Gutierrez v. State

• Court: Texas Court of Appeals
• Writing for the Court: Sherry Radack, Chief Justice
• Citation: Gutierrez v. State, 668 S.W.3d 46 (Tex. App. 2022)
• Docket Number: 01-21-00408-CR
• Decision Date: 08 September 2022
• Parties: David GUTIERREZ, Appellant v. The STATE of Texas, Appellee

668 S.W.3d 46

David GUTIERREZ, Appellant

v.The STATE of Texas, Appellee

NO. 01-21-00408-CR

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued September 8, 2022

Discretionary Review Refused January 18, 2023

Mandy Miller, Katy, for Appellant.

Heather Hudson, Kim K. Ogg, Houston, for Appellee.

Panel consists of Chief Justice Radack and Justices Landau and Hightower.

Sherry Radack, Chief Justice

A jury convicted appellant, David Gutierrez, of sexual assault and assessed punishment at two years’ confinement, which the trial court suspended, placing appellant under community supervision for five years. In two issues, appellant contends that (1) the evidence is legally insufficient to support his conviction, and (2) the trial court erred in refusing to admit evidence that appellant contends was necessary to rebut a false impression left with the jury from the admission of other evidence. We affirm.

BACKGROUND

Appellant met Delilah when he was her math instructor at Houston Community College. After the course ended, the two exchanged phone numbers and became friends. Delilah considered him a mentor.

Delilah was also friends with A.S., an 18-year-old woman from Harlingen, Texas. After A.S. left Harlingen because of a dispute with her family, she stayed with Delilah and her family in Houston.

On August 19, 2018, Delilah invited A.S. to go out with her and appellant. Appellant picked up the two women from Delilah's house and took them to his house. On the way to his house, appellant stopped and bought vodka, which they drank while playing video games before leaving to go to a club.

At the club, appellant bought drinks for both women, although A.S. was not over the age of 21. A.S. felt that appellant was friendly, but he did not indicate that he was interested in her sexually, and she did not flirt with him. At one point, A.S. grabbed appellant's hand so that she would not get separated from him as they walked through the club looking for Delilah, who had wandered away to drink and dance with other people.

When they found Delilah, she was very intoxicated and arguing with club employees. Appellant and A.S. helped Delilah to appellant's car and they put her in the back seat. They originally planned for appellant to take the women home, but A.S. asked if they could go to appellant's house so that Delilah could sleep for a while. A.S. was worried that Delilah would be in trouble with her mother if she went home in her intoxicated state. A.S. was also very intoxicated—she described it as being an eight out of ten on a scale of intoxication—and she vomited on the way to appellant's house.

When they got to appellant's house, they left Delilah in the back seat of the car where she had passed out; they also left the windows in the car down and the door between the garage and the house open. A.S. said that she needed to sleep too, so she asked if she could lay down on a mattress that appellant had on the floor in his living room. She felt that she would be close enough to check on Delilah, and she set an alarm on her phone for that purpose.

When A.S. lay down on the mattress to go to sleep, she was fully dressed. She did not know where appellant went after she lay down. A.S. was partially wakened from sleep when she discovered appellant on top of her. She had not consented to sex, but she found her pants and underwear around her ankles and felt appellant kissing her stomach, touching her breasts and vagina, and penetrating her vagina with his penis. At some point, A.S. was lying on her stomach and the assault continued. A.S. admitted that she did not call out for help because there was no one there to help her; Delilah was still passed out in the car. She was crying as the assault continued.

A.S. told appellant that she needed to leave and that the women would get in trouble if they did not return home. A.S. cried in the car but she told appellant that she was crying because her sister was being deployed.

After appellant dropped the women at Delilah's home, A.S. called her sister in Harlingen and got on a bus headed home. When Delilah awoke, she called A.S., who told her that she had left because appellant had sexually assaulted her. Delilah told A.S. to get off the bus, which she did in Victoria, where Delilah picked her up, driving her directly to Memorial Hermann Hospital in Houston. At the hospital, A.S. was examined by an emergency room nurse, who took A.S.’s statement and collected oral, vaginal, and body fluid swabs from her.

Appellant was subsequently arrested and charged with sexual assault. At trial, his defense was that A.S. consented to having sexual intercourse. The jury nonetheless found appellant guilty, and the trial court assessed his punishment at two years’ confinement, which the trial court suspended, placing appellant on community supervision for five years. This appeal followed.

