In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-08-00121-CR
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SANTIAGO TELLEZ ROSALES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 8th Judicial District Court
Hopkins County, Texas
Trial Court No. 0417620
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
I. Factual and Procedural History
Santiago Tellez Rosales was convicted in a single jury trial for indecency with a child as to A.B., and for attempted sexual assault of her sister, C.B. (an adult). Both convictions are on appeal to this Court. (1) In this appeal, Rosales attacks his conviction for attempted sexual assault. (2) The jury assessed punishment at six years' imprisonment and a $2,000.00 fine.
In a companion appeal, cause number 06-08-00120-CR, also before this Court, Rosales appeals his conviction for indecency with a child. In cause number 06-08-00120-CR, Rosales raises two of the same issues as he does on this appeal--(1) that we should reverse because Rosales did not understand his right to remain silent and not to testify and (2) that impermissible testimony was elicited regarding Rosales' post-arrest silence. Because these two issues are identical in each appeal, for the reasons stated in our opinion dated this day in Rosales v. State, cause number 06-09-00120-CR, we overrule points of error one and two.
In his third point on appeal, Rosales claims that the evidence is factually insufficient to support the verdict. We affirm the judgment of the trial court on this issue as well.
II. Factual Sufficiency
A. Standard of Review
Rosales does not complain of the legal sufficiency of the evidence, but does assert that the evidence is factually insufficient. A factual sufficiency review begins with the presumption that the evidence supporting the jury's verdict is legally sufficient. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). We view all evidence in a neutral light when conducting a factual sufficiency review. Neal v. State, 256 S.W.3d 264, 275 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 1037 (2009); Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). We must determine if the evidence in support of the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008); Watson, 204 S.W.3d at 414-15; Drichas v. State, 219 S.W.3d 471, 473 (Tex. App.--Texarkana 2007, pet. ref'd). We are mindful of the fact that a jury has already heard the evidence and convicted based on that evidence. While a factual sufficiency review allows a very limited degree of "second-guessing" the jury, the review should be deferential, with a high level of skepticism about the jury's verdict before a reversal can occur. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007); Watson, 204 S.W.3d at 417.
Our analysis of whether the evidence is factually sufficient is measured against the elements of the offense with the same kind of analysis as that applied in the test for a hypothetically correct jury charge. (3) Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); see also Grotti v. State, 273 S.W.3d 273, 280 (Tex. Crim. App. 2008). The hypothetically correct jury charge "sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Malik, 953 S.W.2d at 240.
Under a hypothetically correct charge in this case, the jury was required to find, beyond a reasonable doubt, that Rosales (1) with the specific intent to commit the offense of sexual assault of C.B. (2) does an act (3) which amounted to more than mere preparation that tended, but failed to effect the commission of the offense intended, i.e., that of sexual assault. Tex. Penal Code Ann. §§ 21.11(a)(1), 22.011 (Vernon Supp. 2009).
Sexual assault is committed if a person intentionally or knowingly causes the penetration of the anus or sexual organ of another person by any means, without that person's consent, causes the penetration of the mouth of another person by the sexual organ of the actor, without that person's consent, or causes the sexual organ of another person, without that person's consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor.
B. Analysis
The record before us reveals that C.B. lived with her grandmother, who obtained legal custody of C.B. and her three siblings when C.B. was a child. As C.B. was growing up, she and her siblings visited their mother on occasional weekends. Rosales married C.B.'s mother when C.B. was in elementary school, and he was present when C.B. visited her mother.
C.B. testified that when she was seventeen, she moved in with her mother and Rosales. There was no conflict between Rosales and C.B., except on those occasions when disputes arose between Rosales and his wife. When C.B. turned eighteen, she withdrew from school, but continued to live with her mother and Rosales. Approximately one month after having turned eighteen, C.B. testified that she was awakened one morning by Rosales, who was standing at the end of C.B.'s bed, wearing only briefs. C.B. testified that Rosales "tried to rape me." Rosales pulled C.B. by the ankles and tried to get on top of her, but C.B. pushed Rosales, and told him to leave the room. Rosales continued to attempt to force himself on C.B., while C.B. continued to push Rosales away and screamed at him to leave. Rosales eventually gave up and left the room. C.B. was distraught, and called her grandmother's house and spoke with her sister, A.B., to whom she related the events involving Rosales. Shortly thereafter, the police and A.B. arrived at the Rosales' house and transported C.B. to the police station to provide a written statement. Rosales was subsequently indicted, tried, and found guilty of attempted sexual assault.
Rosales contends the evidence is factually insufficient to support the verdict because (1) the investigation did not take place until approximately two months after the incident and (2) there was no effort to collect any physical evidence of the attempted sexual assault. There were two people present at the home at the time of the attempted sexual assault--C.B. and Rosales. Teresa Tellez (Rosales' wife and C.B.'s mother) was out of town at the time. C.B. provided a written statement of the events on the date of the incident. Later, both C.B. and A.B. were interviewed as a part of the investigation. No statement was taken from Rosales, at his request.
