Opinion
NO. 14-19-00083-CR
09-01-2020
Jonathan GREEN, Appellant v. The STATE of Texas, Appellee
Crespin Michael Linton, Houston, for Appellant. Kyle Jones, Angleton, for Appellee.
Crespin Michael Linton, Houston, for Appellant.
Kyle Jones, Angleton, for Appellee.
Panel consists of Justices Bourliot, Hassan, and Poissant.
Meagan Hassan, Justice
A jury found Appellant Jonathan Green guilty of aggravated sexual assault and assessed punishment at 35 years' confinement. Appellant raises two issues on appeal and asserts (1) the evidence is legally insufficient to support his conviction, and (2) the trial court erred by denying his request for a jury instruction on spoliation. For the reasons below, we affirm.
BACKGROUND
Complainant reported a sexual assault shortly after midnight on December 14, 2017. Appellant was arrested the next day and proceeded to trial in December 2018. The following recitation of facts draws on the testimony and evidence presented at Appellant's trial.
Complainant and her boyfriend ("Boyfriend") went to the Winter Wonder Lights in La Marque on the evening of December 13, 2017, accompanied by Complainant's family. Complainant and Boyfriend returned to Boyfriend's Angleton home around 11:00 p.m.; Complainant left approximately 30-45 minutes later after she and Boyfriend had sex. Complainant was driving to the home of a friend with whom she was staying.
On the drive to her friend's house, Complainant stopped her car at railroad tracks to wait for a train to pass. Complainant snapchatted a picture of the train to Boyfriend. Complainant said that, after she sent the picture, a man opened her car's driver door and pulled her out of the car by her neck. Complainant recalled that the man was wearing a dark gray or dark blue hooded sweatshirt with pants. According to Complainant, she was on the ground next to her car and the man was "asking for money"; Complainant said the man had a gun in his hands and pointed it at her head. Complainant said she found her wallet and gave the man a "couple of dollars". The man walked around the car, got in the passenger seat, and told Complainant to "get in and drive".
Snapchat is a mobile-focused messaging application that allows users to share "stories" of 24-hour chronological content. Pictures, videos, and messages are only available for a short time before they become inaccessible. "Snaps" can be directed privately to selected contacts or to a semi-public "story". See Snapchat, Wikipedia, https://en.wikipedia.org/wiki/Snapchat (last visited August 11, 2020).
Complainant said the man instructed her to stop her car a few streets away, close to the Angleton fairgrounds. Complainant testified that the man grabbed her by the neck and "pull[ed] [her] from the driver's side to the passenger side and out the door, out that door into the grass." Complainant said she blacked out for around a minute and, when she regained consciousness, she was lying on her back in the grass. Complainant recalled that the man was on his knees between her legs, was tugging at her leggings, and was trying to take them off. Complainant said the man pulled out a condom in a gold wrapper, put the condom on, and "forc[ed] himself inside" her vagina.
During the incident, Complainant testified that the man "stopp[ed] for something and he went to the side". Complainant said she "grabbed whatever was next to" her – Complainant at first thought it was a gun magazine but instead it was a cell phone. Complainant got up, ran to her car, and drove away from the scene. Complainant called her father and told him what happened. Complainant realized when she was on the phone with her father that she had the man's cell phone. Complainant drove to her parents' house, which was next door to Boyfriend's. Boyfriend came outside when Complainant arrived; testifying at Appellant's trial, Boyfriend recalled that Complainant was crying, her leggings were ripped, and she said she had been raped.
Complainant's father ("Father") said that, when Complainant arrived at the house after the incident, he and his wife opened her car's door and Complainant "did not have her clothes on." Immediately after, Father said he got in his white truck and drove to the railroad tracks to "catch" the person involved in the incident. Father saw someone in a hooded sweatshirt walking near the railroad tracks and stated that he "was really close to running [that person] over." Father said when the man saw him turn his truck around, the man ran away.
