Opinion
Nos. 05-05-00926-CR, 05-05-00927-CR
Opinion Filed June 27, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause Nos. F04-73614-Jl and F05-00380-IL. Affirm.
Before Justices WRIGHT, MOSELEY, and LANG.
OPINION
Juan Aguilar Garcia appeals his convictions for aggravated sexual assault and sexual assault of a child. In a consolidated trial, appellant entered open pleas of guilty to both offenses. The trial court accepted appellant's pleas and passed the cases for sentencing. After receiving evidence at a separate hearing, the trial judge assessed punishment at confinement for life in the aggravated sexual assault case and confinement for twenty years in the sexual assault of a child case. The trial judge also assessed fines of $10,000 in each case. In his sole issue on appeal, appellant contends the trial court erred by allowing testimony of unproven bad acts or extraneous offenses into evidence during the punishment phase of trial. We resolve appellant's issue against him and affirm the judgment of the trial court.
I. FACTUAL AND PROCEDURAL BACKGROUND
When Y.M. was eight years old, she moved in with appellant and his wife, Efigenia Lopez, who were relatives of Y.M. They lived in Mexico. Y.M. testified that appellant started forcing her to have sex with him when she was nine years old. A woman acquaintance took Y.M. to a nearby river one evening and left her alone with appellant. Appellant covered Y.M.'s mouth with his hand, threw her on the ground, and forced her to have sex with him. Appellant told Y.M. that he would kill her if she told anyone about what he did. After Y.M. returned home, Lopez asked her why she was upset, and Y.M. told Lopez what appellant had done. When Lopez spoke to appellant about the allegations, appellant beat Lopez with his fists and threatened to kill Lopez's brother if she told anyone what had happened. Appellant showed Lopez's bloody body to Y.M. and told her that if she said anything about the sexual assault, he would beat her father or one of her uncles. Appellant also told Y.M. that he had a cousin who would kill another person for him. After his first assault on Y.M., appellant had sex with her every night in the room where she slept. Although Y.M. tried to resist, appellant would cover her mouth, pull her hair, and take her clothes off. He warned her not to make any noise because his daughter slept in the same room. Appellant threatened to "stick his fingers inside" if she resisted. When Y.M. was eleven years old, her grandmother suspected that Y.M. was being sexually abused by appellant. However, when Y.M.'s grandmother made plans to have Y.M. live with her, appellant moved Y.M. and the rest of his family to his brother's house in another city in Mexico. Appellant continued to force Y.M. to have sex with him. When Y.M. was fourteen years old, Y.M.'s uncle threatened to kill appellant for sexually abusing her. Appellant moved to the United States and forced Y.M. to move with him by threatening to kill Y.M.'s uncle. Appellant continued to have sex with Y.M. after coming to the United States. Appellant and Y.M. eventually settled in an apartment in Dallas. They lived with several male relatives of appellant. Y.M. did not leave the apartment, even while appellant went to work, because appellant threatened her and she was afraid of him. Y.M. subsequently became pregnant with appellant's child. While Y.M. was pregnant, appellant beat her and forced her to sleep in a closet. Ten days after she gave birth, appellant had sex with her. At the time of trial, Y.M. was seventeen years old. Appellant testified that Y.M. was thirteen years old the first time he had sex with her, not nine years old. He said that Y.M.'s father and grandmother knew about his sexual relationship with Y.M. Appellant stated that he believed Y.M. loved him and that she would "react like my normal spouse or partner" when he had sex with her. He testified that before their move to the United States, Y.M. had stayed in Mexico during a time period when he was out of the country. At that time, he stated, Y.M. had the opportunity to leave him if she had wanted to do so. Appellant testified that he understood he had broken the law. However, he denied forcing Y.M. to have sex with him while they lived in Mexico, and he denied beating Lopez. He also denied holding Y.M. captive or telling Y.M. that he knew someone who would murder another person for him. During the punishment phase of trial, appellant made a running objection to evidence of any extraneous offenses allegedly committed by him that occurred "out of the jurisdiction in Mexico." The trial judge overruled his objection. After