Jose Alonzo v. State ( 2011 )

NO. 07-10-0290-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
FEBRUARY 16, 2011
_____________________________
JOSE ALONZO,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_____________________________
FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY;
NO. 1152331D; HONORABLE RUBEN GONZALEZ, PRESIDING
_____________________________
Memorandum Opinion
_____________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Jose Alonzo was convicted, after a plea of guilty, of possessing, with intent to
deliver, cocaine in an amount of four grams or more but less than 200 grams.
Thereafter, he was sentenced to twenty years in prison. He claims on appeal that the
trial court abused its discretion in considering a prior sexual assault when assessing
punishment because the State failed to prove, beyond reasonable doubt, that the act
occurred and it was attributable to appellant. We overrule the issue and affirm the
judgment.
Evidence may be offered at the punishment phase as to any matter the court
deems relevant to sentencing including the prior criminal record of the defendant, his
general reputation, his character, and any other evidence of an extraneous crime or bad
act that is shown beyond a reasonable doubt to have been committed by the defendant
regardless of whether he has previously been charged with or finally convicted of the
crime or act. TEX. CODE CRIM. PROC. ANN. art. 37.07 §3(a)(1) (Vernon Supp. 2010).
This same rule applies when the trial court, as opposed to a jury, determines
punishment. Smith v. State, 292 S.W.3d 36, 42-43 (Tex. App.–Houston [14th Dist.]
2006), aff’d, 227 S.W.3d 753 (Tex. Crim. App. 2007).
The prior sexual assault in question involved the sexual assault of a child. A
grand jury no billed him of the charge in 2008. Appellant now contends that it was not
shown beyond a reasonable doubt that he committed an offense.
Here, appellant testified at the punishment hearing about the prior assault.
Furthermore, the trial court received into evidence a statement he had made to police.
That evidence illustrated that appellant had touched the vagina and grabbed the breasts
of a naked girl whom he later learned was under seventeen years of age. Furthermore,
he not only knew she had been drinking alcohol at the time, but also was willing to have
sex with her. Such is ample evidence for a trier of fact to determine that appellant
committed the bad act in question. And, though appellant argues that the trial court
made no express finding to that effect, he cites us to no authority indicating that such a
finding was necessary. But, even if it was, we note the trial court’s comment, when
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pronouncing sentence: “. . . Now, for whatever reason it was no-billed, the matter
before the Court is that that is still a criminal act, wouldn’t you say?” That utterance
certainly implies that the trial court found appellant’s conduct to be a bad act worthy of
consideration when assessing punishment. Thus, we find no error. See Young v.
State, 283 S.W.3d 854, 876-77 (Tex. Crim. App.), cert. denied, ___ U.S. ___, 130 S. Ct.
1015, 175 L. Ed. 2d 622 (2009) (holding that the defendant’s out-of-court admission that
he committed the act along with his possession of a gun and forensic evidence was
sufficient to prove the bad act was attributable to appellant beyond reasonable doubt).
Accordingly, we overrule appellant’s issue and affirm the judgment.
Brian Quinn
Chief Justice
Do not publish.
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