EX PARTE KENNETH MICHAEL WALLACE (Other)

SUPREME COURT CASES

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State: Texas

Court: Criminal Court of Appeals

Docket No: AP-76,054

Case Date: 12/10/2008

Plaintiff: MARTIN TYSON, SR. AND MARTIN TYSON, JR.

Defendant: MICHAEL J. ROGERS, ET AL.--Appeal from 93rd District Court of Hidalgo County

Preview:Julio Cesar Hernandez v. The State of Texas--Appeal
from 186th Judicial District Court of Bexar County
MEMORANDUM OPINION
No. 04-04-00079-CR
Julio Cesar HERNANDEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the District Court, 186th Judicial District, Bexar County, Texas
Trial Court No. 2003-CR-0182B
Honorable Maria Teresa Herr, Judge Presiding
Opinion by: Alma L. L pez, Chief Justice
Sitting: Alma L. L pez, Chief Justice
Catherine Stone, Justice
Sarah B. Duncan, Justice
Delivered and Filed: December 15, 2004
AFFIRMED
Julio Cesar Hernandez was convicted by a jury of aggravated sexual assault and aggravated kidnapping. Punishment
was assessed at twenty-five years imprisonment on the aggravated sexual assault charge and twenty years
imprisonment on the aggravated kidnapping charge. On appeal, Hernandez argues that (1) the trial court erred in
overruling Hernandez's challenge for cause of venire member Douglas McGee; (2) the evidence is both legally and
factually insufficient to support the conviction for kidnapping; and (3) the evidence is factually insufficient to support
the conviction for sexual assault. We affirm the judgment of the trial court.
Background
Around 5:00 a.m., on the morning of April 29, 2001, Vanessa Garcia was released from the Municipal Court Building,
after having been arrested for outstanding traffic tickets. Garcia was attempting to contact her boyfriend from a pay
phone outside the court building for a ride home, when a blue four-door Kia drove by with two men inside. The two
men were later identified as Hernandez and Michael Garza. Garcia testified that the men pulled the car over and
offered her a ride, but she refused. Garza then exited the car and grabbed Garcia, attempting to force her into the car.
Despite a struggle, Garza was able to push Garcia into the back seat of the car. Garza followed Garcia into the back
seat where, during continued struggling, Garcia was hit in the eye. The men told Garcia that if she did not shut up, they
would kill her, put her in the trunk, and take her body to Laredo.
Garcia testified that Hernandez drove the car to a desolate section of Cassin Road, where the men ordered Garcia out
of the car. Garza then forced Garcia to have sex with him. Once Garza finished, Hernandez forced Garcia to perform
oral sex on him. Garcia testified that both men used condoms and neither displayed a weapon.
After the attacks, the men left Garcia a few blocks from her house. Hernandez and Garza learned Garcia's address
from her I.D. and jail release paperwork. The men warned Garcia that if she told anyone what had happened, they
would kill her.
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Garcia arrived at her home at about 6:00 a.m.; her parents were still sleeping. Garcia's boyfriend, Anthony Neaves,
arrived at the house around 7:00 a.m. Garcia testified that she had decided against telling her parents and boyfriend
what had happened because she feared for their safety as well as her own.
Later that same day, because her black eye began to show, Garcia told Neaves what had happened. Neaves then told
Garcia's father. Concerned for their safety, and that of Garcia, the family took extra security measures, adding sensor
lights and locks to the front door and screwing the windows shut in Garcia's bedroom.
Shortly after midnight, on May 2, 2001, Garcia opened the front door of her home for Neaves. After opening the door,
she recognized a car driving by the house as the Kia her attackers had been driving. Neaves and Garcia decided to
follow the car. While Garcia and Neaves were following the Kia, the driver of the Kia ran a red light, causing an
automobile accident. When the police arrived at the scene, Garcia reported the sexual assault to the police and
identified her assailants to the responding officer.
Denial of Challenge for Cause
Hernandez claims that the trial court erroneously denied his challenge for cause of venire member Douglas McGee.
The State claims that Hernandez failed to preserve error.
Harm from the erroneous denial of a defense challenge for cause during voire dire turns on whether the defendant was
wrongfully deprived of a peremptory challenge. Newbury v. State, 135 S.W.3d 22, 30 (Tex. Crim. App. 2001).
In order to preserve error with regard to the denial of a defense challenge for cause, the following conditions must be
