Michael Anthony Almendarez v. The State of Texas--Appeal from 271st District Court of Wise County (Majority)

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State: Texas

Court: Texas Northern District Court

Docket No: 02-09-00343-CR

Case Date: 12/01/2011

Plaintiff: Michael Anthony Almendarez

Defendant: The State of Texas--Appeal from 271st District Court of Wise County (Majority)

Preview:COURT OF APPEALS
SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-09-00343-CR MICHAEL ANTHONY ALMENDAREZ V. THE STATE OF TEXAS ---------FROM THE 271ST DISTRICT COURT OF WISE COUNTY ---------STATE APPELLANT

MEMORANDUM OPINION1
---------I. Introduction In four issues, Appellant Michael Anthony Almendarez appeals his conviction for one count of indecency with a child and one count of sexual assault of a child. We affirm.

1

See Tex. R. App. P. 47.4.

II. Factual and Procedural Background While on parole for an unrelated conviction, thirty-four-year-old

Almendarez moved in with his mother (Charlotte), his stepfather, and S.B., his sixteen-year-old stepsister. According to S.B., he started regularly supplying her with mixed drinks containing Everclear alcohol and getting her drunk when her father and stepmother were at work, asleep, or otherwise not around. According to S.B.`s then-fifteen-year-old best friend Shelby Crowley, Almendarez called Crowley and told her that he had gotten S.B. drunk one weekend and, while giving S.B. a foot massage, one thing led to another and, over S.B.`s clothes, he touched the inside of S.B.`s thighs and rubbed on her genital area. On May 3, 2008, after Almendarez supplied some Everclear-based mixed drinks to S.B., S.B. became intoxicated. Almendarez helped S.B. to bed and left her room. S.B. awoke later to find Almendarez next to her in bed, her hand on his erect penis. S.B. passed out and awoke a second time to find that she was naked and that Almendarez had his tongue on her female sexual organ. S.B. passed out again. When she awoke a third time, she found Almendarez on top of her, with his penis inside her female sexual organ. S.B. told him to stop, pushed him off, passed out again, and when she awoke, she told Almendarez to leave her room. The following day, Almendarez wrote S.B. an apology letter that described the assault in detail and asked for S.B.`s forgiveness. S.B. tore up the letter and threw the pieces in the trash can in her bedroom. Almendarez wrote S.B. two 2

more letters and a poem. S.B. left the second letter and poem on her bed, but she tore up the third letter and also put it in the trash can in her bedroom. Later that week, S.B. told Crowley about the assault. After school,

Crowley and S.B.`s friend Kelsey Knighten confronted Almendarez at work, and he admitted to them that he had sex with S.B. on May 3, when they were drunk. The next evening, Crowley told her stepfather about the assault. Crowley, her mother, and her stepfather went to S.B.`s family`s trailer to provide support for S.B. when she told her father and Charlotte about the assault. S.B. went outside to meet them, and when her father and Charlotte joined them, S.B. told them about the assault. Almendarez stayed inside. Crowley`s mother called 911, and two sheriff`s deputies responded to the call. One deputy entered the trailer to speak with Almendarez, and the other remained outside with S.B., S.B.`s parents, Crowley, and Crowley`s parents. At some point, Charlotte entered the trailer and asked Almendarez about whether he had given S.B. alcohol, and he admitted to her that they drank alcohol together on the night of the assault. S.B. told the deputy that Almendarez had written her some letters and that they were in her bedroom. Because neither S.B. nor her father wanted to go into the trailer, Crowley offered to retrieve the letters, and S.B. told her where to find them. Crowley entered the trailer, went into S.B.`s bedroom, and retrieved them. Crowley returned outside, taped the torn letters back together, and gave all of the documents to the deputy. Prior to trial, Almendarez filed several motions to 3

suppress these documents, which the trial court denied, and he reurged his motion during trial, which the trial court again denied. The first letter stated: There`s nothing that I can ever say to fix my stupidity. I think that it started when you kissed me back and then started jacking me off as I rubbed you down there. Part of me knew better, but being drunk and feeling you respond back, made me think that it was ok to lick you down there. As I did . . . , and you moving with my . . . tongue and your xxx . . . my mind went somewhere . . . . I should have just left then. I kept screwing up because the alcohol was kicking in stronger and stronger. I stuck it in a little & you said it hurt, and that was the only time I was inside you. Maybe 2 seconds. I remember rubbing against you, but I wasn`t inside. All of this is in case you`re stressing over being pregnant. You`re not. Please forgive me [S.B.]. I`ve never wanted to mess up our friendship. Lots of people have gotten drunk & done things they regretted. Please understand it was alcohol. I love you. I don`t regret part of it, because you are attractive. I regret that you`re uncomfortable and stressed, and scared. I`m pouring out the alcohol today, and I`ll never drink in your house again or be drunk around you. I love you enough to do my best to make it right for the future. I will leave if you want that. I won`t be mad. I really am sorry. Just please give me another chance to be normal with you. It hurts to think that I am shut out of your life, but I can accept your decision. I wish you the best in life and you`ll always be in my heart. I`m sorry. The second letter stated: When I was on my knees holding your hands, the way that you left made me realize that I needed to give you your space and get another job.[2]
2

