TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-13-00601-CR
Jose Godinez Matute, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
NO. D-1-DC-12-202260, HONORABLE CLIFFORD BROWN, JUDGE PRESIDING
MEMORANDUM OPINION
Jose Godinez Matute was charged with aggravated sexual assault of a child by
penetrating the child’s sexual organ. See Tex. Penal Code § 22.021(a)(1)(B), (a)(2)(B). At the time
of the alleged offense, Matute was in his twenties, and the victim, B.A., was eleven years old. After
a trial, the jury found Matute guilty and assessed his punishment at 30 years’ imprisonment. See id.
§§ 22.021(e) (providing that offense is first-degree felony), 12.32 (setting out punishment range for
first-degree felony). In two issues on appeal, Matute challenges the legal sufficiency of the evidence
supporting his conviction and asserts that the district court erred by allowing a witness to testify
“regarding an interrogation without requiring the State to present the best evidence of that
interrogation.” We will affirm the district court’s judgment of conviction.
Legal Sufficiency of the Evidence
In his first issue on appeal, Matute challenges the legal sufficiency of the evidence
supporting his conviction. As set out above, Matute was charged with aggravated sexual assault of
a child. Under the Penal Code, an individual commits that offense if he “intentionally or knowingly
. . . causes the penetration of the anus or sexual organ of a child by any means” and “if the victim is
younger than 14 years of age.” Tex. Penal Code § 22.021(a)(1)(B)(i), (a)(2)(B).
Under a legal-sufficiency review, appellate courts view the evidence in the light
most favorable to the verdict and 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). When performing this review, an appellate court must bear in mind that it is the factfinder’s
duty to weigh the evidence, to resolve conflicts in the testimony, and to make reasonable inferences
“from basic facts to ultimate facts.” Id. Moreover, appellate courts must “determine whether the
necessary inferences are reasonable based upon the combined and cumulative force of all the
evidence when viewed in the light most favorable to the verdict.” Hooper v. State, 214 S.W.3d 9,
16-17 (Tex. Crim. App. 2007). Furthermore, appellate courts presume that conflicting inferences
were resolved in favor of the conviction and defer to that resolution. Clayton v. State, 235 S.W.3d
772, 778 (Tex. Crim. App. 2007).
During the trial, B.A., B.A.’s mother, various law-enforcement personnel, and Matute
all testified regarding the alleged offense. In her testimony, the victim’s mother, J.R., testified that
at the time of the alleged offense, her daughter was eleven years old, was in special-education
classes, and had been diagnosed with various learning disabilities. Regarding the offense, she
explained that she called the police after someone from her neighborhood told her that B.A. had
gotten into “a black car” with a man. In addition, J.R. related that when she scanned the call history
for her cell phone, she noticed that B.A. had used the phone to call someone, and she stated that she
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repeatedly called the number to find out if the person knew where B.A. was and gave the number
to the police. Moreover, she testified that during one of the calls, a man answered but that he denied
knowing B.A. Further, J.R. explained that eventually B.A. returned home looking scared and that
the police immediately questioned her about where she had been.
After J.R. finished her testimony, B.A. was called to the stand. In her testimony, B.A.
often answered questions by stating that she did not know or had forgotten the answer, but she
recalled that she called Matute on the phone,1 asked him to pick her up, and got into his black car.
Further, she explained that there was a child’s car seat in the back of the car. In addition, she
testified that after she got in the car, Matute drove to various hotels but that he was unable to check
into one because he did not have any identification. Moreover, she mentioned that Matute was
trying to get a hotel room in order to have sex with her and generally described in terms consistent
with her age that sex involves “private parts” touching and touching on the “inside” of her “private
part.” Next, she stated that she had sex with Matute outside of the car behind some apartments, and
she described the positions of their bodies, stated that it felt “weird” when his “private part” touched
hers, and recalled that he used a condom during the incident. After describing the alleged offense,
B.A. stated that Matute dropped her off at a corner, that she walked the rest of the way home, that
there were police officers present when she returned home, and that she directed one of the officers
to where she had had sex with Matute. Later, B.A. testified that she told the officer that Matute was
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In her testimony, B.A. referred to the person that assaulted her as Antonio. However, she
also pointed out Matute and identified him as the person that she knew as Antonio. For that reason,
we will refer to Matute when summarizing her testimony.
