                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-10-00400-CR


JIMMY NOEL HUGHES                                             APPELLANT

                                        V.

THE STATE OF TEXAS                                                 STATE


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          FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY

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                         MEMORANDUM OPINION1
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      Appellant Jimmy Noel Hughes appeals his conviction for two counts of

aggravated sexual assault of a child. We will affirm.




      1
       See Tex. R. App. P. 47.4.
                               I. Background Facts

      On August 22, 2008, ―Jane,‖2 then sixteen years old, and her fifteen-year-

old friend ―Tammy‖ were spending the evening at the home of their friends,

Derick Chambers and Joseph Kincaid. Jane had been over to Chambers and

Kincaid‘s house on about ten previous occasions. Appellant, whom Chambers

and Kincaid had known for only a few weeks, was also at the house. Appellant,

Chambers, and Kincaid were all about nineteen or twenty years old.          Jane

testified that she had met Appellant about two weeks prior and that she had

ridden in his car ―a couple of times before.‖

      At Chambers and Kincaid‘s house, Jane, Tammy, and the men all began

drinking beer around six or seven o‘clock in the evening. Jane testified that she

consumed about five beers over the course of the night. Appellant testified that

they were also consuming Jagermeister and drugs, including hydrocodone,

Xanax, and marijuana.

      Jane spent most of the night hanging out in the living room with Tammy,

Chambers, and Kincaid. Appellant stayed outside to work on his stereo. Jane

occasionally went outside and spoke with Appellant while he worked.

      Around midnight, Chambers and Kincaid went to their bedrooms. Tammy

and Jane went to sleep sometime after that. When Jane had spent the night

before, she had slept in the living room. But because she thought Appellant

      2
       We use pseudonyms to protect the complainant‘s identity and that of the
other minor.


                                          2
would be sleeping there, she went to sleep in Kincaid‘s bed. Tammy went to

sleep in Chambers‘s bedroom. Jane, Chambers, and Kincaid all testified that

none of the men were, or had ever been, in a sexual or romantic relationship with

the girls.

       A few hours after falling asleep, Jane woke up to her head hurting. She

went to the bathroom and discovered that the back of her head was ―pouring out

blood.‖ She woke everyone else up and asked to be taken to the hospital. She

used Chambers‘s cell phone to call her parents to tell them what had happened.

Jane told her parents that she was in Henrietta because she did not want them to

know where she had been staying. Appellant offered to drive her home because

Chambers and Kincaid had to be at work. Jane used Chambers‘s phone again

to tell her parents she had gotten a ride. No one else at the house recalled

seeing any other injuries to Jane before she left.

       On the way to Jane‘s house, Appellant turned off the main road onto a

gravel road. She claimed that Appellant said he had gone the wrong way and

would have to turn around. According to Jane, he then stopped the car and hit

her ―in the back of [her] head where it was cut open and then hit [her] in [her]

nose and then in [her] mouth a couple of times,‖ breaking her nose and chipping

her teeth. He told her to get out of the car and take off her clothes. Jane claimed

that he sexually assaulted her first by forcing her to perform oral sex on him and

then by penetrating her vaginally with his sexual organ. Jane did not testify that

Appellant penetrated her anally.


                                         3
      After he finished, Appellant allowed Jane to get dressed and back in the

car. She testified that he then said ―you know what I gotta do now,‖ which she

took to mean that he planned to kill her. Jane promised not to tell anyone about

what happened. Jane testified that she felt he would ―look for [her]‖ if she told

anyone.   Appellant continued driving Jane home.       When Appellant got near

Jane‘s house, Jane got out of the car and ―took off running.‖ She ran home to

her parents and told them she had just been raped.

