AFFIRMED AS MODIFIED; Opinion Filed March 11, 2020
In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-00177-CR
ROLI AROLDO LOPEZ, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 199th Judicial District Court Collin County, Texas Trial Court Cause No. 199-81302-2018
MEMORANDUM OPINION Before Justices Myers, Schenck, and Carlyle Opinion by Justice Schenck A jury convicted appellant Roli Aroldo Lopez of continuous sexual abuse of
a child younger than fourteen years of age, and the trial judge assessed punishment
at sixty years’ confinement. In two issues, he challenges the sufficiency of the
evidence to support the conviction and requests the judgment be modified to correct
the name of the “attorney for the defendant.” We affirm the trial court’s judgment
as modified by this opinion. Because all issues are settled in the law, we issue this
memorandum opinion. TEX. R. APP. P. 47.4. BACKGROUND A.M. was born in February 2006. In December 2016, she moved to Plano
where she lived with her cousins, siblings, mother, and stepfather, appellant.1
According to the trial testimony, when A.M. was in fifth grade, appellant touched
her inappropriately and illegally and on at least one other occasion had sexual
intercourse with her. After A.M. became visibly pregnant, appellant stopped
touching her.
On February 2, 2018, A.M.’s mother took A.M. to have the pregnancy
terminated.2 Appellant and A.M.’s two younger siblings came to the appointment
as well. At that appointment, a sonogram technician estimated A.M.’s pregnancy
began in mid to late September 2017. The doctor’s staff suspected A.M. had been
abused, called the police to report their suspicions, and delayed A.M., her family,
and appellant until the police arrived.
Appellant was charged by indictment for continuous sexual abuse of a child
younger than fourteen. Appellant pleaded not guilty, and the case proceed to trial
before a jury, which found appellant guilty as alleged in the indictment. The trial
judge sentenced appellant to sixty years’ confinement.
1 Although there is no evidence appellant was married to A.M.’s mother, A.M. referred to appellant as her “stepfather” throughout her testimony, so we refer to him as such as well. 2 Following her sonogram, A.M.’s pregnancy was not terminated. –2– DISCUSSION I. Sufficiency of the Evidence
In his second issue, appellant argues the evidence is insufficient to establish
he sexually assaulted A.M. at least twice over a duration of 30 or more days.
A person commits the offense of continuous sexual abuse of a child if, during
a period that is thirty or more days in duration, he commits two or more acts of sexual
abuse and, at the time of the commission of each act, he is seventeen years of age or
older and the victim is a child younger than fourteen. TEX. PENAL CODE ANN. §
21.02(b). Although the exact dates of the abuse need not be proven, the offense does
require proof that two or more acts of sexual abuse occurred during a period of thirty
days or more. Garner v. State, 523 S.W.3d 266, 271 (Tex. App.—Dallas 2017, no
pet.); see PENAL § 21.02(d) (jury not required to unanimously agree on which
specific acts of sexual abuse were committed by defendant or exact dates when those
acts occurred, but jury must agree unanimously that defendant, during period of
thirty or more days, committed two or more acts of sexual abuse).
In determining the sufficiency of the evidence, the reviewing court considers
the evidence in the light most favorable to the verdict to determine whether any
rational trier of fact could have found the essential elements of the offense beyond a
reasonable doubt. Acosta v. State, 429 S.W.3d 621, 624–25 (Tex. Crim. App. 2014).
The jury is the sole judge of the credibility and weight to attach to witness
testimony. Jackson v. Virginia, 443 U.S. 307, 319 (1979). The testimony of a child
–3– victim alone is sufficient to support a conviction for continuous sexual abuse of a
child. See TEX. CODE CRIM. PROC. ANN. art. 38.07(a); Garner v. State, 523 S.W.3d
266, 271 (Tex. App.—Dallas 2017, no pet.).
At trial, the evidence established A.M. was twelve years old when she
delivered her baby. Appellant was thirty-seven at the time of trial. Appellant
testified in his own defense and admitted to having intercourse with A.M. during the
last week of September and the first week of October 2017. Thus, the evidence is
sufficient to establish appellant committed at least two acts of sexual abuse and at
the time he was older than seventeen and A.M. was younger than fourteen. See TEX.
PENAL CODE ANN. § 21.02(b). The only element appellant challenges on appeal is
whether he abused A.M. at least twice over a duration of 30 or more days.
We conclude there is sufficient evidence that at least two acts of sexual abuse
occurred between December 2016 and September 2017. A.M. testified she was born
in February 2006, she moved to Plano when she was approximately ten years old,
and that appellant first sexually abused her at or about the time she moved to Plano.
