Avila v. State

Full title: OLMAN NEPTALY AVILA, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Mar 9, 2010

Nos. 05-08-01629-CR, 05-08-01630-CR (Tex. App. Mar. 9, 2010)

Opinion

Nos. 05-08-01629-CR, 05-08-01630-CR

Opinion Filed March 9, 2010. DO NOT PUBLISH. TEX. R. APP. P. 47.

On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F07-11188-RP and F07-11189-RP.

Before Justices O'NEILL, THOMAS, ¹ and LAGARDE².

1 The Honorable Linda Thomas, Chief Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.

2 The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.

OPINION

Opinion By Justice LAGARDE.Page 2

Appellant Olman Neptaly Avila appeals from judgments in two cases that were tried together. Appellant was indicted for both aggravated sexual assault³ and aggravated kidnapping.⁴ Appellant pleaded not guilty to each charge before a jury. The jury found appellant guilty of each offense. In the aggravated sexual assault case, the jury assessed appellant's punishment at seven years' confinement. In the aggravated kidnapping case, the jury answered a special issue affirmatively finding appellant released the complainant in a safe place and it assessed his punishment at five years' confinement. The trial judge sentenced appellant pursuant to the jury's verdicts. On appeal, appellant contends the evidence is legally and factually insufficient in the aggravated sexual assault case and factually insufficient in the aggravated kidnapping case to support the jury's verdicts. After reviewing the record, we conclude the evidence in each case is both legally and factually sufficient; thus, we affirm each judgment.

3 The indictment alleged, inter alia, that appellant intentionally and knowingly caused the penetration of the complainant's female sexual organ by his sexual organ without her consent.

4 The indictment alleged, inter alia, that appellant intentionally and knowingly abducted the complainant by restraining, confining, and moving the complainant from one place to another, and by secreting and holding he-r i2n -a place where she was not likely to be found.

