                                            COURT OF APPEALS
                                         EIGHTH DISTRICT OF TEXAS
                                              EL PASO, TEXAS

                                                            §
    LUIMAR APONTE RODRIGUEZ,                                §      No. 08-13-00240-CR
    A/K/A LUIMAR APONTERODRIGUEZ
                                                            §         Appeal from the
                                      Appellant,
                                                            §   372nd Judicial District Court
    v.
                                                            §    of Tarrant County, Texas
    THE STATE OF TEXAS,
                                                            §        (TC# 1303976D)
                                      Appellee.
                                                            §

                                                     OPINION

           Luimar Aponte Rodriguez a/k/a Luimar AponteRodriguez appeals his conviction and

sentence for aggravated sexual assault of a child younger than 14 years’ of age. In two issues, he

challenges the sufficiency of the evidence supporting his conviction and the propriety and severity

of his sentence. We affirm.

                                FACTUAL AND PROCEDURAL BACKGROUND

           Rodriguez was indicted for sexually assaulting A.S. by placing his mouth on A.S.’s penis.

At trial, A.S. testified that when he was six years old, Rodriguez licked his “tee-tee” or

“Pinga”—A.S.’s terms for his penis—on more than one occasion.1 The testimony of the other


1
    A.S. was seven years’ old when he testified at trial.
State’s witnesses—A.S.’s grandmother and mother, the sexual assault nurse examiner, the

investigating detective, and the forensic interviewer—was consistent with A.S.’s account of the

incident.

       A.S.’s grandmother, the outcry witness, related that A.S. revealed to her that Rodriguez

“put his pinga in his mouth and began to suck on it.” A.S.’s mother recounted that A.S.’s “exact

words” to her when describing the incident “were that he put his mouth on his private parts and that

‘he pumped it with his hand.’” The sexual assault nurse examiner testified that A.S. told her that

“My brother’s dad, Luis, put his mouth on my pinga.” Although the nurse acknowledged that

A.S. denied being fondled and having his penis licked, she reiterated that A.S. told her Rodriguez

put his mouth on A.S.’s penis. The investigating detective likewise acknowledged that there were

apparent discrepancies in the various accounts of the incident. However, she believed that the

alleged discrepancies among the various accounts of the incident were inconsequential and did not

undermine the veracity of A.S.’s accusation. Notably, she opined it was irrelevant “if a little boy

first states that someone has their mouth on their penis and then they say, well, no, they sucked it

and then they say, well, no, they licked it . . .” because Rodriguez would have had to place his

mouth on A.S.’s penis to perform any of those acts. The forensic interviewer testified that A.S.

told her that Rodriguez put his hand and mouth on A.S.’s “pinga.”

       In his opening statement following the close of evidence, defense counsel argued to the

jury that the State had not proved its case because no one knew with certainty what really occurred

given the cursory investigation and the litany of inconsistencies and unanswered questions.

Defense counsel re-emphasized these points to the jury during his closing arguments.              In

particular, he directed the jury’s attention to the inconsistencies among the various accounts of the


                                                 2
incident. Defense counsel also suggested that A.S.’s grandmother had fabricated the incident to

gain custody of A.S.

           The jury was not convinced by defense counsel’s arguments and found Rodriguez guilty.

The trial court released the jury and held a hearing on punishment.2 At the hearing, the State

reoffered all of its evidence, and defense counsel called Rodriguez’s brother-in-law as a character

witness. After considering the evidence and the parties’ arguments, the trial court assessed

punishment at twenty-five years’ imprisonment.

                                         SUFFICIENCY OF THE EVIDENCE

           In his first issue, Rodriguez argues the evidence is insufficient to sustain his conviction.

We disagree.

                                                 Standard of Review

           The legal sufficiency standard articulated in Jackson v. Virginia, 443 U.S. 307, 319, 99

S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979), is the only standard a reviewing court applies in

determining whether the evidence is sufficient to support a conviction. Brooks v. State, 323

S.W.3d 893, 894-95 (Tex.Crim.App. 2010). When reviewing the sufficiency of the evidence to

support a criminal conviction, we view the evidence in the light most favorable to the verdict to

determine whether, based on that evidence and reasonable inferences therefrom, a rational juror

could have found the essential elements of the offense beyond a reasonable doubt. Hooper v.

State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007), quoting Jackson, 443 U.S. at 318-19, 99 S.Ct. at

2788-89.

           Under a legal sufficiency review, we may not substitute our judgment for that of the jurors,

who are the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given
2
    Before trial, Rodriguez elected to have the trial court assess punishment.
                                                             3
to the evidence. Williams v. State, 235 S.W.3d 742, 750 (Tex.Crim.App. 2007). We therefore

defer to the jurors’ resolution of these issues and to their responsibility to draw reasonable

inferences from basic facts to ultimate facts. Hooper, 214 S.W.3d at 13, citing Jackson, 443 U.S.

at 318-19, 99 S.Ct. at 2788-89. In resolving what the facts are and what reasonable inferences

may be drawn from them, the jurors may accept one version of the facts and reject another, and

they may reject any part of a witness’s testimony, even if uncontradicted. See Margraves v. State,

34 S.W.3d 912, 919 (Tex.Crim.App. 2000), overruled on other grounds, Laster v. State, 275

S.W.3d 512 (Tex.Crim.App. 2009); Henderson v. State, 29 S.W.3d 616, 623 (Tex.App.--Houston

[1st Dist.] 2000, pet. ref’d).

