                           NUMBER 13-13-00121-CR

                          COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

GEORGE VILLARREAL CRUZ,                                                  Appellant,


                                          v.


THE STATE OF TEXAS,                                                      Appellee.


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


                       MEMORANDUM OPINION
             Before Justices Benavides, Perkes and Longoria
               Memorandum Opinion by Justice Longoria

      George Villarreal Cruz was convicted of three counts of indecency with a child by

contact and one count of indecency with a child by exposure. See TEX. PENAL CODE

ANN. § 21.11(a)(1), (a)(2)(A) (West 2011). The jury assessed a forty-five year prison
sentence for counts one, two, and three (indecency by contact) and a fifteen year

sentence for count four (indecency by exposure). By four issues, Cruz contends that (1)

the evidence is insufficient to support the convictions, (2) the trial court erred in

admitting evidence of an extraneous offense, (3) the sentences are disproportionate to

the seriousness of the offenses, and (4) there was error in the jury charge. For the

reasons set forth below, we affirm.

                                      I. BACKGROUND

      In relevant part, the indictment charged Cruz with three counts of indecency with

a child by contact and one count of indecency with a child by exposure, as follows:

                                         Count 1

      [O]n or about May 1, 2009, in Kleberg County, Texas, [Cruz] did then and
      there with intent, to arouse or gratify the sexual desire of defendant,
      intentionally or knowingly engage in sexual contact with KC by touching
      the breast of KC, a child younger than 17 years of age . . . .

                                         Count 2

      [O]n or about May 1, 2009, in Kleberg County, Texas, [Cruz] did then and
      there with intent, to arouse or gratify the sexual desire of defendant,
      intentionally or knowingly engage in sexual contact with KC by touching
      the genitals of KC, a child younger than 17 years of age . . . .

                                         Count 3

      [O]n or about May 1, 2009, in Kleberg County, Texas, [Cruz] did then and
      there with intent, to arouse or gratify the sexual desire of defendant,
      intentionally or knowingly cause KC, a child younger than 17 years of age,
      to engage in sexual contact by causing KC to touch the genitals of
      Defendant . . . .
                                       Count 4

      [O]n or about May 1, 2009, in Kleberg County, Texas, [Cruz] did then and
      there with intent, to arouse or gratify the sexual desire of defendant,
      intentionally or knowingly expose Defendant’s genitals knowing that KC, a
      child younger than 17 years of age, was present.



                                           2
The jury found Cruz guilty on all four counts, and this appeal ensued.

                               II. SUFFICIENCY OF THE EVIDENCE

       In his first issue, Cruz challenges the sufficiency of the evidence to support his

convictions because the State’s case was based on the testimony of the child victim,

KC, who was only six years old at the time of the offenses.

A. Standard of Review

       When we review the sufficiency of the evidence to support a verdict under the

sufficiency standard set out in Jackson v. Virginia, “the relevant question is whether,

after viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (citing Jackson

v. Virginia, 443 U.S. 307 (1979)). “This standard accounts for the fact[-]finder’s duty to

resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts.” Id. (quotations omitted). “[W]e determine

whether the necessary inferences are reasonable based upon the combined and

cumulative force of all the evidence when viewed in the light most favorable to the

verdict.” Id. (quotations omitted). “Our review of all of the evidence includes evidence

that was properly and improperly admitted.” Id. “When the record supports conflicting

inferences, we presume that the fact[-]finder resolved the conflicts in favor of the

prosecution and therefore defer to that determination.” Id. “Direct and circumstantial

evidence are treated equally.” Id. “Circumstantial evidence is as probative as direct

evidence in establishing the guilt of an actor, and circumstantial evidence alone can be

sufficient to establish guilt.” Id.



                                             3
B. Applicable Law

       We measure the sufficiency of the evidence by the elements of the offense as

defined by a hypothetically correct jury charge. See 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.” Villarreal v. State, 286 S.W.3d

321, 327 (Tex. Crim. App. 2009) (quotations omitted).

