Affirmed and Memorandum Opinion filed May 8, 2008.
In The
Fourteenth Court of Appeals
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NO. 14-07-00277-CR
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VICTOR CRUZ GONZALEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 183rd District Court
Harris County, Texas
Trial Court Cause No. 1045834
M E M O R A N D U M O P I N I O N
Appellant, Victor Cruz Gonzalez, appeals from his conviction for aggravated assault. A jury found him guilty, and the trial court sentenced him to twenty years in prison. In three issues, appellant contends that (1) the evidence was factually insufficient to support the verdict; (2) the trial court erred in admitting into evidence a buccal swab with which a DNA sample was taken; and (3) the trial court erred in admitting testimony that appellant may have harmed himself prior to the incident for which he was indicted. We affirm.
Background
Nelson Nazario testified that he is a pastor at a church in Spring, Texas. On August 13, 2005, at around 9:40 p.m., Nazario stopped at a gas station near his home after having dropped a member of his church off at the member=s home. While he was cleaning his windshield, Nazario was attacked by a man wearing a camouflage suit, a camouflage cap, a blond wig, gloves, and a mask. The man held a twelve inch knife and stabbed Nazario with it five times. During the attack, Nazario asked his assailant who he was and what he wanted, but the assailant did not speak. Nazario described the man as six feet tall and about 200 pounds. Nazario was stabbed in the leg, hip, and abdomen. At one point, as Nazario was falling to the ground, he managed to kick the assailant=s face, and the assailant=s cap fell to the ground. The assailant left the cap when he fled, and Nazario identified a cap in court as the one left by the assailant. Nazario described the handle of the knife used by the assailant as being Alike a sword.@ The assailant did not take anything from Na
Nazario further testified that he had previously counseled appellant and Marisela Cabrera, who both attended his church. In the initial counseling session, Nazario learned that Cabrera wanted to marry appellant, but appellant still had a wife in Mexico. Later, Cabrera decided that she did not want to marry appellant and eventually left appellant. According to Nazario, appellant had asked him on multiple occasions to tell Cabrera she should marry appellant, but Nazario refused to do so. The last meeting came about six to eight months before the attack. Appellant stopped coming to the church shortly after the last meeting.
A week before the attack, Maria Jimenez, a deacon at Nazario=s church, told Nazario that appellant had told her that he (appellant) wanted to Aget@ Nazario. Nazario told this to the police when they asked him at the hospital whether he had any enemies. Nazario also testified that appellant threatened him in a phone call after appellant stopped attending the church. Nazario, however, said that he did not tell this to the police either before or after the attack. Nazario said that he recognized appellant as the assailant because of his body and the way that he walks, even though he (Nazario) did not see the assailant=s face.
Marisela Cabrera testified that she has known appellant for about ten years. She moved in with him in March 1999. When they started having problems, they attended counseling sessions with Nazario. During the last meeting, appellant became very angry. After Cabrera left appellant, appellant became obsessed with her, called her frequently, and showed up at her work every day. According to Cabrera, appellant consistently blamed Nazario for Cabrera=s leaving and was very angry at the pastor. At some point, appellant told Cabrera that appellant had been assaulted and wounded, but she believed that he had actually inflicted the wound on himself in an attempt to get her attention. About two weeks before the assault, appellant complained of kidney pain, which caused him to walk slowly, and Cabrera allowed him to stay at her place for two days and a night. Cabrera also testified that appellant sometimes wore camouflage, and he owned what she described as a Alittle sword.@ Cabrera is currently married to Nazario=s uncle.
Maria Jimenez testified that she is a deacon at Nazario=s church. She stated that appellant told her he hated Nazario for interfering in his relationship with Cabrera and that he (appellant) Awas capable to even kill@ Nazario. Jimenez immediately thought appellant might have been the assailant when she learned Nazario had been attacked, but she did not tell the police her suspicions until they came to her.
Detective Felipe Rivera of the Harris County Sheriff=s Department testified that a surveillance videotape from the gas station showed that Nazario=s assailant drove to and from the station in a small, four-door, maroon vehicle. After appellant was identified as a suspect, Rivera obtained a DNA sample from appellant by using a buccal swab. He further testified that he took a DNA sample from another suspect, who was found near the scene dressed in camouflage pants. Rivera described for the jury the procedure used Ain taking a buccal swab from a suspect.@ Regarding the sample from the other suspect, he specifically stated that he followed all the proper procedures. Regarding the sample taken from appellant, Rivera did not expressly say whether or not he followed the proper procedures. Rivera testified that the other suspect did not fit the physical description of the assailant given by Nazario and did not physically look like the man seen in the surveillance videotape.
