IDALIA CERVANTES v. THE STATE OF TEXAS--Appeal from County Court at Law No 1 of Cameron County

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State: Texas

Court: Texas Northern District Court

Docket No: 13-04-00151-CR

Case Date: 08/04/2005

Plaintiff: IDALIA CERVANTES

Defendant: THE STATE OF TEXAS--Appeal from County Court at Law No 1 of Cameron County

Preview:Adrian Rosales v. State of Texas--Appeal from 144th Judicial District Court of Bexar County
No. 04-00-00750-CR Adrian ROSALES, Appellant v. The STATE of Texas, Appellee From the 144th Judicial District Court, Bexar County, Texas Trial Court No. 1999-CR-5890 Honorable Mark R. Luitjen, Judge Presiding Opinion by: Phil Hardberger, Chief Justice Sitting: Phil Hardberger, Chief Justice Alma L. L pez, Justice Paul W. Green, Justice Delivered and Filed: January 16, 2002 AFFIRMED Adrian Rosales ("Rosales") was found guilty by a jury of the offense of aggravated kidnapping and sentenced to 65 years imprisonment and a $10,000 fine. Rosales asserts six point of error in his brief contending: (1) the evidence is legally and factually insufficient to support his conviction; (2) his initial arrest was unlawful; (3) his statement was involuntary; (4) the trial court erred in denying his motion to suppress evidence from several unlawful searches; (5) evidence was erroneously admitted in violation of the rule 404(b) notice requirement; and (6) the trial court erred in denying Rosales's request for the submission of a lesser included offense in the jury charge. We overrule each of these points of error and affirm the trial court's judgment. Sufficiency of the Evidence In his sixth point of error, Rosales challenges the legal and factual sufficiency of the evidence to support his conviction. In reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the prosecution to determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979). In our factual sufficiency review, we must consider all of the evidence to determine whether the judgment is so contrary to the overwhelming weight of the evidence to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). The trier of fact evaluates the credibility and demeanor of the witnesses and determines the weight to be given contradictory testimony. Cain v. State, 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997). We are not permitted to reweigh the evidence, rather we defer to the trier-of-fact's findings, particularly those based on credibility determinations. See id. at 407-09. A person commits the offense of aggravated kidnapping if he intentionally or knowingly abducts another person with the intent to violate or abuse her sexually. See Tex. Pen. Code Ann. 20.04(a)(4) (Vernon Supp. 2001); Romero v. State, 34 S.W.3d 323, 325 (Tex. App--San Antonio 2000, pet. ref'd). "Abduct" means to restrain a person with the intent to prevent her liberation by: (1) secreting or holding her in a place where she is not likely to be found; or (2) using or threatening to use deadly force. See Tex. Pen. Code Ann. 20.01(2) (Vernon Supp. 2001). "Restrain" means to restrict a person's movements without consent, so as to interfere substantially with her liberty, by moving her from one place to another or by confining her. See id. at 20.01(1). Restraint is "without consent" if it is accomplished by force,
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intimidation, or deception, or by any means if the victim is less than fourteen years of age. See id. The complainant, who was ten at the time of the offense, was swimming at a hotel pool with her uncle and cousin. When the complainant left the pool area to retrieve her goggles from her room, Rosales followed her. The complainant sensed that Rosales was following her and turned into an area by a soda machine. The complainant testified that Rosales was carrying a large black bag. Rosales hit the complainant on her head with a metal bar several times. The complainant was screaming, and Rosales threatened to tape her mouth shut. Rosales was holding onto the complainant preventing her from leaving. The complainant stopped screaming until Rosales put the tape away. After Rosales put the tape away, the complainant starting screaming again. The complainant ran out of the soda machine area and asked Rosales why he had hit her. The complainant followed Rosales toward the elevator to the pool and yelled to her uncle that Rosales had hit her. The complainant testified that she had bumps on her head where Rosales hit her. The uncle chased Rosales and hit him several times. Hotel employees stopped the fight and remained in the area until the police arrived. Rosales gave a statement confessing that he followed the complainant after retrieving a five foot long hockey bag from his car. Rosales stated that he fantasized about taking the complainant with him and masturbating in front of her and having sexual relations with her. Rosales stated that he intended to put the complainant in the bag so her parents would not see her. Rosales stated that the bag contained a stun gun, duct tape, and small metal bar that Rosales thought would make the complainant fearful so she would go with him. Rosales admitted that he hit the complainant with a metal bar several times. Rosales was afraid that the last time he hit the complainant so hard he could have killed her. The bag, the tape, the stun gun, and the metal bar were introduced into evidence. Robert Charles Bux, M.D., a medical examiner, testified that the metal bar could be used as a deadly weapon. Rosales's testimony at trial was contrary to his statement; however, it is within the jury's province to weigh the credibility of the witnesses, and we defer to the jury's findings. See Cain v. State, 958 S.W.2d at 407-09. Having