RENE CORREA, ADMINISTRATOR OF THE ESTATE OF ARTHUR J. SHWERY, DECEASED, MICHAEL HODGE, DANIEL HODGE, JOHN HODGE, JAMES HODGE, CHRISTOPHER HODGE, ANTHONY HODGE AND RENEE WAISNER v. SOUTH TEXAS WILDHORS

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Laws-info.com » Cases » Texas » 13th District Court of Appeals » 2003 » RENE CORREA, ADMINISTRATOR OF THE ESTATE OF ARTHUR J. SHWERY, DECEASED, MICHAEL HODGE, DANIEL HODGE, JOHN HODGE, JAMES HODGE, CHRISTOPHER HODGE, ANTHONY HODGE AND RENEE WAISNER v. SOUTH TEXAS WILDHORS

State: Texas

Court: Texas Northern District Court

Docket No: 13-01-00823-CV

Case Date: 10/27/2003

Plaintiff: RENE CORREA, ADMINISTRATOR OF THE ESTATE OF ARTHUR J. SHWERY, DECEASED, MICHAEL HODGE, DANIEL HODGE,

Defendant: SOUTH TEXAS WILDHORSE DESERT INVESTMENTS, INC.--Appeal from County Court at

Preview:Jesus Salvador Alvarez Martinez v. The State of Texas-Appeal from 341st Judicial District Court of Webb County
No. 04-99-00273-CR Jesus Salvador Alvarez MARTINEZ, Appellant v. The STATE of Texas, Appellee From the 341st Judicial District Court, Webb County, Texas Trial Court No. 98-CRS-347-D3 Honorable Elma Teresa Salinas Ender, Judge Presiding Opinion by: Sarah B. Duncan, Justice Sitting: Tom Rickhoff, Justice Alma L. L pez, Justice Sarah B. Duncan, Justice Delivered and Filed: June 28, 2000 AFFIRMED Jesus Salvador Alvarez Martinez appeals his conviction for sexual assault arguing the trial court erred in dismissing an empaneled juror, admitting evidence of other crimes and bad acts, and submitting an erroneous jury charge, and contends the evidence is both legally and factually insufficient to support the verdict. We disagree and affirm the trial court's judgment. Factual and Procedural Background Martinez began dating Guadalupe in 1996, and soon thereafter they entered into a relationship. On May 15, 1998, the couple engaged in an argument at Guadalupe's house, after which Martinez left. Four days later, Martinez returned to Guadalupe's house. According to Guadalupe, Martinez opened the door to her house, entered, and searched every room, demanding to know who else was in the house. Guadalupe testified that Martinez then grabbed her by the hair and pushed her into the bedroom. There, he tore Guadalupe's clothes and hit her in the head with his fist. Guadalupe claims she screamed at Martinez to let her go, but he did not. According to Guadalupe, Martinez inserted his finger into her vagina to check for semen, then proceeded to penetrate her vagina with his penis. Guadalupe testified that she did not consent to this. On the other hand, Martinez testified that Guadalupe asked him to check her for seminal fluid and he did not force her to have sexual intercourse. Martinez left the house, and Guadalupe's neighbors called the police. When the police arrived, Guadalupe appeared scared and shaken, with marks on her cheek and neck. Guadalupe then went to the hospital where she was examined by a nurse. The nurse noticed Guadalupe had bruises on her cheek and shoulder. Spermatic fluid found in Guadalupe's vaginal area was later tested along with a blood sample from Martinez. The DNA test revealed that Martinez was not excluded as a source of the spermatic fluid. Martinez was arrested and indicted for sexually assaulting Guadalupe. A jury found him guilty and sentenced him to thirteen years in prison. Martinez now appeals.
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Excusal of Juror Martinez first argues the trial court erred in excusing an empaneled juror who was not disqualified or disabled. Standard of Review We review a trial court's excusal of a juror under the abuse of discretion standard. Brooks v. State, 990 S.W.2d 278, 286 (Tex. Crim. App.), cert. denied, 120 S.Ct. 384 (1999). Under this standard, we view the evidence in the light most favorable to the trial court's ruling and give almost total deference to the trial court's findings of historical fact. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). However, we review the trial court's determination of the law, as well as its application of the law to the facts, de novo. Id. Discussion After the jury was impaneled but before opening arguments began, one of the jurors told the trial judge that someone in his family had died and he wanted to take his wife to the funeral. When asked whether he would be able to concentrate on the trial, the juror stated, "My family's not going to get me back." When further asked whether he "could put 100% of [himself] into the trial," the juror responded "Can I leave?" An interpreter then interpreted the judge's question into Spanish, and the juror responded "I don't believe so." The trial court found that the juror had become disabled to the extent he could not fairly and fully perform as a juror, and excused the juror from further service. Trial then proceeded with an alternate juror taking the place of the excused juror. A trial court has the discretion to excuse an