Opinion
No. 05-07-00143-CR
Opinion Filed February 21, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause No. F05-72441-NL.
Before Justices FITZGERALD, LANG-MIERS, and MAZZANT.
MEMORANDUM OPINION
Alfredo Munguia-Vargas appeals his conviction for aggravated sexual assault. After the jury found appellant guilty, the trial court sentenced appellant to thirty years' imprisonment. Appellant brings four points of error on appeal contending the evidence is legally and factually insufficient to support appellant's conviction, and appellant contends the trial court abused its discretion by allowing an interpreter to testify as a witness for the State in violation of her duty of neutrality. We affirm the trial court's judgment.
FACTUAL BACKGROUND
The incident in this case happened on the morning of May 13, 2005 at the complainant's apartment. In August 2004, the complainant had allowed her sister and appellant, who was her sister's husband, and their child to move in with her because they could not afford an apartment. In the middle of January 2005, the complainant required appellant to move out of the apartment and forbade him from ever returning. Appellant immediately moved out, and his wife and child moved out about six weeks later. On the evening of May 12, 2005, the complainant was getting ready to go to a concert with her aunt. The complainant fed her children pizza, which she cut up using a knife she described as a butcher's knife. The complainant left the knife on a kitchen counter. The apartment's balcony door was open while the children ate. Before leaving the apartment to take the children to the babysitter for the night, the complainant told her children to close the balcony door. The children did so, but the complainant did not know if they locked it; she also was unsure whether she locked the front door. The complainant took the children to the babysitter's apartment where the children spent the night, and then she drove to her aunt's house to pick up her aunt and go to the concert. The complainant returned to her apartment after midnight on May 13, 2005, and her uncle arrived to pick up her aunt. The complainant locked the front door and went to bed. The complainant awoke at about 5:30 a.m. on May 13, and she heard the door to the balcony open. The complainant went into the living room and saw appellant coming into the room from the balcony. The complainant yelled at him to get out, and appellant ran toward the front door. The complainant went to her bedroom to get her cellular telephone to call the police. Instead of leaving, however, appellant went to the kitchen and retrieved the knife the complainant had used to slice the pizza. The complainant came out of the bedroom with her telephone and saw appellant holding the knife. The complainant told appellant not to hurt her. Appellant grabbed the complainant and pushed her into a chair. Holding the knife in his right hand, appellant used his left hand to pull down his pants and then grab the complainant by the back of the head forcing his penis into her mouth. The complainant was still holding her telephone, and she pressed the "talk" button, causing the telephone to call the last number she had called; appellant knocked the telephone out of her hand onto the floor. The telephone called the complainant's aunt and uncle. When she heard her uncle's voice through the telephone, she pushed appellant back and said, "Alfredo, Alfredo, don't do anything to me. Don't hurt me. Don't hurt me." Appellant ejaculated onto the complainant's leg and arm. When appellant left her apartment, she called the police. The complainant went to the hospital, and samples were taken of the semen on her skin and clothes. The DNA profile of the sperm cells found on the complainant's skin and clothes matched appellant's DNA profile, and the statistical likelihood of another unrelated individual having the same DNA profile was 1 in 4.93 trillion.SUFFICIENCY OF THE EVIDENCE
In his first, second, and third points of error, appellant contends the evidence is legally and factually insufficient to support his conviction. In determining the legal sufficiency of the evidence, we view all the evidence in the light most favorable to the verdict to 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); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App. 2005). The jury is the judge of the credibility of the witnesses and the weight to be given their testimony, and it is free to accept or reject any or all of the evidence presented by either side. Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000); Lawrence v. State, 211 S.W.3d 883, 885 (Tex.App.-Dallas 2006), aff'd, 240 S.W.3d 912 (Tex.Crim.App. 2007). In a factual sufficiency review, we view all the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). To reverse a case on a factual sufficiency challenge, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. at 417. In making a factual sufficiency review, a reviewing court is permitted to substitute its judgment for the jury's when considering credibility and weight determinations, but only "to a very limited degree." Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006) (explaining factual sufficiency jurisprudence still requires appellate court to afford "due deference" to jury's determinations), cert. denied, 128 S. Ct. 87 (2007). In his first and third points of error, appellant contends the evidence is legally and factually insufficient to support the jury's finding that appellant used or exhibited a deadly weapon during the offense. To convict appellant of aggravated sexual assault, the State had to prove beyond a reasonable doubt that during the sexual assault, appellant used or exhibited a deadly weapon, a knife. See Tex. Pen. Code Ann. § 22.021(a)(2)(A)(iv) (Vernon 2006). The penal code defines "deadly weapon" as meaning, (A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or (B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. Id. § 1.07(a)(17). Under the facts presented, we must determine if the knife's manner of use or intended use make it a deadly weapon, that is, one capable of causing death or serious bodily injury. The weapon does not have to cause injury to qualify as a deadly weapon, nor does the definition require that the actor intend to cause death or serious bodily injury weapon. McCain v. State, 22 S.W.3d 497, 503 (Tex.Crim.App. 2000). Appellant asserts there is no testimony to describe the knife's shape, size, sharpness, or capacity to produce death or serious bodily injury. The complainant's testimony about the size of the knife used gestures instead of words to describe the size of the knife: "It was, like, that big and that thick and then goes like that (indicating)." She also used gestures to explain how appellant wielded the knife:Q. That knife that I just showed you-let's pretend this ruler is the knife that I just showed you. Okay? Hold it like Alfredo was holding it when you first saw it.
A. (Indicating).
Q. Like that?
A. (Witness nods.)
Q. Would this be the (indicating)?
A. Yes.
* * *
Q. How close did the knife get to your face?
A. Like this (indicating).
Q. Was he shaking it? What was he doing? Show with the ruler.
A. (Indicating).
* * *
Q. What was he doing with the knife at this point?
A. He was putting the knife like this (indicating).Although the State's manner of questioning the complainant may not have created the most ideal record for appellate review purposes, several facts about the knife and appellant's use of the knife are apparent. The knife was large enough, sharp enough, and strong enough to cut up a pizza. The complainant's testimony also showed appellant held the knife throughout the sexual assault. Furthermore, detective Gary O'Pry testified that the knife appellant used is capable of causing serious bodily injury or death. Also, the knife itself was admitted into evidence, and the jurors could determine for themselves whether the knife was a deadly weapon. After viewing all the evidence under the relevant standards of review, we conclude the evidence is legally and factually sufficient to support the jury's finding that appellant used or exhibited a deadly weapon while committing sexual assault. We overrule appellant's first and third points of error. In his second point of error, appellant contends the evidence is factually insufficient to support the jury's finding that the complainant did not consent to appellant's actions. The complainant testified that appellant held the knife throughout the sexual assault. She also testified, Q. Based on the fact that he was using and exhibiting that knife, did you feel like you had any choice but to do what he was telling you to do? A. Yes. I don't have any choice. Appellant, however asserts the evidence is factually insufficient despite this testimony. Appellant posits the question, "why did she not call the police instead of calling her uncle and aunt," without any argument or analysis. Her aunt and uncle testified they heard the complainant over the telephone sounding desperate and yelling, "No, Alfredo, no." Appellant also asserts the following evidence shows appellant consented: (1) when the complainant first saw appellant and returned to her bedroom to get her telephone, she did not shut the door but returned to the living room; (2) the complainant did not call the police until after appellant left the apartment, yet she made telephone calls to others; and (3) the doctor who performed the sexual assault examination agreed there were no bruises, scratches, lacerations, or bite marks on the complainant's body and no marks on her neck or shoulders. Concerning the first assertion, the complainant testified that when she went to her bedroom to retrieve her telephone, she thought appellant was running to the front door to leave her apartment, so checking to see if he was still there before calling the police does not show she consented to the sexual conduct. Concerning the second assertion, the complainant's telephone records show that the only telephone call she made between 5:30 a.m. and her calling 911 was to her aunt and uncle, which the telephone made automatically when she pressed "talk." This evidence does not tend to show she consented to appellant's conduct. Concerning the third assertion, the absence of marks of violence on the complainant is not inconsistent with not consenting to appellant's actions. After considering all the evidence, we conclude the evidence of the complainant's lack of consent is not factually insufficient. We overrule appellant's second point of error.