Opinion
No. 05-11-00344-CR
08-28-2012
ARTURO AREVALO, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRMED;
On Appeal from the 203rd Judicial District Court Dallas County, Texas Trial Court Cause No. F09-62079-P
OPINION
Before Justices O'Neill, Richter, and Lang-Miers Opinion By Justice O'Neill
Appellant appeals his conviction for aggravated sexual assault with use of a deadly weapon. After a jury found appellant guilty, the trial court assessed punishment at life confinement. In four issues, appellant contends (1) the evidence is legally insufficient to support his conviction, (2) the State failed to corroborate accomplice witness testimony, and (3) the trial court erred in admitting statements of two nontestifying accomplice witnesses. For the following reasons, we affirm the trial court's judgment.
The victim was identified at trial by the pseudonym Jessica Watkins. On the night of the offense, Jessica, an SMU student, and two girlfriends went to a party thrown by members of the SMU soccer team. When the girls were ready to leave the party, they called their friend George to pick them up. When George arrived at the apartment complex, he called Jessica's cell and waited for the girls in his car. As the girls were about to get in George's car, a large black SUV slowly approached and then stopped. Two men got out and forced Jessica into the back seat of the SUV.
One of the men held Jessica's head down as they drove. The men took her cell phone and her jewelry. Eventually the car stopped. Jessica referred to the first man that sexually assaulted her as the "worst one." She later identified this man in open court as appellant. She said after appellant sexually assaulted her, he screamed angrily at the other two men, who then also sexually assaulted her. She felt as though the second man that assaulted her did not want to, but did so briefly only after appellant became angry at him. After the repeated assaults, the men started driving again. Appellant sexually assaulted Jessica again. Appellant then put duct tape on Jessica's eyes, and they drove around a little longer. The second man tried to give Jessica her cell phone back before leaving her on the roadway, but appellant grabbed it back. Eventually, Jessica was pushed out of the car and left on the side of the road. After the assault, a man called a friend of Jessica's from her cell phone. The man told Jessica's friend where to find Jessica. Jessica was located soon thereafter.
Jessica admitted that she was unable to positively identify appellant from a photographic line-up after the offense. She said she had looked at several photographs, but could not be "a hundred percent sure on any of them." She said looking at photographs was "unclear" to her, but seeing him in person, "there is no doubt." Jessica's friend Kristina testified she was with Jessica when she was abducted. Kristina identified appellant as one of the participants in the abduction. Kristina conceded that she too was unable to identify appellant after the offense from a photographic line-up.
A rape exam done at Parkland did not reveal injuries and no DNA was collected from Jessica's person. However, other DNA evidence linked appellant to the offense. Specifically, appellant could not be excluded as a contributor of DNA found by swabbing Jessica's dress. The odds of a random match would be one in 397 million. A hair from Jessica's dress was also recovered. The hair was consistent with appellant's DNA profile. That DNA profile would be expected to be seen in no more 2.8 percent of the Hispanic population. The State's expert conceded that it was possible the DNA evidence could have gotten on the dress as a result of secondary transfer.
The State also presented the accomplice witness testimony of Luis Zuniga to prove the offense. Luis admitted he was involved in the offense and admitted sexually assaulting Jessica. Luis's cousin Alfonso was driving the car and appellant was the person that first sexually assaulted Jessica. Luis said after appellant sexually assaulted Jessica, he told Luis and Alfonso they had to do the same. Luis said after they sexually assaulted Jessica, he tried to give Jessica her cell phone back, but appellant would not allow him to. After they left Jessica on the street, Luis called a number that had been calling Jessica's phone to tell them where they could find Jessica. Luis admitted he initially lied to police after he was arrested. He also admitted he had agreed to plead guilty in exchange for the State reducing the charges against him.
The State also presented evidence of statements appellant made to Detective Roberto Saldana. When questioned, appellant gave conflicting accounts about the night of the offense. Appellant first claimed he rarely saw Alfonso and did not know anything about that night. When Saldana told appellant that Alfonso and appellant's nephew Esteban had told police something different, appellant admitted that he did see Alfonso that night, but that they only went out for about ten minutes to get some beer because Alfonso had to work. He then said they were drinking that night, they got up late the next day, and then went to Esteban's house where they were arrested. Appellant also initially said he did not see Luis that night, but later said he did not know if he saw Luis. Appellant continued to deny knowing anything about the girl.