       In relevant part, the Texas Penal Code provides as follows:

       A person commits an offense if, with a child younger than 17 years of age,
       whether the child is of the same or opposite sex, the person:

              (1) engages in sexual contact with the child or causes the child to
              engage in sexual contact; or

              (2) with intent to arouse or gratify the sexual desire of any person . .
              . exposes the person’s anus or any part of the person’s genitals,
              knowing the child is present . . . .

TEX. PENAL CODE ANN. § 21.11(a)(1)–(2)(A). In this section of the penal code, “sexual

contact” is defined as follows:

       “[S]exual contact” means the following acts, if committed with the intent to
       arouse or gratify the sexual desire of any person:

              (1) any touching by a person, including touching through clothing,
              of the anus, breast, or any part of the genitals of a child; or

              (2) any touching of any part of the body of a child, including
              touching through clothing, with the anus, breast, or any part of the
              genitals of a person.

Id. § 21.11(c).




                                             4
C. Discussion

      At trial, KC, the victim of the offenses, testified that Cruz, her grandfather,

“touch[ed] her boobs” or breasts and also touched her “privates” or vagina. According

to KC, Cruz took out “[h]is middle part” or “private part,” so she was able to see his

penis, and he then made her touch it. In addition, the trial court admitted into evidence

State’s Exhibit 3, titled “Medical Forensic Examination Record,” which was signed by a

sexual assault nurse examiner for Driscoll Children’s Hospital. The exhibit indicates

that KC was six years old when she was examined and that she gave the following

statement:

      My grandpa George touched my part (patient indicates female sexual
      organ by pointing), my tushy (patient indicates buttocks by pointing) and
      my breasts with my clothes on. He showed me a video with grownups
      doing I don’t know. There was a boy slapping a girl on the butt. They
      didn’t have clothes on, but I really didn’t look at it. He left his juice from his
      thing on the bed and in the living room. His thing was wrinkly and soggy.
      He made me touch it. He put my face into it, but I pulled away. I put his
      little part down so it dripped on the floor and not on me.

      Cruz contends that the evidence is insufficient because KC was the only witness

who testified to the actual events constituting the offenses and she gave conflicting

testimony about how and where Cruz touched her. Cruz suggests that KC may have

been coached by family members with whom he has acrimonious relationships “as an

act of revenge.”

      “The testimony of a child victim alone is sufficient to support a conviction for

indecency with a child.” Navarro v. State, 241 S.W.3d 77, 81 (Tex. App.—Houston [1st

Dist.] 2007, pet. ref’d). Although Cruz contends that the victim may have been coached

or improperly influenced by other family members, “[t]he jury is the exclusive judge of

the credibility of witnesses and of the weight to be given their testimony.” Jones v.

                                              5
State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996).            “Likewise, reconciliation of

conflicts in the evidence is within the exclusive province of the jury.” Id. Therefore, we

will not disturb the jury’s finding of guilt.

       Based on the foregoing, any rational trier of fact could have found the essential

elements of the offenses beyond a reasonable doubt. See Clayton, 235 S.W.3d at 778.

Accordingly, Cruz’s first issue is overruled.

                            III EVIDENCE OF EXTRANEOUS OFFENSES

       In his second issue, Cruz contends that the trial court abused its discretion in

admitting evidence of extraneous offenses that he allegedly committed in 1992. See

TEX. R. EVID. 404(b).

A. Applicable Law

       Rule 404(b) of the Texas Rules of Evidence provides as follows:

       Evidence of other crimes, wrongs or acts is not admissible to prove the
       character of a person in order to show action in conformity therewith. It
       may, however, be admissible for other purposes, such as proof of motive,
       opportunity, intent, preparation, plan, knowledge, identity, or absence of
       mistake or accident, provided that upon timely request by the accused in a
       criminal case, reasonable notice is given in advance of trial of intent to
       introduce in the State’s case-in-chief such evidence other than that arising
       in the same transaction.

