                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-07-085-CR


EUGENIO RIVERA                                                      APPELLANT

                                        V.

THE STATE OF TEXAS                                                       STATE

                                    ------------

     FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

                                    ------------

                         MEMORANDUM OPINION 1

                                    ------------

      A jury convicted Appellant Eugenio Rivera of aggravated sexual assault

of a child under the age of fourteen and indecency with a child under the age

of seventeen. The jury assessed Appellant’s punishment at confinement for life

for the aggravated sexual assault conviction and at twenty years’ confinement

for the indecency with a child conviction.         The trial court sentenced him

accordingly, ordering that the sentences be served consecutively.


      1
          … See Tex. R. App. P. 47.4.
      In five issues, Appellant complains that the State was allowed to

improperly commit the venire panel, that the trial court erred by admitting

hearsay, that the trial court committed fundamental error by not sua sponte

declaring a mistrial, and that the trial court abused its discretion by sua sponte

ordering the sentences to be served consecutively. Because we hold that the

trial court did not err, we affirm the trial court’s judgment.

      In his first issue, Appellant contends that the trial court erred by allowing

the State to improperly commit the jurors. The State asked the jurors whether

they could convict based solely on the testimony of a child if the child’s

testimony established the offense and if they believed the child beyond a

reasonable doubt or whether they would demand additional evidence. The

Texas Court of Criminal Appeals has already held that this line of questioning

is proper because it could lead to answers giving rise to a valid challenge for

cause.2 We overrule Appellant’s first issue.

      In his second issue, Appellant contends that the trial court abused its

discretion by admitting outcry evidence over his hearsay and confrontation

objections. He also argues for the first time on appeal that article 38.072 of

the code of criminal procedure should be declared unconstitutional under




      2
          … Lee v. State, 206 S.W.3d 620, 623–24 (Tex. Crim. App. 2006).

                                        2
Crawford v. Washington.3       The child complainant testified and Appellant’s

counsel cross-examined her.        Appellant therefore exercised his right of

confrontation. Additionally, because the complainant’s testimony mirrored the

outcry witness’s testimony, the admission of the outcry witness’s testimony,

even if erroneous, does not require reversal.4       Further, to the extent that

Appellant is complaining that the statute is unconstitutional as applied to him,

he has failed to preserve his complaint in the trial court. 5 Finally, to the extent

that he raises a facial challenge, the Texas Court of Criminal Appeals has

explained,

            A facial challenge to a statute is the most difficult challenge
      to mount successfully because the challenger must establish that
      no set of circumstances exists under which the statute will be
      valid. Since a statute may be valid as applied to one set of facts
      and invalid as applied to another, it is incumbent upon the
      (appellant) to show that in its operation the statute is
      unconstitutional as to him in his situation; that it may be
      unconstitutional as to others is not sufficient.

            This rule conforms with the criterion for standing to challenge
      the facial constitutionality of a statute as enunciated by the
      Supreme Court of the United States:



      3
          … 541 U.S. 36, 124 S. Ct. 1354 (2004).
      4
          … See Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998).
      5
      … See Tex. R. App. P. 33.1(a)(1); Mendez v. State, 138 S.W.3d 334,
341 (Tex. Crim. App. 2004); Mosley v. State, 983 S.W.2d 249, 265 (Tex.
Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999).

                                         3
                   A party has standing to challenge the
            constitutionality of a statute only insofar as it has an
            adverse impact on his own rights. As a general rule, if
            there is no constitutional defect in the application of
            the statute to a litigant, he does not have standing to
            argue that it would be unconstitutional if applied to
            third parties in hypothetical situations. 6

Appellant is therefore required to demonstrate that article 38.072 was

unconstitutionally applied to him. Because the child complainant testified and

was subject to cross-examination, Appellant cannot meet this requirement. We

overrule Appellant’s second issue.

