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holding that appellant could not demonstrate reversible error because the video's substance had come into evidence without objection during officer's testimony
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NO. 02-16-00330-CR
05-17-2018
FRANCISCO DOMINGO VELA APPELLANT v. THE STATE OF TEXAS STATE
FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
TRIAL COURT NO. 1423218D MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
A jury convicted appellant Francisco Domingo Vela of attempted kidnapping, found the enhancement allegations true, and assessed his punishment at 20 years' confinement in the penitentiary. The trial court sentenced Vela accordingly. In three points, Vela argues that (1) his due-process rights under the Fourteenth Amendment were violated by the complainant's clearly perjured testimony, (2) the evidence is insufficient to support his conviction, and (3) the trial court abused its discretion by admitting evidence of extraneous offenses. We affirm.
I. The evidence is sufficient.
Because Vela's second point, his sufficiency complaint, would result in the greatest relief if sustained, we address it first. See Cox v. State, No. 02-16-00400-CR, 2017 WL 4172604, at *3 (Tex. App.—Fort Worth Sept. 21, 2017, no pet.) (mem. op., not designated for publication) (citing Mixon v. State, 481 S.W.3d 318, 322 (Tex. App.—Amarillo 2015, pet. ref'd)).
A. Standard of review
When reviewing the evidentiary sufficiency to support a conviction, we view all the evidence in the light most favorable to the verdict to determine whether any rational factfinder could have found the essential criminal elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016). This standard gives full play to the factfinder's responsibility to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Jenkins, 493 S.W.3d at 599.
The factfinder alone judges the evidence's weight and credibility. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Blea v. State, 483 S.W.3d 29, 33 (Tex. Crim. App. 2016). Thus, when performing an evidentiary-sufficiency review, we may not re-evaluate the evidence's weight and credibility and substitute our judgment for the factfinder's. See Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Instead, we determine whether the necessary inferences are reasonable based upon the evidence's cumulative force when viewed in the light most favorable to the verdict. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.), cert. denied, 136 S. Ct. 198 (2015). We must presume that the factfinder resolved any conflicting inferences in favor of the verdict and must defer to that resolution. Id. at 448-49; see Blea, 483 S.W.3d at 33.
B. Indictment
The State alleged that Vela, with the specific intent to commit kidnapping, followed T.S. with an automobile, yelled at her to get inside his vehicle, or grabbed at her with his hand, attempting to pull her into his van to restrain her without her consent by moving her from one place to another or by confining her with the intent to prevent her liberation in an attempt to abduct her or to secret or hold her in a place that she was not likely to be found. The State also alleged that Vela's attempts amounted to more than mere preparation and that they tended but failed to effect committing the intended offense. Tex. Penal Code Ann. §§ 15.01, 20.03(a) (West 2011).
Because the complainant was a minor at the time of the offense, we use her initials to protect her identity. See Tex. R. App. P. 9.10(a)(3); 2nd Tex. App. (Fort Worth) Loc. R. 7; Chappell v. State, No. 02-16-00126-CR, 2017 WL 2687536, at *1 (Tex. App.—Fort Worth June 22, 2017, pet. ref'd) (mem. op., not designated for publication).
C. Evidence
On July 26, 2015, about a year before trial, T.S. had just turned 16. She lived on Bethune Street in Fort Worth. About two blocks away on Ramey Avenue was the "red store," which she described as a corner store that sold snacks and cigarettes and which was owned by her uncle. Between her house and the store was the Humble Chapel Baptist Church.
On that July evening she had walked to her uncle's store only to find it closed, so she started walking back to her house. As she did so, T.S. noticed a white van following her. When T.S. turned left at an intersection, the white van turned left as well, which caused T.S. some concern, so she began walking faster. When she turned around, the driver started talking to her: "He was like, come here, get in the van with me, reaching out his window trying to touch me, grab me," T.S. testified. Not recognizing the man and never having spoken to him before, T.S. said nothing and kept walking. When the driver continued to grab at her and yell at her to get in his van, T.S. went off onto a narrow dirt trail to get away from him, but when she got to the end of the trail, the van was there blocking her way. She then turned around and ran inside the front vestibule of the Humble Chapel Baptist Church.