Id.

B. Standard of Review

       “The standard of review for a trial court’s ruling under the [Texas] Rules of

Evidence is abuse of discretion.” Page v. State, 213 S.W.3d 332, 337 (Tex. Crim. App.

2006). “If the ruling was correct on any theory of law applicable to the case, in light of

what was before the trial court at the time the ruling was made, then we must uphold the

judgment.” Id. (quotations omitted). “Appellate courts will uphold a trial court’s ruling on

                                                6
the admissibility of evidence as long as the trial court’s ruling was at least within the

zone of reasonable disagreement.” Id. (quotations omitted).

C. Discussion

        In this case, the alleged extraneous offenses were sexual in nature and also

involved a child victim, “SAG.” At trial, SAG testified, over Cruz’s objections, that on

“several different occasions” when she was approximately seven years old, Cruz

showed her pornographic videos, touched her breasts and vagina, and exposed his

penis and testicles to her. According to SAG, on the worst of these occasions, Cruz

said he was going to teach SAG and Cruz’s stepson, who was “about the same age” as

SAG, “how to have sex.” SAG testified in relevant part as follows:

        He took off my dress, turned me around, placed me in front of him, got my
        panties [off]. At this time I believe his pants were already down. He got
        like in a squat mode position. After he did that, he used his penis and
        rubbed it against my vagina repeatedly, repeatedly and repeatedly
        showing us that that’s the way you have sex.

        Cruz contends that the trial court abused its discretion in admitting the testimony

because it involved conduct that allegedly occurred twenty years ago, which according

to Cruz, is too remote to be relevant. See TEX. R. EVID. 401. Cruz also contends that

the testimony was inadmissible because its unfairly prejudicial effect substantially

outweighed its probative value. See TEX. R. EVID. 403. 1

        The State contends that the evidence was admissible because the offenses

involved similar “patterns,” which include the following: (1) both victims were between

the ages of six and seven, (2) both victims were left in Cruz’s care as a babysitter, (3)
        1
            During a hearing held outside the presence of the jury, counsel for Cruz objected to the
extraneous offense evidence based on Rules 401, 403, and 404(b) of the Texas Rules of Evidence. See
TEX. R. EVID. 401, 403, 404(b). The trial court overruled the objections. See TEX. R. EVID. 103(a)(1)
(“When the court hears objections to offered evidence out of the presence of the jury and rules that such
evidence be admitted, such objections shall be deemed to apply to such evidence when it is admitted
before the jury without the necessity of repeating those objections.”).

                                                   7
Cruz showed both victims pornography, and (4) Cruz told both victims that he was going

to teach them how to have sex. According to the State, the similar patterns of the

offenses formed a “signature” that made the evidence of extraneous offenses relevant

and admissible under the “other purposes” prong of Rule 404(b). See TEX. R. EVID.

404(b); Page v. State, 213 S.W.3d 332, 336 (Tex. Crim. App. 2006) (“[E]xtraneous-

offense evidence is admissible to prove identity when the common characteristics of

each offense are so unusual as to act as the defendant’s ‘signature.’”). For the reasons

set forth below, we conclude that the trial court did not abuse its discretion.

       The Texas Court of Criminal Appeals has explained that, without more, evidence

of a “‘system’ or ‘pattern’ of committing offenses by itself . . . [creates] exactly the

forbidden inference” that Rule 404(b) is designed to prevent. Johnston v. State, 145

S.W.3d 215, 222 (Tex. Crim. App. 2004). “That is why ‘pattern’ is not listed in Rule

404(b) as an exception.” Id. However, “[p]atterns of acts may show identity, intent,

plan, absence of mistake, or one of the other listed grounds” in the “other purposes”

prong of Rule 404(b). Id.

