                                  NO. 07-10-00465-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL C

                                     MARCH 9, 2012


                          JERROD ALVARADO, APPELLANT

                                            v.

                          THE STATE OF TEXAS, APPELLEE


             FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

             NO. 2010-427,749; HONORABLE CECIL G. PURYEAR, JUDGE


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

                               MEMORANDUM OPINION


       Appellant, Jerrod Alvarado, appeals his conviction for the offense of aggravated

sexual assault,1 and sentence of imprisonment for life in the Institutional Division of the

Texas Department of Criminal Justice. We will affirm.


                                       Background


       At approximately 6:00 a.m. on March 1, 2009, Billy Vanier discovered a vehicle

on the road in an area northwest of Lubbock. After investigating, he discovered Amy


      1
          See TEX. PEN. CODE ANN. § 22.021(a) (West Supp. 2011).
Cahill asleep over the steering wheel of the vehicle. Cahill had no clothes on from the

waist down. Vanier saw that Cahill had injuries to her face. Cahill appeared to be

intoxicated. Vanier called the Lubbock Sheriff’s Office to report the incident. Once

officers arrived, Cahill was taken to the emergency room of University Medical Center in

Lubbock. Cahill was unable to remember the events that led to her being found asleep

in her vehicle and did not know how she had sustained the injuries.


       A sexual assault examination was performed on Cahill.            She had extensive

injuries across her entire body including fractures of the orbital floor and wall of her eye

and nasal bone fractures. Semen was found in Cahill’s vagina and anus. However,

Cahill could not recall having had sex with anyone. The semen that was found was

eventually matched by DNA to appellant. Appellant’s DNA was also discovered under

Cahill’s fingernails and in the front and back seats of Cahill’s vehicle.


       During the investigation of how Cahill was injured, officers became aware that

Cahill had attended a party the preceding evening. Tiffany Kibiger was the host of the

party that Cahill had attended. Kibiger remembered that Cahill had attended the party

and had been among the last to leave. However, when Cahill left the party, she was

fully clothed and in control of her body. Kibiger did not know appellant and had not

seen him at the party.


       On April 24, 2009, appellant was interviewed by Jason Stewart, an investigator

with the Lubbock Sheriff’s Office. Initially, appellant denied knowing Cahill. However,

after Stewart disclosed that DNA proved that appellant had sex with Cahill, appellant

admitted that he and Cahill had sex at the party but that it was consensual and that he

                                              2
did not injure Cahill. Appellant also indicated that he had received rides to and from the

party from two different friends, but both of these friends denied this assertion.


       Appellant was charged by indictment with aggravated sexual assault against

Cahill. At the close of the State’s case-in-chief, appellant moved for a directed verdict

on the bases that the evidence was insufficient to prove a lack of consent, and that

appellant caused Cahill’s injuries. The trial court overruled this motion. The jury found

appellant guilty of the offense of aggravated sexual assault, and the case proceeded to

punishment.


       During sentencing, the State sought to prove up an unadjudicated sexual assault

committed by appellant when he was a juvenile against a 16-year-old mentally

challenged female. A hearing was held outside the presence of the jury regarding the

admissibility of this evidence. Appellant objected on the basis that the risk of unfair

prejudice of the evidence substantially outweighed its probative value. Appellant did

briefly mention that the offense was an unadjudicated offense occurring when appellant

was a minor.     The State presented argument and case law that the evidence was

admissible under Texas Code of Criminal Procedure article 37.07, section 3. The trial

court agreed with the State’s argument, overruled appellant’s objection, but granted

appellant a running objection “to those matters.”          After hearing the punishment

evidence, the jury sentenced appellant to life imprisonment in the Texas Department of

Criminal Justice, Institutional Division.


       By three issues, appellant appeals. By his first two issues, appellant challenges

the trial court’s denial of his motion for directed verdict. Specifically, appellant’s first

                                             3
issue contends that the evidence was insufficient to show that Cahill did not consent to

penetration. Appellant’s second issue contends that the evidence was insufficient to

show that appellant caused any of Cahill’s injuries.         By his third issue, appellant

challenges the admission of evidence of the unadjudicated juvenile sexual assault

during punishment.


                   Standard of Review for Appellant’s First Two Issues


       A contention that the trial court erred in denying a motion for directed verdict is

essentially a challenge to the legal sufficiency of the evidence. Williams v. State, 937

S.W.2d 479, 482 (Tex.Crim.App. 1996). In assessing the sufficiency of the evidence,

we review all 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 offense

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App. 2010).

“[O]nly that evidence which is sufficient in character, weight, and amount to justify a

factfinder in concluding that every element of the offense has been proven beyond a

reasonable doubt is adequate to support a conviction.” Brooks, 323 S.W.3d at 917

(Cochran, J., concurring). We remain mindful that “[t]here is no higher burden of proof

in any trial, criminal or civil, and there is no higher standard of appellate review than the

standard mandated by Jackson.” Id. When reviewing all of the evidence under the

Jackson standard of review, the ultimate question is whether the jury’s finding of guilt

was a rational finding. See id. at 906–07 n.26 (discussing Judge Cochran’s dissenting

opinion in Watson v. State, 204 S.W.3d 404, 448–50 (Tex.Crim.App. 2006), as outlining

                                             4
the proper application of a single evidentiary standard of review). “[T]he reviewing court

is required to defer to the jury’s credibility and weight determinations because the jury is

the sole judge of the witnesses’ credibility and the weight to be given their testimony.”

