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MEMORANDUM OPINION
No. 04-08-00831-CR
Joaquin ALVAREZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 2007-CR-1705
Honorable Mary D. Román, Judge Presiding
Opinion by: Catherine Stone, Chief Justice
Sitting: Catherine Stone, Chief Justice
Phylis J. Speedlin, Justice
Steven C. Hilbig, Justice
Delivered and Filed: October 7, 2009
AFFIRMED
A jury convicted Joaquin Alvarez of three counts of sexual assault and one count of robbery.
The jury found the enhancement paragraph in the indictment true and assessed Alvarez’s punishment
at life imprisonment for each of his offenses. On appeal, Alvarez claims: (1) the evidence is
factually insufficient to support any of his convictions; (2) the trial court improperly limited his
cross-examination of a prosecution witness during the punishment phase of the trial; and (3) his right
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to a fair trial was violated when the trial judge improperly commented on the weight of the evidence.
We affirm the trial court’s judgment.
BACKGROUND
The complainant, E.A., met Alvarez at a bar one night in May 2006.1 E.A. left the bar with
her sister, M.A., and Alvarez, believing the group would go to another bar to continue drinking.
M.A. decided that she wanted to go home for the night, and she had E.A. and Alvarez drop her off
on their way to the bar. After E.A. and Alvarez dropped M.A. off, they procured a bottle of liquor
to drink on their way to the next bar.
E.A. did not know how to get to the bar and had to rely on Alvarez’s driving directions to get
them to their destination. E.A. followed Alvarez’s directions, which eventually led her and Alvarez
to an old neighborhood. When Alvarez instructed E.A. to follow the road and drive into a nearby
field, E.A. began to panic because she thought Alvarez was looking for a secluded location to “kill
[her].” E.A. decided to run from Alvarez and jumped out of her moving vehicle. E.A. tried to run
back toward the street, but Alvarez caught her before she could escape. When Alvarez caught E.A.,
he pulled off her pants and had sexual intercourse with her against her will.
E.A. pleaded with Alvarez to stop and told him they could “go to a hotel.” Alvarez agreed
with E.A.’s request to stop and “got up off of [her].” As they began walking back to E.A.’s vehicle,
E.A. ran into some tall grass and hid from Alvarez. E.A. heard Alvarez open her car door and begin
to make a lot of noise. E.A. believed Alvarez was gaining control of her property at this time,
specifically her purse, cell phone, and car stereo.
1
… To protect the privacy of the complainant in this case, we identify the complainant and her sister by their
initials only.
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When she thought Alvarez had stopped looking for her, E.A. came out from hiding and ran
for the street. Alvarez, however, had not given up looking for E.A. and was waiting for her when
she came out of the grass. When Alvarez caught E.A., he made E.A. perform oral sex on him and
again had sexual intercourse with her. He also performed oral sex on E.A. at this time. Upon
completing his sexual acts, Alvarez apologized to E.A. and asked her to refrain from calling the
police. E.A. promised not to call the police, and Alvarez released her. E.A. walked to a nearby gas
station, where a security guard contacted the police.
Officers found E.A.’s vehicle, her underwear, and an open bottle of liquor where E.A. was
assaulted. However, authorities could not locate E.A.’s purse, cell phone, or car stereo. Officers
took E.A. to the hospital, where she underwent a sexual assault examination. Examiners collected
buccal swabs from E.A. and took photographs of her injuries. Officers were later able to verify that
Alvarez was the donor of the DNA collected from E.A.’s person, and Alvarez was charged with
three counts of sexual assault and one count of robbery. A jury found Alvarez guilty as charged in
the indictment and found the enhancement paragraph in the indictment true. The jury assessed life
sentences for each of the counts in the indictment, and the trial court sentenced Alvarez accordingly.2
This appeal followed.
FACTUAL SUFFICIENCY OF THE EVIDENCE
Alvarez claims the evidence is factually insufficient to support any of his convictions. When
considering a factual sufficiency challenge, we look at the evidence in a neutral light giving almost
complete deference to the jury’s determinations of credibility. Lancon v. State, 253 S.W.3d 699, 705
2
… The trial court ordered Alavarez’s four life sentences to run concurrently to each other, but consecutively
to another life sentence previously imposed upon Alvarez in a companion case.
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(Tex. Crim. App. 2008). We reverse only if the evidence supporting the verdict is so weak that the
verdict seems clearly wrong and manifestly unjust or if the evidence supporting the verdict is
outweighed by the great weight and preponderance of the available evidence. Watson v. State, 204
S.W.3d 404, 414-15 (Tex. Crim. App. 2006).