Rivera further testified that when questioned, appellant said that he had been at a friend=s house praying at the time of the assault. When Rivera questioned the friend, however, the friend could not remember for certain whether appellant was with him that night. During their initial interview, appellant told Rivera that his car had been broken into two weeks before the assault and that several items of clothing had been stolen. After the results of the DNA testing came back showing appellant=s DNA as the only DNA on the cap taken from the assailant, appellant suggested the cap must have been one of the ones stolen from his vehicle. Rivera also testified that Nazario had at first described the attacker as shorter than he subsequently did, 5'8" to 5'9" rather than 6 feet. In his testimony, Nazario denied that he ever told police the attacker was shorter than 6 feet tall.
There was additional evidence from multiple sources that Maritza Gonzalez, appellant=s girlfriend at the time of the assault and wife at the time of trial, owned a small maroon vehicle that generally matched the description of the one seen in the surveillance videotape. Renee Mata testified that he owns an auto repair shop and was in possession of the vehicle in question at the time of the assault. He said that Maritza Gonzalez=s entire family brings their cars to his shop.
Maritza Gonzalez testified that on the day of the assault, she and appellant drove on some errands before he dropped her off at her sister=s house around 9 p.m. She said that at the time, appellant was in pain and Awas real bad off@ due to kidney cancer, but he was still able to walk. Maritza=s sister confirmed that appellant dropped Maritza off at approximately 9:15 that night.
In his testimony, appellant denied that he assaulted Nazario. He also denied that he and Cabrera were ever Aboyfriend and girlfriend,@ although he admitted they had Aan intimate relationship.@ Regarding the day of the assault, appellant testified that he and his wife went on some errands; he then dropped her off at her sister=s and continued to a friend=s house to pray before returning to his business where he slept. Appellant further stated that a month after the assault, he was hospitalized for the removal of one of his kidneys. He also said that prior to the assault, his vehicle had been broken into and a hat, among other things, was stolen out of it.
Factual Sufficiency of the Evidence
In his first issue, appellant contends that the evidence is factually insufficient to support the verdict. The standards of review for assessing factual sufficiency are well-established. See, e.g., Watson v. State, 204 S.W.3d 404, 406-17 (Tex. Crim. App. 2006). Appellant primarily asserts that the jury should have had a reasonable doubt as to guilt because the State failed to offer evidence that a DNA sample was properly obtained from appellant. In his testimony, Detective Rivera explained the proper method for obtaining a DNA sample and expressly stated that he followed all the proper procedures in obtaining a sample from another suspect; however, he did not expressly state whether or not he used all the proper procedures in obtaining a sample from appellant. Nonetheless, the jury could have reasonably inferred from Rivera=s testimony that he performed all the proper procedures in obtaining appellant=s sample. See generally Mahmoudi v. State, 999 S.W.2d 69, 73 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d) (Ait is within the province of the jury to . . . weigh the evidence and to draw reasonable inferences therefrom@). There is no suggestion in the evidence that Rivera failed to use proper procedures at any point. Whether the jury could have entertained a reasonable doubt regarding appellant=s DNA sample is not the standard governing our review. The standard is whether the great weight and preponderance of the evidence contradicts the jury=s verdict. Watson, 204 S.W.3d at 417. Under this standard, we find appellant=s primary argument unpersuasive.
Appellant additionally asserts that no evidence other than the DNA results identified him as Nazario=s assailant. This assertion is incorrect. Nazario himself testified that he identified appellant as the assailant based on his body and the way that he walked. Furthermore, there was significant evidence that appellant not only had a motive for attacking Nazario (that Nazario supposedly had caused Cabrera to leave appellant) but also that he had threatened to harm Nazario (both personally to Nazario in a phone call and to Jimenez). Appellant additionally points to (1) Cabrera=s testimony wherein she stated appellant was in pain and was walking slowly two weeks before the assault, (2) appellant=s testimony that he was somewhere else at the time of the assault, and Mata=s testimony that he had possession of Maritza Gonzalez=s car at the time of the assault. The fact appellant may have been hobbled two weeks before the assault does not necessarily show that he could not have committed the assault, especially in light of appellant=s admission he was able to get around on the day of the assault. Furthermore, the jury was entitled to disbelieve appellant=s self-serving testimony as well as the testimony of Mata, who described receiving significant business from Maritza=s family. In light of the strong evidence of appellant=s guilt (DNA evidence, eyewitness identification, evidence of motive and threats, etc.), we cannot say that the jury=s verdict was so against the great weight and preponderance of the evidence as to be manifestly unjust. Accordingly, we overrule appellant=s first issue.
