Gino Richard Valadez v. the State of Texas

Opinion filed July 25, 2024

In The

Eleventh Court of Appeals
__________

Nos. 11-24-00002-CR & 11-24-00003-CR
__________

GINO RICHARD VALADEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 35th District Court
Brown County, Texas
Trial Court Cause Nos. CR29200 & CR29334

MEMORANDUM OPINION
Appellant, Gino Richard Valadez, was charged in a three-count indictment
with committing the first-degree felony offense of aggravated sexual assault of T.G.,
a child under seventeen years of age. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B),
(2)(A)(vi) (West 2019). He was also charged in a separate indictment with a single
count of occlusion assault against his then-girlfriend, B.S., a third-degree felony.
See PENAL § 22.01(a)(1), (b)(2)(B) (West Supp. 2023). Prior to a consolidated bench
trial,1 the State struck the aggravating language from the sexual assault allegations,
and proceeded on those three counts as second-degree felonies. See PENAL
§ 22.011(a)(2). Appellant pled guilty to sexual assault of a child as alleged in counts
one and three; he penetrated T.G.’s sexual organ with his sexual organ on separate
dates. He pled not guilty to penetrating T.G.’s anus as alleged in count two, and not
guilty to the family violence assault by occlusion.
At the conclusion of the evidence, the trial court found Appellant guilty of
each offense, and assessed punishment at confinement for twenty years in the
Correctional Institutions Division of the Texas Department of Criminal Justice for
each of the sexual-assault-of-a-child convictions, and ten years’ imprisonment for
the occlusion-assault conviction. The trial court further ordered the sentences to run
concurrently. See TEX. CODE CRIM. PROC. ANN. art. 42.08(a) (West Supp. 2023).
Appellant’s court-appointed counsel has filed motions to withdraw in this
court. The motions are supported by briefs in which counsel professionally and
conscientiously examines the record and applicable law and concludes that there are
no arguable issues to present on appeal. Counsel provided Appellant with a copy of
the briefs, a copy of the motions to withdraw, an explanatory letter, and a copy of
both the clerk’s records and the reporter’s record. Counsel also advised Appellant
of his right to review the record and file a response to counsel’s briefs, and of his
right to file a petition for discretionary review. See TEX. R. APP. P. 68. As such,
court-appointed counsel has complied with the requirements of Anders v. California,
386 U.S. 738 (1967); Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014); In re

1
Appellant was also convicted of three counts of possession or promotion of child pornography
under trial court cause no. CR28970. His appeal of those convictions are pending in this court under Cause
No. 11-24-00001-CR.

2
Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008); and Stafford v. State, 813
S.W.2d 503 (Tex. Crim. App. 1991).
Appellant has not filed a pro se response to counsel’s Anders briefs.
Following the procedures outlined in Anders and Schulman, we have independently
reviewed the record as set forth below, and we agree that the appeal is without merit.
In three separate indictments, Appellant was charged with committing:
(1) possession or promotion of child pornography on March 3, 2022; (2) occlusion
assault against B.S. on September 8, 2022; and (3) aggravated sexual assault of a
child, T.G., by penetrating her vagina on November 13, 2021 and March 10, 2022,
and her anus on March 10, 2022. See PENAL §§ 22.01(a)(1), (b)(2)(B),
22.021(a)(1)(B), (2)(A)(vi), 43.26. Appellant pled not guilty to each allegation
except the reduced charges of sexual assault of a child by vaginal penetration. He
waived his right to a jury trial, and the State presented evidence of each offense in a
consolidated bench trial.
The State called ten witnesses, including T.G. and B.S. T.G. testified that she
met Appellant when she was sixteen years old. After exchanging flirtatious text
messages, she and Appellant engaged in sexual intercourse in November of 2021.
Despite Appellant’s awareness of T.G.’s age, and that “he could get in trouble,” he
continued his sexual relationship with T.G. until March of 2022.
As the relationship progressed, Appellant’s sexual tendencies “slowly became
different,” and became aggressive. T.G. recalled: “He would tie me up really hard
and wouldn’t listen to me when I said I didn’t want to do stuff, because I wasn’t able
to move.” Appellant would give her vodka and marihuana to “calm [her] down,”
and he “choke[d] [her] to the point where [she] passed out multiple times.” T.G.
recalled being hogtied on one occasion while Appellant penetrated her vagina and