A. Sexual Assault
A person commits the offense of sexual assault if he intentionally or knowingly causes the
penetration of the anus or sexual organ of another person by any means, without that person’s
consent. TEX . PENAL CODE ANN . § 22.011(a)(1)(A) (Vernon 2003). Sexual assault also occurs
when a person intentionally or knowingly causes the penetration of the mouth of another person by
the sexual organ of the actor, without that person’s consent. Id. at (a)(1)(B). A sexual assault is
“without the consent of the other person if . . . the actor compels the other person to submit or
participate by the use of physical force or violence.” Id. at (b)(1).
Alvarez claims the evidence is factually insufficient to support his sexual assault convictions
because the State’s evidence fails to show he acted without E.A.’s consent. E.A., however, expressly
testified she never consented to any sexual contact with Alvarez. E.A.’s behavior on the night of the
assaults confirms this point and shows E.A. was afraid of Alvarez. E.A. testified she jumped out of
her moving vehicle and tried to run from Alvarez as soon as she realized Alvarez was taking her to
a desolate location. The record further shows E.A. attempted to run from Alvarez several other times
that night.
Alvarez argues E.A.’s testimony is unreliable because she was highly intoxicated on the night
in question.3 Alvarez’s argument, however, goes to E.A.’s credibility as a witness and is a matter
3
… E.A. described herself as “the drunkest person at the bar.”
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for the jury to determine. See Guajardo v. State, 176 S.W.3d 402, 404-05 (Tex. App.—Houston [1st
Dist.] 2004, pet. ref’d) (explaining a complainant’s intoxication goes to his or her credibility as a
witness); see also Stogiera v. State, 191 S.W.3d 194, 196 (Tex. App.—San Antonio 2005, no pet.)
(recognizing the jury evaluates the credibility and demeanor of witnesses and determines the weight
afforded contradicting testimony). The jury apparently believed E.A.’s testimony and we must defer
to this credibility determination by the factfinder. When all of the evidence is viewed in a neutral
light, we cannot say the jury’s findings are clearly wrong or manifestly unjust or that they are against
the great weight and preponderance of the evidence. Alvarez’s first issue is overruled.
A. Robbery
A person commits the offense of robbery if, in the course of committing a theft, and with
intent to obtain or maintain control of property, he: (1) intentionally, knowingly, or recklessly causes
bodily injury to another; or (2) intentionally or knowingly threatens or places another in fear of
imminent bodily injury or death. TEX . PEN . CODE ANN . § 29.02(a) (Vernon 2003). “In the course
of committing a theft” refers to “conduct that occurs in an attempt to commit, during the
commission, or in immediate flight after the attempt or commission of theft.” Id. § 29.01(1) (Vernon
2003).
Intent is a fact issue for the jury. Robles v. State, 664 S.W.2d 91, 94 (Tex. Crim. App. 1984).
Intent may be inferred from circumstantial evidence such as acts, words, and the conduct of the
defendant. Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004). A defendant can form the
intent to cause bodily injury at any time during the course of committing theft in the context of a
robbery. Matlock v. State, 20 S.W.3d 57, 63 (Tex. App.—Texarkana 2000, pet. ref’d).
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Alvarez asserts the evidence is factually insufficient to support his robbery conviction
because his assaultive conduct is unrelated to the theft of E.A.’s property. We are unpersuaded by
Alvarez’s contention. We initially note that the intent to obtain or maintain control of property as
delineated in section 29.02, addresses the robber’s state of mind regarding the property and not his
state of mind in the assaultive component of the aggravated robbery. See White v. State, 671 S.W.2d
40, 42 (Tex. Crim. App. 1984). We further note the general rule in robbery cases is that the
connection between the assault and the theft may be inferred when both offenses occur in close
temporal proximity. See Cooper v. State, 67 S.W.3d 221, 224 (Tex. Crim. App. 2002). This
inference will not be negated by evidence of an alternate motive that a rational jury could rationally
disregard. Id. Here, the record shows that during a pause in the ongoing and repeated sexual assaults
of E.A., Alvarez secured control of E.A.’s purse, cell phone, and car stereo. After obtaining control
of E.A.’s property, Alvarez waited for E.A. to come out of hiding and sexually assaulted her several
more times before releasing her and fleeing with her property. We believe these circumstances are
sufficient to support an inference that Alvarez assaulted E.A. in the course of committing theft.
Accordingly, when all of the evidence is viewed in a neutral light, we cannot say the jury’s findings
are clearly wrong or manifestly unjust or that they are against the great weight and preponderance
of the evidence. Alvarez’s second issue is overruled.