reviewed the record, we conclude that the evidence is legally and factually sufficient to support Rosales's conviction. Rosales's sixth point of error is overruled. Legality of Initial Detention In his first point of error, Rosales contends that the trial court abused its discretion in denying Rosales's motion to suppress evidence because his initial detention was unlawful. In his brief, Rosales contends that he was detained by the hotel employees and not by the complainant's uncle, as found by the trial court. In reviewing a trial court's ruling on a motion to suppress, we afford almost total deference to the trial court's determination of historical facts and view the evidence in the light most favorable to the trial court's ruling; however, we review the trial court's application of the law to the facts de novo. Guzman v. State, 955 S.W.2d 85, 87-89 (Tex. Crim. App. 1997). We will uphold a trial court's ruling on a motion to suppress if it can be upheld on any valid theory of law applicable to the case. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). The trial court's decision will be upheld if any theory is supported by the record, even if the record does not reflect or indicate that the trial court relied on that theory and even if the trial judge gives the wrong reason for his decision. Romero, 800 S.W.2d at 543. A citizen may arrest an offender without a warrant when a felony offense or an offense against the public peace is committed in his presence or within his view. Tex. Code Crim. Proc. Ann. art 14.01(a) (Vernon 1977). Rosales initially contends that the trial court's finding that the complainant's uncle initially arrested him is not supported by the record. However, Officer Reese testified that the uncle stated he had chased Rosales down the stairs, hit him and told him not to move. This is support for the trial court's finding that the uncle made the initial arrest. The arrest was proper because Rosales committed the offense in the uncle's presence - the uncle heard the complainant scream, the uncle discovered Rosales had hit the complainant, Rosales attempted to run by the uncle and escape. Marion v. State, 642 S.W.2d 55, 58 (Tex. App.--El Paso 1982), pet. ref'd, 652 S.W.2d 369 (Tex. Crim. App. 1983) (holding observation of defendant carrying boxes from house and subsequent flight sufficient to uphold citizen's arrest). The detention by the uncle occurred at the time the offense was committed. Andrade v. State, 6 S.W.3d 584, 589 (Tex. App.--Houston [14th Dist.] 1999, pet. ref'd) (noting statute is limited by its terms to the time the offense is committed or while there is continuing
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danger of its renewal). Rosales contends that he was detained by the hotel employees, not the complainant's uncle. However, the trial court's refusal to find a detention by the hotel's employees is supported by Rosales's own testimony. In response to questioning regarding whether the employees did not allow Rosales to leave, Rosales stated, "I wasn't told I could not leave. They didn't hold me. I had to sit down because I had been hit. So I sat on the sidewalk. That never came into play." Rosales's first point of error is overruled. Voluntariness of Confession In his second point of error, Rosales contends that his confession was involuntary. The determination of whether a statement is voluntary is a mixed question of law and fact, i.e., an application of law to fact question. Garcia v. State, 15 S.W.3d 533, 535 (Tex. Crim. App. 2000). Accordingly, we afford almost total deference to the trial court's determination of historical facts and view the evidence in the light most favorable to the trial court's ruling, especially when the trial court's findings are based on an evaluation of credibility and demeanor; however, we review the trial court's application of the law to the facts de novo. Guzman v. State, 955 S.W.2d 85, 87-89 (Tex. Crim. App. 1997). Rosales asserts that his statement was involuntary because he was coerced and threatened at a time when his physical condition was depleted. With regard to whether Rosales was coerced and threatened, the evidence was conflicting. Officer Carey and Officer Scepanski testified that no threats or promises were made and that Rosales was provided with a snack and the opportunity to use the restroom. Rosales testified that Carey hit him twice in the patrol car on the way from the magistrate's office to the jail, threatened to upgrade his charges to an offense punishable by life and made other threatening gestures. We defer to the trial court's evaluation of the credibility of the witnesses and conclude that the evidence is sufficient to support the trial court's finding that Rosales was not coerced or threatened. Rosales further asserts that his confession was involuntary because he invoked his right to counsel. Rosales testified that he invoked his right to counsel on numerous occasions. However, all of the officers involved in the arrest and investigation testified that Rosales was read his rights on numerous occasions, Rosales acknowledged that he understood his rights, but Rosales never invoked his right to counsel. Rosales contends that his testimony that he invoked his right to counsel at the bond reduction hearing before the night magistrate was uncontroverted; therefore, the trial court was required to conclude that he invoked his right to counsel. However, the trial judge may believe or disbelieve all or any part of a witness's testimony, even if that testimony is not controverted. See State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000); Jeffley v. State, 38 S.W.3d 847, 853 (Tex. App.