Opinion
01-21-00694-CR 01-21-00695-CR
05-02-2023
JOSE ANTONIO IBARRA, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish. Tex.R.App.P. 47.2(b).
On Appeal from the 230th District Court Harris County, Texas Trial Court Case Nos. 1742380 & 1742463
Panel consists of Chief Justice Adams and Justices Kelly and Goodman.
MEMORANDUM OPINION
Gordon Goodman Justice
Jose Antonio Ibarra appeals from two convictions for aggravated sexual assault, urging that the evidence is insufficient to support these convictions and that he was denied a fair trial because the prosecution did not timely disclose that one of its witnesses, a forensic analyst, was under investigation for lying in another case.
We affirm.
BACKGROUND
A grand jury indicted Ibarra twice for committing the offense of aggravated sexual assault against his wife. The first indictment alleged that Ibarra intentionally and knowingly caused her sex organ to contact his own without her consent. The second indictment alleged that about a month later Ibarra intentionally and knowingly digitally penetrated her anus without her consent. Both indictments alleged that Ibarra compelled his wife to submit and participate by the use of physical force, violence, and coercion and exhibited a deadly weapon-his hands-and through his acts and words placed her in fear of serious bodily injury or death.
Ibarra pleaded not guilty to both of the alleged offenses, which were then tried together before the same jury. The jury found Ibarra guilty of both offenses and assessed his punishment at 20 years of incarceration and a $5,000 fine for each offense. The trial court entered judgments corresponding to the jury's verdicts, ordering that Ibarra's two sentences shall run concurrently with one another.
During the guilt-innocence phase of trial, the state put several witnesses on the stand, including Ibarra's now ex-wife. Ibarra then testified in his own defense.
Ibarra's ex-wife testified that he physically abused her while they were married, which eventually prompted her to seek a divorce in 2018. But she did not obtain a final decree of divorce until April 2021.
In May 2018, when the two of them were no longer living under one roof, they agreed to meet to complete divorce paperwork. But when she arrived at the agreed meeting place-a mall parking lot-Ibarra told her to get in his car and that he would then sign the papers. When she got in, he instead drove away, first to a place to get some food and then to a motel.
Ibarra's ex-wife testified that once she was at the motel, she wanted to flee but was scared and in a state of shock. Through a combination of threats and promises to sign the paperwork after they had gone inside, Ibarra convinced her to accompany him to his motel room. Once inside the room, Ibarra told her to eat some of the food, which she reluctantly did. After she had done so, he grabbed her by the hair and yelled that, as his wife, she had to do whatever he asked, at which point he began removing her clothes.
Once Ibarra had removed all her clothes, he threw her on the bed and choked her so hard that she could not breathe and urinated on herself. She tried to fight back but did not have the strength to do so due to lack of breath.
At some point during their struggle, Ibarra removed his own clothes and used his belt to beat her all over her body and then to bind her hands. Once bound, she testified, he put his penis in her mouth, vagina, and anus. He also inserted two fingers in her anus during the assault.
After he was done sexually abusing her, she got dressed.
Ibarra refused to sign the divorce papers. He took her back to her own car at the mall parking lot, where she remained for a while.
Ibarra's ex-wife then went to two nearby police stations, both of which were closed. She then dialed 911 and drove herself to a hospital.
At the hospital, Ibarra's ex-wife took several photographs with her phone, documenting the bruising on her waist and hips and redness on her neck. The photographs were admitted into evidence without objection.
On cross-examination, Ibarra's ex-wife agreed that three similar incidents had occurred earlier in April 2018 and May 2018-she and Ibarra agreed to meet in a public place, they ended up in his motel room instead, and there he sexually assaulted her. The purpose of these meetings was also to get him to sign divorce papers. She did not contact the police after these prior incidents because he threatened to hurt her if she told anyone.
Defense counsel asked Ibarra's ex-wife why she would return to Ibarra's motel room yet again if he had already sexually assaulted her there before. She replied that she did so because she was very afraid of Ibarra. Due to her fear of him, he exercised "a lot of power" over her, she explained.