S.B. and Almendarez worked together at a barbecue restaurant. 4

Your feelings matter to me. I would prefer your happiness over mine. When I`m at work, I get pleasure from talking smack to everyone that`s entertaing [sic] it, because they laugh. I receive pleasure from giving other people pleasure. So I put on my game face lately, even though I`m uncomfortable knowing that you don`t want me around you. To be perfectly honest as I can with you, you have some of the best qualities in anyone that I`ve ever met. But I`ve brought you unhappiness. If I thought that by dropping Stephanie and trying to feel your pain, and even trying to date you, would somehow make it right; so that you wouldn`t assume that I would hit something & then quit something . . . I would. If I thought that there were someway [sic] to regain your trust, I would. If I thought that by leaving a job that I need, to give you your space, would make you happier, I would. If I thought that by moving I could bring you more happiness, I would. I love you and would do my best to prove it to you. I have historically screwed things up. I`ve never tried to make things right, but this time I want to because I`m motivated by love. I don`t expect you to believe me or to even finish reading this. You are very special to me and because of this, I put your happiness first. You have been my joy for so long. You`ve made me feel at peace. You`re so wonderful in so many ways. And I`ve ruined our relationship. I`ll stay out of your way, and your space, for your happiness, and hopefully, someday, you`ll see that I really did care. The only other option is for me to do something before you hate me worse. Take Care 5

In the poem, entitled, An Angel, Almendarez blamed himself for making an angel upset; in the last letter, he asked S.B. to pray with him. Almendarez was arrested that night on an administrative warrant for a parole violation. S.B. went home with the Crowleys, and the next morning,

Crowley`s mother took S.B. to a hospital, where she underwent a sexual assault examination. Because of the length of time that had elapsed between the

assault and the examination, no physical evidence was taken from S.B. After further investigation, the State charged Almendarez with one count of indecency by contact--causing S.B. to touch his genitals--and one count of sexual assault of a child--causing S.B.`s sexual organ to contact his sexual organ. Almendarez denied that he had provided alcohol to S.B. but admitted that they had been drinking alcohol together on the night of the assault. He said that they had been watching comedies on the internet when S.B. spilled her drink on the computer keyboard. S.B. started throwing up on the rug near the computer while Almendarez cleaned up the spill. He denied sexually assaulting S.B. or that they had had any sexual relationship. Almendarez said that they had a conversation the next day on the way to work about how upset he was about S.B. spilling her drink and throwing up on the rug. He told S.B. that he was going to tell their parents about it, and this made S.B. mad.

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Almendarez also denied telling Crowley that he and S.B. had sex on May 3 or that he had ever called Crowley to tell her that he had gotten drunk and touched S.B. He said that Crowley demanded that he write the first letter, told him what to write, and threatened that she and S.B. would have his parole revoked if he did not. He admitted that he wrote the other two letters and the poem on his own but said that he was motivated to make a false confession by fear. Both S.B. and Crowley denied any involvement in Almendarez`s letterwriting efforts. Charlotte testified that S.B.`s reputation for being truthful was bad. After both parties rested, Almendarez asked for an article 38.23 instruction related to the legality of Crowley`s acquisition of the letters from S.B.`s room. Almendarez also asserted that because both counts arose from the same incident, the application paragraph should require the jury to select from either the indecency or the sexual assault charge. requests. A jury found Almendarez guilty of both counts, and after Almendarez pleaded true to the enhancement paragraphs and the jury heard punishment evidence, the jury sentenced him to twenty-five years` confinement on each count. This appeal followed. III. Suppression In his third issue, Almendarez asserts that the trial court erred by failing to suppress the letters and poem that he wrote to S.B. because Crowley`s entry into his family`s trailer violated his right to privacy under the United States and Texas 7 The trial court denied these

Constitutions and that the letters were thus inadmissible or, alternatively, that the trial court erred by failing to include an article 38.23 instruction in the jury charge with respect to the letters. In response, the State contends that Almendarez lacks standing to challenge Crowley`s actions because he did not have a reasonable expectation of privacy in S.B.`s bedroom. To assert a challenge to a search and seizure under the United States and Texas Constitutions and article 38.23, a party must first establish standing. See Kothe v. State, 152 S.W.3d 54, 59 (Tex. Crim. App. 2004); Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996); Martinez v. State, 236 S.W.3d 361, 367 (Tex. App.--Fort Worth 2007, pet. dism`d). Standing may be reviewed as part of the claim presented or may be raised by the court of appeals sua sponte. Kothe, 152 S.W.3d at 60. Standing is a question of law that we renew de novo. Id. at 59. To establish standing, the defendant has the burden of providing facts to establish a legitimate expectation of privacy, and to carry this burden, he must prove that (1) by his conduct, he exhibited an actual subjective expectation of privacy and (2) circumstances existed under which society was prepared to recognize his subjective expectation as objectively reasonable. Villarreal, 935 S.W.2d at 138. The following factors are relevant in determining whether the defendant`s subjective expectation is one that society is prepared to recognize as objectively reasonable: (1) whether the accused had a property or possessory interest in the place invaded; (2) whether he was legitimately in the place 8

invaded; (3) whether he had complete dominion or control and the right to exclude others; (4) whether, prior to the intrusion, he took normal precautions customarily taken by those seeking privacy; (5) whether he put the place to some private use; and (6) whether his claim of privacy is consistent with historical notions of privacy. Voyles v. State, 133 S.W.3d 303, 306 (Tex. App.--Fort Worth 2004, no pet.) (quoting Granados v. State, 85 S.W.3d 217, 223 (Tex. Crim. App. 2002), cert. denied, 538 U.S. 927 (2003)). Courts must also examine the totality of the circumstances surrounding the search. Id. (citing Villarreal, 935 S.W.2d at 138

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