Officer Dale Meyer and Detective Brian Hoskins responded after the incident. Officer Meyer testified that Complainant was "very distraught, very shooken [sic] up, shaking, visibly truly upset." Officer Meyer said the knees on Complainant's leggings were cut and dirty.
Complainant gave Officer Meyer the cell phone she grabbed during the incident. Detective Hoskins collected some of Complainant's clothing and attempted to collect DNA evidence from Complainant's car. Detective Hoskins also noticed dead grass in Complainant's car.
Complainant went to the hospital and was examined by a sexual assault nurse examiner. The nurse found bruising on the underside of Complainant's chin, her neck, and the back of her arm, as well as a scratch on her thigh. Photographs admitted into evidence show bruising and scratches on Complainant's neck. The nurse also noted that Complainant had a vaginal tear. The nurse collected DNA swabs from Complaint's neck, genitals, and fingernails. The forensic scientist that analyzed this evidence testified as follows with respect to the results of her analysis on Complainant's left neck swab:
The DNA profile is interpreted as a mixture of three individuals with [Complainant] as an assumed contributor. Obtaining this profile is 1.25 octillion times more likely if the DNA came from [Complainant], [Appellant], and one unknown individual than if the DNA came from [Complainant] and two unrelated unknown individuals. Based on the likelihood ratio results, [Appellant] cannot be excluded as a possible contributor to the profile.
Later during the investigation, Complainant twice was presented with a photo array that contained Appellant's photo. Complainant did not identify Appellant as the person involved in the incident.
Proceeding with the investigation, Detective Arminda Cantu obtained a search warrant for the cellular phone Complainant found while fleeing to her car. After the warrant was signed, Detective Hoskins looked through the phone's messages, calls, and social media applications and determined that the phone belonged to Appellant.
The phone was delivered to the Pearland Police Department for a forensic data dump. Testifying at Appellant's trial, the officer who performed the data dump said the phone's records show the following calls were made or received on December 13, 2017:
| Contact Name | Time | Duration |
|---|---|---|
| "Wifey" | 11:53 p.m. | 3 minutes 12 seconds |
| "Sister Law" | 9:26 p.m. | 47 seconds |
| "Brother" | 9:25 p.m. | 1 minute 6 seconds |
| "Brother" | 8:42 p.m. | 18 seconds |
| Everett Hall | 7:53 p.m. | 35 seconds |
| "Wifey" | 7:40 p.m. | 3 minutes 55 seconds |
The phone records also showed several message exchanges on December 13, 2017, including two outgoing messages to "Wifey": one at 11:51 p.m. that said, "You off?", and a second message at 11:52 p.m. saying, "Hello". The officer testified that, after midnight on December 14, 2017, the phone's incoming messages were unread and the incoming calls were unanswered.
On December 15, 2017, Detective Hoskins made contact with Appellant and told him they found a phone that might belong to him. Detective Hoskins told Appellant that "he can come up to the police department and we could discuss it, try and see if it was his cell phone."
Appellant arrived at the police station that afternoon and met with Detective Hoskins and Detective Cantu; the meeting was recorded and a video of the meeting was admitted into evidence. During the meeting, Appellant told the detectives he lost his phone on December 13th while riding his bicycle – Appellant said he thought it happened in the afternoon because "school buses were running."
According to Detective Hoskins, after the meeting he and Officer Jonathan White gave Appellant a ride home and Appellant consented to a search of his house. During the search, a pair of wet black pants were found and collected as evidence. Later that evening, Detective Hoskins and Detective Cantu returned and arrested Appellant. Appellant's home again was searched on December 18, 2017, after the officers received a tip that there was a gun buried in the backyard.
The jury also heard testimony from Everett Hall, Appellant's roommate. Hall testified that Appellant returned to their home shortly after midnight on December 14, 2017. Hall said Appellant was "kind of like out of breath" and told Hall that "somebody was chasing him in a white truck." According to Hall, Appellant said that he had lost his phone. Hall said he called Appellant's phone several times in an attempt to find it, but they were not able to locate the phone. According to the officer that performed the forensic data dump on Appellant's phone, the phone had six missed calls from Hall on December 14, 2017.