Ibarra's ex-wife testified that the last of the sexual assaults-the one that prompted her to contact the police-"was stronger." At that point, she decided that she could no longer endure what Ibarra was doing to her.
Ibarra's account substantially differed from his ex-wife's. He testified that after he had married his now ex-wife, he discovered that she is a liar.
When they initially married, Ibarra did not have a place for them to live, so they lived apart. Eventually, they stayed at a motel together for a few days, after which she surprised him by telling him she had to go abroad. Ibarra's ex-wife left, and she was gone for a month-and-a-half or so.
While she was away, Ibarra looked for an apartment for them. He called her many times during this period, but she would not return his calls until much later and spoke "very low" as if "hiding something." He would text her as well. But she would not text him back.
His ex-wife returned in early April 2018. Ibarra had not rented an apartment yet due to her lack of communication while she was away, so they rented a motel room for a week and agreed to look for an apartment.
Ibarra testified that he did not force his ex-wife to have sex. He said they had sex on the occasions in question, but it was consensual.
Ibarra eventually decided that he did not want to rent an apartment because he did not trust his ex-wife. When he told her this, she got mad. He later told her he did not think their marriage was going to work out, at which point she informed him that she would obtain the paperwork needed to divorce. But according to Ibarra, his ex- wife became angry about it. Ibarra testified that he was the one who wanted the divorce, not his ex-wife.
The next time he saw her was in late May, when she said she had the papers. He was prepared to sign the papers in the mall parking lot, but she insisted they be signed in blue ink, and he did not have a blue ink pen on him. He borrowed one from a gas station and signed the divorce papers.
Afterward, the two of them talked about the possibility of having dinner. But they instead decided to go to a motel for a few hours. According to Ibarra, he showered and then they had consensual sex. He said she asked him to be rough with her, which she had not done before. He said they had seen one of the 50 Shades of Grey movies on a previous occasion, and that she asked him to hit her with his belt and engage in other, similarly rough behavior. Ibarra told her he did not want to do these things. He said she also asked that they have anal sex, and that he put his finger in her anus. They spent about two or three hours together.
They showered, left the motel, and he took her to her car.
Ibarra denied threatening her, saying he had no reason to do so. He also denied having ever abused her physically during their relationship.
Having found Ibarra guilty of both offenses as charged, the jury implicitly credited Ibarra's ex-wife's version of events over Ibarra's. Ibarra now appeals.
DISCUSSION
I. Evidentiary Sufficiency
Ibarra challenges the legal and factual sufficiency of the evidence. He argues that there was not enough evidence from which a rational jury could have found that his ex-wife did not consent to sexual relations with him. Ibarra maintains that his ex-wife's account, which entails repeatedly returning to his motel room after prior assaults, is inherently unbelievable. In addition, he argues that her version of events is uncorroborated by any meaningful evidence, such as recordings, text messages, torn clothing, contemporaneous cries for help, or requests for help made to motel staff or family members by his ex-wife immediately after the alleged assaults.
A. Standard of review
When reviewing a jury's verdict for evidentiary sufficiency, we must uphold its verdict if any rational trier of fact could have found all the essential elements of the offense proven beyond a reasonable doubt. Edward v. State, 635 S.W.3d 649, 655 (Tex. Crim. App. 2021). The jury's verdict is irrational under this standard only if it is based on evidence that is not legally sufficient to support a conviction. Id. at 655-56; see Cary v. State, 507 S.W.3d 761, 766 (Tex. Crim. App. 2016) (stating appellate court's role is not to act as thirteenth juror but rather is confined to ensuring jury's verdict is rational one that is based on more than mere modicum of evidence).
In a legal-sufficiency review, we consider all the admitted evidence and view it in the light most favorable to the verdict. Harrell v. State, 620 S.W.3d 910, 913- 14 (Tex. Crim. App. 2021). This standard recognizes it is the jury's prerogative to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from basic facts to ultimate facts. Id. at 914. So, we must defer to the jury's evaluation of the credibility of the witnesses and the weight to be given to various evidence. Martin v. State, 635 S.W.3d 672, 679 (Tex. Crim. App. 2021).