Id. at 899.


       Appellant was charged with aggravated sexual assault. To prove appellant guilty

of the offense as indicted, the State had to prove that appellant intentionally or

knowingly caused the penetration of Cahill’s vagina without Cahill’s consent, and, in the

course of the same criminal episode, caused Cahill serious bodily injury or attempted to

cause Cahill’s death. See TEX. PEN. CODE ANN. § 22.021(a)(1)(A)(i), (2)(A)(i). By his

first issue, appellant challenges the sufficiency of the evidence to establish that he

penetrated Cahill’s vagina without her consent.         By his second issue, appellant

challenges the sufficiency of the evidence that he caused Cahill serious bodily injury.


                                         Consent


       By his first issue, appellant contends that the trial court erred in overruling his

motion for directed verdict because the evidence was insufficient to establish that Cahill

did not consent to sex with appellant. Since Cahill remains unable to remember the

critical events of that night, appellant contends that the only evidence about the sexual

encounter between appellant and Cahill is appellant’s statement that he and Cahill had

consensual sex at the party hosted by Kibiger.


       Lack of consent is an element of the offense of aggravated sexual assault as

alleged against appellant. TEX. PEN. CODE ANN. § 22.021(a)(1)(A)(i). As relevant to this

case, an action is without a person’s consent if: (a) the actor compels the person to
                                             5
submit or participate by the use of physical force or violence, (b) the actor knows the

person is unconscious or physically unable to resist, or (c) the person is unaware of the

sexual assault occurring. Id. § 22.011(b)(1), (3), (5) (West 2011).


       The evidence in this case establishes that Cahill suffered severe bodily injuries

between the hours of 2:00 a.m., when she was seen leaving the party without any

visible injuries, and 6:00 a.m., when she was discovered in her vehicle. The nature and

extent of Cahill’s injuries allow for a reasonable inference that she was forced to submit

to sexual activity by physical force and violence. Likewise, the evidence suggests that

the injuries to Cahill’s sexual organs were more likely the result of nonconsensual

sexual activity. Appellant’s contention that he had consensual sex with Cahill at the

party is refuted by evidence that Cahill did not know appellant, appellant was not seen

by anyone at the party, the bedroom in which appellant claimed he had sex with Cahill

was highly trafficked throughout the party yet none of the partygoers saw anyone having

sex in that bedroom, and no semen was found in Cahill’s panties. Additionally, neither

of appellant’s friends that he claimed gave him rides to and from the party corroborated

appellant’s attendance at the party. By contrast, the evidence established that semen

containing appellant’s DNA was found in both the front and back seats of Cahill’s

vehicle. Certainly, when all of this evidence is considered, it is not only a reasonable

inference that appellant had sex with Cahill in her vehicle rather than at the party, but it

is actually the more reasonable inference. Thus, we conclude that the evidence is

sufficient to allow a rational trier of fact to conclude that Cahill did not consent to sexual




                                              6
intercourse with appellant, but that appellant compelled Cahill to submit to sex by the

use of physical force or violence.2


       The arguments asserted by appellant to establish that Cahill consented to sexual

intercourse with appellant would require this Court to turn the applicable standard of

review on its head by indulging all reasonable inferences in opposition to the verdict.

Appellant argues that there was no evidence that “fully contradict[s] Appellant’s

statement that he had sex with [Cahill] at the party.” The evidence, as addressed

above, strongly implies that appellant and Cahill did not have sex at the party.

Appellant also points to the testimony of two of the State’s experts as indicating that

Cahill’s sexual injuries “could have related to consensual sex.” While this testimony can

be found in the record, both experts also testified that the nature of the genital injuries

sustained by Cahill would be uncommon in normal sexual intercourse.                Finally,

appellant argues that appellant’s semen that was found in Cahill’s vehicle could have

gotten there due to Cahill urinating in her car. However, to make that inference, the fact

finder would have to overlook the evidence that appellant’s semen was found on both

the front and back seats of the vehicle and that appellant’s semen could not be found on

Cahill’s panties.


       When all of the evidence is viewed in the light most favorable to the verdict, we

conclude that a rational trier of fact could have found that Cahill did not consent to




       2
        We also conclude that the evidence would allow for a reasonable inference that
Cahill was unconscious, unable to resist, and unaware that appellant was sexually
assaulting her, and that appellant was aware of Cahill’s impairment.
                                            7
penetration by appellant beyond a reasonable doubt. As such, we overrule appellant’s

first issue.


                                  Serious Bodily Injury


       By his second issue, appellant contends that the trial court erred in overruling his

motion for directed verdict because the evidence was insufficient to establish that

appellant caused Cahill serious bodily injury. Appellant points to evidence that, during

the party, Cahill came in contact with two other males that could have caused Cahill’s

bodily injuries.


