                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-15-00322-CR

JOSHUA DOMINGO LOREDO,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                          From the 54th District Court
                           McLennan County, Texas
                          Trial Court No. 2014-2310-C2


                          MEMORANDUM OPINION


      Joshua Domingo Loredo was convicted of aggravated sexual assault and

sentenced to 45 years in prison. See TEX. PENAL CODE ANN. §22.021 (West 2011). Because

the evidence is sufficient to support the element of lack of consent, the trial court’s

judgment is affirmed.

      Loredo and his girlfriend, Cheyenne, had been in a relationship since high school.

After high school, it became abusive. On the morning of her 20th birthday, Cheyenne left
Loredo’s house earlier than Loredo expected so that she could help her mother prepare

her mother’s house for Cheyenne’s birthday party. Loredo was not invited and he was

angry. He picked up Cheyenne from her party at about 11:30 p.m. He then drove her

around Waco, beating her, choking her, threatening to run her over, and making her take

her clothes off and threatening to make her walk home, naked. After about 45 minutes

of this, they had sex. He took her to Wendy’s to get something to eat, but Cheyenne could

not eat because her mouth hurt too much from the beatings. Loredo would not take her

home, but took her back to his house. The next day, Loredo’s younger sister convinced

Cheyenne to go to the police. Loredo was ultimately charged with two counts of

aggravated sexual assault and one count of assault-family violence.1

        In his sole issue, Loredo argues the evidence was insufficient to support his

conviction for aggravated sexual assault because there was no evidence that the sexual

assault occurred without Cheyenne’s consent. Specifically, Loredo argues that because

Cheyenne initiated the sexual encounter, there was no evidence he coerced her to have

sex with him. This argument is flawed.

        The jury was instructed to find Loredo guilty of aggravated sexual assault if it

found beyond a reasonable doubt that Loredo intentionally or knowingly caused the




1Loredo was found guilty of the other offense of aggravated sexual assault and pled guilty to the offense
of assault-family violence. The appeal of these offenses were severed from this appeal and disposed of in
another appellate case number, 10-16-00161-CR.

Loredo v. State                                                                                   Page 2
penetration of Cheyenne’s sexual organ by Loredo's sexual organ without Cheyenne's

consent. The charge also instructed that sexual assault is without consent

        if the actor compels the other person to submit or participate by the use of
        physical force or violence; or the actor compels the other person to submit
        or participate by threatening to use force or violence against the other
        person, and the other person believes that the actor has the present ability
        to execute the threat; or the other person has not consented and the actor
        knows the other person is unconscious or physically unable to resist.

        In determining whether the evidence is legally sufficient 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

factfinder could have found the essential elements of the crime beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Lucio v. State, 351 S.W.3d 878, 894

(Tex. Crim. App. 2011). 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. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). And it is well

established that the factfinder is entitled to judge the credibility of witnesses and can

choose to believe all, some, or none of the testimony presented by the parties. Chambers

v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). Whether consent is lacking must be

determined from the totality of the circumstances in each particular case. See Brown v.

State, 576 S.W.2d 820, 823 (Tex. Crim. App. 1978); Bannach v. State, 704 S.W.2d 331, 333

(Tex. App.—Corpus Christi 1986, no pet.).



Loredo v. State                                                                        Page 3
        In this case, Cheyenne had endured beatings from Loredo for about 45 minutes.

She endured him choking her. She endured him threatening to run her over near a church

if she got out of the car. She endured him making her take her clothes off and threatening

to make her walk home naked if she wanted to go home. She begged and pleaded for

Loredo to let her go. She tried to make Loredo wreck the car, so she could leave. The

jury heard a recording of a portion of the beatings and the choking when Loredo

accidently called his younger brother and Loredo’s younger sister decided the call was

so disturbing, it needed to be recorded. The jury saw pictures of the bruises Loredo

inflicted on Cheyenne’s face and body. Cheyenne told the jury that “I come onto him

because I just wanted it to stop.” She agreed with the State that she was no longer able

to physically resist Loredo, and she was afraid that the beatings would not stop unless

she had sex with Loredo. The beatings did stop: once they had sex.

        After reviewing the record in the light most favorable to the verdict, the jury could

have found beyond a reasonable doubt that the sexual assault occurred without

Cheyenne’s consent. Loredo’s sole issue is overruled, and the trial court’s judgment is

affirmed.



                                           TOM GRAY
                                           Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Loredo v. State                                                                        Page 4
Opinion delivered and filed August 10, 2016
Do not publish
[CRPM]




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