4
       The State argues that the prosecutor‘s comment was appropriate as a
response to defense counsel‘s closing arguments at both the guilt-innocence and
punishment stages of trial. The State points to defense counsel‘s closing
argument at the guilt-innocence stage—in which he argued that Villalobos has a
beautiful wife and son, worked hard, and became a United States citizen, then
asked, ―Why would he throw that all away for some incident?‖— and at the
punishment stage—in which he argued for a low sentence ―based on this man‘s
merit of life, his love for his family, his child, his faithfulness to the community.‖


                                          7
child conviction, which carries a maximum of twenty years‘ imprisonment. See

Tex. Penal Code Ann. §§ 12.32(a), .33(a) (West 2011); see also id. §§ 21.11(d),

22.021(e).

         Even assuming that the complained-of comment was improper, we hold

that any harm caused by it was cured by the instruction to disregard and that,

consequently, the trial court did not abuse its discretion by denying Villalobos‘s

motion for mistrial. See Mosley, 983 S.W.2d at 259. We overrule his second

issue.

                          V. PROPORTIONALITY OF SENTENCE

         In his third issue, Villalobos argues that the total of ten years‘ imprisonment

that he received for both convictions5 was grossly disproportionate when

considered in light of other sentences for the same offenses in this jurisdiction

and in light of the facts and circumstances of the offenses.6 Villalobos did not

object to his sentence at the time it was imposed nor complain about it in a

motion for new trial. We have held on numerous occasions that this type of claim

must be preserved at the trial court level. See Kim v. State, 283 S.W.3d 473,

475 (Tex. App.—Fort Worth 2009, pet. ref‘d); Acosta v. State, 160 S.W.3d 204,

211 (Tex. App.—Fort Worth 2005, no pet.); see also Cisneros v. State, No. 02-

         5
      The five-year sentence for indecency with a child was ordered to run
concurrently with the ten-year sentence for aggravated sexual assault of a child.
         6
       Villalobos cites only one opinion from this court in his argument, and it
involved a ten-year sentence for burglary of a habitation. See Tatum v. State,
649 S.W.2d 139, 140 (Tex. App.—Fort Worth 1983, pet. ref‘d).


                                            8
06-00103-CR, 2007 WL 80002, at *1 (Tex. App.—Fort Worth May 23, 2007, pet.

ref‘d) (mem. op., not designated for publication) (collecting cases); cf. Burt v.

State, No. PD-1280-11, 2013 WL 1628985, at *2 (Tex. Crim. App. Apr. 17, 2013)

(―A sentencing issue may be preserved by objecting at the punishment hearing,

or when the sentence is pronounced.‖). Because Villalobos did not raise his

complaint in the trial court, the complaint is forfeited.7 We overrule his third

issue.

                                 VI. CONCLUSION

         Having overruled Villalobos‘s three issues, we affirm the trial court‘s

judgment.




                                            SUE WALKER
                                            JUSTICE

PANEL: WALKER, MEIER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: May 2, 2013


         7
       Even if we were to reach the merits of his complaint, his punishment for
each conviction was well within the statutory limits for each offense. See Tex.
Penal Code Ann. §§ 12.32(a), 12.33, 21.11(d), 22.021(e). Punishment that is
imposed within the statutory limits, and that is based upon the sentencer‘s
informed normative judgment, is generally not subject to challenge for
excessiveness except in ―‗exceedingly rare‘‖ situations. Kim, 283 S.W.3d at 476
(quoting Ex parte Chavez, 213 S.W.3d 320, 323–24 (Tex. Crim. App. 2006)).


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