CROSS-EXAMINATION OF STATE ’S WITNESS
Alvarez complains the trial court improperly limited his cross-examination of a prosecution
witness during the punishment phase of the trial. When an appellant contends his cross-examination
of a witness was unduly limited by the trial court, nothing is preserved for review unless the record
shows by bill of exception or otherwise what questions he wanted to propound and the answers he
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expected. Easterling v. State, 710 S.W.2d 569, 578 (Tex. Crim. App. 1986). Alvarez did not perfect
a bill of exception or proffer proof to show what questions he wanted to propound and the answers
he expected from the prosecution witness. Consequently, Alvarez’s complaint concerning the
limitation of his cross-examination is not preserved for our review. Alvarez’s third issue is
overruled.
IMPROPER COMMENT ON THE WEIGHT OF THE EVIDENCE
Lastly, Alvarez asserts his right to a fair trial was violated when the trial judge improperly
commented on the weight of the evidence. The record shows that at the conclusion of the
punishment phase of the trial, Alvarez introduced his competency evaluation from a companion case
in an effort to persuade the jury to grant him leniency.4 The trial court admitted the evaluation
without any objections, and both sides rested. The following then occurred:
Defense Counsel: And may I approach the bench regarding the last witness’s
report?
The Court: You may.
Defense Counsel: Do you have it your Honor?
The Court: I do not.
***
The Court: I am going to go ahead and have this copied because this is
going to take a long time to review and I can just hand out
copies to all of the jurors. Do you have any problems with
that?
The State: No. That should be fine.
4
… Alvarez believed the jury might be more sympathetic to him if it read the evaluation and learned he had three
young children.
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***
Unidentified Juror: If I may, being that we just came back after a short lunch and
it’s been and hour and a half, if we just take five minutes
average each of reading this it’s going to be another hour
before completion. Would it be allowed for a short recess
break for the Jury to go to the restroom and –
The Court: That would be okay. My only concern is that all of you have
to look at this. Because of the way it was introduced into
evidence.
Unidentified Juror: Yes, ma’am.
The Court: I’m trying to get copies for the rest of you. Leave that copy
here, go on a short break and let me see if I can get those
copies for you. And I would suggest to you that you jump to
the conclusion and skim through there because it’s very
straightforward and I know you have to read it; however, you
will also get it when you go back to deliberate. So you can
take another look at it. What is really important is that you
take a look at the conclusion. Go ahead and take a break.
Leave the copy here and we’ll see if we can’t get you copies
as soon as you get back. Thank you.
***
The Court: Ladies and gentlemen, I would like to point out to you that on
page 4, towards the bottom of the page, is a paragraph and it
starts out with: Conclusion. And if you will read that. And
when you are ready, put your reading down and we will
proceed. And you will get the entire document shortly.5
The court then read the charge on punishment to the jury and allowed the prosecution and defense
to present closing arguments.
5
… The section entitled “Conclusion” provided: “[Alvarez] appears to have the capacity to work with his
attorney in the preparation of his defense. He understands the charge that he is facing as well as the legal proceedings
that he is likely to go through. Therefore, I believe that he is currently competent to stand trial.”
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Article 38.05 of the Texas Code of Criminal Procedure prohibits trial courts from
commenting on the weight of the evidence. TEX . CODE CRIM . PROC. ANN . art. 38.05 (Vernon 1979).
A trial court’s improper comment on the weight of the evidence results in reversible error only when
it is reasonably calculated to benefit the State or prejudice the defendant’s rights. Marks v. State, 617
S.W.2d 250, 252 (Tex. Crim. App. 1981). However, a timely proper objection is necessary to
preserve error concerning a trial court’s comment on the weight of the evidence. Peavey v. State,
248 S.W.3d 455, 470 (Tex. App.—Austin 2008, pet. ref’d).
Alvarez did not timely object to the trial court’s statement. He therefore failed to preserve
his complaint for our review. See id. However, even if this complaint were preserved, we cannot
say the trial court’s statement, when viewed in context, is an improper comment on the weight of the
evidence. It appears the trial court was merely trying to expedite the process by which the jurors
reviewed Alvarez’s exhibit so that it could proceed to closing arguments on punishment. The trial
court’s statement was thus not calculated to convey the court’s opinion of the case to the jury. See
generally Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001) (stating “[a] trial judge has
broad discretion in maintaining control and expediting the trial.”). Alvarez’s fourth issue is
overruled.
CONCLUSION
Based on the foregoing, the judgment of the trial court is affirmed.
Catherine Stone, Chief Justice
DO NOT PUBLISH
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