Facts

Ana Karina Hernandez testified she is thirty-five years old, single, and lives in Garland, Texas. She had known appellant about four years at the time of trial and identified him during the trial. Initially, they were friends. For the ten or twelve months preceding trial, however, they had been in an off-and-on dating relationship. In August of 2007, they were broken up and had not talked for about ten to fifteen days. At that time, Hernandez lived in Lewisville; however, on Friday evening, August 4th, she was at a party at the apartment of a friend in Addison. While at the party, appellant called and asked Hernandez to come downstairs to talk. Hernandez went downstairs and she and appellant talked for about an hour in his car. Everything seemed okay for awhile but then they talked about their previous problems which may have bothered appellant. Hernandez returned to the party and appellant left. About ten minutes later, appellant returned. About that same time, a male named Wilson also arrived. Wilson was apparently trying to begin a relationship with one of Hernandez's friends. Hernandez believed appellant was angered at that. Appellant argued with Hernandez, her friends, and with Wilson. Hernandez believed appellant was angry about something that had happened the day before. Eventually, Hernandez left with appellant. When asked why she left with him after the argument, Hernandez replied, "because after that he said we don't have any problems, and he just said I want you to go with me and that — all the situations here." Hernandez thought everything was okay. They got into a car. Appellant said he was going to the apartments across the street⁵ to borrow some money for gas so he could take Hernandez home. Once they were across the street sitting in the parked car, appellant began to hit Hernandez in the face with an open hand. He then grabbed her hair and neck and hit her in the stomach with his clinched fists. He also hit her on her chest, arm, and forehead, and scratched her on her chest and back. Hernandez was crying and asking appellant not to hit her. Hernandez tried to get out of the car but appellant locked the door and would not allow her to get out. Appellant told Hernandez he was hitting her because she was a bitch and a prostitute. Appellant apparently thought Hernandez was seeing someone else. Hernandez denied hitting or striking appellant. After appellant hit Hernandez on the arms and chest, he grabbed the car lighter and told her he was going to put it into her vagina because she was a prostitute. Hernandez was able to pull appellant's hand away but appellant burned her on her left leg. He said he wanted her to feel the same pain he was feeling when he thought about her seeing another person. Appellant burned her a second time on the back of her right leg. At the time of trial, Hernandez still had scars on her legs from the burns. Eventually, appellant stopped hitting Hernandez and drove off. When Hernandez asked where they were going, appellant said he was going to take her to a place she liked a lot. He told her, "I know that place and it scares you." Hernandez did not want to be with appellant. She tried to get out of the moving car but appellant grabbed her hair and arm. Hernandez was afraid appellant might kill her, but for her own safety, she did not want to get aggressive and provoke him. It was dark and she was scared "a lot" of going to "that place." From Addison, appellant drove to a location on Webb Chapel behind the home of one of his cousins. They both stayed in the car. Appellant began to play music from a compact disc Hernandez had given him. He was calm and he told Hernandez he "did this" because she deserved it and that she did not "do things right." Appellant then started hugging and kissing Hernandez and wanted to have sex. Hernandez told appellant she did not want to hug or kiss him or have sex with him. She wanted appellant to remain calm so she could just leave. She was still afraid because he had burned her and she did not know if she had pain or not. Appellant and Hernandez had sex. She described the event as appellant lying down on the driver's seat with her on top of him. Appellant pulled off Hernandez's clothes, pushed aside her underpants, and placed his sexual organ inside hers without using a condom. When questioned on cross-examination about consent, Hernandez explained she did not want to have sex with appellant but she did not oppose him because she was afraid it would provoke him and she feared something worse would happen. When Hernandez was asked, "you didn't consent, you just let him do that?" she replied, "Well, whatever he wanted to do at that point, I agree with. I didn't show him any anger or something like that, nothing at all." At one point, Hernandez testified she did not want to have anything intimate with appellant, but at the end, she agreed. Hernandez said she cried throughout the events. After the sexual act, appellant and Hernandez stayed at appellant's cousin's house for awhile. Appellant was always telling her he loved her, that everything he did was because he loved her. Appellant then asked Hernandez to call someone to meet them some place because he did not want to drive her all the way home. Hernandez called her friend, Elsy, from appellant's telephone, and asked her to meet them. Appellant then drove to the Valley View Mall parking lot and waited for Hernandez's friend. Eventually, appellant grew tired of waiting and wanted to leave, so he drove Hernandez to a McDonald's on Montfort and dropped her off. Elsy finally arrived between 7:30 a.m. and 8:00 a.m. on Saturday morning. Hernandez cried and showed Elsy what appellant had done to her. About twenty-four hours later, Hernandez told her family about the assault. Hernandez did not want to go to the police, she thought about appellant's children, and she did not want to testify at trial because she thought her life would be in danger. But she also thought if she "let this time to let go then the next time could be worse." About 11:00 p.m. on Sunday night, Hernandez went to the Addison Police Department to report what had happened. From there, she went to the hospital for treatment for her burns and to get a sexual assault examination. She was at the hospital where she was treated for about seven hours. On cross-examination, Hernandez testified there were times she was alone in the car but she did not try to get away or call 911 because she was scared, alone, and there was nobody there to help her. Karen Spencer testified she was a detective with the Addison Police Department where she had been employed some fifteen years. For about ten years, she had worked with family violence and sexual offense cases. On August 6, 2008, she was called in to investigate an aggravated assault and kidnapping case. The first thing she did was get the initial report and a statement from the victim and had it translated. After that, she had a warrant issued for a suspect whom she identified as appellant. She also obtained a search warrant for appellant's vehicle, a 1996 Toyota Camry, license plate 013 PWK. That search revealed a car cigarette lighter, some clumps of hair, and a seat cover. The evidence was taken by the crime scene investigator and sent to the lab for testing. The witness had the cigarette lighter in court. It was admitted into evidence without objection. A sexual assault kit was also submitted to the lab for testing. Spencer explained to the jury what a sexual assault kit was: that it contained both the doctor's findings and samples taken from the victim. Spencer also obtained a warrant for DNA from appellant and had it executed in the Dallas County Jail. A buccal swab was obtained from appellant. Investigator Wilson took the swab to the SWIFS lab for testing. Spencer explained that DNA from appellant was necessary for comparison to the DNA obtained from the evidence obtained both at the scene and from Hernandez. On cross-examination, Spencer testified that Officer Aguilar interviewed the complainant on the scene. Spencer wrote her report from Aguilar's interview. Spencer's report stated appellant threatened to kill the complainant and had sexual intercourse with her for forty minutes while she kept telling him "No." Ismael Parra testified he was a forensics biologist at the Southwestern Institute of Forensic Sciences (SWIFS). Parra testified that on August 6, 2007, SWIFS received a sexual assault kit that was assigned the laboratory number "07-P1331." The kit contained five items: a vaginal swab, a vaginal smear, blood card, some pubic hair combings, and a culture tube. Parra explained what the items were and the tests that were run at the lab on the items. He explained he did not perform the actual testing. Pam Marshall, who was no longer with SWIFS at the time of trial, did the testing on the evidence; however, Parra was a technical reviewer on the case. Testing for blood on the lighter was negative. Parra did not know what the DNA tests showed. Parra could find no evidence that testing was done on the hair clump. Angela Fitzwater testified she was also a forensic biologist with SWIFS whose main duty is DNA testing. She explained she was also a qualified analyst in serology. Another analyst, Courtney Ferreira, created DNA profiles from the semen on the vaginal smear and biological material from the cigarette lighter. DNA profiles were also generated from the blood sample obtained from Hernandez and the buccal swab obtained from appellant. Ferreira did a DNA analysis on laboratory #07-P1331. Fitzwater was testifying as a custodian of records. The records showed the following evidence was submitted to be compared: a vaginal swab, a blood card standard of Hernandez, a car cigarette lighter, and a buccal swab standard of appellant. Fitzwater explained to the jury the process for DNA testing and comparison. When asked what the results were and what they meant, Fitzwater testified:

