Luis Antonio Escobedo v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: February 22, 2024
• Docket: 05-22-01360-CR
• Status: Published

Opinion

Affirmed and Opinion Filed February 22, 2024

In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-01360-CR

LUIS ANTONIO ESCOBEDO, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 366th Judicial District Court Collin County, Texas Trial Court Cause No. 366-84010-2022

MEMORANDUM OPINION Before Justices Partida-Kipness, Nowell, and Smith Opinion by Justice Nowell A jury convicted Luis Antonio Escobedo of continuous sexual abuse of a

child, K.S., and sentenced him to 60 years’ confinement. In two issues, appellant

argues the evidence is legally insufficient to support the conviction and to establish

venue in Collin County. We affirm the trial court’s judgment.

When reviewing the sufficiency of the evidence to support a conviction, we

consider the evidence in the light most favorable to the verdict. Edward v. State, 635

S.W.3d 649, 655 (Tex. Crim. App. 2021). We uphold a verdict if any rational trier

of fact could have found all the essential elements of the offense proven beyond a reasonable doubt. Id. “This familiar standard gives full play to the responsibility of

the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence,

and to draw reasonable inferences from basic facts to ultimate facts.” Jackson v.

Virginia, 443 U.S. 307, 319 (1979). The finder of fact is the sole judge of the weight

and credibility of the evidence. Edward, 635 S.W.3d at 655. When considering a

claim of evidentiary insufficiency, we must keep in mind that the finder of fact may

choose to believe or disbelieve all, some, or none of the evidence presented. Id. The

evidence is sufficient to support a conviction if “the inferences necessary to establish

guilt are reasonable based upon the cumulative force of all the evidence when

considered in the light most favorable to the verdict.” Id. at 655-56 (quoting Wise v.

State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012)). When faced with conflicts in

the evidence, a reviewing court shall presume that the fact finder resolved those

conflicts in favor of the verdict and defer to that determination. Id.

As is relevant here, a person commits the offense of continuous sexual abuse

of a child if:

(1) during a period that is 30 or more days in duration, the person commits two or more acts of sexual abuse, regardless of whether the acts of sexual abuse are committed against one or more victims; and (2) at the time of the commission of each of the acts of sexual abuse, the actor is 17 years of age or older and the victim is [ ] a child younger than 14 years of age[.]

TEX. PENAL CODE ANN. § 21.02(b)(1), (2)(A). Section 21.02 of the penal code

defines “act of sexual abuse” as including, among other things, an act that constitutes

–2– the offense of aggravated sexual assault and indecency with a child. Id. § 21.02(c)(2),

(4). A person commits the offense of aggravated sexual assault of a child if the

person intentionally or knowingly causes the penetration of the anus or sexual organ

of a child by any means and the victim is younger than fourteen years of age. Id.

§ 22.021(a)(1)(B)(i), (a)(2)(B). A person commits the offense of indecency with a

child if he “(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: (A) exposes the person's anus or any part of the person's genitals, knowing

the child is present; or (B) causes the child to expose the child's anus or any part of

the child's genitals.” Id. § 21.11(a)(1), (2).

Appellant is K.S.’s stepfather, and he was over 17 years old when he began

abusing her. K.S. testified she did not remember when appellant began doing

“inappropriate things” to her such as “groping her butt,” but she was “really young,”

which she believed was kindergarten or first grade. During the timeframe when she

started third grade, appellant would “grab my breast, my behind, and my private

area.” K.S. described several instances when appellant made her touch his penis.

Sometimes, he ejaculated on to K.S.’s hand.

K.S., appellant, and the family moved from Dallas to Plano when she was

about twelve years old. At their Plano residence, appellant continued forcing K.S. to

put her hand on his penis “a little more than once a week.” She described how

appellant forced her hand to interact with his genitals and testified appellant

–3– sometimes ejaculated. Appellant also increased the frequency with which he would

touch her breasts and bottom. K.S. described one instance when appellant forced his

hands into her underwear and touched her pubic region and an incident when he

attempted to put a foreign object into her vagina. She testified there were times when

appellant inserted his fingers into her vagina, stated “[h]e did oral on me,” and

testified he forced her to perform oral sex on him. K.S. testified about appellant

putting his penis inside her vagina when she was finishing eighth grade and had not

yet turned 14.

Appellant’s other stepdaughter and his biological daughter testified about

being sexually abused by appellant. K.S.’s mother also testified at trial.

Appellant concedes on appeal that the “record shows an overabundance of

sexual [sic] abusive acts alleged by” K.S. and her sisters. However, he “asserts that

all signs point to [K.S.’s mother] as the initiator and promoter of these false

allegations.” We reject this argument.

K.S. testified to all of the elements of the offense, and K.S’s testimony alone

is sufficient to support the conviction. See Turner v. State, 626 S.W.3d 88, 96 (Tex.

App.—Dallas 2021, no pet.) (citing TEX. CODE CRIM. PROC. ANN. art. 38.07(a)

(testimony of child victim is sufficient by itself to support conviction for sexual

assault of a child)). While appellant may have a different theory of the case, the

verdict establishes the jurors believed K.S. was credible. See id. We overrule

appellant’s first issue.

–4– In his second issue, appellant argues the evidence is insufficient to prove

Collin County was the appropriate venue for prosecution for the indicted charge.

The State responds that appellant has not preserved this argument for appeal. We

agree.

Rule 44.2 of the Texas Rules of Appellate Procedure establishes that, “Unless

. . . disputed in the trial court, or unless the record affirmatively shows the contrary,

the court of appeals must presume . . . that venue was proved in the trial court.” TEX.

R. APP. P. 44.2(c)(1). “Because appellant did not timely raise the issue of venue at

trial, appellant waived any venue challenge.” McKee v. State, No. 05-10-01410-CR,

2012 WL 1021446, at *17 (Tex. App.—Dallas Mar. 28, 2012, pet. ref’d) (mem. op.,

not designated for publication); see also Casas v. State, No. 08-22-00109-CR, 2023

WL 3737119, at *2 (Tex. App.—El Paso May 31, 2023, pet. ref’d) (mem. op., not

designated for publication) (citing Puryear v. State, 428 S.W.2d 345, 347 (Tex.

Crim. App. 1968); Carpenter v. State, 333 S.W.2d 391, 393 (Tex. Crim. App. 1960)

(contention that venue was not proved “was raised for the first time after verdict, and

this Court will presume that venue was proved.”)). Because appellant raises his

venue complaint for the first time on appeal, he has not preserved this complaint for

appellate review. We overrule appellant’s second issue.

–5– We affirm the trial court’s judgment.

/Erin A. Nowell// ERIN A. NOWELL JUSTICE

221360f.u05 Do Not Publish TEX. R. APP. P. 47.2(b)

–6– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

LUIS ANTONIO ESCOBEDO, On Appeal from the 366th Judicial Appellant District Court, Collin County, Texas Trial Court Cause No. 366-84010- No. 05-22-01360-CR V. 2022. Opinion delivered by Justice Nowell. THE STATE OF TEXAS, Appellee Justices Partida-Kipness and Smith participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 22nd day of February, 2024.

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