       As discussed above, the evidence in this case establishes that Cahill suffered

serious bodily injuries3 between the hours of 2:00 a.m., when she was seen leaving the

party without any visible injuries, and 6:00 a.m., when she was discovered in her

vehicle.   The most logical inference from the evidence is that these injuries were

inflicted upon Cahill as a means of forcing her to submit to sexual activity. As such, the

presence of semen containing appellant’s DNA in Cahill’s vagina and anus strongly

indicate that appellant caused Cahill’s serious bodily injury in the course of committing

sexual assault. Further supporting that the sexual assault occurred in Cahill’s vehicle,

where her bodily injuries were inflicted, is the presence of appellant’s semen on both the

front and back seats of the vehicle. The evidence that appellant’s DNA was found

under Cahill’s fingernails allows for a reasonable inference that Cahill fought back

against appellant’s assault.   We conclude that the evidence is sufficient to allow a


       3
         Appellant does not contest the sufficiency of the evidence establishing that the
injuries suffered by Cahill were serious bodily injuries.
                                            8
rational trier of fact to conclude that appellant caused Cahill’s serious bodily injuries in

the course of sexually assaulting her.


       As with appellant’s first issue, appellant’s arguments in support of his second

issue would require this Court to indulge inferences in opposition to the verdict.

Appellant argues that there were two other men that had contact with Cahill at the party

and that could have caused her bodily injuries. However, Cahill was seen leaving the

party without any visible injuries. Further, the only person other than Cahill linked to her

vehicle on the night in question is appellant. Thus, it is unlikely that another person

could have caused the extent of injuries Cahill suffered without leaving DNA evidence

on her body or in her vehicle. Appellant also argues that Cahill’s injuries could have

been the result of falling due to her extreme intoxication. In order for Cahill to have

sustained the injuries as the result of falling down, she would have had to have

repeatedly fallen with at least one such fall causing fractures of her orbital floor and wall

and nasal bone. While this is arguably possible, the more likely inference to draw from

the serious bodily injuries suffered by Cahill is that she was extensively and severely

beaten.


       When all of the evidence is viewed in the light most favorable to the verdict, we

conclude that a rational trier of fact could have found that appellant caused serious

bodily injuries to Cahill in the course of committing sexual assault beyond a reasonable

doubt. As such, we overrule appellant’s second issue.




                                             9
                            Unadjudicated Juvenile Offense


      By his third issue, appellant contends that the trial court abused its discretion by

admitting evidence during sentencing of an unadjudicated sexual assault offense that

appellant committed when he was a juvenile. In his brief, appellant contends that the

trial court incorrectly construed Texas Code of Criminal Procedure article 37.07, section

3(a)(1), as allowing the admission of evidence of unadjudicated juvenile offenses during

the punishment phase of trial. See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1)

(West Supp. 2011).


      Initially, a fair reading of appellant’s trial objection to this evidence was based on

the probative value of the evidence being substantially outweighed by the danger of

unfair prejudice.   Such an objection does not comport with an appellate argument

regarding the proper statutory construction of article 37.07. See Heidelberg v. State,

144 S.W.3d 535, 537 (Tex.Crim.App. 2004) (when trial objection does not comport with

issue raised on appeal, the appellate issue has not been preserved for our review).

However, based on the State’s argument and the authority presented by it as well as

the trial court’s statements immediately preceding its granting of a running objection to

appellant, we conclude that the trial court was aware of appellant’s complaint regarding

the construction of article 37.07, and granted appellant a running objection on that

basis. See TEX. R. APP. P. 33.1(a)(1)(A).


      However, even if properly preserved, appellant’s third issue has been decided

against him by the Texas courts. Addressing the specific argument raised by appellant

in this issue, the Eastland and the Texarkana courts have rejected the construction of

                                            10
article 37.07, section 3(a)(1), advanced by appellant. See Strasser v. State, 81 S.W.3d

468, 470 (Tex.App.—Eastland 2002, pet. ref’d); Rodriguez v. State, 975 S.W.2d 667,

687 (Tex.App.—Texarkana 1998, pet. ref’d). We agree with our sister courts that article

37.07, section 3(a), allows evidence of an unadjudicated juvenile offense to be admitted

so long as it is relevant and shown beyond a reasonable doubt that it was the defendant

that committed the offense. See TEX. CRIM. PROC. CODE ANN. art. 37.07, § 3(a)(1);

Strasser, 81 S.W.3d at 469; Rodriguez, 975 S.W.2d at 687; see also McMillan v. State,

926 S.W.2d 809, 813 (Tex.App.—Eastland 1996, pet. ref’d).           Appellant does not

challenge the sufficiency of the evidence to establish that he committed the

unadjudicated sexual assault of which he complains.


        Consequently, we overrule appellant’s third issue.


                                       Conclusion


        Having overruled each of appellant’s three issues, we affirm the judgment of the

trial court.




                                                       Mackey K. Hancock
                                                            Justice

Do not publish.




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