                                          Applicable Law

        A person commits the offense of aggravated sexual assault of a child if, inter alia, the

person “intentionally or knowingly . . . causes the sexual organ of another person, without that

person’s consent, to contact or penetrate the mouth, anus, or sexual organ of another person,

including the actor” and “the victim is younger than 14 years of age.” TEX. PENAL CODE ANN.

§§ 22.021(a)(1)(B)(iii), (a)(2)(B)(West Supp. 2014).

                                            Discussion

        When viewed in the light most favorable to the verdict, the evidence is sufficient to support

the jury’s finding that Rodriguez sexually assaulted A.S. by placing his mouth on A.S.’s penis.

The evidence detailed above establishes that A.S. was younger than fourteen years’ of age when

the incident occurred, and Rodriguez does not claim otherwise on appeal. This same evidence

also establishes that Rodriguez “intentionally or knowingly . . . cause[d] the sexual organ of

another person, without that person’s consent, to contact or penetrate the mouth, anus, or sexual


                                                 4
organ of another person, including the actor.” A.S. testified that Rodriguez licked his penis, and

the testimony of the other State’s witnesses comports with A.S.’s testimony that Rodriguez placed

his mouth on A.S.’s penis. The testimony of a child victim alone is sufficient to support a

conviction for aggravated sexual assault. Tear v. State, 74 S.W.3d 555, 560 (Tex.App.--Dallas

2002, pet. ref’d).

        Rodriguez contends—in three sentences in his brief—that the evidence is insufficient to

support his conviction for the following reasons:

               The Appellant would show the Court that the child’s testimony is suspect at
        best. The Appellant had no opportunity to abuse the child. Mr. Rodriguez has
        always maintained his innocence and the evidence was legally insufficient to
        convict him of Aggravated Sexual Assault of a Child Under Fourteen.

In essence, Rodriguez is assailing the credibility of A.S.’s testimony and the notion that he

committed the offense. But reconciling conflicts in the evidence is within the exclusive province

of the jury, and we may not substitute our judgment for that of the jurors. See Williams, 235

S.W.3d at 750; Hooper, 214 S.W.3d at 13. Moreover, a child victim is not expected or required to

“testify with the same clarity and ability as is expected of mature and capable adults.” Villalon v.

State, 791 S.W.2d 130, 134 (Tex.Crim.App. 1990). The jurors observed A.S. as well as the other

witnesses, and by finding Rodriguez guilty beyond a reasonable doubt, they necessarily resolved

the veracity or motives of the State’s witnesses, including A.S., in providing their testimony. The

inescapable conclusion is that the jurors chose to believe the witnesses’ testimony despite defense

counsel’s efforts to show its impossible or incredible nature.

        Rodriguez’s first issue is overruled.

                              PROPRIETY OF THE SENTENCE

        In his second issue, Rodriguez contends his sentence, though within the range prescribed

                                                 5
by statute,3 constitutes cruel and unusual punishment under both the United States and Texas

Constitutions because it is grossly disproportionate to his crime.                The State counters that

Rodriguez failed to preserve his complaint for appellate review because he did not raise it in the

trial court. We agree.

                                              Applicable Law

        To preserve error relating to the propriety and severity of punishment, including that the

sentence imposed constitutes cruel and unusual punishment, a defendant must object to his

sentence in the trial court.        See Mercado v. State, 718 S.W.2d 291, 296 (Tex.Crim.App.

1986)(“As a general rule, an appellant may not assert error pertaining to his sentence or

punishment where he failed to object or otherwise raise such error in the trial court.”); Rhoades v.

State, 934 S.W.2d 113, 120 (Tex.Crim.App. 1996)(concluding appellant failed to preserve

challenge to sentence under state constitution’s protection against cruel and unusual punishment

because he did not object in trial court); Curry v. State, 910 S.W.2d 490, 497 (Tex.Crim.App.

1995)(concluding appellant failed to preserve challenge to sentence under federal constitution’s

protection against cruel and unusual punishment because he did not object in trial court);

Rodriguez v. State, 917 S.W.2d 90, 92 (Tex.App.--Amarillo 1996, pet. ref’d)(“[N]othing is

preserved for review because appellant failed to raise the severity of his sentence when

punishment was assessed or in a new trial motion.”).

                                                 Discussion

        Here, Rodriguez failed to object to the propriety and severity of his twenty-five-year prison


3
  See TEX. PENAL CODE ANN. § 22.021(e)(West Supp. 2014)(aggravated sexual assault of a child younger than
fourteen years is a first-degree felony) and TEX. PENAL CODE ANN. § 12.32 (West 2011)(punishment range for
first-degree felony is 5 to 99 years or life in prison and a fine not to exceed $10,000).

                                                       6
sentence in the trial court. By failing to do so, he has forfeited appellate review of his complaint.4

At punishment, Rodriguez did not object to the imposition of his sentence or its length. When

asked by the trial court if there was any legal reason why sentence could not be imposed then and

there, Rodriguez’s trial counsel responded that there was none.           Indeed, after pronouncing

sentence and explaining its reasoning, the trial court asked the parties if there was “anything else

either side needs to address for the record.” Both parties answered that they had “[n]othing . . . .”

And there is nothing in the record indicating that Rodriguez raised his appellate complaint in a

post-judgment motion.

           Rodriguez’s second issue is overruled.

                                                 CONCLUSION

           The trial court’s judgment is affirmed.



February 4, 2015
                                                       YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.

(Do Not Publish)




4
    Rodriguez does not address the issue of waiver on appeal.
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