Venegas v. State
| Decision Date | 25 April 2018 |
| Docket Number | No. 04-16-00541-CR,04-16-00541-CR |
| Citation | 560 S.W.3d 337 |
| Parties | Gerardo VENEGAS, Appellant v. The STATE of Texas, Appellee |
| Court | Texas Court of Appeals |
APPELLANT ATTORNEY: Stephen Foster, 2511 North Loop 1604 West, Suite 301, San Antonio, TX 78258.
APPELLEE ATTORNEY: David Reuthinger, Jr., Assistant District Attorney, 1110 Victoria St., Suite 401, Laredo, TX 78040.
Sitting: Karen Angelini, Justice, Rebeca C. Martinez, Justice, Patricia O. Alvarez, Justice
Appellant Gerardo Venegas was charged with intoxication assault, failure to render aid, and aggravated assault causing serious bodily injury, alleged to have been committed on January 1, 2014, in Webb County, Texas. On May 20, 2016, after several days of trial, and after the case had been submitted to the jury, Venegas voluntarily absconded. The trial proceeded in his absence. The jury found Venegas not guilty of intoxication assault and guilty of failure to render aid and aggravated assault causing serious bodily injury. The jury also made an affirmative finding that Venegas used or exhibited a deadly weapon, specifically an automobile, during the commission of the offense or during the immediate flight therefrom.
On May 23, 2016, the matter was called for punishment. Venegas did not appear. The trial court made a second affirmative finding—that Venegas voluntarily absented himself—and the trial court proceeded to hear punishment evidence. After the close of testimony, and argument of counsel, the trial court sentenced Venegas, in absentia, to five-years' confinement in the Institutional Division of the Texas Department of Criminal Justice on the failure to render aid, and to twenty-years' confinement on the aggravated assault causing serious bodily injury. The trial court signed an interim judgment on June 8, 2016. Defense counsel’s motion to withdraw was granted by the trial court.
On July 20, 2016, Venegas was arrested on the outstanding warrant. The following day, with Venegas present, but without an attorney, the trial court pronounced sentence consistent with the sentence announced on May 23, 2016, and the interim judgment signed June 8, 2016. A final judgment was signed on July 21, 2016.
On appeal, Venegas raises four issues: (1) the computer-generated animation of the accident was unreliable because it was based on estimates and not actual measurements; (2) the trial court erred in denying Venegas’s motions for continuance; (3) the evidence was legally insufficient to support the jury’s verdict of aggravated assault based on Venegas’s driving "too fast;" and (4) the trial court erred in pronouncing sentence, a critical stage of the trial, without providing Venegas assistance of counsel. We affirm the trial court’s judgment.
On May 16, 2016, the day before testimony was scheduled to begin, defense counsel sought a thirty-day extension to allow his accident reconstruction expert to conduct his own independent calculations. Defense counsel’s argument relied on the State’s accident reconstruction report being provided to the defense two years and three months after the accident, but less than sixty-days prior to trial, and a supplemental report was completed on May 13, the week before trial. The State countered the supplemental report was simply a visual aid to assist the jury in understanding the mathematical calculations and that the State had provided defense counsel copies of the accident reconstruction video on December 8, 2014, February 5, 2015, and March 16, 2015. The trial court denied the motion for continuance.
On the morning of January 1, 2014, United States Border Patrol Agent Adan Berlanga, his wife, and Santiago Arando, were driving northbound on McPherson Street, Webb County, Texas, after picking up breakfast tacos.
Agent Berlanga testified that he noticed a black Hummer traveling southbound on McPherson, at a high rate of speed; he estimated the Hummer was traveling between eighty and one-hundred miles per hour, in a thirty-five mile per hour zone. Arando testified that he noticed the Hummer because "that truck was just going way too fast."
Agent Berlanga further described a silver Chevrolet Aveo stopped at the red light. The silver car had turned on her signal to "get back into the lane to go straight." Agent Berlanga testified that two or three seconds after the light turned green, the black Hummer slammed into the rear of the Aveo. He further testified that the Hummer did not stop after hitting the Aveo. After Agent Berlanga’s wife and Arando "jumped out" to assist the driver of the Aveo, Agent Berlanga left the scene, in an attempt to help locate the Hummer for law enforcement. Arando testified that they tried to communicate with the "lady in the silver car," but "she just stared forward, her eyes were open, she was just staring." The victim, Rosalinda Ramos, was conscious, but could not respond to verbal commands.
Based on information provided by Agent Berlanga and Air Interdiction Agent James Wyatt, Investigator Steven Moncivais and Laredo Police Officer James Boyd located the abandoned black Hummer, not far from the accident scene. It appeared as if the Hummer hit the curb and lost a tire; the Hummer was inoperable and empty. Both officers noted a significant amount of blood visible in the vehicle on the driver’s side of the interior compartment.
