No. 05-08-00521-CR
Opinion issued May 29, 2009. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 4 Dallas County, Texas, Trial Court Cause No. F-0755910-S.W.3D.
Before Justices FITZGERALD, LANG, and LAGARDE. Opinion By Justice FITZGERALD.
The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
KERRY P. FITZGERALD, Justice.
Anthony Bernard Smith was convicted of aggravated sexual assault and sentenced to forty years' imprisonment. In two issues, he argues (1) that the evidence was factually insufficient to support the jury's guilty verdict and (2) that the trial court erred by granting the State's motion in limine as to evidence that the complainant was HIV positive. We affirm.
I. Sufficiency of the Evidence
In Smith's first issue, he complains that the evidence was factually insufficient to support his conviction. A.
Standard of review In a factual-sufficiency review, we review all the evidence in the record in a neutral light. Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App.), cert. denied, 128 S. Ct. 282 (2007). The evidence is factually insufficient if (1) the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust, or (2) the supporting evidence is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. Id. Although we may second-guess the jury to a limited degree, our review should still be deferential, with a high level of skepticism about the jury's verdict being required before a reversal can occur. Id. "The jury, as sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all of the evidence presented by either side." Rice v. State, 195 S.W.3d 876, 879 (Tex.App.-Dallas 2006, pet. ref'd). B.
Analysis By returning a verdict of guilty, the jury found (1) that Smith intentionally or knowingly caused the penetration of the sexual organ or mouth or anus of the complainant, Phyllis Hubbard, by his own sexual organ without her consent, and (2) that Smith either placed Hubbard in fear that death, serious bodily injury, or kidnaping would imminently be inflicted on her or threatened in her presence to cause her death, serious bodily injury, or kidnaping. 1.
Evidence of guilt Hubbard testified to the following facts. At about 1:00 a.m. on August 14, 2007, she was picking up aluminum cans at a shopping center. A man driving a car pulled up to her and asked her if she "dated," which she understood as an inquiry whether she was a prostitute. She said no and started to walk away, but he pulled his car in front of her, touched her with one hand, and said, "Get in the car, bitch." The man appeared to be reaching beside his seat with his other hand, and Hubbard feared that he might have a weapon, so she got into the car with him. He drove her to a house, and both he and she got out of the car. He told her to go into the house, and she complied because she was afraid of him. Once they were inside the house, he locked the door using a key. He went into another room, removed all of his clothes, and came back into the room where Hubbard was. He said, "What's up, bitch?" Hubbard said that she did not know what was up, and he hit her in the eye with his fist. Then he told her to get undressed, and after she complied she went into a bedroom with him. Then the man started to force his penis into Hubbard's vagina. He was also hitting her and beating her the whole time. Hubbard did not have sex with him consensually, and she was afraid and in pain during the ordeal. Then he told her to get on top of him, and she grabbed a silver object and hit him with it. He said, "Oh, you bitch. You hit me. I see blood." He beat and kicked her, and he tied her hands behind her back with a cable of some kind. Next, he penetrated her anally with his penis, without her permission. About this time, someone knocked on his door, and Hubbard yelled for help. The man threatened to kill her if she said another word, and she was afraid. The person knocking at the door left, and the man untied her hands and retied them to the bedpost. Then he inserted his penis into her mouth and ejaculated, again without her permission. After that, he told her to go to sleep, and he said if she didn't go to sleep he would put her to sleep permanently. She pretended to sleep. When he left the room, she saw a shotgun beside a chifforobe. She managed to get her arms loose, and then she opened a window, kicked the screen out, and she ran away with cords still tied around her wrists. Once Hubbard got out, she saw a man across the street getting into his truck, and she asked him for help. He said he did not speak English, so she ran down the street, pounding on doors of several houses until someone helped her. They called the police, and the police and an ambulance quickly arrived at the location. She identified the house where she had been assaulted and told them that her assailant had a gun in the house. Then she was taken to Parkland where she was examined and treated for her injuries. Later she gave a statement at the police station, and she picked Smith out of a photo lineup. Several other witnesses also testified. Deshundria Kelley testified that at about 6:00 a.m. on a day in August 2007, a woman started banging on her window and screaming for help. Kelley told her boyfriend, Deuntae Barber, to let her in, and he did so. The woman "didn't have any clothes on, and she was still tied up by the wrists." Barber