      Jane‘s parents called 911, and Jane was taken to the hospital where

Sexual Assault Nurse Examiner Erin Wilson performed a sexual assault

examination.   Nurse Wilson noted a head wound; bruises on Jane‘s thighs,

wrists, and arms; a broken nose; chipped teeth; anal dilation; and redness

around Jane‘s anus. She also noted that Jane was ―very drowsy.‖ Swabs from

Jane‘s rape kit tested positive for seminal fluid in both her vagina and anus. DNA

tests later matched the samples to Appellant.

      Police officers went to the hotel where Appellant was staying and found his

car in the parking lot. Officers saw blood drops on the inside of the passenger

door, which two officers testified revealed a spatter pattern consistent with

someone being punched. Officers also took Jane to the location of the incident

and found blood on rocks and an oil stain.3 A sample of the bloody rocks tested

positive for human blood.


      3
       Appellant‘s car leaked oil because of a cracked engine head.


                                        4
      At trial, Appellant denied Jane‘s description of the evening. He testified

that after everyone else went to sleep, he and Jane kissed on the couch and

performed oral sex on each other in the living room. They attempted vaginal

intercourse, but Appellant could not maintain an erection. They then got dressed

and went into Kincaid‘s bedroom to find marijuana. Appellant claims he told Jane

he was not interested in a relationship with her and she got angry. He testified

that she gouged him in the eye and that, in defending himself, he swung at her

―two or three times,‖ hitting her in the nose and mouth.

      On the way to take Jane home, Appellant claims that he missed a turn and

swerved, causing Jane to bang her head on the door. She became nauseated,

he pulled over so that she could get some fresh air, and she laid on the ground to

rest. After a few minutes, she got back into the car and they proceeded to her

home.4

      Appellant was charged with two counts of aggravated sexual assault of a

child. A jury found Appellant guilty of both charges and assessed a sentence of

ninety-nine years‘ imprisonment on each count. The trial court ordered that the




      4
        The testimony of Appellant at trial concerning his sexual encounter with
Jane on August 22, 2008, was one of four different versions told by Appellant at
different times. In his first statement, Appellant denied ever having sex with
Jane. In his second version, he acknowledged having sex with her, just not on
that date. After being confronted with the DNA results, Appellant changed his
account to admitting he had vaginal intercourse with Jane on the side of the road
on the night alleged, yet still denying anal intercourse.


                                         5
sentences be cumulated, that is, that they run consecutively. This appeal

followed.

                                   II. Discussion

A. Sufficiency of the Evidence

      In his first two issues, Appellant argues that the evidence is insufficient to

support his conviction. Specifically, he argues that the evidence is insufficient to

support the jury‘s findings that he threatened to kill Jane and that he penetrated

Jane‘s anus with his sexual organ.

      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

prosecution 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); Clayton v. State, 235 S.W.3d

772, 778 (Tex. Crim. App. 2007).            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; Clayton, 235 S.W.3d at 778. 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); Brown v. State, 270 S.W.3d

564, 568 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075 (2009). 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


                                          6
factfinder.   Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

Instead, we Adetermine 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.@ Hooper v. State, 214 S.W.3d 9, 16–17 (Tex.

Crim. App. 2007). We must presume that the factfinder resolved any conflicting

inferences in favor of the prosecution and defer to that resolution. Jackson, 443

U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778.

      A person commits aggravated sexual assault of a child if he intentionally or

knowingly causes the penetration of the anus or sexual organ of a child by any

means and if he, by acts or words, threatens to cause the death, serious bodily

injury, or kidnapping of any person. Tex. Penal Code Ann. § 22.021(a)(1)(B)(i),

(2)(A)(iii) (West 2011).   Appellant does not now contest any finding that he

penetrated Jane‘s sexual organ when she was under the age of seventeen; he

argues only that the evidence does not support a finding that he threatened to

cause her death or that he penetrated her anus.

