Ted Alaniz Williams v. State

Opinion issued May 3, 2007 In The Court of Appeals For The First District of Texas NO. 01-05-01150-CR __________ TED ALANIZ WILLIAMS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 185th District Court Harris County, Texas Trial Court Cause No. 1043042 MEMORANDUM OPINION A jury found appellant, Ted Alaniz Williams, guilty of the offense of aggravated sexual assault of a child, (1) and, after appellant pleaded true to the allegation in one enhancement paragraph that he had a prior felony conviction, the trial court assessed his punishment at confinement for forty years. In four issues, appellant contends that the evidence is legally and factually insufficient to support his conviction and that the trial court abused its discretion and violated his due process rights in denying his request to present prior sworn testimony of a material, unavailable witness. We affirm. Factual and Procedural Background The complainant, who was fourteen years old at the time of trial, testified that during the summer of 2004, she lived with appellant, who is her father, and two younger siblings at the home of appellant's girlfriend, Tina Rayos. One night, when Rayos was at a party and the complainant's two younger siblings were sleeping in the living room, the complainant awoke in her bedroom and found appellant, who smelled like beer and seemed drunk, on top of her unbuckling her pants. The complainant elbowed appellant, but appellant unbuttoned and pulled down her pants. The complainant started crying, and appellant put his knees on top of her arms. Appellant then "put his penis in [her] vagina," which hurt, and appellant "moved up and down" while holding her down. The complainant did not try to fight back, and the assault lasted for approximately 10 minutes. After appellant finished and told her not to tell anyone, he left the room. The complainant then went to the bathroom and saw that she was bleeding from her vagina. Two days later, the complainant told her cousin, Vanessa Hernandez, that appellant had done something bad, but asked her not to tell anyone. A few days after that, she told Hernandez that appellant had assaulted her. The complainant stayed at Rayos's house for two to three more weeks after the assault. The complainant and Hernandez subsequently told other relatives, and the complainant finally told her mother after her mother had come to get her. On cross-examination, the complainant agreed that while she lived at Rayos's house, Rayos's father also stayed in the house some nights when she was there and, when he stayed there, she would sleep in the living room on the couch. The complainant also agreed that she had disagreements with appellant over the amount of time that she talked on the telephone and appellant had grounded her and hit her with a belt. The complainant also stated that after appellant and Rayos had gotten into a fight, the complainant and appellant had moved into the house of appellant's mother for a short period of time. The complainant conceded that she spoke with her mother a few days after the assault on the telephone, but did not tell her about it. The complainant explained that appellant had already called her mother and asked her to come get the complainant. The complainant agreed that Rayos and appellant provided a more stable environment and that her mother bounced around from place to place. Vanessa Hernandez testified that during the summer of 2004, after the complainant seemed quiet for a few days, Hernandez pushed the complainant to tell her what was wrong. The complainant, who was "in tears," told Hernandez that someone had raped her, but asked Hernandez not to tell anyone. Two days later, the complainant told Hernandez that appellant had raped her. Hernandez told her mother and then told the complainant's mother. Monica Canseco, Hernandez's mother, testified that when Hernandez told her that appellant had raped the complainant, Canseco told Hernandez that she had to tell the complainant's mother. When Canseco spoke to the complainant, stressing the seriousness of the allegations, the complainant told her that she was not lying. The complainant explained that appellant came into her room drunk, started touching her, went inside her, penetrated her, and that it hurt. Canseco stated that the complainant was both "slow" and socially immature. Claudia Mullin, a forensic interviewer at the Harris County Children's Assessment Center ("CAC"), testified that she interviewed the complainant, and, during the interview, the complainant had used her body to show how she had been assaulted. Mullin stated that the complainant's descriptions were consistent with sexual abuse. Tanya Hernandez, the complainant's mother, testified that the complainant went to live with appellant after Tanya asked appellant to take the complainant because she was not working at the time. Tanya, who had a prior conviction for the offense of theft, agreed that because of her financial problems, she and the complainant had to move a lot when the complainant was growing up. At some point, Tanya gave temporary guardianship to appellant. Tanya stated that when she saw the complainant after learning of the assault, the complainant was shaking and crying. Tanya then notified the Pasadena Police Department, and the complainant was subsequently interviewed and was given a medical exam. Kristin Fraser, an emergency room nurse and forensic nurse examiner, testified that she performed a sexual assault examination on the complainant on July 26, 2004. Fraser stated that she saw no signs of external injuries or trauma, although she noted that it was possible that any injuries could have already healed since the complainant came in for an examination approximately one month after the assault. Pasadena Police Detective T. Brinson testified that he arranged the complainant's interview at the CAC and that he also interviewed appellant. Brinson stated that appellant denied the allegations and claimed that the complainant fabricated the allegations because he had spanked her, he was not letting her talk on the telephone, and he set other rules. Appellant also told Brinson that the complainant was having sex with other boys. On cross-examination, Brinson agreed that he never went to the house where the assault