--Houston [14th Dist.] 2001, pet. ref'd). Rosales's second point of error is overruled. Legality of Searches and Seizure In his third point of error, Rosales complains the trial court erred in denying his motion to suppress based on the illegality of the search and seizure of items from the car he drove to the hotel where the offense occurred, his hotel room, and his computer. In reviewing a trial court's ruling on a motion to suppress, we afford almost total deference to the trial court's determination of historical facts and view the evidence in the light most favorable to the trial court's ruling; however, we review the trial court's application of the law to the facts de novo. Guzman v. State, 955 S.W.2d 85, 87-89 (Tex. Crim. App. 1997). A search warrant must be supported by an affidavit setting forth substantial facts establishing probable cause for its issuance. Robuck v. State, 40 S.W.3d 650, 653 (Tex. App.--San Antonio 2001, pet. ref'd). Probable cause to support the issuance of a search warrant exists when the facts submitted to the magistrate are sufficient to justify a conclusion that the object of the search is probably on the premises at the time the warrant is issued. Id. The four corners of the affidavit are examined in determining whether probable cause exists. Id. Reasonable inferences may be drawn from the affidavit, however, and the affidavit must be interpreted in a common sense and realistic manner. Id. The magistrate is not required to find proof beyond a reasonable doubt or by a preponderance of the evidence, but only a probability that
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contraband or evidence of the crime will be found in a particular place. Id. Vehicle Rosales contends that the initial search of his vehicle was a warrantless search and the second search of his vehicle was based on an invalid search warrant. Viewing the evidence in the light most favorable to the trial court's ruling, Guzman v. State, 955 S.W.2d at 87-89, Rosales consented when Officer Mercado asked if he could retrieve Rosales's identification from his car. Officer Mercado observed small children's purses, pictures of small children, girl's panties, and video equipment while he was looking for Rosales's wallet. Because Rosales consented to Officer Mercado's entry into the vehicle and the items he saw were in plain view, the observation of the items did not involve any invasion of privacy. See Walter v. State, 28 S.W.3d 538, 541 (Tex. Crim. App. 2000). When the evidence technician arrived at the crime scene to collect evidence, she called Detective Giddings and informed him that she viewed a lot of evidence in plain sight in the car and did not want to process the evidence at the crime scene. The evidence technician took pictures of the vehicle from the outside of the car and had the car towed. Because the evidence technician had a right to be where she was and there was probable cause to associate the items in the car with Rosales's criminal activity, taking the pictures of the items in plain view did not involve any invasion of privacy. See Walter v. State, 28 S.W.3d at 541. The affidavit in support of the application for a search warrant of Rosales's vehicle describes the details of the offense. The details were based on the information Detective Giddings, the affiant, was provided by the investigating officers. In addition, the affidavit describes the items seen by Officer Mercado in plain view when he retrieved Rosales's wallet. Given the nature of the offense and the items Officer Mercado saw in plain view inside the car, the affidavit was sufficient to show a probability that evidence of the crime, including evidence of Rosales's intent or motive in approaching the complainant, would be found in the vehicle. Robuck v. State, 40 S.W.3d at 653. Rosales failed to prove by a preponderance of the evidence that any statements Rosales alleged to be "false" were made knowingly, intentionally, or with reckless disregard for the truth or were material to establish probable cause. Janecka v. State, 937 S.W.2d 456, 462 (Tex. Crim. App. 1996). Hotel Room The affidavit in support of the application for a search warrant of Rosales's hotel room describes the details of the offense based on Officer Reese's reports and the complainant's statement. The affidavit describes the items retrieved at the scene of the arrest (duct tape, black bag, tire tool, stun gun, and knife) and in the vehicle (video recorder with tape and other videos). In addition, Officer Gomez, the affiant, states that he viewed one of the video tapes and observed Rosales approaching obviously minor females and exposing himself within their view. Officer Gomez further states that Rosales told Detective Scepanski that he was renting the room at the hotel and that he had a tripod, camera, and another black bag similar to the one used in committing the offense in his room. Given the nature of the offense, the items retrieved at the time of the arrest and during the search of the vehicle, and the statements made by Rosales to Detective Scepanski regarding the items that could be located in his hotel room, the affidavit was sufficient to show a probability that evidence of the crime, including evidence of Rosales's intent or motive in approaching the complainant, would be found in the hotel room. Robuck v. State, 40 S.W.3d at 653. Rosales failed to prove by a preponderance of the evidence that any statements Rosales alleged to be "false" were made knowingly, intentionally, or with reckless disregard for the truth or were material to establish probable cause. Janecka v. State, 937 S.W.2d at 462. Tyler Home Rosales contends that the search warrant for his Tyler home was an attempt to seize items for extraneous purposes and not to seize items used in the commission of the underlying offense. The affidavit for search warrant states that the affiant reviewed the report of Officer Reese, reflecting that Rosales struck the complainant in the head with a metal bar in an attempt to kidnap her. The affidavit detailed the evidence recovered as a result of the arrest and the search of the vehicle. The affidavit summarized portions of the voluntary statement taken from Rosales, including the statements that he had been arrested in the past for exposing himself to teenage girls, that he had been exposing himself to other young girls in San Antonio during the past week, that he fantasized about what would occur if the complainant went
