Lagunas v. State

• Decision Date: 26 August 2005
• Docket Number: No. 03-03-00566-CR.,03-03-00566-CR.
• Citation: 187 S.W.3d 503
• Parties: Adrian D. LAGUNAS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

187 S.W.3d 503

Adrian D. LAGUNAS, Appellant, v. The STATE of Texas, Appellee.

No. 03-03-00566-CR.

Court of Appeals of Texas, Austin.

August 26, 2005.

Rehearing Overruled October 14, 2005.

Discretionary Review Refused May 3, 2006.

COPYRIGHT MATERIAL OMITTED

Anthony B. Cantrell, Suzanne M. Kramer, San Antonio, TX, for Appellant.

Dib Waldrip, Kenneth R. Schutze, and Samuel B. Katz, Asst. Criminal District Attys., New Braunfels, TX, for Appellee.

Before Chief Justice LAW, Justices B.A. SMITH and PEMBERTON.

OPINION

BOB PEMBERTON, Justice.

After a jury trial, appellant Adrian Lagunas was convicted of aggravated kidnapping and burglary of a habitation, and the district court sentenced him to confinement of twenty years and thirty-five years, respectively. See Tex. Pen.Code Ann. §§ 20.04(a), 30.02(a) (West 2003). In this appeal, we will consider Lagunas's claim that he was denied his Sixth Amendment right of confrontation with regard to hearsay testimony from the complainant's four-year-old child that the district court admitted as an excited utterance, a contention that implicates Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Lagunas also argues that the trial court abused its discretion in its application of the excited utterance hearsay exception, that the evidence is legally insufficient to support a conviction for burglary or for aggravated kidnapping, and that the evidence is factually insufficient to prove Lagunas's identity as the person who committed the acts alleged. We will affirm the judgment of the district court.

BACKGROUND

The events from which Lagunas's convictions arose occurred in the late evening of June 22 or early morning of June 23, 2000, allegedly beginning in a two-bedroom house owned by Ignacias and Apolonio Cantu on South Hackberry in New Braunfels. The following facts are undisputed. The Cantus occupied one of the two bedrooms but were not present the evening in question. M.M., a 22-year-old woman and the complainant in this case, was staying in the other bedroom along with her two children, four-year-old D.M. and two-year-old R.M. C.M., the Cantus' grandson, was engaged to M.M. at that time, but was incarcerated on the night in question. A daughter of the Cantus, Yolanda Lagunas, was married to Lagunas and was also C.M.'s aunt. There was disputed testimony regarding whether the Lagunases were also staying in the living room of the Cantus' house at the time, but it is undisputed that they were keeping some belongings there and that at least Yolanda had access to the house. The Cantus kept a key hidden outside a side door to enable certain family members to have access to the house.

At approximately 1:45 a.m. on July 23, New Braunfels police received a 911 call from M.M. She had called from a house at 561 Schmidt Avenue. Shortly thereafter, Officer Christopher Peltier arrived at that house and reported finding M.M. "hysterical," "crying," and with clothing and a towel knotted around her neck and head, and socks tightly tied around her wrists. Blood flow appeared to be restricted in her hands, and she claimed to be in pain. The knit shirt around her head and neck was tied so firmly into her hair that EMS later had to cut her hair to remove it. M.M. did not have a shirt on, but several articles of clothing were tied to her back brastraps. She was wearing grey sweat pants. Her face was swollen, red, and discolored.

Officer Peltier further recounted that M.M. had reported that she was awakened thirty minutes after she went to sleep by a man who covered her mouth with his hand.¹ She claimed that she did not see the man but recognized his voice as that of Lagunas.² She initially thought that Yolanda Lagunas might have been playing a joke on her because Yolanda was a good friend and liked to play jokes. But, when she realized that the episode was not a joke because of the aggressiveness of the actions, she kicked to free herself and ran for the bathroom. The man caught her, hit her repeatedly with a closed fist, and forced her into the living room. She visually recognized the man as Lagunas. He then bound M.M.'s hands in socks, removed her shirt, tied clothes to her brastraps, tied a plastic sack and a t-shirt over her head, and forced her out of her house and into the passenger seat of her car. The pair drove off. M.M. told Officer Peltier that, once the car stopped, she was able to uncover her head, unlock the car door, and run away. She ran through an open door in the house directly across the street and called 911. This house was the 561 Schmidt location where Officer Peltier later found her. Officer Peltier never found the plastic bag, but he did testify that he saw M.M.'s car parked across the street from 561 Schmidt Avenue, facing the wrong direction on the road. Lagunas's parents lived in the house in front of which the car was parked.

