                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-12-00193-CR


ROBERTO AVALOS BELTRAN                                               APPELLANT
A/K/A ROBERTO ABABLOS
BELTRAN

                                        V.

THE STATE OF TEXAS                                                         STATE


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          FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY

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                        MEMORANDUM OPINION 1

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      Roberto Avalos Beltran a/k/a Roberto Abablos Beltran appeals his

conviction and eight-year sentence for sexual assault. We affirm.

      Appellant’s ex-wife testified that while their divorce was pending, he forced

her to have sex against her will after coming to her house to talk her out of

divorcing him. She had put a recording device in her pocket hoping to gain
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       See Tex. R. App. P. 47.4.
information to use against him in the divorce; the audio recording she made was

played at trial, and the jury was given an English-version transcript as a jury aid.

      The evidence shows that when appellant arrived at the house, he told his

ex-wife several times that he would not divorce her, and she repeatedly said that

she did not want to be married to him. The evidence also shows that she tried to

avoid his physical advances by making excuses and telling him she did not want

to be with him. They struggled, and she tried to get out the door, but he pulled

her to the floor. She repeatedly told appellant no and begged him to stop, but he

told her that she was his wife and that he had the right to have sex with her. She

testified that after appellant pulled her to the floor, she tried to get her neighbors’

attention, but he covered her mouth with his hand. When she tried to use her

phone, he took it from her and threw it. He then forced her to have sex, holding

her hands down by her wrists. On the recording, she repeatedly says no and

cries out to “Dios.”

      After appellant left, his ex-wife called the police; one of the responding

officers testified that she was visibly upset and crying when he arrived. The

officer testified about what she told him that day; the account is consistent with

her trial testimony. Additionally, she was examined by a nurse that same day,

who testified at trial that she had visible bruising to her hands and wrists

consistent with her account of the sexual assault.

      Appellant contends that the evidence is insufficient to show that the sex

was not consensual; he contends the evidence also showed that his ex-wife is


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not a legal resident and had a motive to lie so that she could get “some type of

legal status” as the victim of a sexual assault.

      The essence of appellant’s argument is that his ex-wife’s testimony was

not credible. The trier of fact is the sole judge of the weight and credibility of the

evidence.   See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Wise v.

State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012). Thus, when performing an

evidentiary sufficiency review, we may not re-evaluate the weight and credibility

of the evidence and substitute our judgment for that of the factfinder. Isassi v.

State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).           Instead, we determine

whether the necessary inferences are reasonable based upon the cumulative

force of the evidence when viewed in the light most favorable to the verdict.

Sorrells v. State, 343 S.W.3d 152, 155 (Tex. Crim. App. 2011).             We must

presume that the factfinder resolved any conflicting inferences in favor of the

verdict and defer to that resolution. Jackson v. Virginia, 443 U.S. 307, 326, 99 S.

Ct. 2781, 2793 (1979); Wise, 364 S.W.3d at 903.

      Here, the testimony of appellant’s ex-wife––along with the audio recording,

nurse examiner’s testimony, and testimony of the police officer who responded to

her 911 call––were sufficient to support the jury’s verdict. See Tex. Penal Code

Ann. § 22.011(a)(1), (b)(1) (West 2011). We overrule appellant’s sole point and

affirm the trial court’s judgment.

                                                    PER CURIAM

PANEL: LIVINGSTON C.J.; DAUPHINOT and MCCOY, JJ.


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DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: May 16, 2013




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