then called the police, while the woman said that she was being beaten and kidnaped. Kelley gave the woman some sweat pants and a shirt, and in Kelley's opinion the woman did not appear to be under the influence of alcohol or drugs. Barber also testified, and his testimony was consistent with Kelley's account. He testified the distraught woman's face was swollen, and that she was crying and hollering and was "real scared." She also kept talking about a shotgun. Barber did not think she appeared to be under the influence of drugs or alcohol, nor did she appear disoriented or confused. He could tell that she had been beaten. He also testified she told him she had been raped. Officer Ray Crenshaw of the Dallas Police Department testified that he responded to a criminal assault call at about 6:00 a.m. on August 14, 2007. As he drove down the street looking for the address, two people, one of whom was Hubbard, ran out of a house and flagged him down. Hubbard had a shirt around her neck but was naked from the neck down. Hubbard was screaming over and over that she had been raped. Her face was swollen, and she was bleeding from one eye, from her nose, and from her mouth. She identified the house where the incident took place. Crenshaw backed his car up to that house and saw someone look out a front window and pull the blinds down. Crenshaw called for back-up and an ambulance, which arrived about ten minutes after Crenshaw had first arrived on the scene. He and Officer Jobe started to approach the house, but they retreated when Hubbard screamed, "He's got a gun." Crenshaw interviewed Hubbard, who told him very briefly what had happened and that the defendant had penetrated her mouth, anus, and vagina without her consent. She did not appear intoxicated to him, and she appeared to be coherent and to understand what she was talking about. Crenshaw's supervisor then arrived at the scene, and the three of them approached the house that Hubbard had pointed out. Smith eventually came to the door, and Crenshaw handcuffed him and took him to his patrol car. Crenshaw observed that Smith had an injury above one eye. The police recovered from Smith's house a gun just like the gun Hubbard had described. After Crenshaw had put Smith in the patrol car, he told Smith he was "only going to ask him the questions for the booking sheet," and otherwise told Smith not to talk at all. Nevertheless, Smith said, "I didn't do anything to that bitch." He referred to someone as a "ho," and he repeatedly said he "didn't do anything to her." At that point the ambulance had already gone, and no one had said anything to Smith about the victim. Detective Stephen Richards of the Dallas Police Department testified that he took photographs at the offense location on the afternoon of August 14, 2007. He also collected some items such as clothing and "bed clothes." Detective Eric Rathjen also testified. He interviewed Hubbard on August 20 and obtained an affidavit from her about what had happened. Rathjen also conducted the photo lineup, and Hubbard had no problem picking Smith out of that lineup. Dr. Gary Ackerman testified about Hubbard's condition based on her medical records from August 14, 2007, which were admitted into evidence. Those records included notes of Hubbard's report that she was raped, sexually assaulted, and beaten. The records also reflected Hubbard had bruises on her arms and a black eye that she was unable to open fully. The "sexual assault examination" records reflected that Hubbard had contusions to her anus, which Dr. Ackerman testified he would not expect to find in a case of consensual sex. The records also indicated an injury to Hubbard's vagina that Dr. Ackerman testified was not something he would expect to find in a case of consensual sex. Forensic biologist Kenneth Balagot testified about the DNA analyses performed on some of the articles recovered from Smith's house. He testified that he analyzed bloodstains found on the comforter and the flat sheet recovered from Smith's house. DNA profiling revealed that, to a very high degree of probability, the stain on the comforter was Smith's blood and the stain on the flat sheet was Hubbard's blood. 2.
Smith's arguments Smith contends that the evidence of guilt is factually insufficient because substantial evidence existed to undermine Hubbard's credibility. She admitted she was convicted of misdemeanor theft in 1989 and was convicted of a felony drug offense in 1999. She admitted she used drugs occasionally in August 2007 and she had smoked crack at 9:00 p.m. on the night of August 13, 2007. She admitted she suffers from paranoid schizophrenia and depression. She admitted a crack pipe that was found in Smith's house might have been hers. Smith also relies on discrepancies in Hubbard's various accounts of the events of the night of August 13-14, 2007. For example, Detective Rathjen testified Hubbard told him she was walking from the Glendale shopping center to her nephew's house when Smith approached her. At trial, however, Hubbard testified she was "in the shopping center" picking up aluminum cans when Smith approached her, and she specifically denied she was walking to her nephew's house. Finally, he argues that no DNA evidence linked him to any of Hubbard's injuries or even showed he had physical contact with her. 3.