Michael Ulbrich, a firefighter and paramedic for New Braunfels Fire Department, arrived at the 561 Schmidt Avenue house at 2:13 a.m. He examined M.M. and recorded trauma to the head with swelling and redness around the head and on both cheeks. Ulbrich classified M.M.'s injuries as serious and potentially life-threatening, indicating several blows to the head and face, and expressed doubt that someone could inflict such serious wounds on themself.³ However, M.M. refused treatment.

When M.M. expressed concern about her unsupervised children, Officer John Sullivan was dispatched to the Cantu house. Upon arriving, Sullivan noted that the front door was slightly ajar. He entered using a flashlight and searched for the bedroom, where he had been advised that the children were located. Sullivan found two children, D.M., a girl about four years old, and R.M., a boy of about two years, lying in the bed in M.M.'s darkened bedroom. R.M. was asleep.

Before Officer Sullivan took the stand, Lagunas's counsel objected to the State eliciting testimony from Sullivan regarding statements made by D.M. Counsel urged that "we would still want to make sure that the State doesn't go into that, because we feel that the testimony is still inherently unreliable that a four-year-old girl makes when she is sleeping at night and woken up." Noting that it had "imposed an in limine on this area," the district court deferred ruling pending further testimony. Sullivan then testified that, when he entered the room,

Officer Sullivan: [D.M.] pulled the covers up to her chest, and I could see her close her eyes. As she was closing her eyes, I could see the skin around them bunching up like she was just asleep or pretending to close her eyes. She was physically closing her eyes and bunching up the skin around it.

State: Okay. Did she abruptly pull the covers up?

Officer Sullivan: She pulled the covers up to her chest and she left it at that point. And she didn't make any other movements until I identified myself to her.

State: Okay. Did you tell her you were a police officer?

Officer Sullivan: Yes, sir, I did.

State: Did she then open her eyes?

Officer Sullivan: She did.

State: Did you try to calm her down?

Officer Sullivan: Yes, sir, I did.

State: When you were making your contact with her, you said she was terrified. Did she cry?

Officer Sullivan: She wasn't crying, initially. I asked her what her name was.

State: Okay. But when you were talking to her, did she cry?

Officer Sullivan: Yes, sir, she did cry.

State: Did she appear upset?

Officer Sullivan: Yes, sir, she did.

State: Okay. The squinting of her eyes and abruptly pulling the covers over her and faking like she was asleep and crying, did she appear to be under the stress of some traumatic event?

Officer Sullivan: Yes, sir, she did.

Based on this testimony, the district court ruled that any statements made by D.M. to Officer Sullivan were excited utterances and overruled Lagunas's objection. The State then elicited the following testimony:

State: Did you ask the little girl her name?

Officer Sullivan: Yes, sir.

State: What did she say her name was?

Officer Sullivan: [D.M.]

State: Did you ask her whether or not everything was okay?

Officer Sullivan: Yes, sir, I did.

State: How did she respond?

Officer Sullivan: No, that it wasn't. Her mommy was dead.

State: Did she say anything else?

Officer Sullivan: I asked her—I believe my exact words—well, I asked her what happened to her mommy. And she stated that "A bad man had killed her and took her away." That's what the four-year-old little girl told me.

State: Okay. Was she crying when she was telling you this?

Officer Sullivan: Yes, sir. As I began to ask her questions about what had happened—about what happened to mommy, she began to cry hysterically.

State: Did you try to — did you know the whereabouts of her mother?

Officer Sullivan: Yes, sir, I did.

Officer Sullivan then told D.M. that her mother was "with other police officers," and she then calmed down.

After other police officers arrived, Officer Sullivan looked around the Cantus' house. He noticed bunched-up carpet on the floor and clothes scattered across the living room, which indicated to him that a struggle had taken place. In addition, he found an unsecured but closed rear door. On the ground near the door on the outside, he found a hasp that had been pried loose from the door.⁴ Sullivan never found a padlock. He did not find any other signs of forced entry, nor did he recover any fingerprints. In the living room, Sullivan found a citation⁵ issued to Lagunas by the New Braunfels Police Department as well as various articles of men's and women's clothing.

At trial, M.M. testified that she stayed in a room in the Cantus' house where she lived with her then-fiancé, C.M., and her children. Lagunas, his wife, and his children had moved their belongings into the house but were not staying there and had never spent the night. On the night in question, the Cantus were on vacation in Las Vegas, and M.M. had not given Lagunas permission to enter the...