                           NUMBER 13-13-00470-CR

                           COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

MICHAEL GENE ELLIOTT,                                                     Appellant,

                                          v.

THE STATE OF TEXAS,                                                        Appellee.


                   On appeal from the 105th District Court
                         of Kleberg County, Texas.


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

      Appellant Michael Gene Elliott appeals his conviction for two counts of sexual

assault, both second-degree felonies.   See TEX. PENAL CODE ANN. § 22.011 (West,

Westlaw through 2013 3d C.S.). By two issues, Elliott contends that (1) the evidence is

insufficient to support his convictions; and (2) the trial court’s punishment was
disproportionate and in violation of his federal constitutional rights. We affirm.

                                          I.      BACKGROUND

        A Kleberg County grand jury indicted Elliott for three counts of sexual assault. 1

See id.    Elliott pleaded not guilty to each count and was tried before a jury.               The record

reveals the following:

        On June 9, 2012, Kingsville police officers were called to the Casa de Paz

apartment complex in reference to an alleged sexual assault. Testimony revealed that

Casa de Paz is a complex in Kingsville whose residents suffer from mental illnesses

such as bipolar disorder, schizophrenia, and depression.                 Police met with one of Casa

de Paz’s residents, Dale Houseburg, who reported the crime.

        Houseburg testified that he was sexually assaulted by Elliott inside of

Houseburg’s apartment and again later at Elliott’s home in the presence of a third

individual, Mary Helme.        Houseburg stated that Elliott was an acquaintance and that he

did not consider Elliott a close friend.         Houseburg also knew Helme, who was a fellow

resident of Casa de Paz, and considered her a “friend.” According to Houseburg, on

June 8, 2012, he took out the trash from his apartment, when he encountered Elliott and

Helme near the complex’s dumpster. Houseburg stated that Elliott told him that he

“wanted to talk to [him] in [his] apartment.” Houseburg agreed and allowed Elliott into

his apartment, while Helme stayed outside.




        1 Specifically, the State alleged: in count one that Elliott “intentionally or knowingly cause[d] the

penetration of the anus of [Houseburg], by Elliott’s sexual organ, without the consent of [Houseburg]”; in
count two that Elliott “intentionally or knowingly cause[d] the penetration of the anus of [Houseburg] by a
rubber penis”; and in count three, that Elliott “intentionally or knowingly cause[d] the penetration of the
mouth of [Houseburg] by Elliott’s sexual organ, without the consent of [Houseburg].”

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       Once inside Houseburg’s apartment, Elliott told Houseburg to take off his clothes

and said that he was “going to punish” Houseburg.           According to Houseburg, Elliott

removed his pants and underwear and instructed Houseburg to “go down on his penis.”

Houseburg testified that he did not want to perform the sexual act, but felt as if he had no

other alternative, so he complied with Houseburg’s instruction.      Houseburg testified that

he was “worried about [Elliott] . . . . [b]ecause [he] didn’t know if [Elliott] had a weapon on

him or not.” After Houseburg performed oral sex on Elliott, Elliott then inserted his penis

inside of Houseburg’s anus.       Houseburg testified that the action “hurt,” and that he

“didn’t like it.” After Elliott finished, he instructed Houseburg to put his clothes back on

and accompany Elliott to his house, which was off the premises of Casa de Paz.

Houseburg complied and rode in Elliott’s truck to Elliott’s home with Elliott and Helme,

who had rejoined them.

       Houseburg testified that he left with Elliott “because he asked me to.”

Houseburg added that he thought he could not refuse because he thought Elliott “would

be mad.”    More specifically, Houseburg testified that he thought by refusing, Elliott

would have caused him “bodily harm” through “physical violence.”               After entering

Elliott’s home, Houseburg took a shower “because [he] was dirty” and because Elliott

told him to take one. After the shower, Elliott instructed “everybody [to] get in the bed,”

including Helme.     Houseburg again testified that he did not want to follow Elliott’s

instructions, but Elliott had a knife, and Houseburg was worried that Elliott would hurt

him, after Elliott told him that “he could have [taken] [Houseburg] out on the back road,” if

he did not follow Elliott’s instructions. According to Houseburg, once in the bed, Elliott

stuck his penis inside of Houseburg’s mouth and then, again, inside of his anus. Later,


