                             NUMBER 13-08-00601-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


GERARDO VILLARREAL A/K/A
JERRY VILLARREAL,                                                               Appellant,

                                             v.

THE STATE OF TEXAS,                                                              Appellee.


                   On appeal from the 214th District Court
                         of Nueces County, Texas.


                          MEMORANDUM OPINION
              Before Justices Rodriguez, Benavides, and Vela
               Memorandum Opinion by Justice Benavides

       Appellant, Gerardo Villarreal a/k/a Jerry Villarreal, appeals from his conviction after

a jury trial on three counts: aggravated sexual assault of a child (counts one and two); and

indecency with a child by contact (count three). See TEX . PENAL CODE ANN . §§ 21.11

(Vernon Supp. 2009) (indecency with a child by contact), 22.021 (Vernon Supp. 2009)

(aggravated sexual assault of a child). The jury assessed punishment as follows: (1) on
counts one and two, forty-five years’ confinement in the Texas Department of Criminal

Justice—Institutional Division (“TDCJ–ID”), for each offense; and (2) on count three, twenty

years’ confinement in TDCJID. The trial court ordered the sentences to run consecutively.

See id. § 3.03(b)(2) (Vernon Supp. 2009); TEX . CODE CRIM . PROC . ANN . art. 42.08(a)

(Vernon Supp. 2009). Villarreal raises two issues on appeal: (1) the trial court abused its

discretion and violated his constitutional rights to due process and to confrontation of

witnesses by admitting the victim’s videotaped interview; and (2) the trial court erred by not

instructing the jury regarding the trial court’s authority to order the sentences to run

concurrently or consecutively. We affirm.

                                              I. BACKGROUND 1

        Dinora Rubio, Villarreal’s wife at the time the underlying events occurred, was

approached by their son, J.V., who informed her that their daughter, A.V., had “made out”

with Villarreal. Rubio questioned A.V. about the incidents and learned that, in the “old

days” when Rubio worked nights, Villarreal had had sex with A.V. and had touched her

inappropriately. Before reporting the allegations to either Child Protective Services (“CPS”)

or to the police, Rubio took A.V. to see a counselor, Sally Guerra. After meeting with A.V.

twice, Guerra informed Rubio that she needed to contact CPS regarding the incidents.

        Stephanie Diaz, the “investigator supervisor of the sexual abuse unit” for CPS,

testified that a former CPS employee took both A.V. and J.V. to the Nueces County

Children’s Advocacy Center (“Advocacy Center”). At the Advocacy Center, A.V. met with

Ricardo Jimenez, the lead forensic examiner. Jimenez testified that he recorded his one-

on-one interview with A.V. Over Villarreal’s objection, the DVD recording was played to the



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            Because this is a m em orandum opinion and the parties are fam iliar with the facts, we will not recite
them here except as necessary to advise the parties of the Court’s decisions and the basic reasons for it. See
T EX . R. A PP . P. 47.4.
                                                        2
jury.

         At trial, A.V. testified that Villarreal had penetrated her sexual organ with his sexual

organ on multiple occasions when she was four and five years old.2 She also testified that

Villarreal had touched her “privates” with his hand and that he had touched her “butt” with

his “privates.”

         The jury found Villarreal guilty on all three counts and then sentenced him to forty-

five years on counts one and two and twenty years on count three. The trial court ordered

the three sentences to run consecutively. This appeal ensued.

                     II. DUE PROCESS AND CONFRONTATION OF WITNESSES

         In his first issue, Villarreal argues that the trial court abused its discretion when it

admitted the videotaped interview of A.V., resulting in a violation of his due process and

confrontation clause rights. The State contends that Villarreal waived this issue. We

agree.

         To properly preserve error for appellate review, the appealing party must make a

timely, specific objection to the trial court. See TEX . R. APP. P. 33.1. Even constitutional

error may be waived. See Holland v. State, 802 S.W.2d 696, 700 (Tex. Crim. App. 1991)

(en banc).

         When the State sought to admit A.V.’s videotaped interview during Jimenez’s

testimony, Villarreal objected on three grounds: (1) Jimenez was not the proper outcry

witness; (2) hearsay; and (3) improper bolstering. The trial court overruled all three

objections. Villarreal does not direct us to, nor are we able to locate, any place in the

record where he objected to the admission of the videotaped interview on either due

process or confrontation grounds. Therefore, we conclude that he failed to preserve this


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           A.V. used the term s “cookies” and “privates” to refer to her fem ale sexual organ and the term s
“privates,” “wee wee,” “huevos,” and “huevitos” to refer to Villarreal’s m ale sexual organ.
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issue for our review. See id. at 699-700 (holding that to preserve error when the State

offers “an out-of-court statement of a child witness pursuant to [code of criminal procedure

art.] 38.072 . . . , it is incumbent upon the accused to object on the basis of confrontation

and/or due process and due course of law”). Villarreal’s first issue is overruled.