       At trial, all of the State’s evidence—other than the extraneous offense

evidence—was based on KC’s account of what happened.                 There were no other

eyewitnesses who could give direct testimony about Cruz’s conduct. As a defensive

strategy, Cruz called into question the truth of KC’s testimony and outcries.      Cruz

suggested that she was coached and had told a series of falsehoods about him doing

things he never did. The Texas Court of Criminal Appeals has explained that, under

circumstances such as these, extraneous offense evidence may be admissible to

bolster the credibility of the child victim:



                                               8
      Where the accused calls . . . [the] credibility [of a child victim] into
      question, evidence of other identical or similar acts of sexual misconduct
      perpetrated by a parent [or grandparent] against his own child [or
      grandchild] may well serve to shore up testimony of the child if in logic it
      shows a lascivious attitude (relevant to culpable intent) and a willingness
      to act on it (relevant to prohibited conduct) that a jury might otherwise be
      loathe to attribute to a parent [or grandparent] toward his child [or
      grandchild]. Where under the circumstances of the particular case the
      evidence logically serves such a purpose, it may have relevance under
      Rule 404(b) . . . apart from character conformity.

Montgomery v. State, 810 S.W.2d 372, 394 (Tex. Crim. App. 1991) (op. on reh’g).

      In this case, the evidence of extraneous offenses “show[ed] a lascivious attitude

(relevant to culpable intent) and a willingness to act on it (relevant to prohibited

conduct).” Id. Thus, it had “relevance under Rule 404(b) . . . apart from character

conformity.” Id.

      Moreover, we reject Cruz’s argument that the extraneous offenses were too

remote in time to be relevant because there is no per se rule regarding remoteness in

time. Corley v. State, 987 S.W.2d 615, 620 (Tex. App.—Austin 1999, no pet.) (“[T]here

is no per se rule as to when an extraneous offense is too remote in time to be

introduced in evidence.”). Rather, “[s]everal factors have been used to measure the

probative value of extraneous offense evidence.”       Id. at 619.   “These include: (1)

similarity between the extraneous offense and the offense charged; (2) closeness in

time of the extraneous offense to the charged offense; and (3) availability of alternative

sources of proof.” Id.

      In this case, the offenses were extremely similar. Therefore, the first factor tends

to demonstrate the probative value of the evidence of the extraneous offenses. See id.

However, we agree with Cruz that the remoteness-in-time factor tends to diminish its

probative value.   See id.   Finally, we note that no alternative source of proof was

                                            9
available. See Manning v. State, 114 S.W.3d 922, 928 (Tex. Crim. App. 2003) (“If the

issue is disputed and the proponent has no other evidence to prove the fact, then the

proponent’s need for the evidence is great, and that weighs in favor of admitting the

evidence.”); Montgomery, 810 S.W.2d at 392 (“It is also faithful to this Court’s long

tradition of determining the admissibility of extraneous offense evidence on appeal by

reviewing not only the relevance of that evidence, but the State’s need for it as well.”).

       As noted above, the State’s case depended entirely on KC’s testimony and

outcries.   By attacking the truth of KC’s testimony and outcries, Cruz attempted to

eliminate the State’s only source of proof. This enhanced the probative value of the

evidence of the extraneous offenses. See Corley, 987 S.W.2d at 619. Accordingly,

based on the foregoing, we conclude that the trial court did not err in concluding that the

evidence was relevant and admissible under Rule 404(b). See TEX. R. EVID. 404(b). 2

       Nevertheless, Cruz contends that the trial court should have excluded the

evidence under Rule 403 because the danger of unfair prejudice substantially

outweighed its probative value. See TEX. R. EVID. 403. 3 In light of Cruz’s Rule 403

objection, “the trial judge . . . [was required to] weigh the probativeness of the evidence

to see if it . . . [was] substantially outweighed by its potential for unfair prejudice,

confusion of the issues, misleading the jury, undue delay, or needless presentation of

cumulative evidence.” Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997).