An inference is a conclusion reached by considering other facts and deducing a logical consequence from them. Anderson v. State, 416 S.W.3d 884, 888 (Tex. Crim. App. 2013). The jury may draw inferences from the evidence as long as each inference is supported by the evidence. Carter v. State, 620 S.W.3d 147, 150 (Tex. Crim. App. 2021). If the evidence supports reasonable but conflicting inferences, we presume the jury resolved the conflict in favor of its verdict. Cary, 507 S.W.3d at 766. But the jury's verdict cannot rest on speculation, which consists of mere theorizing or guessing about the possible meaning of the facts and evidence presented, as opposed to reasonable inferences that can be drawn from the evidence admitted at trial. Anderson, 416 S.W.3d at 888.
Each fact need not point directly and independently to guilt, so long as the cumulative force of all the incriminating circumstances suffices to support the jury's verdict. Walker v. State, 594 S.W.3d 330, 335 (Tex. Crim. App. 2020). Thus, in our review, we must not use a divide-and-conquer strategy, evaluating individual bits of evidence in isolation, because this approach does not consider the cumulative force of the evidence. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015).
The law does not require a particular type of evidence. Johnson v. State, 560 S.W.3d 224, 226 (Tex. Crim. App. 2018). Direct and circumstantial evidence are equally probative. Id. Circumstantial evidence alone can be legally sufficient. Id.
With the exception of affirmative defenses, Texas appellate courts no longer engage in a separate factual-sufficiency review in criminal cases. Butcher v. State, 454 S.W.3d 13, 20 (Tex. Crim. App. 2015). A proper legal-sufficiency review is as exacting as the now-abolished factual-sufficiency review, under which we likewise were obligated to defer to the jury's decisions about credibility and the weight of the evidence. Brooks v. State, 323 S.W.3d 893, 898-912 (Tex. Crim. App. 2010).
B. Applicable law
A person who intentionally or knowingly penetrates another's anus by any means or who causes his or her sex organ to contact or penetrate the other's sex organ commits aggravated sexual assault, if these acts are without the other's consent, and the person uses or exhibits a deadly weapon. Tex. Penal Code § 22.021(a)(1)(A)(i), (iii), (a)(2)(A)(iv). Hands may be a deadly weapon. E.g., Hopper v. State, 483 S.W.3d 235, 239-40 (Tex. App.-Fort Worth 2016, pet. ref'd) (holding evidence sufficed to support jury's deadly-weapon finding in case in which record included evidence that defendant impeded victims' breathing with his hands and repeatedly hit them with his hands and fists, placed both victims in fear for their lives, made one lose consciousness and made the other lose feeling in her arms and made her vision fade away, and caused bruising and other injuries to both victims).
Sexual acts subject to the aggravated-sexual-assault statute are without consent under a variety of circumstances, including when a person compels another to submit or participate by the use of physical force, violence, or coercion. Penal §§ 22.011(b)(1), 22.021(c). An act is also without consent when a person compels another to submit or participate by threatening to use force or violence against the other or to harm the other, and the other person believes that the one making the threat has the present ability to execute the threat. Id. §§ 22.011(b)(2), 22.021(c).
Under the statute, lack of consent is an element of the offense of aggravated sexual assault, not an affirmative defense. Id. § 22.021(a)(1)(A)(i), (iii); see Woods v. State, 153 S.W.3d 413, 415 n.7 (Tex. Crim. App. 2005) (characterizing consent as element of offense to be proved in prosecution for sexual assault); Curtis v. State, 89 S.W.3d 163, 175 (Tex. App.-Fort Worth 2002, pet. ref'd) (stating that prosecution had to prove lack of consent to establish aggravated sexual assault).