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not the first person that she had sex with and that she had previously had sex with Matute’s cousin
Javier four days before the incident at issue.2
Next, one of the responding officers, Officer Jennifer Szimanski, testified that
J.R. informed her that a man had been calling on the phone for B.A. for over a week. In addition,
Officer Szimanski explained that she questioned B.A. about the incident, and Officer Szimanski
recalled that B.A. was scared and told her that “he came to do sex with me,” that Matute picked her
up in a black four-door car, that Matute drove to several hotels but was unable to get a room because
he had no identification, that he took her to a parking lot behind one of the hotels to have sex,
and that Matute wore a condom. Next, Officer Szimanski testified that she asked B.A. if she could
guide her to where the incident occurred, that B.A. directed her to a parking lot, and that there was
a condom wrapper in the parking lot.
After Officer Szimanski concluded her testimony, the sexual-assault nurse examiner
that examined B.A., Kathleen Gann, testified regarding the events that occurred after Officer Szimanski
drove B.A. to the hospital. In her testimony, Gann recalled what B.A. told her of the events, including
that “the suspect wanted to have sex,” that they had sex, that “he touched her butt,” and that he
touched her in her “private part . . . with his thing. It felt awkward because no one ever touched [her]
like that.” In addition, although Gann explained that it was initially difficult to get B.A. to talk about
what had happened, she also revealed that B.A. identified a penis on a male diagram and stated that
2
On cross-examination, B.A. admitted that she did not mention having sex with Javier
when she talked to the prosecutors, but she later explained that she did not remember that when
the prosecutors initially questioned her. In addition, Matute questioned B.A. regarding whether she
mentioned Javier when she was examined by the sexual-assault nurse examiner.
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the suspect touched her “where she peed from and where she pooped from” with his penis and
that the suspect gave her a hickey on her neck. Regarding the exam that she performed, Gann
testified that B.A. had a hickey on her neck, that B.A. had various tears on her genitals, and that B.A.
had a tear on the perineum, which is the area between the vagina and the anus, that was “oozing
blood.” Moreover, Gann explained that the injuries that she observed were consistent with B.A.’s
recollection of the events and that the tear to the perineum was recent and consistent with “blunt
trauma to her genital area earlier that afternoon.” When questioned about the possibility that the
injuries could have resulted from a previous sexual encounter occurring four days earlier, Gann
related that given that the areas involved heal quickly, particularly at B.A.’s age, it was unlikely
those injuries would still be present.
In addition to this testimony, various law-enforcement personnel were called to
testify regarding the investigation and regarding testing that was done on the evidence collected.
First, Detective Brent Kelly testified that after obtaining phone records for J.R.’s cell phone, he
learned that the phone number that J.R. called after B.A. went missing was registered to a phone
belonging to Matute. Moreover, Detective Kelly explained that the phone records showed that several
calls were made between Matute’s phone and J.R.’s phone in the days leading up to the incident.
In addition, Detective Trent Watts related that Matute had that phone on him when he was
questioned by the police. Further, Detective Peter Bonilla stated that when he was questioning
him, Matute admitted that he owned a black Toyota Corolla, that he knew B.A., and that she got
into his car.
Regarding testing performed on the evidence, Tyler Belknap stated that he tested
the condom wrapper for latent fingerprints. Before discussing the results of the testing, Belknap
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recalled that when he obtained fingerprints from Matute, “there was some sort of injury to all of [his]
fingers” and that injuries “impair the analysis and comparison process.” In light of this explanation,
he testified that in the first analysis that he performed, “the known fingerprints were incomplete to
the latent print” obtained from the condom wrapper, meaning that “the area needed for comparison
had some sort of injury to it which didn’t allow [him] to either exclude or identify the person in
question.” Similarly, during his cross-examination, Belknap testified that another individual in his
department obtained a similarly inconclusive result. However, Belknap also explained that when
he later used other known fingerprints for Matute, he “could immediately see that the quality of the
fingerprints were much better and would probably yield a better comparison.” In fact, Belknap
explained that in his second round of testing, he was able to identify Matute’s right thumb print on
the condom wrapper.