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with him and about having sexual relations with her. The affidavit further summarized a statement from Ramiro Jaime, who roomed with Rosales while attending the conference in San Antonio. Jaime stated that Rosales was obsessed with pornography and told him he had viewed Internet sites involving "amateur stuff" and that "had rape and kid stuff on it...." Based on the investigation, the affidavit states the belief that Rosales intended to kidnap the complainant with the intent of sexually assaulting and/or producing a pornographic video or photos involving the complainant. The affidavit requests permission to search the Tyler home "for further evidence demonstrating the defendant's intent to sexually assault and/or videotape and photograph the complainant." Given the nature of the offense, the items retrieved at the time of the arrest and during the search of the vehicle, the statement made by Rosales, and the statement made by Jaime, the affidavit was sufficient to show a probability that evidence of the crime, including evidence of Rosales's intent, motive, scheme or plan in approaching the complainant, would be found in his home. Robuck v. State, 40 S.W.3d at 653. Rosales failed to prove by a preponderance of the evidence that any statements Rosales alleged to be "false" were made knowingly, intentionally, or with reckless disregard for the truth or were material to establish probable cause. Janecka v. State, 937 S.W.2d at 462. Computer With regard to the computer, the only complaint made at the suppression hearing was with regard to the seizure of the computer. With regard to the search warrant for the contents, Rosales's counsel stated, "I hate to admit his, but this is a well-drafted search warrant. ... I myself am hard-pressed to attack this with any specificity, other than the relevancy already alluded to." The trial court held that the relevancy objection would be considered upon objection made at trial. Any complaint regarding the sufficiency of the affidavit in support of the search warrant for the computer was waived. With regard to the seizure of the computer, the evidence demonstrated that the computer was moved by Rosales's father to the home of his grandmother. Although Rosales sought to impeach the voluntariness of the grandmother's consent, the trial court resolved the dispute by finding the grandmother had voluntarily consented to the seizure of the computer. Because the grandmother consented to the seizure, the seizure was proper. Garcia v. State, 887 S.W.2d 846, 851 (Tex. Crim. App. 1994) (holding third party may properly consent to a search when he has control over and authority to use the premises being searched). Rosales's third point of error is overruled. Rule 404(b) Notice In his fourth point of error, Rosales contends that the trial court abused its discretion in admitting evidence in violation of rule 404(b) because the State failed to provide reasonable notice as required by the rule. We review the trial court's admission of evidence under an abuse of discretion standard. Mozon v. State, 991 S.W.2d 841, 846-47 (Tex. Crim. App. 1999). Rule 404(b) requires the State to provide reasonable notice of its intent to introduce evidence of other crimes, wrongs, or acts upon timely request by the accused. Tex. R. Evid. 404(b). The purpose behind the notice provision of this rule is to adequately make known to the defendant the extraneous offenses the State intends to introduce at trial so that the defendant is not surprised. Webb v. State, 36 S.W.3d 164, 178 (Tex. App.--Houston [14th Dist.] 2000, pet. ref'd); Self v. State, 860 S.W.2d 261, 264 (Tex. App.--Fort Worth 1993, pet. ref'd). What constitutes "reasonable" notice under rule 404(b) depends on the facts and circumstances of the case. Webb, 36 S.W.3d at 178. In this case, Rosales complains that the supplemental notice provided by the State five days prior to trial was unreasonable. However, the supplemental notice primarily provides more detailed information regarding incidents previously disclosed in the State's initial notice, which Rosales received four days after he filed his request and over eight months before trial. For example, Rosales's flight to Mexico after making bond, Rosales's 1992 arrest in Longview, and the incident in which Rosales tried to sell a story entitled "Redemption from Addiction" to H.B.O. were all mentioned in the State's initial notice. The initial notice also mentioned the search of Rosales's room and Rosales had a copy of the affidavit supporting the search warrant authorizing that search as early as the hearing on the pretrial motions which were at least four months before trial. The affidavit supporting the search warrant mentions the statement taken from Ramiro Jaime, the individual Rosales shared a hotel with during the conference in San Antonio. The supplemental notice simply details the information contained in those statements. Finally, the DNA evidence mentioned in the supplemental notice was discussed at the hearing on the pretrial motion and copies of the DNA

