Escobedo v. State
| Decision Date | 19 May 1999 |
| Docket Number | No. 04-98-00355-CR,04-98-00355-CR |
| Citation | 6 S.W.3d 1 |
| Parties | (Tex.App-San Antonio 1999) Robert ESCOBEDO, Appellant v. The STATE of Texas, Appellee |
| Court | Texas Court of Appeals |
From the 226th Judicial District Court of Bexar County, Texas. Trial Court No. 97-CR-0338-A. Honorable Sid L. Harle, Judge Presiding. [Copyrighted Material Omitted] Sitting: Tom Rickhoff, Paul W. Green, and Karen Angelini, J.J.
A jury convicted Robert Escobedo and his codefendant, Robert Guevara, of two counts of aggravated sexual assault and sentenced them to twenty years on each count. In five issues presented Escobedo disputes the legal and factual sufficiency of the evidence to support his conviction, the effectiveness of the assistance rendered by his trial counsel, and the trial court's decisions not to instruct the jury on "reasonable doubt" at the punishment phase and not to grant him a new trial. We affirm.
Because Escobedo attacks the sufficiency of the evidence to support his conviction, a detailed rendition of the facts is in order.
Mary Smith 1 testified she met Escobedo about a month before the incident, in May 1996, when she was fourteen. She said she and Escobedo agreed to go to the movies in June and he agreed to pick her up on a street corner near her house. (Smith said she did not want Escobedo to know where she lived.) Smith said that when Escobedo arrived to pick her up, Guevara was with him; she said she was told they would be dropping Guevara off on the way to the movies. The trio went to Escobedo's house, a small garage apartment behind a larger house where Escobedo's grandparents lived. Escobedo said he was going to pick something up and went in the house. At that point, Smith said, Guevara told her to get out of the truck and come inside:
[SMITH]: then Robert told me to get off the truck and I told him no, I wasn't going to get off the truck. Then he grabbed me by my arm and tugged at me, he jerked at me and --
Q. What happened after he tugged at your arm?
[SMITH]: I told him to stop. At that point I saw like a shiny reflection. I wasn't really sure what it was.
Q. Where did you see the shiny reflection?
[SMITH]: I saw Robert with it in his -- he had it in his hand.
Q. What did it look like?
[SMITH]: At first I wasn't really sure, but then I saw that it was a gun.
Q. What happened after you saw the gun?
[SMITH]: I got scared so I just listened to him and I got off the truck.
Smith also said that Guevara held the gun against her as they walked to the tiny apartment, where Escobedo was unlocking the door.
Smith said Escobedo forced her to have sex with him in the bathroom of the little house. After he was done, Smith said, Escobedo left and Guevara came in and asked what had happened. She said she told him; Guevara then asked if she knew anyone who wanted to buy purses. Then Guevara asked her to kiss him; she said Guevara then unzipped his pants and pulled hers down. Smith said that as Guevara forced himself on her, he held the gun against her jaw.
After Guevara was done, Smith said, she went into the front room, which contained a television and Guevara's bed. She said Escobedo and Guevara forced themselves on her twice again. After they were done, Smith said, Guevara wanted to kill her, but Escobedo argued they should simply take her home, which they did. Smith said she did not tell anyone what happened until September. Smith said she picked Guevara and Escobedo out of a photo line-up. She also acknowledged she had been "fooling around" at a party with another boy and so was not a virgin at the time she reported the rape.
On cross-examination, Smith said she had talked to Escobedo several times between their meeting and the night of the rape. She said that at first she didn't realize the weapon she saw in Guevara's hand was a gun, but realized what it was when she got out of the truck. She said Guevara told her he was going to "blow away your brains" if she didn't shut up. She also admitted to running away from home several times.
Julio Ramirez Jr. testified he was Smith's algebra teacher at Lanier High School. He said he noticed Smith, who along with her classmates had to qualify for his algebra class as part of Lanier's magnet school program, was often inattentive and distracted. He said when he saw her grades for the first period would not be good, he took her into the hallway during class early in October and started asking what was wrong. Ramirez said she eventually told him she was afraid of two boys because they had raped her. He said Smith told him that she had met one boy at a party, that he had asked her to go to the movies, that instead they went to his house -- a small garage apartment -- and watched TV and kissed, that he then got her in the bathroom and forced himself on her. Ramirez said she told him that after he was done, another boy came in and that the other boy held her down while the second boy raped her. He also said she fought back, but "they put the gun to my head again." At that point, Ramirez said, he referred Smith to a counselor at the school; two weeks later an officer came to the school and took his statement. Ramirez also said he believed Smith when she told him she had been raped.