      1. Threat to Kill

      The crux of Appellant‘s argument that there was insufficient evidence of

any threat he made to kill Jane appears to be that Jane‘s testimony was

―inconsistent and implausible.‖ He points to the fact that Jane socialized with

―twenty-something male friends‖ and was a runaway.            He claims that her

testimony of how she got her injuries is not credible, that he presented ―the only

plausible explanation for [Jane‘s] head wound,‖ and that his explanation of her

                                        7
broken nose ―is also more plausible than that of the girl.‖ However, as noted

above, it is not our task here to re-evaluate the weight and credibility of the

evidence.   See Williams, 235 S.W.3d at 750; see also Karnes v. State, 873

S.W.2d 92, 96 (Tex. App.—Dallas 1994, no pet.) (noting that appellant‘s

argument that the victims‘ testimony was not sufficiently credible was not a

complaint of the sufficiency of the evidence). Appellant attacks the credibility of

the evidence, not its sufficiency.   The jury determines the credibility of the

evidence, not the appellate court.    See Williams, 235 S.W.3d at 750.        After

hearing all of the evidence, the jury found Jane‘s testimony credible, and we

must accept that finding.5 See id.

      Jane testified that after she was raped ―[h]e said, you know what I gotta do

now. Right? And he was ta[l]king about killing me. And I promised him that I

wouldn‘t say anything to anyone, and I was telling him it‘s not his fault and asked

him to take me to my house.‖ Jane‘s father said that when Jane came home that

morning, she had ―terror in her eyes‖ and was ―[s]cared to death.‖ The nurse

examiner testified that when she examined Jane, Jane reported, ―Back in the car

he said I knew what he had to do like he had to kill me, but I told him I wouldn‘t

tell anyone.‖



      5
       The jury also heard testimony that Appellant had previously been
convicted of felony theft and that four days before the trial began, he escaped
from the Wichita County Jail Annex. The jury was free to take this evidence into
consideration in determining Appellant‘s credibility.


                                        8
      Appellant argues that Jane did not tell the nurse examiner that Appellant

had ―actually‖ threatened to kill her, only that she perceived his statement to

mean that he intended to kill her.    But the penal code does not require the

defendant to specifically use the word ―kill‖ in order for the statement to be

considered a threat. See Tex. Penal Code Ann. § 22.021(a)(2)(A)(iii) (stating

that a person may threaten to cause the death, serious bodily injury, or

kidnapping of any person ―by acts or words‖); Dalton v. State, 898 S.W.2d 424,

429 (Tex. App.—Fort Worth 1995, pet. ref‘d) (―For obvious reasons, we decline to

hold that certain ‗acts or words‘ are mutually exclusive to proving different

manners and means of committing a particular offense.‖). ―To determine the

presence of the aggravating nature of an offense, a trier of fact is entitled to

consider not only the injuries actually inflicted and the express verbal threats

made by a defendant, but also his objective conduct, i.e., his acts, words, or

deeds.‖ Dalton, 898 S.W.2d at 429. Thus, the jury could have considered Jane‘s

testimony that Appellant had punched her so hard in the face that it broke her

nose and chipped her teeth and that he told her that she knew ―what he was

going to have to do‖ and reasonably concluded that Appellant had threatened

Jane with death. See Mata v. State, 952 S.W.2d 30, 32 (Tex. App.—San Antonio

1997, no pet.) (holding the evidence sufficient to support the element of threat to

kill or seriously injure in an aggravated sexual assault case where victim was

physically injured, restrained, and gagged but was not verbally threatened);

Dalton, 898 S.W.2d at 430 (noting that use of force can constitute a threat


                                        9
regardless of whether the defendant threatens to ―kill‖ the victim). As stated

above, the jury assessed the competing stories of the witnesses and found

Jane‘s testimony to be credible. Based on our review of the evidence, we hold

that a rational trier of fact could have found beyond a reasonable doubt that

Appellant threatened to kill Jane. See Garcia v. State, 563 S.W.2d 925, 928

(Tex. Crim. App. [Panel Op.] 1978) (noting that a child victim‘s testimony is

sufficient to support a conviction for sexual assault); West v. State, 121 S.W.3d

95, 111 (Tex. App.—Fort Worth 2003, pet. ref‘d) (same).                We overrule

Appellant‘s first issue.

