Limonta-Diaz v. State

• Decision Date: 05 February 2020
• Docket Number: NO. 03-18-00293-CR,03-18-00293-CR
• Citation: 593 S.W.3d 447
• Parties: Osmani LIMONTA-DIAZ, Appellant v. The STATE of Texas, Appellee
• Court: Texas Court of Appeals

593 S.W.3d 447

Osmani LIMONTA-DIAZ, Appellant

v.The STATE of Texas, Appellee

NO. 03-18-00293-CR

Court of Appeals of Texas, Austin.

Filed: February 5, 2020

Margaret M. Moore, Travis County District Attorney, P. O. Box 1748, Austin, TX 78767, Lisa Stewart, Assistant District Attorney, Travis County, P. O. Box 1748, Austin, TX 78767, for Appellee.

Linda Icenhauer-Ramirez, Attorney at Law, 1103 Nueces, Austin, TX 78701.

Before Justices Goodwin, Baker, and Triana

OPINION

Melissa Goodwin, Justice A jury convicted appellant Osmani Limonta-Diaz of sexual assault, see Tex. Penal Code § 22.011(a)(1)(A), and assessed his punishment at confinement for eleven years in the Texas Department of Criminal Justice, see id. §§ 22.011(f), 12.33. On appeal, appellant complains about error in the jury charge and challenges the sufficiency of the evidence. We affirm the trial court's judgment of conviction.

BACKGROUND

The jury heard evidence that in June of 2017, Rhea Percy went out one evening—to dinner, to hear a band, and then to socialize with friends.¹ Over the course of the evening, Percy had been drinking—wine, gin and tonic, specialty cocktails, beer, and shots—and towards the end of the evening felt "intoxicated" and "drunk." Percy ended the night at a bar called Pour House, where she stayed until closing time. Even though Pour House was within walking distance of her home (an apartment that she shared with her brother), she requested a ride through the RideAustin app to get home because she "never walk[ed] home at night alone drunk." She did not recall where she met the rideshare driver or how she got into his car. The last thing Percy remembered was talking to the bartender at Pour House as he put up the chairs. Her memory was "fuzzy" due to her intoxication.

Percy's next memory after the bar was trying to direct the rideshare driver to the road for her apartment's front door, which was different than the address for the apartment complex. She then next remembered the driver being in the backseat on top of her. She was lying on her back and felt her shirt being lifted up. The driver was heavy, and she felt "pinned down." She recalled trying to push the driver off of her with her arms. She next remembered "tumbling" out of the car with her purse and concert poster. She went to her apartment and banged on the door because she could not find her keys.

Percy's brother, Eric, who had been upstairs in his room playing video games, heard the knocking. He opened the door during the third round of knocks and found his sister in disarray—her hair was "messed up," her shirt was lifted up exposing her bra, and her pants were unbuttoned and unzipped. Percy immediately told her brother that she had been raped. She was "very distraught" and was "choking back tears." Eric helped Percy inside and asked who had raped her. She told him that it was her rideshare driver. At trial, Eric described Percy as "drunk"; she slurred her words and had an unstable walk. When asked to describe the level of Percy's intoxication, he said, "I would say she was more intoxicated. She was drunk. As to the exact level, I would say it was probably a little more to the severe side of drunk, the more extreme side." Eric helped his sister to the couch and called 911. He talked to the dispatcher while Percy laid with her head in his lap sobbing. Percy showed her brother the RideAustin app on her phone, which gave the driver's name—Osmani Diaz—and a picture of the driver as well as the make of the car. Eric relayed as much information as possible to the 911 operator. Emergency medical services and police responded to their apartment.

Upon arrival at the apartment, the EMS paramedic made contact with Percy, who was on the couch "very emotionally distressed." She was crying and upset and all she could tell the paramedic was that she had been sexually assaulted by her rideshare driver; she could give no details about the assault itself. She told the paramedic—who noticed several signs of intoxication, including the smell of alcohol, slurred speech, and unsteady vision—that she had been out drinking. The paramedic conducted a general assessment of Percy, which did not indicate any life-threatening conditions; Percy had no complaint of pain or injury. He offered to transport Percy to the hospital, but she declined because, he recalled, "she didn't believe that anything could be done to help her."

