Opinion filed May 9, 2013




                                       In The


        Eleventh Court of Appeals
                                    __________

                                 No. 11-10-00216-CR
                                     __________

            MARTIN AREVALLO-GUERRERO, Appellant

                                        V.

                     THE STATE OF TEXAS, Appellee

                    On Appeal from the 238th District Court
                           Midland County, Texas
                       Trial Court Cause No. CR 36669


                     MEMORANDUM OPINION
      The jury convicted Appellant, Martin Arevallo-Guerrero, of three counts of
indecency with a child. The jury assessed Appellant’s punishment at confinement
for twelve years and a $2,500 fine in Count One and confinement for twenty years
and a $2,500 fine in Counts Three and Four. Appellant was acquitted in Count
Two. The trial court ordered that the twenty-year sentences in the third and fourth
counts were to run concurrently with each other but consecutively to the sentence
in the first count. We affirm.
      Appellant presents four points of error on appeal. In the first point, he
challenges the sufficiency of the evidence. Appellant’s contention in his third
point is also related to the sufficiency of the evidence; he contends that his right to
due process was violated due to the lack of evidence. In his second point of error,
Appellant complains of improper bolstering by the State. In his fourth point,
Appellant complains of improper jury argument by the State.
      We review Appellant’s challenge to the sufficiency of the evidence under
the standard of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979).
Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337
S.W.3d 286, 288–89 (Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson
standard, we examine all of the evidence in the light most favorable to the verdict
and determine whether, based on that evidence and any reasonable inferences from
it, any rational trier of fact could have found the essential elements of the offense
beyond a reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d
633, 638 (Tex. Crim. App. 2010). The jury, as the trier of fact, was the sole judge
of the credibility of the witnesses and of the weight to be given to their testimony.
TEX. CODE CRIM. PROC. ANN. art. 36.13 (West 2007), art. 38.04 (West 1979). As
such, the jury was free to believe or disbelieve all or any part of any witness’s
testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).
      Appellant was convicted of three counts of indecency with a child for the
following acts: engaging in sexual contact with A.A. by touching her genitals,
engaging in sexual contact with V.A. by touching her genitals, and engaging in
sexual contact with V.A. by causing V.A. to touch Appellant’s genitals. See TEX.
PENAL CODE ANN. § 21.11 (West 2011). The record shows that A.A. and V.A.
were first cousins and that they were Appellant’s nieces by marriage. Both girls
were nine years old at the time of trial.