      In his third issue, Appellant contends that the trial court abused its

discretion by admitting testimony of the Cook Children’s examining physician

that the complainant had told her that Appellant had touched her. He also

contends that his confrontation rights were violated and, for the first time, that

the admission of the evidence violated his due process rights. After the trial

court overruled Appellant’s objection that the evidence was hearsay and

violated the Confrontation Clause, the doctor again testified that the

complainant had told her that Appellant touched her, that the complainant had

indicated by pointing at drawings that Appellant had touched her genital area




      6
       … Santikos v. State, 836 S.W.2d 631, 633–34 (Tex. Crim. App.) (op.
on reh’g), cert. denied, 506 U.S. 999 (1992) (citations and quotations marks
omitted).

                                        4
with his hand inside her panties and that he had put his hand in her panties

from the top, and that it had happened at her aunt’s house. Appellant did not

object again. As noted above, the child complainant testified without objection

to the same facts. We therefore overrule Appellant’s third issue.7

      In his fourth issue, Appellant contends that the trial court committed

fundamental error by not sua sponte declaring a mistrial after excluding a pen

packet from evidence because the State had already read the enhancement

paragraph in open court. Appellant argues that the enhancement allegation,

which is of a felony offense of aggravated criminal sexual abuse/bodily harm

out of Illinois, affected the jury’s assessment of punishment. After excluding

the evidence, the trial court orally instructed the jury, at Appellant’s request,

not to “consider the repeat offender notice that was read . . . for any purpose.”

We generally presume the jury follows the trial court’s instructions. 8 Appellant

did nothing to preserve his complaint below 9 and has not convinced us that the




      7
      … See Tex. R. App. P. 33.1(a)(1); Mendez, 138 S.W.3d at 341; Leday,
983 S.W.2d at 718; Mosley, 983 S.W.2d at 265.
      8
          … Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998).
      9
      … See Tex. R. App. P. 33.1(a)(1); Mendez, 138 S.W.3d at 341; Mosley,
983 S.W.2d at 265.

                                       5
trial court committed any error concerning this issue, much less fundamental

error.10 We overrule Appellant’s fourth issue.

      In his fifth issue, Appellant contends that the trial court abused its

discretion by ordering that the sentences run consecutively.        As Appellant

concedes, article 42.08 of the code of criminal procedure allows stacking.11

Further, we note that section 3.03(b) of the penal code specifically provides for

stacking when a defendant is convicted of certain offenses, including those for

which Appellant was convicted, arising out of a criminal episode and

prosecuted in a single action.12

      Appellant also argues that the stacking order amounts to cruel and

unusual punishment and a denial of due process. Appellant did not raise these

challenges below.      Moreover, we note that in addition to stacking being

permissible, the sentences are each within the applicable range of punishment.13


      10
           … See Saldano v. State, 70 S.W.3d 873, 887–88 (Tex. Crim. App.
2002).
      11
           … Tex. Code Crim. Proc. Ann. art. 42.08(a) (Vernon 2006).
      12
           … Tex. Penal Code Ann. § 3.03(b) (Vernon Supp. 2008).
      13
        … See id. §§ 12.32(a), 12.33(a) (Vernon 2003) (providing range of
confinement for second and first degree felonies respectively), §§ 21.11(d),
22.021(e) (Vernon 2003 & Supp. 2008) (providing respectively that indecency
with a child by contact is a second degree felony and that aggravated sexual
assault of a child is a first degree felony); see also Jordan v. State, 495 S.W.2d
949, 952 (Tex. Crim. App. 1973) (providing general rule that punishment

                                        6
We also note that Appellant does not argue or present any evidence that the

stacking order is grossly disproportionate to the offenses. 14 Given the express

penal code provision allowing stacking for these offenses, the nature of the

offenses (Appellant was convicted of digitally penetrating a five-year-old and

causing her to touch his sexual organ while both were guests in the home of

their mutual relative),15 and the absence of evidence or argument that stacking

is an anomaly for these types of offenses, we overrule Appellant’s fifth issue.

      Having overruled Appellant’s five issues, we affirm the trial court’s

judgment.

                                                 PER CURIAM

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

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

DELIVERED: September 25, 2008




imposed within statutory limits is not excessive, cruel, or unusual); Dale v.
State, 170 S.W.3d 797, 799 (Tex. App.—Fort Worth 2005, no pet.) (same).
      14
           … Cf. Dale, 170 S.W.3d at 799–800.
      15
           … See id.

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