Investigator Valerie Mora determined the Hummer was registered to a female; however, no one answered at the address provided. Dispatch notified officers that the Hummer was involved in a traffic stop, shortly before the accident. Although Gerardo Venegas was identified as the driver during the traffic stop, he was not at the address he provided at the traffic stop. Investigator Mora obtained an address purported to be that of both Venegas and the Hummer’s registered owner; the officer was told there would be a white Mercedes located at the residence.
While the officers were locating the black Hummer, dispatch received information that following the accident, the driver of the black Hummer was picked up by a silver Pontiac Grand Prix. Air Interdiction Agent Wyatt assisted in locating the silver Pontiac and directing ground officers to its location. As officers arrived at the location, as directed by Agent Wyatt, Investigator Mora arrived at the same location looking for Venegas. A silver Pontiac Grand Prix and a white Mercedes were in the driveway. As the officers approached the front door, Investigator Mora noticed blood on the door handle. The officers rang the doorbell, and after several minutes, Venegas exited the house, and identified himself. His nose and mouth appeared to be swollen and red; and he appeared to have a busted lip. Venegas was detained, Mirandized , and escorted to the police station.
According to Officer Wesley Paredes, when Venegas arrived at booking, he was "very belligerent, was very rowdy, he was just acting up, cursing at the officers, being very disrespectful, combative." Venegas had a couple of cuts on his hands, fresh bloodstains on his clothes, a small cut on his mouth, his nose looked red and swollen, and his eyes were "glossy red." Officer Paredes further testified that Venegas had a strong odor of alcohol coming from his person, from his breath. He told the officer,
The jury heard testimony that the Laredo Police Department has a traffic accident crash team comprised of ten officers that respond to motor vehicle accidents with severe bodily injuries or fatalities. Each of the officers has specific duties including taking photographs, taking measurements, diagraming the scene, interviewing witnesses, collecting videos from security cameras, and securing evidence. Several of the officers testified and offered photographs and measurements. Investigator Luis Raines, a certified data crash specialist and accident reconstructionist, testified regarding the results of the overall investigation.
Investigator Raines began by explaining the difference between gouge marks—the indentions made in the pavement when two objects collide—and skid marks—the markings on the pavement when brakes are applied, lock up, and leave an imprint on the pavement. He further explained how the measurements, pictures, and videos are used to determine the speed of vehicles, the departure angles when the vehicles collide, the position in which the vehicles land, and the vehicles' resting points.
With respect to this accident, Investigator Raines testified the evidence showed the Hummer did not leave any skid marks, which meant Venegas did not apply his brakes prior to impact with Ramos’s vehicle. The officer further described a "back-distributed impact, equally distributed across the rear of the vehicle." The Hummer hit the Aveo hard enough, with enough speed, "that it made the front hood buckle." Investigator Raines testified that based on several factors, including a real-time video-recording taken shortly before impact, he estimated the Hummer was traveling at sixty-six miles per hour, pre-impact. The damage to the Aveo was so severe, it was difficult to determine the vehicle’s make and model.
Because Venegas told officers someone else was driving the vehicle, the State had to prove Venegas was the individual behind the wheel of the Hummer at the time of the accident. While Investigator Raines was determining the cause of the accident, Investigator Sanchez and Sergeant Claudia Gonzalez began collecting blood samples from the Hummer and the Grand Prix. From the Hummer,...
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...analysis. Texas intermediate courts of appeals have generally viewed such claims through the lens of Rule 403.43 For instance, in Venegas v. State , the San Antonio Court of Appeals held that the probative value of a computer animation depicting an accident reconstruction expert's testimony......
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...accident is admissible if it is based on calculations derived from inanimate objects and quantifiable measurements. Venegas v. State, 560 S.W.3d 337, 346-48 (Tex. App.—San Antonio 2018, no pet.). The City's attorney stated that the City was offering the animation to depict that Verastegui c......
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...not only bythis court but also by some of our sister courts as long as the animation is based on objective data. See, e.g., Venegas v. State, 560 S.W.3d 337, 347-48 (Tex. App.—San Antonio 2018, no pet.); Castanon v. State, No. 08-15-00225-CR, 2016 WL 6820559, at *3 (Tex. App.—El Paso Nov. 1......
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...and the impact of re-enactments is too highly prejudicial to insure the State or the defendant a fair trial"). Venegas v. State, 560 S.W.3d 337 (Tex. App.—San Antonio 2018, no pet.) ("When a staged, re-enactment involves human beings, it is impossible to duplicate every minute detail and is......