After DNA testing was done on the vaginal swab, the DNA testing results yielded a DNA profile of a single male, and this DNA profile matched the DNA profile of Olman Avila. There were two samples collected from the car cigarette lighter, two swabbings. And one of those samples, no DNA was detected from that sample. The other sample of the car cigarette lighter, a partial DNA profile was obtained, and it was of a single female and it matched the DNA profile of Ana Hernandez.

Fitzwater was then directed to the vaginal swab and what the statistical analysis was in those results and asked to explain to the jury what those meant. She responded:

If a person is included as a possible source of a DNA profile, a statistical analysis will be calculated giving weight to that match. And for the vaginal swab, DNA profile that matched Olman Avila, a statistical analysis was calculated for three prevalent racial groups in Texas, and these are the Caucasian, African-American and Hispanic population groups. The statistical analysis asks the question, "What is the probability of selecting at random an unrelated individual who happens to have that same DNA profile?" And for the Caucasian group, it was one in 333 billion; the African-American, one in 2.23 trillion; and the Hispanic, one — one in 130 billion.

Fitzwater's attention was then directed to the swabbing of the cigarette lighter and she was asked about a DNA match or profile for that. She responded: "A statistical analysis was calculated including Ana Hernandez to this DNA profile. And for the Caucasian racial group, it was one in 17.8 million; the African-American, one in 1.43 billion; and Hispanic, one in 2.52 million." After presenting the DNA evidence, the State rested. On the aggravated assault case, appellant moved for a directed verdict based on consent. And on the aggravated kidnapping case, appellant argued that because there was no assault, there could be no kidnapping. The trial court denied both motions. Outside the jury's presence, appellant was admonished of his rights and chose not to testify. Thereafter the appellant rested in front of the jury without presenting any evidence. Both sides closed and jury arguments were presented. In two points, appellant argues on appeal the evidence set out above is both legally and factually insufficient to support the respective judgments. More specifically, appellant argues the evidence is legally insufficient because there is no evidence that appellant, by acts or words, either (a) placed complainant in fear of imminent death, serious bodily injury, or kidnapping; or (b) threatened to cause the death, serious bodily injury, or kidnapping of any person. Appellant argues that because the hostile words and acts occurred prior to any sexual relations at a different location, the State had failed to establish this element of its case. Appellant further argues the evidence reflects there was "no lack of consent." In other words, appellant argues there was consent. He points to Hernandez's testimony that she did not oppose and, in fact, agreed to sexual relations. Thus, argues appellant, the evidence is factually insufficient.

Standards of Review

The standard of review for both legal and factual sufficiency of the evidence is well known to the parties. In challenging legal sufficiency of the evidence, the evidence is examined in the light most favorable to the judgment in determining whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Taylor v. State, 106 S.W.3d 827, 830 (Tex. App.-Dallas 2003, no pet.). Legal sufficiency review does not involve a reweighing of the evidence or a substitution of the jury's judgment. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). In our review, we must consider all of the evidence, whether or not properly admitted. Lockhart v. Nelson, 488 U.S. 33, 41-42 (1988). The factfinder is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). The fact finder may choose to believe or disbelieve all or any part of any witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). We measure the legal sufficiency of the evidence against the elements of the offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Even though evidence may be legally sufficient it can be factually insufficient. To review for factual insufficiency of the evidence we determine whether the verdict seems clearly wrong, manifestly unjust, or against the great weight and preponderance of the evidence. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). Evidence can be deemed factually insufficient in two ways: (1) the evidence supporting the conviction is "too weak" to support the verdict, or (2) considering conflicting evidence, the verdict is "against the great weight and preponderance of the evidence." Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009). As appellant correctly points out, the court of criminal appeals has set forth rules for implementing this standard of review. Laster, 275 S.W.3d at 518. Those rules include examining all of the evidence in a neutral light, only finding the evidence factually insufficient when necessary to prevent manifest injustice, and, when reversing a case for factual insufficiency, explaining why the evidence is too weak to support the verdict or why the conflicting evidence greatly weighs against the verdict. Id. As in legal sufficiency, we measure the evidence against the elements of the offense as defined by a hypothetically correct jury charge. Wooley v. State, 273 S.W.3d 260, 268 (Tex. Crim. App. 2008).