When the police arrived at the apartment, Percy was, according to one responding patrol officer, "hysterical," "very withdrawn," and "crying." She was lying on the couch in her brother's lap and, the officer explained, did not want to speak to them.² The officer did not notice signs that Percy was intoxicated, but he testified that Percy was "very guarded" and "kept a bit of distance" between them—in fact, she had her back to the officer during most of his contact with her. One of the first things Percy said to the officer was, "I am drunk. I am to blame." After Percy was able to calm down, she told the officer that she had been raped by her rideshare driver. She showed him her phone, which was still open to the RideAustin app, and the officer wrote down the information about the driver. Percy gave a general description of her attacker but was only able to give a few details about the assault itself. She told the officer that the driver had turned around and said, "I'm going to fuck you," but she was unable to tell him how appellant got into the back seat and got her clothes off. Percy also reported to the officer that during the assault, the driver made derogatory comments to her before "placing his penis in her vagina." Specifically, she told the officer that, during the assault, the driver said that "white women are whores and no one will believe you" and "I will fucking shame you." Based on Percy's demeanor, the officer did not take what Percy described to be a consensual sexual encounter.

The next day Percy went for a sexual assault forensic exam. The sexual assault nurse examiner testified at trial about what Percy told her about the assault:

That she had been out drinking with some friends, that she had called some type of Rideshare to pick her up, and that he drove her home, that he stopped kind of in a different place than what she was expecting him to, and then he ended up — I think she said he got in the backseat with her and forced himself on her.

Percy conveyed to the nurse that her memories of the night were "fuzzy" and that she remembered the ride in "flashes." She described the rideshare driver "holding [her] down" and remarked that he was "significantly bigger than [her], so it wouldn't have taken much." Percy also reported to the nurse that in addition to the alcohol that she had consumed that night, she had taken her medication for depression, which, the nurse explained, could "potentiate the effects of alcohol."

The nurse testified about the injuries to Percy that she documented during the exam. During the head-to-toe portion of exam, the nurse noted a small scratch on Percy's left breast and bruises on her legs. During Percy's genital exam, the nurse observed redness on both sides of the outer labia majora, several small abrasions underneath the clitoral hood, an abrasion on the inside of the labia minora, multiple abrasions on the posterior fourchette, and pink areas around the anal sphincter. The nurse also used evidentiary swabs to collect samples from Percy for DNA testing. Subsequent forensic testing revealed semen on the smear from Percy's cervix. The nurse testified that the discovery of sperm cells on Percy's cervix was consistent with penile penetration of her female sexual organ and ejaculation by her assailant. DNA testing established that the DNA profile of the contributor of the semen from Percy's cervix matched appellant's DNA profile.

The police sex-crimes detective, who conducted the follow-up investigation, spoke with Percy several days after the rideshare incident. At that time, Percy recalled less of the sexual assault than she did the night of the offense because, the detective opined, she had imbibed a lot of alcohol that night. Percy showed the rideshare information from her phone to the detective. Through RideAustin records, the detective identified appellant as the driver and contacted him for an interview. In the interview, appellant denied ever having had sexual contact with any customer in his car, even a consensual sexual encounter.³ Appellant explicitly denied that anything sexual had happened between him and Percy.

Following the investigation, appellant was arrested and subsequently indicted for sexual assault. The State called twelve witnesses at trial: the 911 dispatcher, Percy's brother, the responding police officer, the responding EMS paramedic, the vice president of operations for RideAustin, the sexual assault nurse examiner, the DNA analyst who conducted the DNA testing in this case, the detective who presented a photo array to Percy,⁴ the detective who interpreted during appellant's police interview, the investigating sex-crimes detective, and an investigator from the district attorney's office. The defense called one witness: a forensic nurse who reviewed the report of Percy's sexual assault exam and took issue with the findings. The jury found appellant guilty of sexual assault as charged in the indictment and assessed his punishment at eleven years in prison. Appellant filed a motion for new trial, which was overruled by operation of law. This appeal followed.

DISCUSSION

Appellant raises three points of error in this appeal. In his first two points of error, he contends that the trial court erred by including certain statutory definitions of "without consent" in the court's jury charge. In his third point of error, appellant claims that the evidence is insufficient to support his conviction for sexual assault because it failed to prove that his sexual encounter with Percy was without her consent.

Jury-Charge Error

As applicable to...