Amador v. State
Decision Date | 05 October 2018 |
Docket Number | NO. 03-16-00681-CR,NO. 03-16-00682-CR,03-16-00681-CR,03-16-00682-CR |
Parties | Daer Amador, Appellant v. The State of Texas, Appellee |
Court | Texas Court of Appeals |
FROM THE DISTRICT COURT OF HAYS COUNTY, 207TH JUDICIAL DISTRICT
NO. CR-14-0460, THE HONORABLE JACK H. ROBISON, JUDGE PRESIDING
FROM THE DISTRICT COURT OF HAYS COUNTY, 274TH JUDICIAL DISTRICT
NO. CR-15-0352, THE HONORABLE JACK H. ROBISON, JUDGE PRESIDING
A jury convicted appellant Daer Amador of aggravated robbery, see Tex. Penal Code § 29.03(a)(2), and sexual assault of a child, see id. § 22.011(a)(2)(A).1 Appellant elected to have the trial court decide his punishment, see Tex. Code Crim. Proc. art. 37.07(2)(b), and the trial judge assessed appellant's punishment, enhanced pursuant to the repeat offender provisions of the Penal Code, see Tex. Penal Code § 12.42(b), (c)(1), at confinement for 50 years in the Texas Department of Criminal Justice for each offense. In four points of error, appellant complains about jury-charge error, challenges the sufficiency of the evidence regarding venue, claims the trial court erroneously denied his motion to suppress, and asserts that he suffered ineffective assistance of counsel. We affirm the trial court's judgments of conviction.
BACKGROUND2
The jury heard evidence that A.S., a 15-year-old juvenile, met appellant on Facebook while she was living in a Hays County youth shelter. The first time A.S. met appellant in person was Thanksgiving Day of 2013, approximately one month after they met online. On that day, appellantpicked A.S. up at a friend's house,3 and she "hung out" with appellant and his friend, an individual named Eric Cordoba,4 drinking and doing drugs.
A.S. testified that Martin Torres, a man whom A.S. knew through her mother, had been contacting A.S. seeking to have her arrange a paid sexual encounter for him with another woman. According to A.S., when she informed Torres that she could not make such arrangements, he asked her if she would have sex with him for money. A.S. said that she initially refused, but he continued to call and text her seeking to have sex with her for money. On Thanksgiving Day, when she was with appellant and Cordoba, she shared Torres's proposition with the two men. A.S. testified that Cordoba devised a plan to rob Torres to get money for a hotel room. The plan was to have A.S. agree to meet Torres to have sex in exchange for money, but appellant and Cordoba would interrupt and rob Torres before the sex occurred.
The evidence showed that Torres arrived at the planned location—near a Motel 6 in San Marcos in Hays County, Texas—and A.S. got into his vehicle. A.S. testified that Torres attempted to have sex with her. She said that she resisted, but that he forced himself on her. A.S. explained that appellant and Cordoba then approached Torres's vehicle wearing masks and brandishing guns, and she fled the vehicle. The evidence reflected that appellant and Cordobaphysically assaulted Torres, striking him with a pistol, and stole his belongings.5 Appellant, Cordoba, and A.S. then left the scene.
A.S. testified that after they left, she was driving the car when she was pulled over for a traffic stop by San Marcos police. The officers discovered that A.S. was 15 years old and determined that she was a reported runaway. A.S. was taken into custody and transported to the Hays County juvenile detention center; appellant and Cordoba were, at that time, released from the scene. The evidence showed that at the detention center, authorities discovered Torres's belongings in A.S.'s backpack, along with a handgun. While in detention, A.S. reported to the juvenile authorities that she had been "raped" by Torres. As part of the investigation of that sexual assault, A.S. was examined by a sexual-assault nurse examiner, who collected evidence from A.S., including a sample from "inside the vaginal wall." Subsequent DNA testing excluded Torres as a contributor to the DNA sample recovered from A.S.