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Elliott hit Houseburg with a belt.          Houseburg admitted that he did not tell Elliott to stop

because he was “too scared.” Houseburg also stated that at some point in the evening,

Elliott stuck a rubber penis inside of Houseburg’s anus, without his permission. During

cross-examination, Houseburg admitted to having sex with Helme.                            After the sexual

encounter, Houseburg spent the night at Elliott’s home with Elliott and Helme. The next

morning, Elliott drove Houseburg and Helme back to the Casa de Paz.                          At the Casa de

Paz, Houseburg approached Mireya Cantu, the complex’s manager.                                Cantu testified

that Houseburg appeared “scared” and appeared to be crying on June 9, 2012.                               After

Houseburg relayed to Cantu what had happened, Cantu called the police.                                   Cantu

compared Houseburg’s personality to that of a child and testified that he normally stayed

in his apartment “drinking coffee and smoking.”

       Helme testified that she has known Houseburg for eight years and considered him

a friend.     Helme also testified that Elliott was her boyfriend and that the two had a

sexual relationship. When asked about her understanding of why she was called to

testify, Helme stated, “Dale Houseburg was abused by [Elliott] sexually.”                               Helme

acknowledged that she, Elliott, and Houseburg engaged in group sex on June 8, 2012,

but also stated that Houseburg was “very shook up” the next day.                      According to Helme,

Houseburg insulted her prior to June 8, 2012 by calling her “ugly” and “fat” in front of the

other neighbors at Casa de Paz.                  Helme testified that when Elliott learned about

Houseburg insulting Helme, Elliott confronted Houseburg, told him to “get in the blanking

truck”2 and asked Helme to join them.                 According to Helme, once at the apartment,

Elliott had sex with Houseburg and then tried to force Helme and Houseburg to have sex,

       2   Helme testified that Elliott did not actually use the word “blanking,” but instead, used the “F word.”


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but they both declined. Helme testified that Elliott later “swatted” Houseburg with a belt.

Helme stated that she and Elliott would “play” with the belt in the past, but that he never

hurt her. Elliott did not testify.

        At the close of the State’s case-in-chief, Elliott’s counsel filed a motion for

acquittal with regard to count two for failure to state an essential element of the

crime—that is, count two did not allege that the act was done without Houseburg’s

consent—and a motion for directed verdict as to the remaining counts.                      The trial court

granted Elliott’s motion for acquittal as to count two, but denied the motion for directed

verdict on counts one and three. The jury found Elliott guilty of counts one and three.

After the punishment phase of trial, the trial court sentenced Elliott to two terms of eight

years’ imprisonment with the Texas Department of Criminal Justice—Institutional

Division, with both terms to run concurrent. This appeal followed.

                                   II.     SUFFICIENCY CHALLENGE

        By his first issue, Elliott challenges the sufficiency of evidence to support his

convictions.3

A.      Standard of Review and Applicable Law

        In reviewing the sufficiency of the evidence to support a conviction, we consider

all of the evidence in the light most favorable to the verdict and determine whether,

based on that evidence and reasonable inferences therefrom, a rational fact finder could

        3  We note that Elliott challenges the factual and legal sufficiency of the evidence supporting his
conviction. The Texas Court of Criminal Appeals has held that there is “no meaningful distinction between
the Jackson v. Virginia legal sufficiency standard and the Clewis factual-sufficiency standard” and that the
Jackson standard “is the only standard that a reviewing court should apply in determining whether the
evidence is sufficient to support each element of a criminal offense that the State is required to prove
beyond a reasonable doubt.” Brooks v. State, 323 S.W.3d 893, 902–03, 912 (Tex. Crim. App. 2010)
(plurality op.) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Accordingly, we will review Elliott’s
claims of evidentiary sufficiency under a “rigorous and proper application” of the Jackson standard of
review. See id. at 906–07, 912.

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have found the essential elements of the crime beyond a reasonable doubt.           Winfrey v.

State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013); Gear v. State, 340 S.W.3d 743, 746

(Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 318–19 (1979)); see

Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.). In viewing

the evidence in the light most favorable to the verdict, we 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 to their testimony.          Brooks, 323 S.W.3d at 899.        It is

unnecessary for every fact to point directly and independently to the guilt of the accused;

it is enough if the finding of guilty is warranted by the cumulative force of all incriminating

evidence. Winfrey, 393 S.W.3d at 768 (citations omitted).