Hall testified that he gave two written statements to the police, but "lied" on the first one. According to Hall, in his first statement he stated that he "didn't know nothing about the phone or all that kind of stuff." Hall said he changed his statement when he was made aware that the officers had phone records that contradicted his earlier statements. When asked why he initially lied, Hall responded: "It wasn't about trying to protect anybody. First statement I gave was the simple reason because I thought maybe I could say that and I wouldn't have nothing to do with it. So I wouldn't do what I was going through now." Hall further stated that he "didn't want the police in [his] life."
Hall's first statement was given to Officer White on December 15, 2017, but it could not be located at the time of trial. Officer White said that, "[t]o the best of [his] knowledge," Hall completed and signed the statement and Officer White turned it over to Detective Cantu. Officer White said he looked for the statement but had "no idea" what happened to it.
After the close of evidence, the jury returned a verdict finding Appellant guilty of aggravated sexual assault. See Tex. Penal Code Ann. § 22.021(a)(1)(A)(iii), (2)(A). The jury assessed punishment at 35 years' confinement. Appellant timely appealed.
ANALYSIS
On appeal, Appellant asserts (1) the evidence is legally insufficient to support his conviction for aggravated sexual assault, and (2) the trial court erred by denying Appellant's request for a spoliation instruction regarding the loss of Hall's first written statement. We analyze these issues below.
I. Legally Sufficient Evidence Supports Appellant's Conviction.
A. Standard of Review and Governing Law
When reviewing the sufficiency of the evidence to support a conviction, we consider all of 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 offense beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; Johnson v. State , 364 S.W.3d 292, 293-94 (Tex. Crim. App. 2012). The jury is the sole judge of the credibility of the witnesses and the weight afforded to their testimony. Montgomery v. State , 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). The jury may choose to believe or disbelieve all or part of a witness's testimony, and we presume the jury resolved any conflicts in the evidence in favor of the prevailing party. See Marshall v. State , 479 S.W.3d 840, 845 (Tex. Crim. App. 2016) ("We defer to the jury's finding when the record provides a conflict in the evidence."); Jackson v. State , 495 S.W.3d 398, 405 (Tex. App.—Houston [14th Dist.] 2016, pet. ref'd).
Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt. Hooper v. State , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Evidence is sufficient if the inferences necessary to establish guilt are reasonable based upon the cumulative force of all evidence considered in the light most favorable to the verdict. Wise v. State , 364 S.W.3d 900, 903 (Tex. Crim. App. 2012).
A defendant commits aggravated sexual assault if the defendant intentionally or knowingly causes the sexual organ of another person, without that person's consent, to contact the sexual organ of another person, including the defendant, and the defendant commits one of the following aggravating factors:
(1) by acts or words places the victim in fear that death, serious bodily injury, or kidnapping will be imminently inflicted on any person;
(2) by acts or words occurring in the presence of the victim threatens to cause death, serious bodily injury, or kidnapping of any person; or
(3) uses or exhibits a deadly weapon in the course of the same criminal episode.
Tex. Penal Code Ann. § 22.021(a)(1)(A)(iii), (2)(A).
Section 22.021(a)(2)(A) includes six aggravating factors, but we limit our summary of the provision to those aggravating factors included in the jury charge.
B. Analysis of the Evidence
The evidence is legally sufficient to support Appellant's conviction for aggravated sexual assault.
First, legally sufficient evidence shows that Complainant was sexually assaulted. See id. § 22.021(a)(1)(A). Complainant testified that, around midnight on December 14, 2017, a man jumped in her car, forced her to drive to a secluded location, pulled her out of the car, and "forc[ed]" himself inside her vagina. Complainant's testimony was corroborated by evidence of her physical injuries, including bruising on the underside of her chin, her neck, and the back of her arm, a scratch on her thigh, and a vaginal tear.