By that point, appellant had been arrested for the aggravated robbery of Torres. Robert Elrod, a detective from the San Marcos Police Department, went to the Hays County jail and met with appellant to request a DNA sample. The detective explained that they were trying to identify DNA recovered from A.S. and knew that appellant had been with her. Appellant asked the detective, "So, y'all found DNA in her?" Detective Elrod confirmed that DNA was found insideA.S. Appellant then admitted that he "did have sexual relations, well, intercourse" with A.S. "about two days" before the event with Torres. He then agreed to allow the detective to collect a sample of his DNA. Subsequent Y-STR testing demonstrated that the DNA recovered from the vaginal sample from A.S. was consistent with appellant's DNA profile.6
A.S. was compelled to testify at trial pursuant to an order granting testimonial immunity. After describing the events related to the robbery of Torres, she testified that she never had sex with appellant. She explained that appellant's DNA was found inside her because she "put his semen inside of [herself]." After initially refusing to explain how she accomplished that feat, A.S. said that she "jacked [appellant] off" and "put [his semen] on [her] hand and put it in [her] vagina." She further said that she did this while appellant was passed out or asleep. On cross examination, A.S. said that she did it because "she just wanted to get pregnant." A.S.'s testimony reflected that the sexual activity between her and appellant happened at the motel where she, appellant, and Cordoba were staying. She initially indicated that she was uncertain where the motel was located, testifying that it was in Austin or Round Rock and that she "really [did not] remember" where it was. Later, on cross examination, she maintained that it was in Round Rock.
The sexual-assault nurse examiner testified that during the sexual-assault exam (for Torres's sexual assault against her), A.S. indicated that her last consensual sexual encounter was thenight before the Torres incident. The nurse examiner conceded that one could insert semen into themselves to become pregnant "if so inclined," but further expressed that A.S. had availed herself of the "plan B" treatment to prevent pregnancy.
Appellant was ultimately indicted for aggravated robbery, compelling prostitution, and sexual assault of a child. The jury found him guilty of aggravated robbery and sexual assault of a child, but not guilty of compelling prostitution. The trial court sentenced appellant to 50 years in prison for each offense, ordering the sentences to be served concurrently.
DISCUSSION
Appellant raises four points of error complaining about jury-charge error, insufficient evidence regarding venue, the denial of his motion to suppress, and ineffective assistance of counsel.
Claims Related to Venue
Appellant's first two points of error raise issues concerning venue. In his first point of error, he asserts that the trial court erred by giving an erroneous jury instruction regarding venue. In his second point of error, appellant argues that the State failed to prove venue by a preponderance of the evidence.
In the abstract portion of the court's jury charge, the trial court included a one-paragraph section about venue:
Venue is not a criminative fact and therefore not an element of the offense. To sustain the allegation of venue, it shall only be necessary to prove by the preponderance of the evidence that by reason of the facts in the case, the county where such prosecution is carried on has venue. Sexual assault may be prosecuted in the county in which it is committed, or in any county through or into which the victim is transported in the course of the sexual assault. If an offense has been committed within the state and it cannot readily be determined within which county or counties the commission took place, trial may be held in the county in which the defendant resides, in the county in which he is apprehended, or in the county to which he is extradited.
Appellant did not object to the charge on the basis of the instructions regarding venue.
These venue instructions incorporated two venue provisions of the Code of Criminal Procedure—article 13.15 and article 13.19. Article 13.15 concerns the appropriate venue for sexual-assault prosecutions and provides, in relevant part:
Sexual assault may be prosecuted in the county in which it is committed, in the county in which the victim is abducted, or in any county through or into which the victim is transported in the course of the abduction and sexual assault.
Tex. Crim. Proc. Code art. 13.15. Article 13.19 concerns prosecutions for offenses for which venue cannot be determined and provides:
If an offense has been committed within the state and it cannot readily be determined within which county or counties the commission took place, trial may be held in the county in which the defendant resides, in the county in which he is apprehended, or in the county to which he is extradited.
We address appellant's challenge to the sufficiency of the evidence concerning venue first, and then address his claim of jury-charge error.
Evidentiary Sufficiency Regarding Venue
In his second point of error, appellant contends that the evidence in the record is insufficient to establish that the alleged sexual assault occurred in Hays County, which is where the indictment alleged that the offense occurred.
The allegation that the offense was committed in Hays County is a venue allegation. Venue is not an element of the offense charged. Fairfield...
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