met:
(1) when a defendant exercises a peremptory challenge on a venire member whom the trial court should have excused
for cause at the defendant's request,
(2) the defendant uses all of his statutorily allotted peremptory challenges, and
(3) the defendant unsuccessfully requests an additional peremptory challenge which he claims he would use on another
venire member whom the defendant identifies as "objectionable" and who actually sits on the jury.
Newbury, 135 S.W.3d at 31; Johnson v State, 43 S.W.3d 1, 5-6 (Tex. Crim. App. 2001).
In this case, Hernandez has failed to properly preserve error. Allen v. State, 108 S.W.3d 281, 282 (Tex. Crim. App.
2003); see also Johnson, 43 S.W.3d at 5 (indicating that a defendant must show, among other things, that he used a
peremptory strike to remove a juror he claims should have been removed for cause). The record does not reflect that
Hernandez used a peremptory challenge on McGee, that he exhausted all of his peremptory challenges, that he
requested additional peremptory strikes that were denied by the trial court, or that he identified an objectionable juror
who he would have stricken with an additional peremptory challenge. Accordingly, Hernandez's first issue is overruled.
Sufficiency
Hernandez complains in his second issue that the evidence is legally and factually insufficient to sustain his conviction
for aggravated kidnapping. In his third issue, Hernandez argues that the evidence is factually insufficient to support his
conviction for aggravated sexual assault. Hernandez's arguments are without merit.
To determine the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most
favorable to the verdict and ask 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, 318-19 (1979).
The trier of fact, in this case the jury, is the sole judge of the credibility of witnesses and the weight given testimony.
Tex. Code Crim. Proc. Ann. Art 38.04 (Vernon 1979); Bonham v. State, 680 S.W.2d 815, 819 (Tex. Crim. App. 1984).
Due deference must be accorded the jury regarding the weight and credibility of evidence. Martinez v. State, 129
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S.W.3d 101, 106 (Tex. Crim. App. 2004). The jury has complete discretion to reject or accept any or all of the
testimony of any witness. Penegraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981). As the trier of fact, the
jury resolves any conflicts or inconsistencies in the evidence. Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App.
1982). Where there is no conflict in the evidence, the jury may assign no weight to evidence, thereby rejecting all or
part of a witness's testimony. Beardsley v. State, 738 S.W.2d 681, 684 (Tex. Crim. App. 1987). Because the credibility
of a witness's testimony is the jury's province, inconsistencies in testimony should be resolved in favor of the jury's
verdict. Johnson v. State, 815 S.W.2d 707, 712 (Tex. Crim. App. 1991).
When conducting a factual sufficiency review, we inquire whether, "[c]onsidering all the evidence in a neutral light,
[the] jury was justified in finding guilt beyond a reasonable doubt." Zuniga v. State, 144. S.W.3d 477, 484 (Tex. Crim.
App. 2004). Evidence may be found factually insufficient if, when considered by itself, it is too weak to support a
finding of guilt beyond a reasonable doubt. It may also be insufficient when there is evidence both supporting and
contradicting the verdict and the contradictory evidence is strong enough that the standard of "beyond a reasonable
doubt" could not have been met. Id. at 484-85. We will set aside the verdict only if the evidence supporting the verdict
is so weak as to render the verdict clearly wrong and manifestly unjust. Id. at 481. A clearly wrong and manifestly
unjust verdict occurs when the jury's finding shocks the conscience or clearly demonstrates bias. Id.
Aggravated Kidnapping Charge
Hernandez complains that no evidence was adduced at trial supporting the allegation that Hernandez committed the
offense of aggravated kidnapping. A person commits aggravated kidnapping when he intentionally or knowingly
abducts another person with the intent to inflict bodily injury on the other person, abuse the other person sexually, or
terrorize the other person. Tex. Pen. Code. Ann. 20.04(a) (Vernon 2003). Hernandez argues that the evidence supports
neither the allegation that he abducted Garcia nor the allegation that he intended to inflict bodily injury, sexually abuse
or terrorize Garcia.
The evidence adduced at trial shows that while Garcia was attempting to reach her boyfriend for ride a home, Garza