SUFFICIENCY OF THE EVIDENCE

In his first issue, appellant contends that the evidence is insufficient to support his conviction for sexual assault because the State failed to prove that he had the requisite criminal intent. He argues that, based on the evidence presented at trial, the jury could not have rationally concluded that the complainant was unaware that the sexual assault was occurring. Thus, appellant contends that "the State failed to prove beyond a reasonable doubt that the complainant did not consent, and that the appellant knew the complainant was unaware that penetration was occurring."

Standard of Review and Applicable Law

We review a challenge to the sufficiency of the evidence under the standard enunciated in Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See Brooks v. State , 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). We examine all the evidence in the light most favorable to the jury's verdict to determine whether any "rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson , 443 U.S. at 319, 99 S.Ct. 2781 ; Williams v. State , 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Our role is that of a due process safeguard, and we consider only whether the factfinder reached a rational decision. See Malbrough v. State , 612 S.W.3d 537, 559 (Tex. App.—Houston [1st Dist.] 2020, pet. ref'd) ; see also Morgan v. State , 501 S.W.3d 84, 89 (Tex. Crim. App. 2016) (observing that reviewing court's role on appeal "is restricted to guarding against the rare occurrence when a fact finder does not act rationally") (quoting Isassi v. State , 330 S.W.3d 633, 638 (Tex. Crim. App. 2010) ).

In a sufficiency review, we consider the "combined and cumulative force" of the circumstances pointing toward guilt. Clayton v. State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). "Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor," and "the standard of review on appeal is the same for both direct and circumstantial evidence cases." Kuciemba v. State , 310 S.W.3d 460, 462 (Tex. Crim. App. 2010) (quoting Guevara v. State , 152 S.W.3d 45, 49 (Tex. Crim. App. 2004) ). The trier of fact is the sole judge of the weight and credibility of the evidence. See Zuniga v. State , 551 S.W.3d 729, 733 (Tex. Crim. App. 2018) ; Blea v. State , 483 S.W.3d 29, 33 (Tex. Crim. App. 2016). Thus, when performing an evidentiary sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the factfinder. Limonta-Diaz v. State , 593 S.W.3d 447, 456 (Tex. App.—Austin 2020, pet. ref'd) ; see Montgomery v. State , 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Instead, we must defer to the weight determinations of the factfinder. Cary v. State , 507 S.W.3d 750, 757 (Tex. Crim. App. 2016) ; Nowlin v. State , 473 S.W.3d 312, 317 (Tex. Crim. App. 2015). A reviewing court, faced with a record of historical facts supporting conflicting inferences, must presume that the trier of fact resolved any such conflict in favor of the prosecution and must defer to that resolution. Jackson , 443 U.S. at 326, 99 S.Ct. 2781. When there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous. Evans v. State , 202 S.W.3d 158, 163 (Tex. Crim. App. 2006).

A person commits the offense of sexual assault "if ... the person intentionally or knowingly ... causes the penetration of the ... sexual organ of another person by any means, without that person's consent ...." TEX. PENAL CODE § 22.011(a)(1)(A). The Penal Code sets forth several circumstances in which a sexual act is considered to be without a person's consent. See id. § 22.011(b)(1)–(14). Relevant here, a "sexual assault under Subsection (a)(1) is without the consent of the other person if: ... the other person has not consented and the actor knows the other person is unaware that the sexual assault is occurring." Id. § 22.011(b)(5). The jury was charged on this statutory provision.

Analysis

Appellant contends that the State failed to prove that A.S. did not consent or that appellant knew that A.S. was unaware that a sexual assault was occurring. Specifically, appellant points out that "A.S. was awake and aware of what was happening prior to appellant penetrating her with his penis," "[s]he did not protest or tell appellant to stop]," and "[w]hen A.S. decided to stand up and end the sexual intercourse, appellant did not stop her."

In contrast, A.S. testified that she never agreed to have sex with appellant. The evidence showed that A.S. had consumed so much alcohol that evening that she vomited on the way home from the club. She estimated that her level of intoxication was an eight out of ten. A.S. testified that she had not flirted with appellant, but only grabbed his hand at one point to keep from getting separated from him while they looked for Delilah at the club. A.S. explained that they went to appellant's house after leaving the club so that Delilah could sleep for a while before returning home. A.S. did not...