Appellant testified that he met A.M. when she moved to Plano in December 2016,
and the investigating detective testified A.M. began attending school in Plano in
January 2017. A.M. testified regarding four separate instances of appellant sexually
abusing her, which a reasonable juror could rationally infer took place over the
–4– period of time between December 2016 and September 2017.3 After A.M.’s baby
was born, the investigating police detective obtained DNA samples from A.M., her
baby, and appellant. At trial, an expert testified that, based on an analysis of the
DNA collected, appellant could not be excluded as the father of A.M.’s baby, but at
least 99.999999995 percent of the male population was excluded. Additionally, the
sonogram technician testified A.M.’s pregnancy began in mid to late September
2017.
Appellant challenges A.M.’s testimony, noting inconsistencies in the number
of times she stated appellant abused her and when the abuse occurred. However, as
the exclusive judge of the credibility of the witnesses and the weight to be given
their testimony, the jury had to resolve this conflicting testimony. McCay v. State,
476 S.W.3d 640, 651 (Tex. App.—Dallas 2015, pet. ref’d).
Deferring to the jury’s determination of the credibility of the witnesses and
the weight to be given their testimony, based on the cumulative force of all the
evidence when viewed in the light most favorable to the verdict, and considering the
reasonable inferences to be drawn from that evidence, we conclude a rational trier
of fact could have found more than one act of sexual abuse occurred over a duration
of 30 or more days between December 2016 and September 2017; that these acts
3 According to A.M., during some of the instances of abuse, it was cold outside and other times it was warm outside. –5– occurred while A.M. was younger than fourteen; and that appellant was older than
seventeen beyond a reasonable doubt. We overrule appellant’s second issue.
II.
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AFFIRMED AS MODIFIED; Opinion Filed March 11, 2020
In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-00177-CR
ROLI AROLDO LOPEZ, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 199th Judicial District Court Collin County, Texas Trial Court Cause No. 199-81302-2018
MEMORANDUM OPINION Before Justices Myers, Schenck, and Carlyle Opinion by Justice Schenck A jury convicted appellant Roli Aroldo Lopez of continuous sexual abuse of
a child younger than fourteen years of age, and the trial judge assessed punishment
at sixty years’ confinement. In two issues, he challenges the sufficiency of the
evidence to support the conviction and requests the judgment be modified to correct
the name of the “attorney for the defendant.” We affirm the trial court’s judgment
as modified by this opinion. Because all issues are settled in the law, we issue this
memorandum opinion. TEX. R. APP. P. 47.4. BACKGROUND A.M. was born in February 2006. In December 2016, she moved to Plano
where she lived with her cousins, siblings, mother, and stepfather, appellant.1
According to the trial testimony, when A.M. was in fifth grade, appellant touched
her inappropriately and illegally and on at least one other occasion had sexual
intercourse with her. After A.M. became visibly pregnant, appellant stopped
touching her.
On February 2, 2018, A.M.’s mother took A.M. to have the pregnancy
terminated.2 Appellant and A.M.’s two younger siblings came to the appointment
as well. At that appointment, a sonogram technician estimated A.M.’s pregnancy
began in mid to late September 2017. The doctor’s staff suspected A.M. had been
abused, called the police to report their suspicions, and delayed A.M., her family,
and appellant until the police arrived.
Appellant was charged by indictment for continuous sexual abuse of a child
younger than fourteen. Appellant pleaded not guilty, and the case proceed to trial
before a jury, which found appellant guilty as alleged in the indictment. The trial
judge sentenced appellant to sixty years’ confinement.
1 Although there is no evidence appellant was married to A.M.’s mother, A.M. referred to appellant as her “stepfather” throughout her testimony, so we refer to him as such as well. 2 Following her sonogram, A.M.’s pregnancy was not terminated. –2– DISCUSSION I. Sufficiency of the Evidence
In his second issue, appellant argues the evidence is insufficient to establish
he sexually assaulted A.M. at least twice over a duration of 30 or more days.
A person commits the offense of continuous sexual abuse of a child if, during
a period that is thirty or more days in duration, he commits two or more acts of sexual
abuse and, at the time of the commission of each act, he is seventeen years of age or
older and the victim is a child younger than fourteen. TEX. PENAL CODE ANN. §
21.02(b). Although the exact dates of the abuse need not be proven, the offense does
require proof that two or more acts of sexual abuse occurred during a period of thirty
days or more. Garner v. State, 523 S.W.3d 266, 271 (Tex. App.—Dallas 2017, no
pet.); see PENAL § 21.02(d) (jury not required to unanimously agree on which
specific acts of sexual abuse were committed by defendant or exact dates when those
acts occurred, but jury must agree unanimously that defendant, during period of
thirty or more days, committed two or more acts of sexual abuse).