impaneled juror under article 36.29 of the Texas Code of Criminal Procedure if the juror becomes disabled. "[T]he statute limits the exercise of that discretion to situations where there exists some physical illness, mental condition, or emotional state which hinders one's ability to perform one's duties as a juror." Landrum v. State, 788 S.W.2d 577, 579 (Tex. Crim. App. 1990). Here, the juror stated that he had experienced a death in the family, he showed concern for getting back to his family, and he indicated he could not fully function if he continued as a juror. We further note that the trial court was able to observe the juror's demeanor and attitude at the time he requested to be excused. Under these circumstances we hold the trial court did not abuse its discretion in excusing the juror. See Allen v. State, 867 S.W.2d 427, 429-30 (Tex. App.--Beaumont 1993, no pet.); Wells v. State, 762 S.W.2d 673, 674-75 (Tex. App.--Texarkana 1988, pet. ref'd). Evidence of Other Crimes, Wrongs, or Bad Acts Next, Martinez argues the trial court erred in admitting evidence of other crimes, wrongs, or bad acts at the guiltinnocence phase of the trial. During the State's examination of Guadalupe, the following exchange took place: STATE: . Were you having sex with Jesus Salvador Alvarez Martinez during the course of your relationship? WITNESS: Yes. STATE: And during those times, were they voluntary? WITNESS: No. DEFENSE: Now, Judge, I'm going to make a motion for a mistrial again, Your Honor. We have one incident in the indictment and that's all. COURT: Motion for mistrial is denied. Ladies and gentlemen, the offense that is charged against the defendant is sexual assault alleged to have occurred on the 19th day of May, 1998. Counsel approach. He is on trial solely for that charge. After a short bench conference, the defense again urged his motion for a mistrial, which the court subsequently denied.
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Martinez argues on appeal that evidence of past sexual misconduct was admitted in contravention of Texas Rule of Evidence 404(b). However, Martinez simply moved for a mistrial without objecting or requesting an instruction to disregard. Thus, Martinez failed to preserve the issue of whether the trial court erred in admitting evidence of past sexual misconduct. See Tex. R. App. P. 33.1(a); Parker v. State, 792 S.W.2d 795, 799 (Tex. App.--Houston [14th Dist.] 1990, pet. ref'd). Even if Martinez preserved error, we cannot hold that such error was harmful. Erroneous admission of an extraneous offense under Rule 404(b) is nonconstitutional error, reviewed under section 44.2(b) of the Texas Rules of Appellate Procedure. Webb v. State, No. 14-98-00407-CR, 2000 WL 64018, at *7 (Tex. App.--Houston [14th Dist.] 2000, no pet. h.); Phelps v. State, 999 S.W.2d 512, 520 (Tex. App.--Eastland 1999, pet. filed). That is, we will reverse a judgment of conviction based on a trial court's erroneous admission of an extraneous offense only if the error affected a substantial right of the defendant. See Tex. R. App. P. 44.2(b). "A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict." King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). In determining the degree of harm suffered, we look at: (1) "the source of the error," (2) "the nature of the error," (3) "whether or to what extent it was emphasized by the State," (4) the error's "probable collateral implications," (5) "how much weight a juror would probably place upon the error," and (6) "whether declaring the error harmless would encourage the State to repeat it with impunity." Harris v. State, 790 S.W.2d 568, 587 (Tex. Crim. App. 1989). Here, Guadalupe mentioned the alleged prior sexual misconduct only once, with no detail. The State never again spoke of any prior sexual misconduct. Furthermore, on cross-examination, Guadalupe admitted that she and Martinez had voluntary sex during their relationship. Under these circumstances, we hold that any error the trial court committed in admitting evidence of prior sexual misconduct was harmless. See id.; Tex. R. App. P. 44.2(b); Phelps, 999 S.W.2d at 520. Jury Charge Martinez also argues the trial court submitted an erroneous charge to the jury after the guilt-innocence phase. Specifically, he argues the charge inaccurately stated the law on sexual assault and therefore misled and confused the jury. Standard of Review We employ a two-step analysis in reviewing alleged charge errors: first, we "determine whether error actually exists in the charge," and second, we "determine whether sufficient harm resulted from the error to require reversal." Abdnor v. State, 871 S.W.2d 726, 731-32 (Tex. Crim. App. 1994). Where, as here, the charge error is asserted for the first time on appeal, the degree of harm required for reversal is egregious harm. Id. at 732. That is, if no objection to the charge was made at trial, the defendant is entitled to reversal only if the error is so