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reports were tendered to Rosales's attorney at that hearing. During the hearing, the trial court inquired regarding the relevancy of the DNA evidence, and the prosecutor informed the trial court of the intended use of the DNA evidence. In view of these facts and circumstances, the trial court did not abuse its discretion in admitting the evidence over Rosales's rule 404(b) notice objection. Rosales's fourth point of error is overruled. Lesser Included Offense In his fifth point of error, Rosales contends that the trial court erred in denying his request for a jury charge on the lesser included offense of indecency with a child. Rosales contends that the offense of indecency with a child is a lesser included offense of the offense of aggravated kidnapping with the intent to commit aggravated sexual assault and with the intent to commit indecency with a child. Aggravated kidnapping requires proof of all the elements for kidnapping as well as proof of an aggravating element. Lavarry v. State, 936 S.W.2d 690, 694 (Tex. App.--Dallas 1996, pet. ref'd); Tex. Pen. Code Ann. 20.03, 20.04 (Vernon 1994 & Supp. 2001). Thus, kidnapping is a lesser included offense of aggravated kidnapping because kidnapping is within the proof necessary to establish aggravated kidnapping, the offense charged in this case. Lavarry, 936 S.W.2d at 694. In this case, the aggravating element is Rosales's intent to commit aggravated sexual assault and indecency with a child. See Tex. Pen. Code Ann. 20.04(4) (Vernon Supp. 2001) (listing intent to violate or abuse the victim sexually as an aggravating factor). Rosales contends that he was entitled to a charge on indecency with a child because it is a lesser included offense of aggravated sexual assault. However, Rosales is only entitled to a lesser included offense if the offense is within the proof necessary to establish the offense charged. Lavarry, 936 S.W.2d at 694. In this case the offense charged is kidnapping, i.e, intentionally or knowingly abducting another person, aggravated by the intent to violate or abuse the victim sexually. Rosales is not entitled to the lesser included offense of indecency with a child because that offense is only within the proof necessary to establish the aggravating factor of the offense charged and is not within the proof necessary to establish the charged offense itself. Conclusion The trial court's judgment is affirmed. PHIL HARDBERGER, CHIEF JUSTICE DO NOT PUBLISH

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