With respect to the question of physical evidence, Andy Chester, the chief investigator for the Hopkins County Sheriff's Department, testified that because C.B. reported an attempted sexual assault, rather than a sexual assault, there was no physical evidence to collect. Further, based on Chester's interview with both C.B. and A.B., Chester would not expect there to be any physical evidence to substantiate the claim of attempted sexual assault. Neither the investigation nor the lack of physical evidence detracts from the evidence on which Rosales was convicted.
The only evidence contradicting C.B.'s testimony was that of Rosales, who testified that on the date in question, he came home from work, took a shower, and went into the kitchen. Rosales was sitting in the kitchen when he noticed a police car arrive and park in the yard. When the police car arrived, C.B. went outside. A.B. was in the car with the police officer. After a few minutes, C.B. and A.B. left with the police. When his wife arrived home from Dallas, Rosales told her that C.B. and A.B. left with the police. Rosales testified without apparent explanation that he did not believe anything was amiss when the police arrived and both C.B. and A.B. left with them.
C.B.'s testimony was that Rosales startled her by entering her bedroom wearing only his underwear briefs, pulled on her ankles, removed her bed covers, tried to get on top of her, and tried to rape her or force himself on her. It is the task of the jury to evaluate and weigh the evidence; in doing so, the jury is free to believe or disbelieve part or all of a witness' testimony. Jones v. State, 984 S.W.2d 254, 258 (Tex. Crim. App. 1998). The jury found the testimony of C.B. to be credible, in spite of Rosales' contradictory testimony. Because the verdict is not manifestly unjust and is not against the great weight and preponderance of the conflicting evidence, the evidence is factually sufficient to support the conviction.
We affirm the judgment of the trial court.
Jack Carter
Justice
Date Submitted: November 24, 2009
Date Decided: December 11, 2009
Do Not Publish
1. Rosales was granted an out-of-time appeal by the Texas Court of Criminal Appeals. The
appeal of Rosales' conviction for indecency with a child by sexual contact is the subject of a separate
opinion by this Court, issued of even date herewith.
2. 3.
font-family: Times New Roman">The only indication in the record that Larson was scared occurred when he saw the bloody knife in his hand after he had stabbed Williams seven times. Larson testified he was scared then because he thought he "might have killed a man." Because there is no evidence from which a rational juror could infer that Larson was incapable of cool reflection at the time of the murder, we overrule Larson's first point of error.
(2) A Lesser-Included Offense Instruction Was Not Required
Larson contends the trial court erred in denying the requested lesser-included offense instructions on aggravated assault with a deadly weapon or on criminally negligent homicide. According to Larson, there was evidence Larson lacked the intent to kill Williams or acted with only criminal negligence.
We use a two-part test to determine if a lesser-included offense instruction should be given. A defendant is entitled to a charge on a lesser offense if (1) the lesser offense is included within the proof necessary to establish the offense charged, and (2) there is some evidence that would permit the jury rationally to find that, if the defendant is guilty, he or she is guilty only of the lesser offense. Wesbrook v. State, 29 S.W.3d 103, 113 (Tex. Crim. App. 2000); Rousseau v. State, 855 S.W.2d 666, 673 (Tex. Crim. App. 1993); see Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 2006). The evidence must establish the lesser-included offense as a valid rational alternative to the charged offense. Wesbrook, 29 S.W.3d at 113; Arevalo v. State, 943 S.W.2d 887, 889 (Tex. Crim. App. 1997). Because the second prong of the test is dispositive here, we will focus on that prong.
As discussed above, the Texas Court of Criminal Appeals has specifically held the inability of a defendant to remember causing the death of a victim does not entitle the defendant to an instruction on the lesser-included offense of manslaughter. Schroeder, 123 S.W.3d at 401. The only significant difference between negligent homicide and manslaughter is that manslaughter requires a culpable mental state of recklessness, while negligent homicide requires merely criminal negligence. Compare Tex. Penal Code Ann. § 19.04 (Vernon 2003) with Tex. Penal Code Ann. § 19.05 (Vernon 2003). A logical extrapolation of Schroeder would establish a rule that an inability to remember causing the death of a victim does not entitle the defendant to an instruction on the lesser offense of negligent homicide. If an inability to remember does not raise a fact issue concerning whether the defendant acted recklessly, it certainly would not raise a fact issue as to whether the defendant acted with criminal negligence.