Application of the law to the facts We conclude that the evidence is factually sufficient to support Smith's conviction. The jury heard the evidence of Hubbard's criminal convictions, drug use, and mental illness, and it heard evidence showing conflicts in certain details in Hubbard's various accounts of the events of August 13-14, 2007. But it also heard evidence tending to show that Hubbard was not under the influence of drugs or mental illness at the time of the alleged assault. Multiple witnesses testified that Hubbard did not appear intoxicated when she sought aid at 6:00 a.m. on August 14 and that she appeared to be coherent and oriented, albeit upset. Hubbard herself testified she was no longer high at 1:00 a.m. Objective evidence of Hubbard's injuries corroborated her account of how Smith physically and sexually assaulted her and tended to show she was the victim of nonconsensual sex. "Appellate courts should afford almost complete deference to a jury's decision when that decision is based upon an evaluation of credibility." Lancon v. State, 253 S.W.3d 699, 705 (Tex.Crim.App. 2008). We conclude that it was within the jury's province to believe Hubbard's testimony. See Vasquez v. State, 67 S.W.3d 229, 237 (Tex.Crim.App. 2002) (witness's use of illegal drugs is merely a factor for the jury to consider in weighing credibility); Marquez v. State, No. 05-07-00635-CR, 2008 WL 2043044, at *3 (Tex.App.-Dallas May 14, 2008, no pet.) (mem. op.) (not designated for publication) ("As the sole judge of witness credibility, the jury was free to believe [a witness's] testimony, despite [his] being a convicted felon."); Douglas v. State, No. 05-06-00198-CR, 2006 WL 3742902, at *2 (Tex.App.-Dallas Dec. 21, 2006, pet. ref'd) (mem. op.) (not designated for publication) (jury was free to accept testimony of witness despite his history of mental illness and despite factual inconsistencies in the evidence); see also Lancon, 253 S.W.3d at 706 (concluding that evidence was factually sufficient even though no physical evidence linked defendant to the crime and State's evidence "boiled down to the testimony of the witnesses and police officers); Marc v. State, 166 S.W.3d 767, 772-74 (Tex.App.-Fort Worth 2005, pet. ref'd) (jury was free to believe complainant witness even though she was a prostitute, was a drug addict, and had multiple federal and state convictions). Moreover, Hubbard's testimony was corroborated in many details by the testimony of other witnesses and the objective medical evidence. The evidence of Smith's guilt, viewed in a neutral light, supported the jury's findings that Smith had nonconsensual sex with Hubbard and that he put her in fear of imminent death, serious bodily injury, or kidnaping. Moreover, the evidence of Smith's guilt was not so weak as to render the verdict manifestly wrong and unjust, nor was the contrary evidence so strong as to render the verdict manifestly wrong and unjust. We overrule Smith's first issue. II. Motion in Limine
In his second issue, Smith argues that the trial court erred by granting the State's motion in limine as to references to the fact Hubbard was HIV positive. As the State points out, "[a] trial judge's grant or denial of a motion in limine is a preliminary ruling only and normally preserves nothing for appellate review." Geuder v. State, 115 S.W.3d 11, 14-15 (Tex.Crim.App. 2003). To preserve error based on the exclusion of evidence, a party must actually offer the evidence at trial. Windham v. State, No. 05-07-00535-CR, 2008 WL 921487, at *1 (Tex.App.-Dallas April 7, 2008, no pet.) (mem. op.) (not designated for publication). Moreover, the party must make the substance of the evidence known to the court by offer of proof, unless it was apparent from the context. Tex. R. Evid. 103(a)(2). Smith does not identify any point in the trial when he actually attempted to introduce any evidence that Hubbard was HIV positive. Accordingly, we conclude that error was not preserved. Even if Smith had preserved error, we would conclude the trial court did not err by excluding the evidence. We review a ruling excluding evidence for abuse of discretion, finding error only if the decision was so clearly wrong as to fall outside the zone of reasonable disagreement. London v. State, No. 05-07-00983-CR, 2008 WL 5102975, at *5 (Tex.App.-Dallas Dec. 5, 2008, pet. ref'd). Only relevant evidence is admissible. Tex. R. Evid. 402. Smith argues that evidence of Hubbard's HIV-positive status was "relevant to show [Hubbard]'s reasoning for not using a condom during sex" with Smith. His logic is not entirely clear, but he appears to contend that evidence of Hubbard's HIV-positive status, plus evidence that Hubbard and Smith did not use a condom during sex, makes it more probable that the sex was consensual. His theory seems to be that a person who is HIV positive is less likely to use a condom during consensual sex because she would feel no need to protect herself from HIV. We reject Smith's argument as sheer speculation. We conclude that evidence Hubbard was HIV positive would not have tended to make the State's theory of nonconsensual sex less probable. Thus, such evidence was neither relevant nor admissible. We overrule Smith's second issue on appeal. III. Disposition
Having overruled both of Smith's issues, we affirm the judgment of the trial court.