         The elements of the offense are measured as defined by a hypothetically correct

jury charge.      Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009) (citing

Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)).       Such a charge is one that

accurately sets out the law, is authorized by the indictment, does not unnecessarily

increase the State's burden of proof or unnecessarily restrict the State's theories of

liability, and adequately describes the particular offense for which the defendant was

tried.   Id.    Under a hypothetically correct jury charge, as authorized by the indictment in

this case, Elliott is guilty of sexual assault under count one if he:         intentionally or

knowingly caused the penetration of Houseburg’s anus or sexual organ with Elliott’s

sexual organ         without Houseburg’s consent, see TEX. PENAL CODE ANN. §

22.011(a)(1)(A); and Elliott is guilty of sexual assault under count three if he:      caused

the penetration of Houseburg’s mouth by Elliott’s sexual organ without Houseburg’s

consent.       See id. § 22.011(a)(1)(C).


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B.     Discussion

       Elliott argues that the evidence is insufficient to show that he committed the

alleged acts without Houseburg’s consent. We disagree. While the record shows that

Houseburg never expressly told Elliott that he did not consent to having Elliott penetrate

his mouth or anus, Houseburg testified that during the sexual encounters with Elliott, he

was “worried” that Elliott may have had a weapon and that he “didn’t want” to commit the

sexual acts.   Houseburg also testified that Elliott told him that he was going to “punish”

him for insulting Helme.    The evidence also reveals that Elliott is physically larger in

stature than Houseburg.     Houseburg testified that he is five-feet, three-inches tall, while

Elliott is taller than six feet.   Houseburg also testified that he interpreted Elliott’s

comment to him that he “could have [taken] me out on the back road” as a threat to hurt

him.   Finally, Houseburg testified that Elliott told him that he had a knife.            We

acknowledge that Helme testified that she didn’t “remember any abuse” or recall

Houseburg telling Elliott to “stop it” or “quit it,” but we defer to the jury to determine the

weight and credibility to be given to Helme’s contradictory testimony.      See Brooks, 323

S.W.3d at 899.

       After considering all of the evidence in a light most favorable to the verdict, we

conclude that a rational fact finder could have found that Elliott committed both counts of

sexual assault beyond a reasonable doubt.         See Winfrey, 393 S.W.3d at 768.     Elliott’s

first issue is overruled.




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                           III.   DISPROPORTIONATE PUNISHMENT

       By his second and final issue, Elliott asserts that the eight-year punishments set

by the trial court were disproportionate to the seriousness of the offenses in violation of

the Eighth and Fourteenth Amendments to the United States Constitution.            See U.S.

CONST. amends. VIII, XIV.

       As a threshold matter, the State argues that Elliott did not preserve his

constitutional challenge to the trial court’s sentences.   See Wilson v. State, 311 S.W.3d

452, 473–74 (Tex. Crim. App. 2010) (“Preservation of error is a systemic requirement on

appeal.”). We agree.

       To preserve an error for appellate review, a party must present a timely objection

to the trial court, state the specific grounds for the objection, and obtain a ruling.   See

TEX. R. APP. P. 33.1(a).   This rule applies to complaints about the disproportionality of a

sentence imposed by the trial court.     See Smith v. State, 821 S.W.2d 844, 855 (Tex.

Crim. App. 1986) (“It is well settled that almost every right, constitutional and statutory,

may be waived by the failure to object.”); Solis v. State, 945 S.W.2d 300, 301 (Tex.

App.—Houston 1997 [1st Dist.], pet. ref’d) (finding that appellant failed to object to the

alleged disproportionality of the sentences thereby waived error for review).

       Here, Elliott neither made an objection to the trial court’s sentence during the

punishment phase of his trial nor raised any such objection in a post-trial motion.      As a

result, we hold that Elliott’s issue is not preserved for our review.   See TEX. R. APP. P.

33.1(a); Wilson, 311 S.W.3d at 473–74.      Elliott’s second issue is overruled.




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                                   IV.    CONCLUSION

       We affirm the trial court’s judgment.


                                                       _________________________
                                                       GINA M. BENAVIDES,
                                                       Justice


Do not publish.
TEX. R. APP. P. 47.2 (b).

Delivered and filed the
4th day of September, 2014.




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