exited a vehicle driven by Hernandez and forced Garcia into the back seat of the vehicle. Both Garza and Hernandez
were strangers to Garcia. Despite Garcia's struggles and pleas, Hernandez drove the vehicle to a secluded spot on
Cassin Road. Garcia thought that Hernandez and Garza were going to kill her because they told her that if she didn't
shut up, they would kill her, put her in the trunk, and take her body to Laredo. After Hernandez stopped the car on
Cassin Road, Garcia was ordered out of the car, raped by Garza and then forced to perform oral sex on Hernandez.
Finally, Hernandez and Garza told Garcia that if she ever told anyone what had happened, they would kill her.
Viewed in a light most favorable to the verdict, the evidence adduced at trial is such that a rational jury could have
found that Hernandez intentionally or knowingly abducted Garcia with the intent to inflict bodily injury, with intent to
violate or abuse her sexually and with intent to terrorize her. Additionally, viewing all the evidence presented at trial in
a neutral light, the evidence was not so weak as to render the verdict clearly wrong or manifestly unjust. The evidence
was sufficient to support the jury's finding that Hernandez was guilty beyond a reasonable doubt, a finding which
neither shocks the conscience nor clearly demonstrates bias.
Hernandez testified that Garcia willingly accepted a ride from him and that at no time did he threaten or hit Garcia.
Garcia's testimony was directly contradictory. Garcia testified that she was forced into the back seat of a car and
threatened. Where Hernandez testified that Garcia wanted to have sex with him and voluntarily performed oral sex on
him, Garcia testified that she was forced to do so. Hernandez points to Garcia's testimony that Garcia initially did not
tell anyone she had been kidnapped or raped and that she had told Neaves a lady had given her a ride home as support
for his contention that no evidence supports the aggravated kidnapping charge. Hernandez also points to Neaves'
testimony that at 7:00 a.m. on the morning of April 29, 2001, he did not notice that Garcia had a black eye or any
other injuries to her body.
The jury was within its discretion to assign weight and credibility to Hernandez's testimony, and ultimately disregard
that testimony, if it chose to do so. A rational jury, hearing the testimony at trial, could have found the essential
elements of aggravated kidnapping beyond a reasonable doubt. Additionally, Garcia's testimony supplied sufficient
direct evidence to support the jury's verdict, when viewed alone or in conjunction with the contradictory evidence.
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Therefore, we find that the evidence adduced at trial was both legally and factually sufficient to support Hernandez's
conviction for aggravated kidnapping.
Aggravated Sexual Assault Charge
Hernandez complains that the evidence is factually insufficient to support his conviction for aggravated sexual assault.
Hernandez contends that the evidence adduced at trial is insufficient to establish that Hernandez intentionally or
knowingly caused the penetration of Garcia's mouth, without Garcia's consent, or by acts or words placed Garcia in
fear that death or serious bodily injury would be imminently inflicted on her. In support of his contentions, Hernandez
attacks Garcia's credibility. Hernandez points out that Garcia initially did not tell anyone she had been assaulted and
that she told Neaves a lady had given her a ride home. Hernandez argues that Neaves did not notice that Garcia had
any injuries when he visited her shortly after the incident took place, insinuating that the injuries were caused by
another party. Hernandez also argues that the sexual contact between him and Garcia was entirely consensual.
The jury, however, sifted through the varying testimony, made its determinations, and weighed the credibility of the
witnesses. See Hanks v. State, 137 S.W.3d 668, 671-72 (Tex. Crim. App. 2004) (explaining that factual disputes almost
always turn on witness credibility and the jury's determinations in such matters are given great deference). Considering
all the evidence presented to the jury in a neutral light, the evidence supporting the verdict was factually sufficient to
support the jury's finding that Hernandez committed the offense of aggravated sexual assault against Garcia. The
contrary evidence presented by Hernandez was not so compelling that the jury's finding was clearly wrong or
manifestly unjust.
Conclusion
Having overruled each of Hernandez's issues, we affirm the judgment of the trial court.
Alma L. L pez, Chief Justice
Do Not Publish
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