egregious and created such harm that the defendant did not have a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). We determine the degree of harm "in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole." Id. Discussion Under section 22.011 of the Texas Penal Code, a person commits the offense of sexual assault if he intentionally or "knowingly causes the penetration of the anus or female sexual organ of another person by any means, without that person's consent." Tex. Pen. Code Ann. 22.011(a) (Vernon Supp. 1999). In its abstract statement of the law, the court instructed the jury that sexual assault, as that term is used here, is without the consent of the other person if the actor compels the other person to submit or participate by the use of physical force or violence or the actor compels the other person to submit or participate by threatening to use force or violence against the other person believes that the actor has the present ability to execute the threat. A correct statement of the law on coercion by threat would have stated "the actor compels the other person to submit
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or participate by threatening to use force or violence against the other person, and the other person believes that the actor has the present ability to execute the threat." Id. 22.011(b) (2). Furthermore, the application portion of the charge instructed the jury to find Martinez guilty of sexual assault if it believed from the evidence beyond a reasonable doubt that the Defendant, JESUS SALVADOR ALVAREZ-MARTINEZ, on or about the 19th day of May, 1998, in Webb County, Texas, as alleged in the indictment, did then and there intentionally or knowingly sexually assault "GUADALUPE", by causing his sexual organ to penetrate the female sexual organ of "GUADALUPE" without the consent of "GUADALUPE", and the said JESUS SALVADOR ALVAREZ-MARTINEZ compelled "GUADALUPE" to participate by the use of physical force and violence, and the said "GUADALUPE" believed that JESUS SALVADOR ALVAREZ MARTINEZ had the ability to execute the threat. The application portion of the charge thus not only required the jury to find the requisite elements of sexual assault by physical force or violence, it also required the jury to find an extra element that Martinez was able "to execute the threat." While the trial court clearly misstated the law in both the abstract statement of the law and the application portion of the charge, we cannot hold these errors were so egregious that Martinez was denied a fair trial because, in order to find Martinez guilty of sexual assault, the jury was still required to find the requisite elements of sexual assault by physical force or violence. See Ramirez v. State, 967 S.W.2d 919, 922 (Tex. App.--Beaumont 1998, no pet.); Ex parte Green, 548 S.W.2d 914, 917 (Tex. Crim. App. 1977). Sufficiency of the Evidence Finally, Martinez argues the evidence is legally and factually insufficient to support the jury's verdict. Standard of Review In determining whether evidence is legally sufficient to support a verdict, we view the evidence in the light most favorable to the verdict and determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979); Garrett v. State, 851 S.W.2d 853, 857 (Tex. Crim. App. 1993). On the other hand, when conducting a factual sufficiency review, we review "'all the evidence without the prism of "in the light most favorable to the prosecution" [and] set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.'" Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996) (quoting Stone v. State, 823 S.W.2d 375, 381 (Tex. App.--Austin 1992, pet. ref'd, untimely filed)). Discussion Martinez argues the evidence is insufficient to demonstrate Guadalupe did not consent to have sex with him. Specifically, Martinez argues there is no evidence Guadalupe screamed, asked for help, or otherwise resisted sexual intercourse with him. However, the issue in a sexual assault case is not whether the victim resisted the defendant but whether the defendant compelled the victim. Wisdom v. State, 708 S.W.2d 840, 842-43 (Tex. Crim. App. 1986). Guadalupe testified Martinez came into her house, grabbed her by the hair, pushed her into her bedroom, beat her about the head, and penetrated her with his penis without her consent. The police who arrived shortly after the incident described Guadalupe as scared and shaken. Guadalupe had visible bruises on her face and body, and medical examination revealed spermatic fluid in Guadalupe's vaginal area that could belong to Martinez. We thus hold the evidence was both legally and factually sufficient to support Martinez' conviction for sexual assault. See Tex. Pen. Code Ann. 22.011; Gonzales v. State, 2 S.W.3d 411, 415 (Tex. App.--San Antonio 1999, no pet.); Moore v. State, 675 S.W.2d 348, 349-50 (Tex. App.--Fort Worth 1984, pet. ref'd). Sarah B. Duncan, Justice Do not publish

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