                                            2
      A.A. testified that Appellant touched her three times. On a picture that was
admitted into evidence as an exhibit, A.A. identified her front private area by
circling a picture of a girl’s genital area, for which A.A. had no name but said it is
the place where girls “go to the bathroom.” She referred to her private area in the
back as her “butt.” One of the incidents occurred when A.A. was at V.A.’s house
watching a movie in the living room. Appellant was sitting next to A.A. on the
couch, and they were under a blanket. She said she was eight years old at the time.
She testified, “He [Appellant] started touching me” with his hand “[i]n the part
where I’m supposed to go to the bathroom.” A.A. said that Appellant touched her
on top of her clothes that time and that it felt bad. A.A. also testified that, during
this same incident, Appellant “grabbed [A.A.’s] hand and put it on his part.” She
circled a picture of the male genitalia and explained that she had no name for it but
that males use it “[t]o go to the bathroom.” A different incident occurred at
Appellant’s house when he touched A.A.’s butt while they were in the kitchen.
A.A.’s mother and aunt were outside at the time. The third incident occurred in
V.A.’s room while A.A. was watching television. Appellant touched her butt on
top of her clothes.
      V.A. testified that Appellant touched her private parts “[l]ots of times.”
Using a picture as an exhibit, V.A. demonstrated what her two private parts were.
V.A. said that one of the spots is “[w]here you pee” and that the other is the “butt.”
V.A. recalled one incident that occurred when she was seven years old. V.A.
testified that she was at A.A.’s house watching television in the living room when
Appellant came in and sat beside her. Appellant took V.A.’s pants and underwear
off and, with his hand, touched her part where she pees. She and Appellant were
alone in the house at the time. After Appellant stopped touching V.A., Appellant
went into the restroom. She recalled another incident that occurred in Appellant’s
“truck.” Appellant took her pants and underwear off and, with his hand, touched
                                          3
her part where she pees.     Appellant also grabbed V.A.’s hand and put it on
Appellant’s “men’s part” on top of his clothes. Using a picture of a male, she
identified the male genitalia and stated that it is the spot that a male uses to pee.
V.A. said that Appellant’s son, who was much younger than V.A., was in the
“truck” too but that he was messing with the radio. V.A. said that this incident was
the only time that she had to touch Appellant where “he goes pee.” V.A. recalled
another incident when Appellant touched her butt on top of her clothes with his
hand while she and some other children were dancing in the hallway at her house.
V.A. testified that one incident occurred in the toy room at Appellant’s house. She
was hiding from Appellant, but he found her and made her come out from under
the bed. He touched her on top of her clothes with his hand; his hand was moving.
Appellant stopped when a door slammed.
      The outcry witness, V.A.’s mother, testified about A.A.’s behavior at the
time of the outcry. V.A.’s mother asked A.A. what was wrong. A.A. was upset,
crying, pulling her hair, and sucking her fingers.        A.A. said, “Tio Martin
[Appellant] has been touching me down here”; A.A. pointed to her genital area
“down between her legs.” A.A. informed V.A.’s mother that Appellant had been
touching V.A. too.     V.A. came inside, chastised A.A. for telling, and then
confirmed that Appellant had touched V.A. too. A.A. and V.A. were scared to tell
anyone about what Appellant had been doing to them. V.A.’s mother notified the
police.
      V.A.’s mother recalled that V.A.’s behavior changed after a particular
occasion when she spent the night at Appellant’s house. V.A. kept calling and
asking her mother to come get her. After that, V.A. went from being “happy all
the time” and “lovable to everybody” to being “scared of everything and
everybody.” V.A.’s mother testified that, prior to the outcry, V.A. did not want to
be near Appellant and had become reluctant to go to Appellant’s house. V.A.’s
                                         4
mother also testified that, at the family get-togethers, Appellant “always wanted to
be inside the house” where the children were, though the rest of the “adults were
always outside.”
       Appellant testified at trial and denied ever touching A.A. or V.A. As the
factfinder, the jury was free to judge the credibility of the witnesses. The jury
apparently chose to believe the testimony of A.A. and V.A. and not to believe the
testimony of Appellant. Based upon the evidence presented at trial, a rational jury
could have found beyond a reasonable doubt that Appellant committed each of the
elements of the three counts of indecency with a child for which he was convicted.
We note that “sexual contact” includes “touching through clothing.” PENAL §
21.11(c). We hold that the evidence is sufficient to support Appellant’s conviction
in all three counts. Furthermore, because the evidence is sufficient to support
Appellant’s convictions, Appellant’s right to due process was not violated by a
lack of evidence. Appellant’s first and third points of error are overruled.
      In his second point of error, Appellant complains of improper bolstering by
the State when the prosecutor asked V.A. and A.A. if everything they testified
about really happened to them. The record reflects that Appellant made no such
objection at trial. The prosecutor’s questions and the girls’ answers came in
without any objection by Appellant. A timely and specific objection is required to
preserve an issue for appellate review. TEX. R. APP. P. 33.1(a); Layton v. State,
280 S.W.3d 235, 238–39 (Tex. Crim. App. 2009). Because Appellant did not
object, he failed to preserve his complaint for our review. Appellant’s second
point of error is overruled.
      In his final point of error, Appellant complains of improper jury argument by
the prosecutor. Appellant did not object at trial to any of the allegedly improper
statements made by the prosecutor during jury arguments. Appellant contends on
appeal that no objection was necessary because the statements constitute
                                          5
fundamental error that could not have been cured by an instruction to disregard.
To support his contention, Appellant relies upon cases that were decided before
1996. In 1996, however, the Court of Criminal Appeals issued an opinion in which
it held that “a defendant’s failure to object to a jury argument or a defendant’s
failure to pursue to an adverse ruling his objection to a jury argument forfeits his
right to complain about the argument on appeal” even if the contention on appeal is
that an instruction to disregard would not have cured the erroneous jury argument.
Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). The court in
Cockrell expressly overruled any prior cases to the contrary.         Id.   Because
Appellant did not object at trial or pursue any objection to an adverse ruling in the
trial court, he has forfeited his right to complain on appeal about the allegedly
improper jury arguments. See TEX. R. APP. P. 33.1; Cockrell, 933 S.W.2d at 89.
Appellant’s fourth point of error is overruled.
      We affirm the judgments of the trial court.




                                                    JIM R. WRIGHT
                                                    CHIEF JUSTICE


May 9, 2013
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.




                                          6