Similarly, Larson's inability to remember does not raise the issue of whether he was guilty of only aggravated assault with a deadly weapon. A person commits aggravated assault with a deadly weapon if he or she intentionally, knowingly, or recklessly causes bodily injury to another while using a deadly weapon. See Tex. Penal Code Ann. §§ 22.01(a), 22.02(a) (Vernon Supp. 2006). Thus, in order to be entitled to an instruction concerning the lesser-included offense of aggravated assault, there must be some evidence from which a rational juror could conclude Larson lacked the intent to kill. An "inability to recall actually stabbing" the victim does not provide evidence of a lack of intent to kill. Martin v. State, No. 04-03-00014-CR, 2004 Tex. App. LEXIS 4260, at *7 (Tex. App.--San Antonio May 12, 2004, pet. ref'd) (mem. op., not designated for publication) (no error in refusing lesser-included offense instruction on aggravated assault); see Schroeder, 123 S.W.3d at 401. Larson has failed to direct this Court to any evidence that would allow a rational juror to find that, if Larson was guilty, he was guilty only of aggravated assault with a deadly weapon or guilty only of negligent homicide. We overrule Larson's second and third points of error.
We affirm the judgment of the trial court.
Josh R. Morriss, III
Chief Justice
Date Submitted: September 18, 2006
Date Decided: January 23, 2007
Do Not Publish
1. Williams had seven wounds: a stab wound on the top of his head, a cut on his lip, a slash
mark on the left arm, a stab wound penetrating the right lung, a five and one-fourth inch stab wound
in the upper right chest, a stab wound which pierced the sternum, and a five and one-half inch long
cut on the throat.
2. There is no requirement that evidence admitted at the guilt/innocence phase of trial be
reoffered during the punishment phase of trial to be considered at punishment. Trevino, 100 S.W.3d
at 238. Evidence on a punishment issue will often come out in the course of the State's own
evidence regarding the circumstances of the offense itself, at the guilt/innocence phase of trial. Id.
3. Most of these cases were decided before the effective date of the 1994 amendment to Section
19.02. Before September 1, 1994, "sudden passion arising from an adequate cause" was an element
of the offense of voluntary manslaughter. See Act of May 23, 1987, 63rd Leg., R.S., ch. 399, 1973
Tex. Gen. Laws 883, 913, amended by Act of May 8, 1993, 73rd Leg., R.S., ch. 900, § 1.01, 1993
Tex. Gen. Laws 3586, 3614. The current definitions of sudden passion and adequate cause are
identical to those set forth in the former voluntary manslaughter statute. Compare Tex. Penal Code
Ann. § 19.02(a) (Vernon 2003) with Act of May 23, 1973, 63rd Leg., R.S., ch. 399, 1973 Tex. Gen.
Laws 883, 913 (former Tex. Penal Code Ann. § 19.03). Because of the similarities between
sudden passion and voluntary manslaughter, prior decisions concerning voluntary manslaughter are
relevant under certain circumstances. See Saldivar v. State, 980 S.W.2d 475, 505 (Tex.
App.--Houston [14th Dist.] 1998, pet. ref'd).
4. In Ray, the defendant was convicted of assault with intent to murder with malice
aforethought. Ray, 515 S.W.2d at 667. The defendant testified the deceased struck him after
uttering, "You black son-of-a-bitch you, I'll knock the damn hell out of you." Id. at 665. The
defendant testified that he did not intend to kill the deceased and that he shot the deceased only
because the decedent had attacked him. Id. The Texas Court of Criminal Appeals held the trial
court erred in refusing the requested instruction of assault with intent to murder without malice. Id.
at 667.
In Medlock, the defendant was convicted for shooting her husband and a waitress at a club. Medlock, 591 S.W.2d at 486. Medlock and the deceased were in the process of a volatile divorce. Id. The deceased had previously threatened to kill Medlock and was known to carry a gun. Medlock testified she had shot at her husband after he stared at her in a threatening manner, came over and grabbed her by the neck, and said, "Let's go. I'm going to get you." Medlock testified that she was terrified by the deceased's behavior. The court held that the victim's direct provocation and Medlock's fear were enough to raise the issue of sudden passion. Id. at 487.
Ruiz is not even remotely on point. In Ruiz, the defendant shot a bouncer at a club after the bouncer assaulted him. Ruiz, 753 S.W.2d at 682. The trial court did instruct the jury on voluntary manslaughter, but failed to instruct the jury that there must be an absence of "sudden passion" in order to find Ruiz guilty of murder. On appeal, the State did not dispute that the evidence raised the issue of sudden passion. Id. The Texas Court of Criminal Appeals held the trial court erred because, at that time, the State was required to prove an absence of "sudden passion." Id. at 683. Because of the changes in the law and the factual differences between Ruiz and the current case, Ruiz has no relevance.
In Perez, Gonzales, Merchant, and Phillips, there was some evidence of both adequate cause
and the accused's agitated state of mind. See Perez, 940 S.W.2d at 823; Gonzales, 838 S.W.2d at
848; Merchant, 810 S.W.2d at 307; Phillips, 700 S.W.2d at 19.
5. Before 1994, the offense of recklessly causing the death of an individual was referred to as
involuntary manslaughter. See Act of May 8, 1993, 73rd Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen.
Laws 3586, 3614.