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anus. Despite T.G.’s aversion to Appellant’s sexual proclivities, she acquiesced
because Appellant “was really adamant.”
Appellant and T.G. recorded their sexual encounters, and sent each other
explicit photographs and videos throughout their relationship. Detective Patrick
Weaver of the Brownwood Police Department had videos extracted from T.G.’s
phone, interviewed Appellant, and confirmed that the same content was stored on
Appellant’s phone. At trial, Appellant conceded to possessing sexually explicit
material of him and T.G., but not the videos alleged in the indictment.
Appellant candidly admitted throughout his testimony that he penetrated
sixteen-year-old T.G.’s vagina and mouth with his penis. However, he denied anal
penetration, and claimed that he “never once asked [T.G.] for sex” because he “was
always busy,” tired, or “not in the mood.” He only “went ahead and went with it”
because “she was adamant on having sex,” and he “didn’t like seeing her upset.”
Although he knew that having sex with T.G. was against the law, he “did not know
it would be this much trouble.”
According to Appellant, T.G. asked to be tied up and choked, and he “made
sure to never . . . squeeze [her] harder than what she wanted.” Appellant testified
that several of his sexual partners, including B.S. also asked to be choked during sex,
so he was simply heeding his partners’ requests. With respect to the occlusion
assault charge, he denied ever hitting B.S., called her “a pathological liar,” and
suggested that she fabricated the assault out of jealousy.
The trial court heard testimony from B.S. that she and Appellant began dating
in March of 2022. On September 8, 2022, she and Appellant were drinking at her
apartment, and Appellant became increasingly agitated. They went outside at one
point, and Appellant became even more agitated. While they were outside,
Appellant kicked B.S. while she was sitting down, and she “fell over to the side.”

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After B.S. got up and went back inside, Appellant followed her, grabbed her, put her
on the floor, got behind her as she was facedown, and wrapped her in a chokehold.
B.S. described losing her hearing, “see[ing] stars,” feeling pressure behind her eyes,
and gasping for air. Appellant released and reapplied pressure several more times
before B.S. passed out. Appellant put her into another chokehold when she awoke,
and let her go only after she begged to tell her parents goodbye.
B.S. ran outside screaming for help. Shannon Duran, B.S.’s neighbor, heard
what sounded like “a person in danger.” Duran went outside and observed B.S.
“crying,” “visibly shaking,” and “distressed.” Her shirt was ripped, and she had red
marks on her neck. Duran also saw Appellant, who told B.S. to come with him.
Because it was obvious to Duran that B.S. “had been assaulted to some degree,” she
refused to let B.S. go with Appellant, and called 9-1-1.
Nurse Lisa Burks examined B.S. the morning after the assault, and observed
“a lot of redness and abrasions to her neck,” “bruising to her chest,” and “petechiae
to the right side of her face.” According to Burks, the visible injuries were consistent
with B.S.’s account.
Finally, the State introduced a letter that Appellant wrote to B.S. from jail in
which he apologizes and professes his love for her. However, even with B.S.’s
testimony, visible injuries, and other corroborating evidence, Appellant told the trial
court that “[B.S.] was having her usual tantrum” and “doing her usual theatrics” that
night.
Appellant’s counsel elicited that Appellant was physically abused by his
father as an adolescent, served in the Army, and suffered from anxiety and
depression. Counsel then introduced three letters in support of Appellant’s character
for the trial court’s consideration, and apologized for “[giving] into the sexual
assault.”

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Prior to assessing punishment, the trial court explained its finding of guilt as
to the occlusion assault, specifically noting its credibility determination: “I listened
to [Appellant] testify and . . . I saw no remorse. . . . I believe [B.S.] a hundred
percent.” The trial court sentenced Appellant to confinement for twenty years for
each of the sexual-assault-of-a-child convictions, ten years for each child-
pornography conviction, and ten years for the occlusion-assault conviction.
We conclude that the evidence is sufficient to support the trial court’s guilty
verdicts. We further conclude that, based on our independent review of the record,
no other arguable grounds for appeal exist.2
However, the judgments contain non-reversible error requiring modification.
See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App.
1993) (concluding that the Texas Rules of Appellate Procedure empower courts
of appeals to reform judgments); see also Rhodes v. State, 676 S.W.3d 228, 235
(Tex. App.—Houston [14th Dist.] 2023, no pet.) (collecting cases). Pursuant to
Article 102.073(a) of the Code of Criminal Procedure, court costs may only be
assessed once against a defendant who was convicted of multiple offenses in a single
criminal action. TEX. CODE CRIM. PROC. ANN. art. 102.073(a) (West 2018). Court
costs are determined by “using the highest category of offense that is possible based
on the defendant’s convictions.” Id. art. 102.073(b).
Here, court costs were erroneously assessed in one of the causes resolved
before the trial court. The occlusion assault judgment, cause no. CR29200, orders
court costs of $290, and the judgment of Appellant’s convictions for sexual assault
of a child, cause no. CR29334, orders court costs of $270. Because the offense of
the highest category is sexual assault of a child, a second-degree felony, we retain

2
Appellant has the right to file a petition for discretionary review pursuant to Rule 68 of the Texas
Rules of Appellate Procedure.

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the costs assessed in that cause, and delete the $290 ordered in cause no. CR29200.
See, e.g., Jones v. State, No. 14-22-00495-CR, 2024 WL 848371, at *5 (Tex. App.—
Houston [14th Dist.] Feb. 29, 2024, no pet.).
Accordingly, in Cause No. 11-24-00003-CR, we grant counsel’s motion
to withdraw, and we affirm the judgment of the trial court; in Cause No. 11-24-
00002-CR, we grant counsel’s motion to withdraw, and we affirm the judgment of
the trial court as modified.

W. BRUCE WILLIAMS
JUSTICE

July 25, 2024
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

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