Other witnesses' testimony about Complainant's appearance and demeanor after the incident further corroborate Complainant's account. Father testified that, when he and his wife first saw Complainant after she arrived at their house, she "did not have her clothes on." Boyfriend testified that Complainant was crying and said she had been raped. Officer Meyer said Complainant was "very distraught, very shooken [sic] up, shaking, visibly truly upset" and the knees on her leggings were cut and dirty.
A victim's uncorroborated testimony, standing alone, is sufficient to support a sexual assault conviction. See Lovings v. State , 376 S.W.3d 328, 336 (Tex. App.—Houston [14th Dist.] 2012, no pet.) ; Jensen v. State , 66 S.W.3d 528, 534 (Tex. App.—Houston [14th Dist.] 2002, pet. ref'd). Here, in addition to Complainant's testimony, the jury also heard evidence tending to corroborate her account of what occurred. This evidence would permit a reasonable jury to conclude that Complainant was sexually assaulted. See Johnson , 364 S.W.3d at 293-94.
Second, legally sufficient evidence supports the jury's finding with respect to the aggravating factors charged under section 22.021(a)(2)(A). The aggravating factors defined in this subsection are the manner or means by which a proscribed sexual assault becomes a more serious aggravated offense. See Tex. Penal Code Ann. § 22.021(a)(2)(A). Here, the application paragraph of the jury charge instructed the jurors that they could convict Appellant of aggravated sexual assault if they found he committed sexual assault and one of the following: (1) that Appellant placed the victim in fear of death, serious bodily injury, or kidnapping; (2) that Appellant threatened to cause death, serious bodily injury, or kidnapping; or (3) that Appellant used or exhibited a deadly weapon. See id. at (a)(2)(A)(ii), (iii), (iv); see also Pizzo v. State , 235 S.W.3d 711, 715 (Tex. Crim. App. 2007) (different means of commission may be presented in a disjunctive jury instruction when the charging instrument alleged the different means within a single count).
If alternative aggravating factors are submitted in the disjunctive, the jury may return a general verdict as long as the evidence is sufficient to support a finding under any of the factors submitted. See Landrian v. State , 268 S.W.3d 532, 538-39 (Tex. Crim. App. 2008) (construing aggravated sexual assault statute); see also Gandy v. State , 222 S.W.3d 525, 528-29 (Tex. App.—Houston [14th Dist.] 2007, pet. ref'd). For our legal sufficiency review, we need only conclude the State produced legally sufficient evidence of one of its theories to support the jury's finding that Appellant committed aggravated assault. See, e.g., Garcia v. State , No. 01-15-00030-CR, 2016 WL 7011411, at *3-4 (Tex. App.—Houston [1st Dist.] Dec. 1, 2016, pet. ref'd) (mem. op., not designated for publication).
Here, legally sufficient evidence supports the finding that Appellant, "by acts or words place[d] [Complainant] in fear that death, serious bodily injury, or kidnapping [would] be imminently inflicted on any person." Tex. Penal Code Ann. § 22.021 (a)(2)(A)(ii). In the context of aggravated sexual assault, the complainant's state of fear is normally established through his or her own testimony. See Salazar v. State , 562 S.W.3d 61, 66 (Tex. App.—Corpus Christi 2018, no pet.) ; Lewis v. State , 984 S.W.2d 732, 734 (Tex. App.—Fort Worth 1998, pet. ref'd). The defendant's conduct (i.e. , acts, words, or deeds) is then examined to determine whether it was the producing cause of such fear and whether the subjective state of fear was reasonable in light of such conduct. Salazar , 562 S.W.3d at 66 ; Lewis , 984 S.W.2d at 734.
When asked about how she felt during the alleged incident, Complainant agreed that she felt threatened and said she "thought [she] was going to die." The jury reasonably could conclude that this state of fear was caused by Appellant's actions and was a reasonable response to those actions. Complainant testified that her car door unexpectedly was opened while she waited at the railroad tracks; Complainant said a man pulled her out of her car, put a gun to her head, and demanded money. Complainant said the man forced her to drive her car to a secluded location and forcefully pulled her out of the car, causing her to black out. Complainant said the man "forc[ed] himself inside" her. Other evidence showed that Complainant had injuries consistent with her description of events and witnesses testified about Complainant's distressed state shortly after the incident occurred. This evidence, in conjunction with Complainant's testimony about her state of mind during the incident, is sufficient to support the jury's aggravated-factor finding.