Anthony L. Trevino Jr. said he was the San Antonio policeman who took the report from Ramirez. He said he interviewed Smith for about an hour, about two weeks after her outcry statement to Ramirez. Trevino said after that interview Smith gave him the telephone number of the boy who had asked her out to the movies that night. He said the dispatcher looked up that number; knowing the address, he asked Smith and her mother to ride with him in the area and hopefully point out the place where the incident happened. He said Smith picked out the location immediately.
On cross-examination Trevino said Smith told him she first met the perpetrator at a movie theater off Loop 410. He said Smith told him she was threatened, but didn't say exactly where. He said that she told him Escobedo raped her in the bathroom; then Guevara came in and they took her to the bedroom and both raped her.
Clifford Joseph Cedotal said he was the San Antonio detective in charge of the case. He said he brought Smith in to the office and took a statement from her. He said he then called in Escobedo and asked him to come in and give a statement. He said Escobedo claimed not to know Smith when he first showed him her photograph; when told his residence and his truck had been implicated, he said Guevara had been the one to assault Smith.
According to Escobedo's statement, Smith approached them; he said she looked "messed up, on drugs." According to the statement, Escobedo gave Smith his pager number; she paged him around 11:30 that night; that when he went to get her she smelled of alcohol; that she was teasing and fondling both Escobedo and Guevara; that Escobedo left her with Guevara in his room while he went to his parents' house to eat; and that when he came back she was crying and demanding to be taken home. Escobedo also said someone who sounded like Smith left him a telephone message: "We are going to [screw] you over."
Cetodal said Guevara later came in and provided a statement. According to Guevara's statement, they met Smith after playing basketball in the neighborhood; that Escobedo gave her his pager number; that they went to get her about 11 p.m., after she paged them; that no one had sex with Smith, although Smith told them she had condoms with her; that she got frustrated because they didn't want to have sex with her, and asked them to take her home.
Nancy Kellogg was the physician at the Alamo Children's Advocacy Center who examined Smith. She said Smith reported difficulty sleeping, an inability to concentrate, a fluctuating appetite and fear of going out after the incident; she also said Smith told her of an attempt to overdose on pills. Kellogg said these symptoms, as well as Smith's demeanor, were typical of women who had been raped which she had examined. She also reported a vaginal discharge after the rape, which Kellogg said also was consistent. Kellogg also said Smith told her she had had a consensual sexual encounter in August 1996.
Kellogg said Smith told her that Bobby "Escobel" had asked her out and was going to go to the movies when he said he had to go by his house to pick something else; that "his friend Robert" was there and threatened her with a gun; that Bobby raped her in the bathroom; that he used a condom for part of the time; that Robert "did the same things;" that they then went to Bobby's room where the assault continued; and that the two dropped her off near her house.
Robert Guevara Jr. said he and Escobedo were playing basketball on a neighborhood court the night of the incident. When they finished, Guevara said, they were driving away when Smith flagged them down and asked for a ride to a friend's house. Guevara said he had never seen her before that day. During the ride, Guevara said Smith asked if Escobedo had a girlfriend and got his pager number.
About 10:30 that night, Guevara said, he went over to Escobedo's house and got on his telephone to talk to a woman he knew; he said he finally had to get off the phone because Smith was paging Escobedo. Guevara said the two of them went to pick up Smith, who he said wanted to party and to talk about family problems. Guevara said Smith appeared to have been drinking when they picked her up. He said they went back to Escobedo's house, where he got back on the phone. He said Escobedo talked to Smith for awhile, then went to use the bathroom, and that Smith followed him in there after a short time. Guevara said that when Escobedo came out he announced he was going up to his parents' house to eat; and that after Escobedo was gone, Smith told him Escobedo didn't want to have anything to do with her. When Escobedo came back, Guevara said, she asked to be taken...
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