In his first issue, appellant contends the evidence is legally insufficient to prove his identity as one of the victim's assailants. The State is required to prove beyond a reasonable doubt that the accused is the person that committed the crime charged. Johnson v. State, 673 S.W.2d 190, 196 (Tex. Crim. App. 1984). In reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). The jury, as trier of fact, is the exclusive judge of the witnesses' credibility and the weight to be given their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex. App.-Dallas 2003, no pet.).
Here, both Jessica and Kristina positively identified appellant in open-court as the person that committed the offense. Moreover, Luis provided detailed testimony that he, appellant, and Alfonso each committed the offense. Finally, DNA evidence also linked appellant to the offense. Appellant attempts to discredit this evidence piece by piece, concluding no reasonable fact finder could conclude beyond a reasonable doubt that he committed the offense. As noted above, the jury is the sole judge of the credibility of the witnesses. After reviewing all the evidence in the light most favorable to the verdict, we conclude the evidence is legally sufficient to support appellant's conviction.
In his second issue, appellant contends the evidence is insufficient under the accomplice witness rule. A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed, and the corroboration is not sufficient if it merely shows the commission of the offense. Tex. Code Crim. Proc. Ann. art. 38.14 (West 2005). In conducting our review, we eliminate all of the accomplice witness testimony from consideration and then examine the remaining portions of the record to see if there is any evidence that tends to connect the accused with the commission of the offense. Castillo v. State, 221 S.W.3d 689, 691 (Tex. Crim. App. 2007).
According to appellant, Luis was an accomplice witness and without his testimony there is insufficient evidence tending to connect him to the crime. We agree Luis was an accomplice. But we disagree the corroborating evidence is not sufficient. To the contrary, Jessica identified appellant as her attacker. Jessica's friend Kristina also identified appellant as one of the men that abducted Jessica. Further, there was DNA evidence linking appellant to the crime. We conclude the non- accomplice evidence was sufficient to connect appellant with commission of the offense. We resolve the second issue against appellant.
In his third and fourth issues, appellant contends the trial court erred in admitting statements he gave to police following his arrest in violation of the Confrontation Clause of the Sixth Amendment to the United States Constitution. At trial, the State presented a transcription of an interview between appellant and Detective Saldana in which Saldana told appellant that his nephew Esteban and his accomplice Alvarado made certain statements implicating appellant. According to appellant, admission of Esteban and Alfonso's alleged statements violated the confrontation clause because appellant did not have the opportunity to cross-examine them about the alleged statements.
The Sixth Amendment guarantees a criminal defendant the right to confront the witnesses against him. Pointer v. Texas, 380 U.S. 400, 406 (1965). Specifically, the confrontation clause bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." Crawford v. Washington, 541 U.S. 36, 53-54 (2004). The Confrontation Clause does not, however, bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted. Crawford, 541 U.S. at 60 n. 9.
According to appellant, the trial court erred in admitting the transcription of his interview because it included statements Alfonso and Esteban allegedly made to police, but he was not given the opportunity to cross-examine either witness. We cannot agree that the alleged statements were either testimonial or were offered for the truth of the matter asserted. Indeed, the State did not assert Alfonso or Esteban even made the statements. Police officers sometimes use trickery and deception during an interrogation. See Frazier v. Cupp, 394 U.S. 731, 737-39 (1969) (police falsely told appellant that his codefendant had turned State's evidence). Such trickery is permitted provided it is not calculated to produce a false confession or offensive to due process. Creager v. State, 952 S.W.2d 852, 856 (Tex. Crim. App. 1997). Here, the relevance of the purported statements flowed from appellant's response to them and it was not relevant whether the statements were even made. We conclude the "statements" were not offered as actual statements or for the truth of the matter asserted. We resolve the third and fourth issues against appellant.
MICHAEL J. O'NEILL
JUSTICE
Do Not Publish
Tex. R. App. P. 47
110344F.U05
ARTURO AREVALO, Appellant
v.
THE STATE OF TEXAS, Appellee
No. 05-11-00344-CR
Appeal from the 203rd Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F09- 62079-P).
Opinion delivered by Justice O'Neill, Justices Richter and Lang-Miers participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered August 28, 2012.
MICHAEL J. O'NEILL
JUSTICE