Finally, legally sufficient evidence supports the jury's finding that these actions were committed by Appellant. After the incident, DNA swabs were collected from Complainant's neck, genitals, and fingernails. The forensic scientist who analyzed this evidence testified that the swab from Complainant's left neck (1) included a mixture of three individuals' DNA, and (2) yielded a DNA profile 1.25 octillion times more likely if the DNA came from Complainant, Appellant, and an unknown person than if it came from Complainant and two unknown persons.
The jury also heard evidence Complainant found a cell phone during the alleged incident and turned it over to the police that same day; Appellant's counsel stipulated at trial that this phone belonged to Appellant. The officer who performed the phone's forensic data dump testified the phone was used throughout the day on December 13, 2017 to send messages, make calls, and receive calls. The contacts with whom the communications were exchanged included "Wifey", "Sister Law", "Brother", and Everett Hall. At least six calls between Appellant's phone and these contacts were made on the evening of the 13th, ranging in duration from 47 seconds to approximately four minutes. After 11:53 p.m. on December 13, 2017, the phone's incoming messages were unread and its incoming calls were unanswered. This evidence supports the inferences that (1) the phone was in Appellant's possession until shortly before it was found by Complainant and (2) Appellant lied to the police when he said he lost it in the afternoon when "school buses were running".
Considered together, this evidence would permit a reasonable jury to conclude that Appellant was the person who committed the charged offense. See Johnson , 364 S.W.3d at 293-94.
C. Appellant's Sufficiency Challenge
On appeal, Appellant points to five considerations and argues that they "overwhelmingly outweigh" the evidence supporting the jury's verdict: (1) Hall sexually assaulted Complainant; (2) Complainant failed to identify Appellant in the photo arrays; (3) Appellant denied sexually assaulting Complainant; (4) Appellant's DNA could have been transferred to Complainant from a source other than direct contact; and (5) the police never found a gun.
We reject Appellant's first contention regarding Hall because the evidence did not show or suggest that Hall was the person that sexually assaulted Complainant.
Appellant's second, third, and fourth contentions address the identity component of our sufficiency analysis. Although this evidence conflicts with other evidence indicating that Appellant committed the charged offense, it is within the province of the jury to resolve these conflicts in the evidence. See Marshall , 479 S.W.3d at 845 ; Jackson , 495 S.W.3d at 405. Reviewing all of the evidence in the light most favorable to the verdict and presuming that all conflicts were resolved in its favor, legally sufficient evidence shows Appellant committed the charged offense.
Finally, Appellant points out that the officers did not find a gun during their two searches of the home he shared with Hall. But the failure to recover a weapon does not negate other evidence showing that a gun was used during the commission of an offense. See, e.g., In re L.R. , 84 S.W.3d 701, 705 (Tex. App.—Houston [1st Dist.] 2002, no pet.). The jury heard testimony from Complainant that the suspect used a gun during the commission of the offense, and it was within the jury's province to reconcile this evidence with other evidence (e.g. , that the gun was not recovered). Given the absence of evidence undermining the jury's verdict, we decline to disturb their resolution of this issue on appeal.
We overrule Appellant's first issue on appeal and conclude that legally sufficient evidence supports his conviction for aggravated sexual assault.
II. The Trial Court Did Not Err by Denying Appellant's Request for a Spoliation Instruction.
Hall gave two written statements to the police: the first on December 15, 2017 (to Officer White) and the second on December 18, 2017 (to Detective Cantu). According to Hall, in his first statement he said he "didn't know nothing about [Appellant's] phone or all that kind of stuff." Hall testified that this first statement was a lie. Hall relied on his second statement to refresh his recollection at Appellant's trial and testified regarding Appellant's (1) actions on December 14, 2017 and (2) lost phone.