       2
           On appeal, Cruz has not challenged the trial court’s ruling under Rule 404(b) except to the
extent that he has argued that the extraneous offenses were too remote in time to be relevant. See TEX.
R. EVID. 404(b).
       3
          Other than noting in its appellate brief that the trial court must be given “wide latitude” in
conducting a balancing of probative value versus danger of unfair prejudice under Rule 403, the State
has not addressed Cruz’s argument that the evidence was inadmissible under Rule 403. See
Montgomery v. State, 810 S.W.2d 372, 390 (Tex. Crim. App. 1991) (op. on reh’g) (citing TEX. R. EVID.
403).

                                                  10
“In keeping with the presumption of admissibility of relevant evidence, there is a

presumption that relevant evidence is more probative than prejudicial.” Id. Factors

which should go into the Rule 403 balancing test include:

       (1) how compellingly the extraneous offense evidence serves to make a
       fact of consequence more or less probable—a factor which is related to
       the strength of the evidence presented by the proponent to show the
       defendant in fact committed the extraneous offense;

       (2) the potential the other offense evidence has to impress the jury in
       some irrational but nevertheless indelible way;

       (3) the time the proponent will need to develop the evidence, during which
       the jury will be distracted from consideration of the indicted offense; [and]

       (4) the force of the proponent’s need for this evidence to prove a fact of
       consequence, i.e., does the proponent have other probative evidence
       available to him to help establish this fact, and is this fact related to an
       issue in dispute.

Id. at 170 (quotations omitted).

       In cases such as this, the Texas Court of Criminal Appeals has indicated that

“[u]nless the accused denied the offense, or impeached the child complainant, the

[danger of unfair] prejudice . . . [is] deemed weightier than the probative value [of the

extraneous offenses committed against other child victims].” Montgomery, 810 S.W.2d

at 397. This is because “[b]oth sexually related misconduct and misconduct involving

children are inherently inflammatory.” Id.

       In this case, Cruz denied the offenses and attempted to impeach the child

complainant. Therefore, the danger of unfair prejudice was not necessarily weightier

than the probative value of the evidence of the extraneous offenses.               See id.

Furthermore, “the trial court’s determination . . . [was] reasonable in view of all relevant

facts.” Id. at 169.



                                             11
       The extraneous offense evidence served to make more probable a fact of

consequence:     the truth of KC’s testimony and outcries regarding the offenses

committed against her. By establishing that he did similar things to a different child

victim under similar circumstances, the extraneous offense evidence corroborated KC’s

testimony and made it more credible than it otherwise would be standing alone. See

Montgomery, 810 S.W.2d at 394. At the same time, we recognize “the repulsion and

horror of the general public toward offenses of this nature, which could potentially affect

the jury in an emotional way.” See Santellan, 939 S.W.2d at 169 (referring to evidence

of an extraneous offense of abuse of a corpse). We also recognize that the State’s

presentation of the extraneous offense evidence required a relatively substantial

amount of time because the State presented the testimony of multiple witnesses. See

Santellan, 939 S.W.2d at 170. However, by attacking the truth of KC’s testimony and

outcries, Cruz put the State’s entire case at issue, including all the essential elements of

the offenses.   See TEX. PENAL CODE ANN. § 21.11(a)(1)–(2)(A), (c).           Under these

circumstances—particularly in light of the absence of any other eyewitnesses who could

give direct testimony about Cruz’s conduct—the State had a compelling need to present

additional evidence to corroborate KC’s testimony and outcries. See Santellan, 939

S.W.2d at 170. Based on the foregoing, we conclude that the trial court was within the

zone of reasonable disagreement when it performed the balancing test under Rule 403

and concluded that the evidence was admissible. See State v. Mechler, 153 S.W.3d

435, 440 (Tex. Crim. App. 2005) (“An appellate court should not reverse a trial judge

whose ruling was within the zone of reasonable disagreement.”).