occurred. Appellant testified that he had been previously convicted of the offenses of auto theft, carrying a concealed weapon, assault, burglary, and aggravated assault with a deadly weapon. Appellant stated that he had a strong relationship with the complainant. The complainant had lived with him on previous occasions for short periods of time, but, because of his rules, she would run away or go out with different people. In the summer of 2004, the complainant lived with appellant at the home of his girlfriend, Tina Rayos, along with Rayos's father and two of appellant's other children. Appellant described the home as having two bedrooms. Appellant and Rayos stayed in one bedroom, Rayos's father stayed in the other bedroom, and the complainant stayed in the living room. Appellant stated that the complainant developed behavioral problems and violated the rules of the house. He had spanked the complainant for telling his younger daughter inappropriate things, and he had decided to send the complainant back home. When appellant learned of the complainant's allegations, he was "mad." He denied sexually assaulting the complainant, explaining that the complainant did not have a bedroom in Rayos's home. Appellant also stated, as possible reasons for the complainant to fabricate the allegations, that he had caught the complainant smoking marijuana, he owed her $20, and he imposed rules on the complainant. Legal and Factual Sufficiency In his first and second issues, appellant argues that the evidence is legally and factually insufficient to support his conviction for aggravated sexual assault of a child because the assault could not have occurred, contrary to the complainant's testimony, "in her bedroom" and her allegations were not corroborated with DNA or any other physical evidence. Appellant makes the same complaints in his factual sufficiency challenge, but also asserts that the complainant's testimony was the only evidence of the assault and that the complainant fabricated her allegations after being required to leave Rayos's home. We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). The trier of fact is the sole judge of the weight and credibility of the evidence. Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). Thus, when performing a legal sufficiency review, we may not reevaluate the weight and credibility of the evidence and substitute our judgment for that of the fact finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). In a factual sufficiency review, we view all the evidence in a neutral light, both for and against the finding, and set aside the verdict if the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, i.e., that the jury's verdict seems "clearly wrong and manifestly unjust," or the proof of guilt, although legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). We note that the jury is in the best position to evaluate the credibility of witnesses, and we are required to afford "due deference" to the jury's determinations. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). A person commits the offense of aggravated sexual assault of a child if the person intentionally or knowingly causes the penetration of the anus or sexual organ of a child by any means or intentionally or knowingly causes the sexual organ of a child to contact or penetrate the sexual organ of another person, including the actor, and the child is younger than fourteen years of age. Tex. Pen. Code Ann. § 22.021(a)(1)(B)(i),(iii), (a)(2)(B) (Vernon Supp. 2006). Here, the complainant testified that she awoke to find appellant on top of her and unbuckling her pants. Appellant then pulled down her pants and "put his penis in [her] vagina." The complainant stated that the assault hurt and caused her to bleed. We note that the testimony of a complainant, standing alone, is sufficient to support a conviction for sexual assault. Jordan-Maier v. State, 792 S.W.2d 188, 190 (Tex. App.--Houston [1st Dist.] 1990, pet. ref'd); Ruiz v. State, 891 S.W.2d 302, 304 (Tex. App.--San Antonio 1994, pet. ref'd). Additionally, Hernandez, the complainant's cousin, testified that the complainant confided to her that appellant had sexually assaulted her. Monica Canseco, Vanessa's mother, also testified that the complainant told her that appellant penetrated her and that it hurt. Claudia Mullin, a forensic interviewer, testified that the complainant cried as she showed Mullin how appellant had sexually assaulted her. Mullin also stated that the complainant's descriptions were consistent with sexual abuse. Appellant argues that the complainant's testimony was not credible because, contrary to her allegations, she did not have her own bedroom. Appellant further argues that the complainant was motivated to fabricate these allegations because, among other reasons, he was requiring her to leave his home "as a punishment for misbehaving." However, the trier of fact is the sole judge of the weight and credibility of the evidence. See Margraves, 34 S .W.3d at 919; Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Cain, 958 S.W.2d at 408-09. Furthermore, although the complainant appears to have agreed that she sometimes shared a room with Rayos's father, to the extent that there were any conflicts in the testimony about whether the complainant was assaulted in her bedroom, the "reconciliation of conflicts in the evidence is within the exclusive province of the jury" and the jury was free "to believe some testimony and disbelieve other testimony." Margraves, 34 S.W.3d at 919. Moreover, although there was no DNA or other physical evidence that appellant sexually assaulted the complainant, it was undisputed that the complainant was not examined until at least several weeks after the assault. Under these circumstances, the lack of medical or DNA evidence does not render the evidence supporting appellant's conviction legally insufficient. See Washington v. State, 127 S .W.3d 197, 205 (Tex. App.