In addition to testimony regarding fingerprints, various officials testified regarding
testing done on biological samples taken from B.A. and Matute after the alleged offense. First,
Sapana Prajapati testified that swabs taken of B.A.’s external genitals and anal region as well as her
shorts and underwear had blood in them. Further, she explained that she tested a swab taken from
B.A.’s neck and determined that Matute could not “be excluded as a contributor to” that sample. In
fact, she stated that “[t]he probability of selecting an unrelated person at random that could be a
contributor to this profile is approximately . . . 1 in 27.49 million for Hispanics.” Next, Lindsey
Ayers testified that she tested pieces of hair collected from B.A.’s underwear. Specifically, she
stated that the hair appeared to be pubic hair and related that although the test was “a limited
comparison,” it was her opinion that the hair recovered from the underwear could have come from
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Matute because the hair was “microscopically similar” to pubic hair later retrieved from Matute.
Then, Emma Becker explained that she performed DNA testing on the pubic hair recovered from
B.A.’s underwear and revealed that the first test that she performed did not identify Matute as a
contributor but that more sensitive testing that she performed later and that directly looks for Y
chromosomes revealed that the recovered hair “is consistent with the . . . profile of” Matute and that
Matute could not be excluded as the contributor of the DNA.
Finally, after the State rested, Matute elected to testify. In his testimony, Matute
acknowledged that he knew B.A. and that he met her on the day of the alleged assault at a
“washateria” because her boyfriend had asked him to give her a ride to a party. Moreover, he
explained that B.A. kept trying to get close to him and admitted that he kissed B.A. on her cheek at
her request, but he insisted that nothing else happened. Further, Matute called B.A. a liar and said
that “[s]he likes to go with different men.” On cross-examination, he admitted that at the time of
the offense, he drove a black car that had car seats in the back for his young children.
In light of all of the evidence summarized above, including the testimony of B.A. and
Matute, as well as the reasonable inferences that the factfinder could have made from that evidence
and given that the standard of review for legal-sufficiency challenges obligates appellate courts to
defer to the factfinder’s resolution of conflicts in the testimony and to review the evidence in the
light most favorable to the verdict, see Jackson, 443 U.S. at 319; Clayton, 235 S.W.3d at 778;
Hooper, 214 S.W.3d at 16-17; we conclude that the evidence was legally sufficient to support the
district court’s judgment of conviction. Accordingly, we overrule Matute’s first issue on appeal.
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Best Evidence
In his second issue on appeal, Matute contends that the district “court erred in allowing
testimony regarding an interrogation without requiring the State to present the best evidence for that
interrogation.” See Tex. R. Evid. 1002. Specifically, Matute refers to portions of the testimony from
Detective Bonilla in which he described his questioning of Matute and insists that the video of the
interrogation should have been admitted instead. Moreover, Matute insists that the district court’s
ruling was improper because if the video of the interrogation had been admitted, “the jury could
have seen [Matute] repeatedly denying that he committed any crime, despite Bonilla’s tactics as an
investigator.” Matute argues that he was harmed by the district court’s ruling for the same reason.
We review a trial court’s ruling on the admission of evidence under an abuse-of-
discretion standard of review. See Davis v. State, 329 S.W.3d 798, 803 (Tex. Crim. App. 2010).
Under that standard, a trial court’s ruling will only be deemed an abuse of discretion if it is so clearly
wrong as to lie outside the zone of reasonable disagreement, Lopez v. State, 86 S.W.3d 228, 230
(Tex. Crim. App. 2002), or is arbitrary or unreasonable, State v. Mechler, 153 S.W.3d 435, 439 (Tex.
Crim. App. 2005). Moreover, the trial court’s ruling will be upheld provided that the trial court’s
decision “is reasonably supported by the record and is correct under any theory of law applicable to
the case.” Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005).