Hall's first statement to Officer White could not be located at the time of trial. Officer White testified that, "[t]o the best of [his] knowledge," (1) Hall completed and signed the statement and (2) he (Officer White) turned it over to Detective Cantu. Officer White said he had looked for this first statement but had "no idea" what happened to it. Detective Cantu also was asked about Hall's first statement and said she did not "have any idea where that statement is."
At the jury charge conference, Appellant's counsel requested a spoliation instruction with respect to Hall's first statement. The trial court denied the request. Challenging this determination on appeal, Appellant argues that Hall "exonerated Appellant in his first statement and then changed his story to implicate Appellant for the sexual assault in his second interview after he realized that the police considered [Hall] a possible suspect to the crime."
A review of alleged jury charge error involves a two-step process examining: (1) whether error existed in the charge; and (2) whether sufficient harm resulted from the error to compel reversal. Ngo v. State , 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005) (en banc); Jones v. State , 531 S.W.3d 309, 321 (Tex. App.—Houston [14th Dist.] 2017, pet. ref'd). We analyze these issues below.
A. Error
Spoliation refers to the loss or destruction of evidence. Guzman v. State , 539 S.W.3d 394, 401 (Tex. App.—Houston [1st Dist.] 2017, pet. ref'd). Absent a showing of bad faith, we cannot find a due process violation that warrants a spoliation instruction. See Arizona v. Youngblood , 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988) ("[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law."); see also Ex parte Napper , 322 S.W.3d 202, 229 (Tex. Crim. App. 2010) ; Guzman , 539 S.W.3d at 401 ; and Moody v. State , 551 S.W.3d 167, 172 (Tex. App.—Fort Worth 2017, no pet.).
As we explained in Jones v. State , 531 S.W.3d at 309, the Court of Criminal Appeals' last published decision concerning spoliation of evidence is from 1898. See Watson v. State , 48 S.W. 185 (Tex. Crim. App. 1898). This opinion suggests that a jury may draw an adverse inference from the spoliation of evidence. Id. at 186. Applying this adverse-inference rule in the criminal law context, this court has presumed for purposes of a harm analysis that the trial court should instruct the jury that it may draw an adverse inference from spoliation. See, e.g., Jones , 531 S.W.3d at 322 ; Burdick v. State , 474 S.W.3d 17, 28 (Tex. App.—Houston [14th Dist.] 2015, no pet.).
Bad faith requires "more than simply being aware that one's actions or inaction could result in the loss of something that is recognized to be evidence." Napper , 322 S.W.3d at 238. Rather, bad faith requires a showing of "some sort of improper motive, such as personal animus against the defendant or a desire to prevent the defendant from obtaining evidence that might be useful." Id. When conduct can, at worst, be described as negligent, the failure to preserve evidence does not rise to the level of a due process violation absent extraordinary circumstances not present here. See generally Arizona , 488 U.S. at 58, 109 S.Ct. 333 and Burdick v. State , 474 S.W.3d 17, 27 (Tex. App.—Houston [14th Dist.] 2015, no pet.) ("A showing of negligence does not qualify as bad faith.").
Here, there is no evidence of bad faith and Appellant's attempt to frame the loss of evidence as "gross indifference" is unsupported under Texas case law. Instead, the record reveals Officer White testified that, "[t]o the best of [his] knowledge," he turned Hall's first written statement over to Detective Cantu. Detective White testified that, prior to Appellant's trial, he looked for the statement but could not find it. According to Detective White, the last time he saw the statement was on the day he took it. Both Officer White and Detective Cantu testified that they did not know what happened to the first statement. Under these facts, we have insufficient facts to conclude either satisfied the onerous standards of "bad faith".
Having concluded the trial court did not err when it denied Appellant's request for a spoliation instruction, we need not reach the question of whether it was harmful. See, e.g., Guzman , 539 S.W.3d at 400-02.
We overrule Appellant's second issue.
CONCLUSION
We affirm the trial court's final judgment.