                                            12
         Furthermore, even assuming arguendo that the trial court abused its discretion in

admitting the evidence, we conclude that the error, if any, was not reversible. See TEX

R. APP. P. 44.2(b); Allen v. State, 202 S.W.3d 364, 369 (Tex. App.—Fort Worth 2006,

pet. ref’d) (op. on reh’g) (“We apply the rule 44.2(b) harm standard . . .[to] evidence

erroneously admitted under rule 404(b) . . . .”). “In conducting a harm analysis, our

inquiry is to determine whether the admission of the evidence had an effect on [an]

appellant’s substantial rights . . . .” See Hucks v. State, 348 S.W.3d 359, 364 (Tex.

App.—Amarillo 2011, no pet.). “A substantial right is implicated when the error had a

substantial and injurious effect on the jury’s verdict.” Id. at 365. “In order to ascertain

the effect the error may have had on the jury’s verdict, we are directed to consider

everything in the record, including all of the evidence received by the jury and how the

alleged error might be considered in connection with other evidence supporting the

verdict.” Id. “The reviewing court may also consider the jury instructions, the State’s

theory and any defensive theories, closing arguments, voir dire and whether the State

emphasized the error.”       Haley v. State, 173 S.W.3d 510, 518–19 (Tex. Crim. App.

2005).

         In relevant part, the State argued in its closing argument:

         This case is about two people. They’re the only names you’re going to
         see in here, George Cruz and KC.

         When you go back to deliberate, your world has to revolve around George
         Cruz and KC. That’s it. You can’t think of anything outside, what if,
         maybe, could have been, would have been. Evidence, George Cruz and
         KC. . . .

         The 1992 conduct, you know what, he’s not here on trial for that. You
         can’t consider that in whether he did this. Don’t. Don’t. You can’t. But
         you can consider if it’s the same pattern. This is a same or similar-age
         victim. This is a girl that they were babysitting at her house. He has

                                              13
access to her. The family trusted them. This is a girl that, over a
prolonged period of time, he groomed her, first - - first with pornography.
And why? Because to a kid is pornography bad? No. It’s kind of
interesting. . . .

In order to tell what Grandpa George did, I have to tell Mom that I did this
or I did that or I did the other. This is not accidental. This is not
coincidence. This is a pattern. They’re going to come up and say, well,
1992, how can you figure that it’s a pattern since ’92. I haven’t thrown a
football since 1992, but I can throw a football because I learned how to
throw a football. Don’t act like we’re different than what happened ten
years ago.

The only problem is he picked a victim this time that talked. She was
brave enough to sit up here and you cannot disregard it. No matter how
hard you have to fight, you have to fight for KC.

In his closing, Cruz argued in relevant part as follows:

Let’s talk about [SAG]. What number is this? This is the second felon the
State calls to try to convince y’all of something. She’s a felon. Her story
changes depending on who she’s telling the story to, her story about what
happened in 1992, allegedly. She testified she can be and has been
bribed by who of all people, Criselda Cruz. Grandma Cris has bribed her.
I don’t know if it was Barbie or Cinderella tickets, some kind of tickets.
She got bribed?

And who went and found her? Robert, KC’s dad, went and found her.
She didn’t go say, “I want my case prosecuted.” Robert went and found
her and brought up her, dragged her up here to testify. Oh, and by the
way, if y’all remember her testimony, she has accused another man
besides George of this type of behavior. . . .

Sergeant Larry Webb, one of the most credible, perhaps, in my opinion, I’ll
argue the most credible witness in this case. What did he testify to? He
testified that he investigated, there was no mention of pornographic video,
no mention of numerous times of George molesting or touching [SAG], as
[SAG] would have you believe from her testimony. It was an isolated,
one-time event, no mention of anything she said.

Talk to George, George gave a reasonable explanation, this is how it’s
going to be when you get married, referring to the fighting. And as you
know from Sergeant Larry Webb, that case was dismissed for lack of
evidence.

In relevant part, the trial court’s jury charge instructed the jury as follows:

                                       14
       You are instructed that certain evidence was admitted before you in
       regard to the Defendant’s having committed other acts than the one for
       which is now on trial. You are instructed that such evidence cannot be
       considered by you against the defendant as any evidence of guilt in this
       case, nor may you consider the same to determine the Defendant’s
       character or conformity of character.