the trial judge assessed punishment, appellant filed this appeal. II. EVIDENCE OF EXTRANEOUS OFFENSES OR BAD ACTS Appellant contends that the trial court erred in admitting evidence of prior unadjudicated bad acts during the punishment phase of trial because the evidence presented was legally and factually insufficient to prove that he committed those offenses beyond a reasonable doubt. He argues that he was harmed by the court's consideration of those bad acts because his sentences were "clearly wrong or unjust." The State argues that appellant has inadequately briefed his sole issue and this Court should overrule it on that basis. Further, the State contends, a legal and factual sufficiency review is not applicable to prior bad acts and extraneous offenses introduced at the punishment phase of trial. Therefore, the State argues, appellant was not harmed.A. Applicable Law
Evidence of extraneous crimes or bad acts is admissible during the punishment phase of trial to the extent the trial court deems it relevant to sentencing. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Supp. 2005); Tracy v. State, 14 S.W.3d 820, 825 (Tex.App.-Dallas 2000, pet. ref'd). The scope of punishment evidence is broad so as to enable a fact-finder to assess an appropriate sentence for a particular defendant. See Rogers v. State, 991 S.W.2d 263, 265 (Tex.Crim.App. 1999). When punishment is assessed by a trial court, the trial court acts in a dual role as both a gatekeeper and a fact-finder. See State v. Medrano, 127 S.W.3d 781, 791 (Tex.Crim.App. 2004). The trial court acts as a gatekeeper in determining the threshold issue of the relevance of the extraneous offense evidence. Id. The trial court acts as a fact-finder in determining whether the extraneous offense evidence was proved beyond a reasonable doubt, which a fact-finder must determine before it can properly consider that evidence in assessing punishment. See Mitchell v. State, 931 S.W.2d 950, 953 (Tex.Crim.App. 1996); Ortega v. State, 126 S.W.3d 618, 622 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd). The standard for reviewing a legal sufficiency challenge to a finding of guilt is whether, after viewing the evidence in the light most favorable to the prosecution, 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). In reviewing a factual sufficiency challenge, the evidence must be viewed without the prism of "in the light most favorable to the prosecution," to determine whether the finding of guilt is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). Although the same reasonable doubt standard required for conviction also applies at the punishment stage to proof of the accused's extraneous acts of misconduct, Texas courts have never applied a legal or factual sufficiency review under the standards of Jackson and Clewis to the adequacy of evidence proving an unadjudicated extraneous offense beyond a reasonable doubt. See Malpica v. State, 108 S.W.3d 374, 378 (Tex.App.-Tyler 2003, no pet.); Wilson v. State, 15 S.W.3d 544, 548 (Tex.App.-Dallas 1999, pet. ref'd). In Wilson, this Court determined that none of the considerations supporting the application of a factual sufficiency review under the standards of Clewis to a finding of guilt applied to a finding at the punishment phase that the defendant committed an unadjudicated extraneous offense. Wilson, 15 S.W.3d at 549. At the punishment phase of a trial, this Court noted, "the defendant has already been convicted, and the only issue is what punishment, within a set range, should be assessed against the defendant." Id. "The defendant is not found `guilty' of the unadjudicated extraneous offense, and he is punished only for the charged offense, although the fact-finder may consider the unadjudicated, extraneous offense in determining what punishment to assess." Id. "Unlike review of the defendant's guilt of the charged offense, where the issue before the appellate court is the ultimate issue of the fairness of the defendant's guilt, review of extraneous offenses at punishment concerns only an evidentiary issue and not an ultimate issue concerning the appellant's punishment." Id. The court in Malpica came to the same conclusion in considering applicability of both Jackson and Clewis standards of review to the sufficiency of extraneous offense evidence introduced at the punishment phase of trial. See Malpica, 108 S.W.3d at 378. Noting that an assessment of punishment involves considerations far less grave than those involved in a determination of guilt, the Malpica court concluded that "the only review possible of the sufficiency of the proof of an extraneous offense introduced at the punishment stage is a review under an abuse of discretion standard of the trial judge's threshold ruling on admissibility." Id. at 379.B. Application of Law to Facts
