                                 NO. 07-10-0290-CR

                           IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                   AT AMARILLO

                                      PANEL B

                               FEBRUARY 16, 2011
                         _____________________________


                                   JOSE ALONZO,

                                                               Appellant
                                          v.

                               THE STATE OF TEXAS,

                                                               Appellee
                         _____________________________

           FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY;

           NO. 1152331D; HONORABLE RUBEN GONZALEZ, PRESIDING
                       _____________________________

                              Memorandum Opinion
                         _____________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

      Jose Alonzo was convicted, after a plea of guilty, of possessing, with intent to

deliver, cocaine in an amount of four grams or more but less than 200 grams.

Thereafter, he was sentenced to twenty years in prison. He claims on appeal that the

trial court abused its discretion in considering a prior sexual assault when assessing

punishment because the State failed to prove, beyond reasonable doubt, that the act
occurred and it was attributable to appellant. We overrule the issue and affirm the

judgment.

      Evidence may be offered at the punishment phase as to any matter the court

deems relevant to sentencing including the prior criminal record of the defendant, his

general reputation, his character, and any other evidence of an extraneous crime or bad

act that is shown beyond a reasonable doubt to have been committed by the defendant

regardless of whether he has previously been charged with or finally convicted of the

crime or act. TEX. CODE CRIM. PROC. ANN. art. 37.07 §3(a)(1) (Vernon Supp. 2010).

This same rule applies when the trial court, as opposed to a jury, determines

punishment. Smith v. State, 292 S.W.3d 36, 42-43 (Tex. App.–Houston [14th Dist.]

2006), aff’d, 227 S.W.3d 753 (Tex. Crim. App. 2007).

      The prior sexual assault in question involved the sexual assault of a child. A

grand jury no billed him of the charge in 2008. Appellant now contends that it was not

shown beyond a reasonable doubt that he committed an offense.

       Here, appellant testified at the punishment hearing about the prior assault.

Furthermore, the trial court received into evidence a statement he had made to police.

That evidence illustrated that appellant had touched the vagina and grabbed the breasts

of a naked girl whom he later learned was under seventeen years of age. Furthermore,

he not only knew she had been drinking alcohol at the time, but also was willing to have

sex with her. Such is ample evidence for a trier of fact to determine that appellant

committed the bad act in question. And, though appellant argues that the trial court

made no express finding to that effect, he cites us to no authority indicating that such a

finding was necessary. But, even if it was, we note the trial court’s comment, when



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pronouncing sentence: “. . . Now, for whatever reason it was no-billed, the matter

before the Court is that that is still a criminal act, wouldn’t you say?” That utterance

certainly implies that the trial court found appellant’s conduct to be a bad act worthy of

consideration when assessing punishment. Thus, we find no error. See Young v.

State, 283 S.W.3d 854, 876-77 (Tex. Crim. App.), cert. denied, ___ U.S. ___, 130 S.Ct.

1015, 175 L.Ed.2d 622 (2009) (holding that the defendant’s out-of-court admission that

he committed the act along with his possession of a gun and forensic evidence was

sufficient to prove the bad act was attributable to appellant beyond reasonable doubt).

      Accordingly, we overrule appellant’s issue and affirm the judgment.



                                                Brian Quinn
                                                Chief Justice

Do not publish.




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