T.S. testified that no one was in the vestibule and that everyone was beyond the vestibule's door in a church service. From the vestibule, T.S. used her cell phone to call her mother and sister to come and get her because she was very scared, but her sister was the only person she managed to talk to.
While at the church, T.S. looked out the doors and did not see the white van, so she walked out only to spot it again, this time at a stop sign at the end of the street. After the driver saw her and started driving toward her, she ran again and—to get away from him—jumped down into "this ditch thing," which photographs showed to be a cemented water-drainage ditch. T.S. testified that when the driver saw her jump into the ditch, he drove in the opposite direction.
T.S. climbed out of the ditch at the gated exit on Elgin Street, where her sister met her, and the two then ran to their house, which was close by. T.S. testified that it was very hot, and when they got to their house, she threw up on the porch and cried as she told her mother what had happened.
T.S.'s mother responded to the incident by telling her daughters that she was going to look for the white van, so T.S. changed into some clean clothing, and T.S., her mother, and her sister walked back toward her uncle's store; there, they spotted both the white van and its driver. Her mother called the police and gave them the van's license-plate number.
When the police arrived at the store, they spoke to T.S., her mother, and her sister and then arrested Vela at the scene.
In court, T.S. identified Vela as the driver. The police had initially shown T.S. pictures of different people, but she was unsure at the time if Vela was in the photo lineup. She said the police told her that the photo of the suspect was old and so she might not recognize him, but that she was to do her best. She picked one photo, which was not of Vela, but was unsure. In contrast, at the "red store" she was certain Vela was the driver.
D. Discussion
Vela contends that simply following T.S., yelling at her, and trying to touch her was insufficient to support his conviction. But the evidence shows more than simply following, yelling, and trying to touch. The evidence shows Vela actively pursuing—even hunting—T.S., thwarting her attempts to escape, yelling at her to get in his vehicle, and grabbing at—not merely trying to touch—her. Viewing the evidence in the light most favorable to the verdict, a rational juror could believe beyond a reasonable doubt that Vela followed T.S. in his automobile, yelled at her to get inside, and attempted to grab her with his hand to pull her into his van to restrain her without her consent by moving her from one place to another or by confining her with the intent to prevent her liberty in an attempt to abduct her by secreting or holding her in a place that she was not likely to be found, as the State alleged. See Jenkins, 493 S.W.3d at 599. A rational juror could also believe beyond a reasonable doubt that his attempts amounted to more than mere preparation and that they tended but failed to effect the intended offense. See id.
Vela also argues that there was no evidence of his using or threatening to use deadly force. See Tex. Penal Code Ann. § 20.01(2)(B) (West 2011). This argument misses the mark: the State did not need to show that, because the State did not plead it. The State proceeded under the alternate provision—that Vela restrained T.S. with the intent to prevent her liberation by secreting or holding her in a place where she was not likely to be found. See id. 20.01(2)(A).
Finally, Vela argues that other evidence showed the jury was wrong to believe T.S. The jury, not the defendant and not the appellate court, determines which witnesses to believe and what weight to assign the evidence. See Jenkins, 493 S.W.3d at 599, Blea, 483 S.W.3d at 33, Montgomery, 369 S.W.3d at 192; Bradley v. State, 359 S.W.3d 912, 917 (Tex. App.—Houston [14th Dist.] 2012, pet. ref'd). A single eyewitness's testimony can be enough to support a conviction. Bradley, 359 S.W.3d at 917. T.S.'s testimony was sufficient to prove Vela committed the offense of attempted kidnapping. See id.
We overrule Vela's second point.
II. Vela has not shown a due-process violation.
In Vela's first point, he argues that his due-process rights under the Fourteenth Amendment were violated by the complainant's "clearly" perjured testimony, relying on Alcorta v. Texas, 355 U.S. 28, 31, 78 S. Ct. 103 (1957); Ex Parte Chavez, 371 S.W.3d 200, 207-08 (Tex. Crim. App. 2012); Ex parte Robbins, 360 S.W.3d 446, 459 (Tex. Crim. App. 2011), cert. denied, 566 U.S. 986 (2012); and Ex parte Ghahremani, 332 S.W.3d 470, 477 (Tex. Crim. App. 2011). These cases were all habeas corpus proceedings.