      2. Anal Penetration

      To support his contention that the evidence does not support a finding that

he anally penetrated Jane, Appellant points to Jane‘s testimony that she did not

remember being penetrated from behind and that she did not remember being

penetrated anally. However, the DNA test results showed that Appellant‘s DNA

was found on the swab of Jane‘s anus. The analyst from the Tarrant County

Medical Examiner‘s Office testified that the probability that the DNA found on the

anal swab belonged to someone other than Appellant was about one in 1.1

quintillion (1,100,000,000,000,000,000).      Further, Nurse Wilson testified that

Jane exhibited redness to part of her anus and noted a ―very relaxed sphincter

tone.‖ Nurse Wilson‘s testimony established that her exam required her to ―swab

pretty deep inside‖ Jane‘s anus to obtain the sample collected. Nurse Wilson

further testified that a ―relaxed sphincter tone,‖ also known as ―anal dilation,‖ and


                                         10
the procedure used to collect the positive DNA sample are consistent with anal

penetration.

        The State‘s medical expert, Dr. Leo Mercer, testified that it is possible that

because of her injuries, Jane could have ―shut down‖ and might not have been

aware of everything that was being done to her. Dr. Mercer explained that it was

―quite common‖ for a victim to be in such pain that they ―may be distracted from

recognizing other sources of discomfort.‖6 He also testified that DNA evidence

from an anal swab is consistent with anal penetration.

        Police interviewed Appellant three times.       In the first two interviews,

Appellant denied having any sexual relations with Jane on the night of August 22,

2008.       In the third pretrial interview, Clay County Sherriff Kenny Lemons

confronted Appellant with the DNA test results, and Appellant claimed that he

had had consensual intercourse with Jane on the side of the road and that he

had accidentally contacted her anus when trying to penetrate her vagina. At trial,

Appellant stated that they had consensual sex at the house and that ―when [he]

was trying to put it inside of her that [he was] pretty sure it did come into contact

with her anus.‖




        6
        Jane testified that during the actual sexual acts, she was in pain in both
her head and face. Her testimony was not that anal penetration did not occur,
but only that she did not remember it. She did not remember other significant
details as well, such as whether Appellant ejaculated. Yet, the DNA evidence
establishes that he clearly did.


                                          11
      After viewing all of the evidence in the light most favorable to the jury‘s

verdict, we hold that a rational trier of fact could have found beyond a reasonable

doubt that Appellant penetrated Jane‘s anus with his sexual organ.            See

Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778.

Accordingly, we hold that the evidence is legally sufficient to support Appellant‘s

conviction, and we overrule his second point.

B. Cumulation of Sentences

      Appellant‘s remaining four issues concern the trial court‘s cumulation of

Appellant‘s two ninety-nine year sentences. The State argues that Appellant has

not preserved his complaints for our review because he did not object at trial.

Generally, to preserve a complaint for our review, a party must have presented to

the trial court a timely request, objection, or motion that states the specific

grounds for the desired ruling if they are not apparent from the context of the

request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Layton v. State, 280

S.W.3d 235, 238–39 (Tex. Crim. App. 2009).

      In his third issue, Appellant argues that cumulation of the sentences

improperly increased his punishment beyond the statutory maximum in violation

of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000). Appellant did

not make an Apprendi objection at trial and thus waived his complaint. See

White v. State, No. 02-02-00143-CR, 2003 WL 865351, at *2–3 (Tex. App.—Fort

Worth Mar. 6, 2003, pet. ref‘d) (mem. op., not designated for publication) (holding

that appellant waived his Apprendi complaint by not objecting on those grounds


                                        12
at trial); see also Lacy v. State, Nos. 14-05-00775-CR, 14-05-00776-CR, 14-05-

00777-CR, 14-05-00778-CR, 2006 WL 2862156, at *2 n.1 (mem. op., not

designated for publication) (Tex. App.—Houston [14th Dist.] Oct. 10, 2006, no

pet.) (noting the split in the intermediate courts as to whether a defendant waives

an Apprendi complaint by failing to object in the trial court).7        We overrule

Appellant‘s third issue.