Analysis

In these cases, the defense presented no evidence; thus we examine all the testimony presented by the State and the cross-examination of the State's witnesses, together with the exhibits admitted into evidence.⁶ Inasmuch as the thrust of appellant's argument is that Hernandez consented to the sexual act, and thus the aggravated kidnapping case is factually insufficient because the evidence is insufficient to show a lack of consent, we analyze the offenses together. We first note it is undisputed the sexual act occurred. Moreover, it is supported by DNA evidence. Appellant argues there was consent and he points to the difference in time and place between the initial contact with Hernandez in front of the apartments in Addison and the time and place of the sexual act that occurred behind his cousin's house on Webb Chapel Road. He also argues that Hernandez testified she in fact agreed to the sexual act. Appellant argues that because Hernandez testified appellant struck, burned, and restrained her at the Addison location and she did not testify he threatened her at the Webb Chapel location, the evidence is insufficient to show a lack of consent or consent coerced by verbal or physical threats. He further argues crying is not inconsistent with consent and also points to the inconsistency between the report of the physical location of the parties during the sexual act and Hernandez's testimony at trial.⁷ In summary, appellant argues there is no credible evidence of lack of consent at the time of the sexual act or a sufficient logical nexus between the earlier threats and violence and the later sexual relations. Thus, argues appellant, the evidence is both legally and factually insufficient to find a lack of consent and reversal is warranted. In the aggravated kidnapping case, appellant argues that because there was insufficient evidence of lack of consent there could not have been a kidnapping, and thus the evidence in the kidnapping case is factually insufficient. We disagree. A person commits the offense of aggravated kidnapping if he intentionally or knowingly abducts another person with intent to . . . facilitate the commission of a felony. . . .TEX. PENAL CODE ANN. § 20.04(a) (Vernon 2003). As the State correctly points out, kidnapping is a continuing offense, and thus the aggravating intent need not coincide with the initial act of abduction. Kemple v. State, 725 S.W.2d 483, 485 (Tex. App.-Corpus Christi 1987, no pet.). Nor does the statute require that appellant actually committed the facilitated felony — it requires only that he abducted the victim with the intent to facilitate the commission of a felony. See Rodriguez v. State, 646 S.W.2d 539, 541 (Tex. App.-Houston [1^st Dist.] 1982, no pet.) (evidence sufficient even though intervention prevented commission of actual rape). We conclude the evidence is factually sufficient to support the jury's verdict in the aggravated kidnapping case. We now turn to whether the evidence is sufficient to support Hernandez's lack of consent in the aggravated sexual assault case.⁸ A person commits the offense of aggravated sexual assault by, inter alia, causing the penetration of the anus or sexual organ of another person by any means, without that person's consent; and if the perpetrator, inter alia, (1) by acts or words places the victim in fear that death, serious bodily injury, or kidnapping will be imminently inflicted on any person, or (2) by acts or words occurring in the presence of the victim threatens to cause the death, serious bodily injury, or kidnapping of any person. See TEX. PENAL CODE ANN. § 22.021(a)(1)(A)(i), (a)(2)(A)(ii), (iii) (Vernon Supp. 2009). The aggravating element of the offense set out above is placing the victim in a state of fear of imminent infliction of death, serious bodily injury, or kidnapping due to the defendant's acts or words. Foreman v. State, 743 S.W.2d 731, 732 (Tex. App.-El Paso 1987, no pet.). The victim's state of fear is normally established through her own testimony. Lewis v. State, 984 S.W.2d 732, 734 (Tex. App.-Fort Worth 1998, pet. ref'd). Hernandez testified she was scared and feared for her life. The jury had to decide whether, subjectively, Hernandez was indeed in fear and, if so, whether the appellant's words and deeds were the producing cause of such fear, and whether such fear was reasonable in light of appellant's conduct. The reasonableness of Hernandez's subjective fear will be determinative. Foreman, 743 S.W.2d at 733. Viewing the evidence in the light most favorable to the verdict, we conclude the evidence is legally sufficient for the fact finder to have concluded, as it did, that the words or deeds, or both, of appellant put Hernandez in fear which was reasonable in light of appellant's conduct. Moreover, viewing all the evidence neutrally, we further conclude the evidence is also factually sufficient to support both the judgment in the aggravated assault case and the judgment in the aggravated kidnapping case. We affirm.