In the context of a habeas proceeding, the court of criminal appeals has written that the Due Process Clause of the Fourteenth Amendment can be violated when the State uses false testimony to obtain a conviction, regardless of whether it does so knowingly or unknowingly. Robbins, 360 S.W.3d at 459. To constitute a due-process violation, the testimony need not be perjured; rather, "false" testimony will suffice. Id. Although the caselaw frequently refers to "perjured" testimony, the offending testimony need not be criminally perjurious; the question is instead whether the testimony, taken as a whole, gives the jury a false impression. Chavez, 371 S.W.3d at 208; Ghahremani, 332 S.W.3d at 477. Further, to constitute a due-process violation, the record must show that the testimony was material—that is, a "reasonable likelihood" exists that the false testimony affected the jury's judgment. Chavez, 371 S.W.3d at 208. The rules are aimed not at preventing perjury, which is punishable in its own right, but at ensuring that the defendant is convicted and sentenced on truthful testimony. Ghahremani, 332 S.W.3d at 477-78.
Vela pinpoints three discrete areas of T.S.'s alleged "half-truths and lies of omission and commission." First, he contends that T.S. withheld critical information about why she was at the "red store" on the evening of July 26, 2015. Second, Vela argues that T.S. lied about fleeing into the church to seek refuge. Finally, Vela argues that neither T.S. nor her mother called the police during or immediately after the alleged attempted kidnapping. In each instance, however, Vela relies on what the record currently shows and on evidence the jury already had before it. In this context, Vela's complaints are best understood as additional attacks on the sufficiency of the evidence and not, as he asserts, a due-process violation based on new post-conviction evidence affirmatively showing that the jury convicted him based on "false" information.
Vela's cited cases were all habeas proceedings in which those defendants presented additional evidence at a habeas corpus hearing showing—or attempting to show—that the State's evidence at trial left their respective juries with materially false impressions. Vela, in contrast, does not rely on a separate hearing at which he presented additional evidence throwing the State's trial evidence into a totally different light; he instead relies on evidence the jury already heard—and implicitly rejected.
A. Alcorta
For example, in Alcorta, the defendant killed his wife but maintained that he did so out of sudden passion when he saw her kissing Natividad Castilleja late at night in a parked car. 355 U.S. at 28-29, 78 S. Ct. at 104. If the jury had believed Alcorta, he would have been guilty of murder without malice, and the maximum assessible punishment was five years' imprisonment. Id. at 29, 78 S. Ct. at 104. But Castilleja testified that he and Alcorta's wife had no romantic relationship whatsoever and that he was simply giving her a ride home at two o'clock in the morning when he experienced engine trouble. Id. at 29-30, 78 S. Ct. at 104. The jury found Alcorta guilty of murder with malice and sentenced him to death. Id. at 29, 78 S. Ct. at 104.
Later, during Alcorta's habeas corpus hearing, Castilleja acknowledged that he had given false testimony at trial, that he and Alcorta's wife had had sexual intercourse five or six times within a relatively brief period before her death, and that he had told the prosecutor about his relationship with Alcorta's wife before the trial. Id. at 30-31, 78 S. Ct. at 105. The prosecutor took the stand and admitted that he knew about Castilleja's and Alcorta's wife's sexual relationship before trial. Id. at 31, 78 S. Ct. at 105. Despite Castilleja's and the prosecutor's testimony, the court of criminal appeals denied Alcorta any habeas relief. Id. at 31, 78 S. Ct. at 105.
But the United States Supreme Court reversed, writing that Alcorta was denied due process: "It cannot seriously be disputed that Castilleja's testimony, taken as a whole, gave the jury the false impression that his relationship with petitioner's wife was nothing more than that of casual friendship." Id. at 31, 78 S. Ct. at 105. And the Supreme Court had no difficulty finding Castilleja's testimony "seriously prejudicial": "If Castilleja's relationship with petitioner's wife had been truthfully portrayed to the jury, it would have, apart from impeaching his credibility, tended to corroborate petitioner's contention that he had found his wife embracing Castilleja." Id. at 31-32, 78 S. Ct. at 105.