                                  III. JURY CHARGE ERROR

       In his second issue, Villarreal asserts that the trial court erred by not instructing the

jury regarding the trial court’s discretion to run any sentences imposed concurrently or

consecutively. See TEX . PENAL CODE ANN . § 3.03(b)(2); TEX . CODE CRIM . PROC . ANN . art.

42.08(a). On appeal, Villarreal’s entire argument on this point is as follows:

       The egregious consequences are caused by [the] failure of the [trial court]
       to inform the jury that he had the power to run offenses consecutively. In the
       case at bar, [the trial court] sentenced the Defendant on the three separate
       counts in the indictment and found that these sentences run consecutive to
       one another. We [appellate counsel] examined the record to determine
       whether the lack of instruction constituted egregious error. The [trial court]
       failed to instruct the jury about a consecutive term of punishment.

       When reviewing unobjected-to jury charge error, we must first determine whether

the charge was erroneous. See Tolbert v. State, 306 S.W.3d 776, 779 (Tex. Crim. App.

2010); see also Reyes v. State, No. 13-09-00134-CR, 2010 WL 1254543, at *7 (Tex.

App.–Corpus Christi Apr. 1, 2010, no pet. h.) (mem. op., not designated for publication).

If we determine that error occurred, we then consider whether the unobjected-to error

caused egregious harm. See Tolbert, 306 S.W.3d at 779 (citing Almanza v. State, 686

S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g). We conclude that no error

occurred.

       In cases such as the present one, it would be “improper for the trial court to instruct

the jury on the consecutive sentencing law or to inform it of the effect such law might have




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on how long [Villarreal] might serve.”        Clay v. State, 102 S.W.3d 794, 798 (Tex.

App.–Texarkana 2003, no pet.) (citing Levy v. State, 860 S.W.2d 211, 213 (Tex.

App.–Texarkana 1993, pet. ref'd) (“In the absence of specific constitutional or statutory

authority to do so, the court should not instruct the jury as to the effect of the parole laws

or how long a defendant will be required to actually serve under a given sentence.”)); see

Stewart v. State, 221 S.W.3d 306, 316 (Tex. App.–Fort Worth 2007, no pet.); see also TEX .

PENAL CODE ANN . § 3.03(b)(2) (noting that the trial court has discretion whether to order

sentences to run consecutively or concurrently); TEX . CODE CRIM . PROC . ANN . art. 42.08(a)

(same); Helgerson v. State, No. 13-07-00359-CR, 2008 WL 5179734, at *3 (Tex.

App.–Corpus Christi Aug. 28, 2008, pet. ref’d) (mem. op., not designated for publication)

(“We hold that because the legislature has charged the trial court[—]not the jury[—]with the

determination of whether to cumulate sentences, the trial court did not err in denying

appellant's request to discuss the cumulative sentencing statute with the jury panel on voir

dire.”) (citing Estrada v. State, Nos. 05-06-00394-CR, 05-06-00395-CR, 2007 Tex. App.

LEXIS 3892, at *9 (Tex. App.–Dallas May 18, 2007, no pet.) (not designated for

publication) (“Whether multiple sentences run concurrently or consecutively is a matter left

to the trial court's discretion. It is not a matter for the jury to decide. Accordingly, we

conclude it is not a matter that the trial court was required to submit to the jury.”) (citations

omitted)); Camacho v. State, No. 04-06-00713-CR, 2007 WL 3270766, at *5 (Tex.

App.–San Antonio Nov. 7, 2007, no pet.) (mem. op., not designated for publication)

(affirming, as a correct statement of the law, the trial court’s instruction which “specifically

directed the jury not to consider whether Camacho’s sentences would be served

consecutively or concurrently, as that was a matter to be determined by the court”)




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(emphasis in original); Manzano v. State, No. 10-04-00323-CR, 2006 WL 348463, at *4

(Tex. App.–Waco Feb. 15, 2006, pet. ref’d) (not designated for publication) (“We hold that

due process does not require that the jury be given information about the trial court's ability

to cumulate sentences or order them to run concurrently.”); Peterson v. State, Nos. 01-02-

00603-CR, 01-02-00604-CR, 2003 WL 22681607, at *5 (Tex. App.–Houston [1st Dist.]

Nov. 13, 2003, pet. ref’d) (mem. op., not designated for publication) (finding no error when

the trial court did not provide an instruction on stacking after the jury queried whether the

sentences would run consecutively). Therefore, because it would have been improper for

the trial court to have provided such an instruction, we conclude that the trial court did not

err by failing to do so. We overrule Villarreal’s second issue.

                                      IV. CONCLUSION

        Having overruled both of Villarreal’s appellate issues, we affirm the judgment of the

trial court.


                                                          ________________________
                                                          GINA M. BENAVIDES,
                                                          Justice

Do Not Publish.
TEX . R. APP. P. 47.2(b)

Delivered and filed the
29th day of June, 2010.




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