With exceptions relating to minors, the elderly, and disabled persons, a conviction for aggravated sexual assault may be upheld on the uncorroborated testimony of the victim of the offense, provided that the victim informed someone, other than the defendant, of the alleged offense within one year after the date on which the offense is alleged to have occurred. Tex. Code Crim. Proc. art. 38.07. Hence, a jury may credit the victim's account over the defendant's version of events with respect to the issue of consent and find that the sexual acts in question were not consensual on this basis alone. E.g., Wilson v. State, 473 S.W.3d 889, 897-99 (Tex. App.-Houston [1st Dist.] 2015, pet. ref'd) (stating victim's testimony she did not consent was sufficient on its own to prove lack of consent, in spite of defendant's contrary testimony and his contention that only he and victim were present).
C. Analysis
To the extent Ibarra seeks to show that the jury's verdict is against the great weight and preponderance of the evidence, he is asking us to review the factual sufficiency of the evidence. The Court of Criminal Appeals has abolished this kind of factual-sufficiency review. Therefore, we reject this aspect of Ibarra's argument.
At any rate, whether characterized in terms of legal or factual insufficiency, Ibarra essentially makes a single argument. He maintains that in a he said, she said case, in which no evidence corroborates the victim's version of events, a jury cannot reasonably credit the victim's account if the evidence shows that she repeatedly agreed to associate with the accused or be in his presence after an alleged assault. But this is contrary to the law. When an aggravated-sexual-assault prosecution essentially boils down to a swearing match between the victim and the defendant, the jury may choose to believe the victim and find the defendant guilty solely based on the victim's testimony. Tex. Code Crim. Proc. art. 38.07; Wilson, 473 S.W.3d at 897-99. No evidence of corroboration is necessary to support the jury's verdict.
As the Court of Criminal Appeals has observed, prosecutions for sexual assault are often he said, she said trials in which the jury must render a verdict based solely on the testimony of two witnesses who present diametrically opposed accounts of the events, unaided by any physical, scientific, or other corroborative evidence. Hammer v. State, 296 S.W.3d 555, 561-62 (Tex. Crim. App. 2009). In such cases, the credibility of the victim and defendant is the dispositive issue. Id. And credibility assessments are the exclusive prerogative of the jury. Martin, 635 S.W.3d at 679. We may not second-guess the jury in this regard. See Balderas v. State, 517 S.W.3d 756, 766 (Tex. Crim. App. 2016) (stating that claim that prosecution witness's testimony was false and not credible played no role in proper review of sufficiency of evidence because credibility assessments are for jury).
Ibarra does not dispute the sex acts for which he was indicted. He testified these sex acts occurred but were consensual. His ex-wife testified she did not consent to these sex acts. Each witness provided factual details supporting their differing versions of events. Ibarra's ex-wife testified that she was beaten, restrained, and threatened. He denied threatening her and suggested that any rough treatment or injuries she endured resulted from her request for rough sex, which he indulged.
The jury heard Ibarra's account and could have chosen to believe him instead of his ex-wife. During closing argument, the jury heard Ibarra's argument that his ex-wife would not have repeatedly visited him alone in a motel room, had he sexually assaulted her there before, as she testified he had done. Defense counsel stressed that common sense informed the jury that she would not have accompanied him to a motel if he had raped her there previously. But having heard Ibarra's side of the story and his lawyer's argument, the jury rejected his account and found him guilty. On this record, we cannot say the jury acted irrationally in doing so, given its role in evaluating witness credibility and in resolving conflicts in the evidence.
We overrule Ibarra's first issue.
II. Brady Violation
Ibarra argues that he received an unfair trial because the prosecution did not inform him beforehand that one of its witnesses, a forensic analyst, was then under investigation for having lied under oath in a prior, unrelated criminal case. Ibarra does not contend that the prosecution actually knew that this witness was under investigation at the time of Ibarra's trial. Indeed, Ibarra does not even allege that the witness in question knew he was under investigation in connection with this prior, unrelated criminal case. In addition, Ibarra acknowledges that the case for which the forensic analyst was being investigated went to trial in a different county, Jefferson County, from the one in which Ibarra himself was prosecuted, Harris County. Nonetheless, Ibarra maintains that the Harris County District Attorney's Office had a legal duty to discover the investigation sooner and disclose it before his trial.