Although appellant argues that he "was harmed by the court allowing testimony of unproven bad acts or offenses into evidence in the punishment phase," he provides no citations to the record and does not expressly identify the unproven acts of which he complains. At trial, however, he made a running objection to evidence of any offenses allegedly committed by him that "happened out of the jurisdiction in Mexico." The trial judge overruled his objection, stating, "Well, I think [article 37.07] allows me to consider those for purposes of punishment. I'll decipher which ones meet the standard and which don't." During closing arguments, appellant's counsel stated:Also, we'd ask the Court to not punish [appellant] for things that may or may not have happened in Mexico because, as [appellant] testified, Efigenia, his estranged wife, could come and clear up some of those allegations that he characterize[s] as faulty. So we'd ask the Court to mitigate this case in any aspect that the Court deems proper.(Rep. R. 33). The record does not reflect that the trial court made any findings regarding any of appellant's prior bad acts or unadjudicated extraneous offenses. Appellant argues that the evidence presented was legally and factually insufficient to prove any of the extraneous offenses beyond a reasonable doubt. Specifically, he contends that the testimony was vague as to the details of any offense and that the State "did not offer any statues [sic] from these other jurisdiction [sic] to show if the acts alleged were crimes or what the elements of the offenses were." The State asserts that Texas case law has established that legal and factual sufficiency reviews are inapplicable to a fact-finder's determination at the punishment phase of trial that the evidence proves beyond a reasonable doubt that the defendant committed an unadjudicated extraneous offense. Therefore, the State argues, appellant's sole issue should be decided against him. In accordance with Wilson and Malpica, we conclude that the evidence of unadjudicated extraneous offenses introduced at the punishment phase of appellant's trial is not reviewable for legal or factual sufficiency under the standards set out in Jackson and Clewis. Appellant's guilty pleas were entered and were accepted by the court prior to the hearing at which the disputed evidence was offered. Thus, the fairness of the determination of appellant's guilt is not at issue. See Wilson, 15 S.W.3d at 549. The sufficiency of proof of the unadjudicated extraneous offenses introduced by the State at punishment is reviewable only as an evidentiary issue. See Malpica, 108 S.W.3d at 379. An appellate court reviews the trial court's decision to admit extraneous offense evidence under the abuse of discretion standard. Mitchell, 931 S.W.2d at 953. The trial court must make a threshold determination that the fact-finder could reasonably find beyond a reasonable doubt that the defendant committed the extraneous offense before it can admit evidence of the extraneous offense at the punishment phase of a non-capital trial. Malpica, 108 S.W.3d at 377. The trial court's decision will be upheld if it is within "the zone of reasonable disagreement." Salazar v. State, 38 S.W.3d 141, 153 (Tex.Crim.App. 2001). During the punishment phase of appellant's trial, Y.M. testified that appellant forced her to have sex with him while they lived in Mexico. A complainant's testimony, standing alone, is sufficient evidence to prove the occurrence of a sexual assault. See Garcia v. State, 563 S.W.2d 925, 928 (Tex.Crim.App. [Panel Op.] 1978). No corroborating evidence is required. See Empty v. State, 972 S.W.2d 194, 196-97 (Tex.App.-Dallas 1998, pet. ref'd). Accordingly, the trial court's admission of Y.M.'s testimony regarding sexual offenses by appellant in Mexico was not an abuse of discretion. Further, the trial court did not abuse its discretion in admitting Y.M.'s firsthand accounts of appellant's threats to harm others unless she did as he ordered and her eyewitness testimony as to the beating of Lopez. See Bowden v. State, 628 S.W.2d 782, 784 (Tex.Crim.App. 1982) (holding that testimony of one witness was sufficient to support defendant's conviction); Rodriguez v. State, 955 S.W.2d 171, 174 (Tex.App.-Amarillo 1997, no pet.) (holding that where testimony of at least one witness confirmed elements of aggravated assault, court could not say that no rational juror could find the defendant guilty beyond a reasonable doubt).