--Houston [1st Dist.] 2003, pet. ref'd, untimely filed) ("The jury could have reasonably believed that [the complainant] was sexually assaulted, but that, due to the circumstances of the assault, there was no physical evidence of the assault remaining."). Viewing all the evidence in the light most favorable to the jury's verdict, we conclude that a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Accordingly, we hold that the evidence is legally sufficient to support appellant's conviction. In conducting our factual sufficiency review, we recognize that appellant denied the allegations and claimed that the complainant fabricated the allegations for a variety of reasons. However, we again note that the jury, as the sole judge of the credibility of witnesses and the weight to be given to their testimony, was entitled to resolve any credibility issues against appellant. See Johnson, 23 S.W.3d at 7; Robles v. State, 104 S.W.3d 649, 652 (Tex. App.--Houston [1st Dist.] 2003, no pet.). Thus, the jury was free to believe or disbelieve appellant's testimony that the complainant had a motive to make false accusations against him. Also, because of the circumstances presented in this case, the lack of DNA or other physical evidence does not render the evidence supporting appellant's conviction factually insufficient. See Washington, 127 S.W.3d at 205. We conclude, viewing the evidence neutrally, that the evidence is not so weak that the verdict is clearly wrong or manifestly unjust or that the proof of guilt is against the great weight and preponderance of the evidence. Accordingly, we hold that the evidence is factually sufficient to support appellant's conviction. We overrule appellant's first and second issues. Testimony of Unavailable Witness In his third and fourth issues, appellant contends that the trial court abused its discretion and violated his due process rights in denying his request to present the prior sworn testimony of Tina Rayos, a material, unavailable witness. Former testimony is "testimony given as a witness at another hearing of the same or a different proceeding, . . . if the party against whom the testimony is now offered, or a person with a similar interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination." Tex. R. Evid. 804(b)(1). Former testimony is admissible under a hearsay exception if the declarant is unavailable as a witness, i.e., if the declarant "is absent from the hearing and the proponent of the declarant's statement has been unable to procure the declarant's attendance or testimony by process or other reasonable means." Id. 804(a)(5). To introduce the former testimony of an unavailable witness, the proponent of the testimony must have made a good faith effort to obtain the witness's presence at trial. Urbano v. State, 808 S.W.2d 519, 521 (Tex. App.--Houston [14th Dist.] 1991, no pet.). However, a proponent is not required by these rules to perform all improbable efforts to produce the witness. Id. at 522. We review the trial court's determination of availability under Rule 804 for an abuse of discretion. See id. at 521; Otero-Miranda v. State, 746 S.W.2d 352, 355 (Tex. App.--Amarillo 1988, pet. ref'd, untimely filed). In Urbano, the State's investigator testified that in his attempt to locate an unavailable witness, he checked her driver's license listing, contacted the phone and utilities companies to find a current address, went to her last known address and spoke to an apartment manager and several residents, attempted to trace any vehicle she might have registered in Texas, and also spoke with her last known employer, but was unsuccessful in locating the witness's whereabouts or forwarding address. Id. at 522. On these facts, the court held that the State acted in good faith in its attempt to locate the witness. Id. In contrast, in Otero-Miranda, the court concluded that the defendant had not shown good faith efforts to secure two witnesses' attendance at trial when he did nothing beyond mere issuance of unserved subpoenas. Otero-Miranda, 746 S.W.2d at 355. Because the defendant failed to establish the witnesses' unavailability under Rule 804, the court held that the trial court did not abuse its discretion in excluding the testimony. Id. Finally, in Reyes, the State's investigator testified that he began his search for the witness only three days before trial, had a subpoena issued, and called the witness's grandmother to help him locate the witness. Reyes v. State, 845 S.W.2d 328, 330 (Tex. App.--El Paso 1992, no pet.). The grandmother also testified that she had looked for the witness and asked for assistance from another grandson, but was not successful in finding the witness. Id. at 330-31. However, the court held that the State did not meet its burden of establishing a good faith effort and thus could not offer the former testimony. Id. at 331. Here, appellant's counsel conceded that Rayos had been available to her up until August 2005, but that she had lost contact with Rayos since then; the case was tried in November 2005. Appellant's counsel stated that the last address that she had for Rayos was no longer valid, the home telephone number she had was disconnected, and that she had left numerous, unreturned messages on Rayos's cell phone. On the night before trial, appellant contacted Rayos's sister and learned that Rayos had gone to Corpus Christi, but that was all the information she had. Appellant's counsel stated that she did not issue a subpoena for Rayos because her whereabouts were unknown. On the morning of trial, appellant's counsel noticed that the State had subpoenaed Rayos. However, the State stated that although it had issued a subpoena, it did so less than a week before trial and spent only "maybe a day or two with [their] investigator looking for [Rayos]." After deciding that it did not need her testimony, the State abandoned its search. The State also asserted that it might have been able to locate Rayos had it continued to search. Under these facts, without any evidence that appellant made any effort to locate Rayos from August 2005 until November 2005, the date of trial, we hold that the trial court did not abuse its discretion in concluding that appellant failed to show that he made a good faith effort to obtain Rayos's presence at trial and that Rayos was unavailable to testify at trial. We overrule appellant's third and fourth issues. Conclusion We affirm the judgment of the trial court. Terry Jennings Justice Panel consists of Chief Justice Radack and Justices Jennings and Bland. Do not publish. See Tex. R. App. P. 47.2(b). 1. See Tex. Pen. Code Ann. §§ 22.021(a)(1)(B)(i), (iii), (a)(2)(B) (Vernon Supp. 2006).