Though Ibarra does not cite Brady v. Maryland or describe his claim as one for a Brady violation, this is how we understand his argument. See 373 U.S. 83, 87 (1963) (holding prosecutor has duty to disclose exculpatory evidence to defense).
At the outset, we are not convinced the legal duty on which Ibarra's position depends exists. He relies on Kyles v. Whitley for support, but in that case the United States Supreme Court merely stated that "the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police." 514 U.S. 419, 437 (1995). However, the Court's statement solely concerns other government actors acting on the government's behalf in the case the prosecutor is actually prosecuting. Id. In other words, prosecutors have a duty to learn of evidence "known to others acting on the state's behalf in a particular case." Harm v. State, 183 S.W.3d 403, 406 (Tex. Crim. App. 2006); see also Ex parte Mitchell, 977 S.W.2d 575, 578 (Tex. Crim. App. 1997) (stating that Kyles extended Brady by requiring disclosure of exculpatory evidence in possession of police and other parts of prosecutorial team). Ibarra has not cited any authority for the much broader proposition that Harris County prosecutors have a duty to learn of exculpatory evidence known to any other governmental agent in the State of Texas, including prosecutors employed by another county's district attorney's office, even if the agent in question is not involved in the case at hand.
At any rate, accepting the existence of such a duty for argument's sake, a defendant who asserts a Brady violation must show materiality. Kyles, 514 U.S. at 434. To show materiality, the defendant must establish that he did not receive a fair trial because there is a reasonable enough probability that the jury's verdict could have differed had the evidence in question been disclosed by the state that the state's nondisclosure of the evidence undermines confidence in the trial's outcome. Id.
Ibarra says that the investigation was material because the forensic analyst in question was a critical witness, in that he testified about DNA evidence, which significantly strengthens the state's case in a sexual-assault prosecution. Ibarra also argues that had he been able to show one of the state's witnesses, the analyst, is a liar, the jury might have reasonably questioned the veracity of the state's entire case.
On this record, we disagree with Ibarra's arguments. The forensic analyst's testimony was brief. He authored the DNA report made in this case and performed the associated DNA analysis. Based on one of the DNA samples taken from Ibarra's ex-wife at the hospital after the last alleged sexual assault, and compared with a sample of Ibarra's DNA, the analyst opined that it was statistically very improbable that the male DNA present came from someone other than Ibarra.
Here, the forensic analyst's testimony is immaterial to the trial's outcome because Ibarra testified that he engaged in sex acts with his ex-wife, including on the occasion after which the DNA samples were collected from his ex-wife. The dispositive issue was whether Ibarra's ex-wife consented to these sex acts. The analyst testified about an issue that ultimately was not disputed and which the jury therefore did not have to consider in its deliberations. As a result, the possibility that Ibarra could have used the investigation to call into question the analyst's credibility, if Ibarra had only known about the investigation, does not undermine our confidence in the jury's guilty verdicts because nothing turned on the analyst's credibility.
Similarly, even if Ibarra had been able to establish that the forensic analyst is a liar whose testimony should not have been credited, this would not in turn have affected the credibility of Ibarra's ex-wife as a witness. The jury was entitled to find Ibarra guilty of aggravated sexual assault based solely on his ex-wife's testimony, which required no corroboration, whether by DNA evidence or other evidence. See Jeansonne v. State, 624 S.W.3d 78, 93 (Tex. App.-Houston [1st Dist.] 2021, no pet.) (affirming conviction for sexual assault of child and rejecting defendant's complaint about lack of DNA evidence because such evidence is not required). Ibarra's argument about the credibility of the state's case as a whole does not impugn the credibility of any material witness, and a case, as opposed to a witness, does not have credibility for a jury to evaluate in any sense other than a colloquial one. See Schutz v. State, 957 S.W.2d 52, 68 (Tex. Crim. App. 1997) (observing that issue of credibility focuses on individual witness's ability and willingness to tell truth).
We overrule Ibarra's second issue.
CONCLUSION
We affirm the trial court's judgments.