In determining the sufficiency of the evidence, the reviewing court considers
the evidence in the light most favorable to the verdict to determine whether any
rational trier of fact could have found the essential elements of the offense beyond a
reasonable doubt. Acosta v. State, 429 S.W.3d 621, 624–25 (Tex. Crim. App. 2014).
The jury is the sole judge of the credibility and weight to attach to witness
testimony. Jackson v. Virginia, 443 U.S. 307, 319 (1979). The testimony of a child
–3– victim alone is sufficient to support a conviction for continuous sexual abuse of a
child. See TEX. CODE CRIM. PROC. ANN. art. 38.07(a); Garner v. State, 523 S.W.3d
266, 271 (Tex. App.—Dallas 2017, no pet.).
At trial, the evidence established A.M. was twelve years old when she
delivered her baby. Appellant was thirty-seven at the time of trial. Appellant
testified in his own defense and admitted to having intercourse with A.M. during the
last week of September and the first week of October 2017. Thus, the evidence is
sufficient to establish appellant committed at least two acts of sexual abuse and at
the time he was older than seventeen and A.M. was younger than fourteen. See TEX.
PENAL CODE ANN. § 21.02(b). The only element appellant challenges on appeal is
whether he abused A.M. at least twice over a duration of 30 or more days.
We conclude there is sufficient evidence that at least two acts of sexual abuse
occurred between December 2016 and September 2017. A.M. testified she was born
in February 2006, she moved to Plano when she was approximately ten years old,
and that appellant first sexually abused her at or about the time she moved to Plano.
Appellant testified that he met A.M. when she moved to Plano in December 2016,
and the investigating detective testified A.M. began attending school in Plano in
January 2017. A.M. testified regarding four separate instances of appellant sexually
abusing her, which a reasonable juror could rationally infer took place over the
–4– period of time between December 2016 and September 2017.3 After A.M.’s baby
was born, the investigating police detective obtained DNA samples from A.M., her
baby, and appellant. At trial, an expert testified that, based on an analysis of the
DNA collected, appellant could not be excluded as the father of A.M.’s baby, but at
least 99.999999995 percent of the male population was excluded. Additionally, the
sonogram technician testified A.M.’s pregnancy began in mid to late September
2017.
Appellant challenges A.M.’s testimony, noting inconsistencies in the number
of times she stated appellant abused her and when the abuse occurred. However, as
the exclusive judge of the credibility of the witnesses and the weight to be given
their testimony, the jury had to resolve this conflicting testimony. McCay v. State,
476 S.W.3d 640, 651 (Tex. App.—Dallas 2015, pet. ref’d).
Deferring to the jury’s determination of the credibility of the witnesses and
the weight to be given their testimony, based on the cumulative force of all the
evidence when viewed in the light most favorable to the verdict, and considering the
reasonable inferences to be drawn from that evidence, we conclude a rational trier
of fact could have found more than one act of sexual abuse occurred over a duration
of 30 or more days between December 2016 and September 2017; that these acts
3 According to A.M., during some of the instances of abuse, it was cold outside and other times it was warm outside. –5– occurred while A.M. was younger than fourteen; and that appellant was older than
seventeen beyond a reasonable doubt. We overrule appellant’s second issue.
II. Modification of the Judgment In his first issue, appellant requests this Court modify the judgment to reflect
the name of the attorney who represented him at trial. The judgment reflects the
“attorney for defendant” was Robert Herrington. However, the record reflects
appellant was represented at trial by Servando J. McHazlett and that Mark
Underwood assisted Mr. Hazlett as co-counsel. The State agrees with appellant’s
request.
We have the authority to modify the trial court’s judgment to make the record
speak the truth. TEX. R. APP. P. 43.2(b); French v. State, 830 S.W.2d 607, 609 (Tex.
Crim. App. 1991). We sustain appellant’s first issue and modify the judgment to
reflect the “attorney for defendant” was Servando J. McHazlett.
CONCLUSION We modify the judgment to reflect “attorney for defendant” was Servando J.
McHazlett and affirm the judgment as modified.
/David J. Schenck/ DAVID J. SCHENCK DO NOT PUBLISH JUSTICE TEX. R. APP. P. 47 190177F.U05
–6– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
ROLI AROLDO LOPEZ, Appellant On Appeal from the 199th Judicial District Court, Collin County, Texas No. 05-19-00177-CR V. Trial Court Cause No. 199-81302- 2018. THE STATE OF TEXAS, Appellee Opinion delivered by Justice Schenck. Justices Myers and Carlyle participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows:
We sustain appellant’s first issue and modify the judgment to reflect the “attorney for defendant” was Servando J. McHazlett.
As MODIFIED, the judgment is AFFIRMED.
Judgment entered this 11th day of March, 2020.
–7–