When Matute argued during the trial that the best evidence of what Detective Bonilla
said and observed was the video of the interrogation, the district court explained that it was
unnecessary to admit the video because Detective Bonilla was “here testifying.” The court of criminal
appeals has confronted a similar issue before. See Burdine v. State, 719 S.W.2d 309 (Tex. Crim.
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App. 1986), superseded in part on other grounds by rule change as stated in Barnes v. State,
876 S.W.2d 316, 325-26 (Tex. Crim. App. 1994) (explaining that Rules of Evidence 401, 402, and
403 were modified since holding in Burdine). In Burdine, Burdine argued that “his oral statement
made to police officers should not have been admitted in evidence, because the statement was
offered in the form of the officers’ testimony rather than the tape recording made at the time the
statement was given.” Id. at 318. Although the court decided that the best-evidence rule in effect
at the time did not apply to electronic recordings, it also commented that even if it did, Burdine’s
claim would not be sustained because the issue was “the contents of the conversation on the
recording, and not the recording itself. Since [the police officer] participated in the conversation,
his testimony describing the interrogation was sufficient for best evidence purposes.” Id. at 318 n.5.
More recently, our sister court of appeals issued an opinion agreeing with the
reasoning in Burdine. See Cox v. State, No. 05-11-00687-CR, 2012 Tex. App. LEXIS 5380 (Tex.
App.—Dallas July 9, 2012, pet. dism’d) (not designated for publication). In Cox, Cox argued that
the trial court erred by allowing a witness to testify regarding events that he “observed on the
closed-circuit television monitor when . . . the best evidence was a video recording of the events that
had been generated by the closed-circuit television monitoring system.” Id. at *3-4. However, the
court determined that the witness:
testified concerning what he observed on the closed-circuit television monitor as it
occurred. . . . That events observed by [the witness] on the closed-circuit television
monitor could have been copied to a compact disc and preserved does not alter the
fact that [the witness] testified concerning what he observed in real time. [The
witness]’s testimony regarding his observations of the events as they occurred as
depicted on the closed-circuit television monitor is not testimony regarding, or
dependent upon, a videotape recording.
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Id. at *9-10.
In addition, federal courts interpreting the federal version of the best-evidence rule
have reached similar results. See Fed. R. Evid. 1002 (requiring original recording “in order to prove
its content unless these rules or a federal statute provides otherwise”); see, e.g., United States v.
Bennett, 363 F.3d 947, 953 (9th Cir. 2004) (concluding that witness’s testimony when he did not
observe alleged actions violated best-evidence rule and noting that rule applies when witness seeks to
testify about contents of recording, particularly where witness was not privy to events on recording);
United States v. Workinger, 90 F.3d 1409, 1415 (9th Cir. 1996) (explaining that “a tape recording
cannot be said to be the best evidence of a conversation when a party seeks to call a participant in or
observer of the conversation to testify to it. In that instance, the best evidence rule has no application
at all”); United States v. Fagan, 821 F.2d 1002, 1009 n.1 (5th Cir. 1987) (characterizing as
“completely without merit” best-evidence argument that sheriff should not testify regarding his
recollection of interview because interview was taped and stating that rule was inapplicable
where prosecution was trying to prove contents of conversation rather than contents of recording);
United States v. Gonzales-Benitez, 537 F.2d 1051, 1053-54 (9th Cir. 1976) (noting that argument
that tape recording of conversation should have been introduced instead of allowing participant to
testify was puzzling and misconstrued purpose of best-evidence rule and explaining that although
tape recording would have been admissible as evidence of conversation, “testimony by participants
was equally admissible and was sufficient to establish what was said”).
In light of this authority, we cannot conclude that the district court abused its
discretion by overruling Matute’s best-evidence objection during trial or by allowing Detective Bonilla
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to testify without requiring the State to introduce the video of the interrogation. Accordingly, we
overrule Matute’s second issue on appeal.
CONCLUSION
Having overruled Matute’s two issues on appeal, we affirm the district court’s
judgment of conviction.
__________________________________________
David Puryear, Justice
Before Justices Puryear, Pemberton, and Field
Affirmed
Filed: November 26, 2014
Do Not Publish
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