      Appellant‘s fifth and sixth issues challenge the constitutionality of section

3.03 of the penal code and article 42.08 of the code of criminal procedure. See

Tex. Penal Code Ann. § 3.03 (West 2011); Tex. Code Crim. Proc. Ann. art. 42.08

(West 2006). Specifically, in his fifth issue, Appellant argues that the lack of

guidelines set out in the statutes is a denial of his due process rights. In his sixth

issue, Appellant argues that section 3.03 is unconstitutionally vague because it

does not state whether the judge or the jury is vested with the right to determine

whether sentences will run consecutively. See Tex. Penal Code Ann. § 3.03.

      The court of criminal appeals has held that these types of challenges are

ones which will be forfeited if not preserved in the trial court. See Karenev v.

State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009); Carmell v. State, 331

S.W.3d 450, 460 (Tex. App.—Fort Worth 2010, pet. ref‘d). Appellant did not

challenge the constitutionality of either section 3.03 of the penal code or article

      7
        Even if Appellant had preserved his complaint, we note that the court of
criminal appeals has held that the Apprendi line of cases does not apply to a trial
court‘s decision to cumulate jury-imposed sentences. See Alameda v. State, 235
S.W.3d 218, 223–24 (Tex. Crim. App. 2007), cert. denied, 128 S. Ct. 629 (2007).


                                         13
42.08 of the code of criminal procedure in the trial court. He therefore has not

preserved these complaints for our review. We overrule Appellant‘s fifth and

sixth issues.8

         Appellant‘s fourth issue, on the other hand, focuses on the denial of his

constitutional right to a trial by jury, and thus ―the general rules for preservation of

error do not apply.‖ See Marrow v. State, 169 S.W.3d 328, 330 (Tex. App.—

Waco 2005, pet. ref‘d); see also Sanchez v. State, 120 S.W.3d 359, 366 (Tex.

Crim. App. 2003) (noting that the constitutional right to a jury trial is one which

cannot be forfeited absent an express waiver). We will therefore address that

issue.

         In his fourth issue, Appellant argues that cumulating the sentences violated

his right to have a jury assess his punishment. The court of criminal appeals has

held that a trial court‘s order that jury-assessed sentences be served

consecutively does not violate a defendant‘s right to a trial by jury because it is a


         8
        Even if Appellant‘s fifth and sixth issues had been preserved, we note that
both of his issues have been thoroughly addressed by the court of criminal
appeals. In Barrow v. State, 207 S.W.3d 377, 380–82 (Tex. Crim. App. 2006),
the court of criminal appeals overruled the appellant‘s argument that his right to
due process had been violated by allowing the trial judge to decide whether to
cumulate sentences. The court stated, ―[T]he discretionary decision whether to
cumulate individual sentences no more violates due process than does the
decision, by judge or jury, of what particular sentence to impose within the
statutorily prescribed range of punishment.‖ Id. at 381. It also noted that the
decision to cumulate has been assigned by statute to the trial court, not to the
jury. Id. at 380 (―[T]he 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.‖).


                                          14
normative, discretionary function that does not turn on findings of fact. Alameda,

235 S.W.3d at 224.; Barrow, 207 S.W.3d at 380.            We therefore overrule

Appellant‘s fourth issue.

                                III. Conclusion

       Having overruled all of Appellant‘s issues, we affirm the judgment of the

trial court.


                                                  PER CURIAM

PANEL: GABRIEL, J.; LIVINGSTON, C.J.; and MEIER, J.

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

DELIVERED: September 15, 2011




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