       If you find and believe beyond a reasonable doubt from such testimony
       that other acts were committed, you may then consider the same in
       determining motive, intent, state of mind, modus operandi, absence of
       mistake or absence of accident.

       In sum, as set forth above, the evidence offered at trial was sufficient to establish

the elements of the offenses for each of the four counts on which Cruz was convicted.

The State relied on the testimony and outcries of the child victim, KC, to prove its case.

And that alone was sufficient. See Navarro, 241 S.W.3d at 81. The State also offered

testimony from SAG concerning extraneous offenses that Cruz allegedly committed

against SAG twenty years ago. The State talked about the extraneous offenses in its

closing argument, but it did not unduly emphasize them. The State told the jury not to

consider them as evidence of guilt in this case, but it did say they could be evidence of

a “pattern.”

       Counsel for Cruz defended against these allegations and evidence. He pointed

out that the alleged victim, SAG, who was no longer a child at the time of trial, was a

felon and had been bribed and thus could not be believed. He also argued that the

case was dismissed for lack of evidence.

       Finally, the court’s charge to the jury, quoted in relevant part above, gave the jury

an appropriate and substantially correct instruction regarding the evidence of the

extraneous offenses, and “absent evidence to the contrary, we presume the jury




                                            15
followed the law provided by the charge.” Hutch v. State, 922 S.W.2d 166, 170 (Tex.

Crim. App. 1996) (en banc).

       Based on the foregoing, we cannot conclude that the error, if any, in the trial

court’s admission of the extraneous offense evidence had a “substantial and injurious

effect on the jury’s verdict.” See TEX R. APP. P. 44.2(b). Accordingly, Cruz’s second

issue is overruled.

                                      IV. PUNISHMENT

       In his third issue, Cruz argues that that the punishment assessed by the trial

court was disproportionate to the seriousness of the offenses in violation of the Eighth

and Fourteenth Amendments. See U.S. CONST. amends. VIII, XIV. To preserve error

for appellate review, the complaining party must present a timely and specific objection

to the trial court and obtain a ruling. See TEX. R. APP. P. 33.1(a)(1). A party’s failure to

specifically object to an alleged disproportionate or cruel and unusual sentence in the

trial court or in a post-trial motion waives any error for the purposes of appellate review.

See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996); Noland v. State,

264 S.W.3d 144, 151 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (“[I]n order to

preserve for appellate review a complaint that a sentence is grossly disproportionate,

constituting cruel and unusual punishment, a defendant must present to the trial court a

timely request, objection, or motion stating the specific grounds for the ruling desired.”).

       Having reviewed the record, we note that Cruz did not object to the sentence or

assert that it was disproportionate to the seriousness of the offenses. See TEX. R. APP.

P. 33.1(a)(1). Accordingly, he did not preserve the issue for review in this appeal. See




                                             16
Rhoades, 934 S.W.2d at 120; Noland, 264 S.W.3d at 151. His third issue is therefore

overruled.

                                 V. JURY CHARGE ERROR

       In his fourth issue, Cruz contends that the jury charge contained error with regard

to the law of parole. In analyzing a jury charge issue, our initial inquiry is whether error

exists in the charge submitted to the jury. Ngo v. State, 175 S.W.3d 738, 743 (Tex.

Crim. App. 2005) (en banc). If error is found, the degree of harm necessary for reversal

depends on whether the appellant preserved the error by objection. Id. If the defendant

properly objected to the erroneous jury charge, reversal is required if we find “some

harm” to the defendant’s rights. Id. We note that we have reviewed the record, and it

appears that counsel did not object to the charge. Accordingly, if there is any error, we

may only reverse if the record shows egregious harm. Id. at 743–44. “Errors that result

in egregious harm are those that affect ‘the very basis of the case,’ ‘deprive the

defendant of a valuable right,’ or ‘vitally affect a defensive theory.’” Cueva v. State, 339

S.W.3d 839, 858–59 (Tex. App.—Corpus Christi 2011, pet. ref’d).            “In determining

whether . . . [Cruz] was deprived of a fair and impartial trial, we review the entire jury

charge, the state of the evidence, including the contested issues and weight of

probative evidence, the argument of counsel and any other relevant information

revealed by the record of the trial as a whole.” Taylor v. State, 332 S.W.3d 483, 489

(Tex. Crim. App. 2011).