Admission of the Buccal Swab
In his second issue, appellant contends that the trial court erred in admitting into evidence the buccal swab that was used to take a DNA sample from appellant=s mouth. Specifically, appellant contends that the State failed to demonstrate that the technique used to obtain the DNA sample was proper as required for Ascientific evidence@ under Rule 702 of the Texas Rules of Evidence and the cases of Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992), and Hartman v. State, 946 S.W.2d 60 (Tex. Crim. App. 1997). However, Rule 702 expressly applies only to expert testimony. Tex. R. Evid. 702. Likewise, the issue in both the Kelly case and the Hartman case was whether certain expert testimony met the admissibility criteria for scientific evidence. Hartman, 946 S.W.2d at 60-63; Kelly, 824 S.W.2d at 569-74. These authorities have no application to physical evidence such as a buccal swab. Appellant neither complains on appeal regarding any expert testimony, nor makes any additional arguments against admission of the buccal swab. Accordingly, we overrule his second issue.
Evidence of Self-Inflicted Harm
In his third issue, appellant contends that the trial court erred in admitting evidence that he had previously stabbed himself in an apparent attempt to get Cabrera=s attention. Appellant specifically complains regarding the following exchange while the prosecutor was examining Cabrera:
Q. Did Victor Gonzalez do anything physical to himself after you cancelled the court date?
[Defense Counsel]: Objection to relevance, your Honor.
THE COURT: Objection overruled.
A. Sometime later I found out that he had been assaulted.
Q. Did you know what happened to him during this assault?
A. No. He just called me and told me that he had been assaulted and that he had been wounded and that he wanted me to come over there.
Q. How was he wounded?
A. I don=t know because I didn=t go. I never went.
Q. Didn=t he tell you how he was wounded?
A. Yes. He told me that two people had attacked him.
Q. Did those two people who attacked him have a weapon?
A. He said that they did, that they had attacked him with a knife.
Q. Did you ever see or did he ever show you where he was stabbed?
A. Yes.
Q. And where did he tell you he had been stabbed?
A. I don=t remember if it was the left side or the right side.
Q. Did he tell you what he was stabbed with?
A. Yes.
Q. What did they stab him with?
A. With a knife.
Q. Did he go to the hospital.
A. No.
Q. Did he treat himself?
A. Yes.
Q. How did he do that?
A. He said that he treated himself or cured himself since he has medical knowledge. I don=t know how he did it.
Q. Did he ever call the police to your knowledge?
A. No.
Q. Did he ever tell you that he had reported this alleged assault to the police?
[Defense Counsel]: Object to the relevance of the whole line of questioning, has nothing to do with this case.
THE COURT: Objection overruled.
A. No.
Q. Did you then question whether or not [appellant] had been stabbed by someone else?
A. I think that it was another lie to call my attention or to get my attention.
Q. What do you think happened?
A. That he did it to himself so that I would go and be there.
On appeal, appellant argues that the testimony suggesting he had injured himself was not relevant and therefore should have been excluded under Rule 402 of the Texas Rules Of Evidence. Tex. R. Evid. 402. However, in order to preserve error regarding admission of evidence at trial, a party must make a timely and sufficiently specific objection and obtain a ruling thereon. Tex. R. App. P. 33.1(a). Even if a proper objection is made when the evidence in question is first introduced, any error in the admission of the evidence is cured when the same evidence comes in elsewhere without objection. Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003). One exception to the requirement of a contemporaneous objection occurs when a party requests a continuous or Arunning@ objection. See Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991).[1] Here, to properly preserve error, defense counsel needed to have either objected to each purportedly irrelevant question or requested a running objection. See id.
Instead, defense counsel only objected when the prosecutor posed the first query in the line of questioning and then toward the end of the exchange. Counsel failed to object to the vast majority of the supposedly objectionable questions or to request a running objection. Perhaps most importantly, appellant failed to lodge any objection to the questions and answers he now claims harmed him the most:
Q. Did you then question whether or not [appellant] had been stabbed by someone else?
A. I think that it was another lie to call my attention or to get my attention.
Q. What do you think happened?
A. That he did it to himself so that I would go and be there.
Because no error was preserved in regard to admission of the testimony, we overrule appellant=s third issue.
We affirm the trial court=s judgment.
/s/ Adele Hedges
Chief Justice
Judgment rendered and Memorandum Opinion filed May 8, 2008.
Panel consists of Chief Justice Hedges and Justices Anderson and Boyce.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] The other exception to the contemporaneous objection rule occurs when a court hears objections to evidence outside the presence of the jury. See Geuder v. State, 115 S.W.3d 11, 13-14 (Tex. Crim. App.2003). Appellant does not assert that this occurred in the case presently before us.