B. Chavez
In Chavez, two witnesses identified Chavez as the shooter in a burglary during which one person was murdered. 371 S.W.3d at 202. Although charged with capital murder, the jury convicted Chavez only of the lesser-included offense of aggravated robbery. Id.
After his conviction, one of the other participants to the burglary admitted being the shooter but identified Chavez as the person who devised and coordinated the offense and remained in the getaway vehicle during the offense. Id. at 203.
In a habeas corpus proceeding, the court of criminal appeals agreed that Chavez could show that the jury heard false testimony but denied granting him any relief because he could not show that the false testimony was material, given that (1) the jury had already acquitted him of capital murder, (2) he had participated in this offense, and (3) he had a history of violent criminal behavior. Id. at 209-10.
C. Ghahremani
In Ghahremani, the 22-year-old Ghahremani intoxicated a 13-year-old girl with alcohol and drugs and then sexually assaulted her. 332 S.W.3d at 472-73. At trial, the girl's parents testified that she had had serious behavioral problems after the sexual assault, and as to the occurrence of any intervening events they either remained silent or denied any. Id. at 478-79.
In his habeas proceeding, however, Ghahremani showed that the parents' silence and denials about any intervening events created a misleading impression, when in fact the girl later engaged in a long-term, intimate relationship with a 25-year-old drug dealer, sold drugs, became a member of a gang, ran away from home, came home on drugs, and came home the victim of a sexual assault with no recollection of who the perpetrator was. Id. at 479. The court of criminal appeals agreed with the trial court's recommendations that the parents' testimony was both false and material and granted Ghahremani a new punishment hearing. Id. at 478-83.
D. Robbins
Robbins involved a habeas proceeding in which Robbins brought in new evidence that the State's medical expert had revised her autopsy findings, but the court of criminal appeals concluded that the medical expert's original trial testimony did not qualify as false, so it denied Robbins relief. 360 S.W.3d at 462.
E. Summary
Because, unlike the habeas cases just discussed, Vela is not relying on new or additional evidence demonstrating that the jury was misled by false trial evidence, his cases are inapposite.
We overrule Vela's first point.
III. The trial court did not abuse its discretion by admitting certain evidence.
In his third point, Vela asserts that the trial court abused its discretion by admitting extraneous-offense evidence: when the police arrested Vela at the "red store," he was caught literally with his pants down.
Within his brief, Vela relies on arguments raised at his suppression hearing by which Vela sought to suppress the video of his interview or, alternatively, those portions of his interview addressing the fact that the police arrested him while he had his pants down and that he may have been masturbating in the van. The trial court ruled that it was admitting Vela's video statement and that it was further admitting those portions about his state of dress and denied Vela's motion to suppress.
Evidence that the police arrested Vela with his pants down and that Vela might have been masturbating in the van came in elsewhere at trial without objection. Officers Jacob Dunn and Ray Chavez both testified that Vela had trouble getting out of the van because his cargo shorts were down past his mid-thigh. According to Officer Chavez, Vela's shirt covered his genitals but left his buttocks exposed, and he was sweating as if he had just worked out. Officer Chavez described Vela's behavior as consistent with someone who had been masturbating in his car or engaging in some other sexual act.
When the same evidence is presented to the jury elsewhere during trial without objection, no reversible error exists. Jasso v. State, No. 05-13-00594-CR, 2014 WL 3736525, at *5 (Tex. App.—Dallas July 14, 2014, pet. ref'd) (mem. op., not designated for publication); Espinosa v. State, 194 S.W.3d 703, 708 (Tex. App.—Houston [14th Dist.] 2006, no pet.). Because the substance of the video portion about which Vela complains came into evidence without objection during Officer Chavez's testimony, Vela cannot show reversible error.
We overrule Vela's third point.
IV. Conclusion
Having overruled Vela's points, we affirm the trial court's judgment.
/s/ Elizabeth Kerr
ELIZABETH KERR
JUSTICE PANEL: KERR, PITTMAN, and BIRDWELL, JJ. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: May 17, 2018