       In this case, the court’s charge provided in relevant part as follows:

       Under the law applicable in this case, if a defendant is sentenced to a term
       of imprisonment, he will not become eligible for parole until the actual time
       served equals one-half of the sentence imposed or 30 years, whichever is
       less, without consideration of any good conduct time he may earn. If the

                                            17
       defendant is sentenced to a term of less than four years, he must serve at
       least two years before he is eligible for parole. Eligibility for parole does
       not guarantee that parole will be granted.

We note that this is the exact language from the code of criminal procedure. See TEX.

CODE CRIM. PROC. ANN. art. 37.07, § 4(a) (West Supp. 2011).

       Cruz argues that the charge was incorrect because the half-time requirement

does not apply to the offense of indecency with a child by exposure. See TEX. PENAL

CODE ANN. § 21.11(a)(2)(A). In relevant part, the Texas Government Code provides as

follows:

       An inmate serving a sentence for an offense described by Section
       3g(a)(1)(A), (C), (D), (E), (F), (G), (H), (I), (J), or (K), Article 42.12, Code of
       Criminal Procedure, or for an offense for which the judgment contains an
       affirmative finding under Section 3g(a)(2) of that article, or for an offense
       under Section 20A.03, Penal Code, is not eligible for release on parole
       until the inmate’s actual calendar time served, without consideration of
       good conduct time, equals one-half of the sentence or 30 calendar years,
       whichever is less, but in no event is the inmate eligible for release on
       parole in less than two calendar years.

TEX. GOV’T CODE ANN. § 508.145(d)(1) (West 2004). Section 3g of Article 42.12 of the

Texas Code of Criminal Procedure specifically describes indecency with a child by

contact, citing penal code section 22.11(a)(1), but it does not describe indecency with a

child by exposure or cite penal code section 22.11(a)(2)(A).            See TEX. CODE CRIM.

PROC. ANN. art. 42.12, § 3g(a)(1)(C) (West Supp. 2011).

       Thus, counsel’s argument appears to be correct that the trial court erred by

indicating in the jury charge that all the offenses in this case are subject to the half-time

requirement in section 508.145(d)(1) of the Texas Government Code, when in fact, the

offense of indecency with a child by exposure is not subject to the half-time




                                               18
requirement. See TEX. GOV’T CODE ANN. § 508.145(d)(1). Nevertheless, we conclude

that the error was not egregious. See Ngo, 175 S.W.3d at 743–44.

       As set forth above, Cruz received a fifteen year prison sentence for the offense of

indecency with a child by exposure. However, he received a forty-five year sentence for

each of the other three counts. The sentences are running concurrently. Thus, even

assuming for the sake of argument that the error in the court’s charge caused the jury to

assess a greater sentence than it otherwise would on the offense of indecency with a

child by exposure—which appears to be counsel’s argument—there was still no actual

harm to Cruz because, either way, he would be ineligible for parole until he has served

half of the time on the forty-five year prison sentences that are running concurrently with

the fifteen year sentence. See TEX. GOV’T CODE ANN. § 508.145(d)(1). Therefore, he

has not established egregious harm. See Ngo, 175 S.W.3d at 743–44. Accordingly, we

overrule his fourth issue.

                                     VI. CONCLUSION

       The judgment of the trial court is affirmed.




                                                 ___________________
                                                 NORA L. LONGORIA
                                                 Justice
Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
5th day of December, 2013.




                                            19
