Villegas v. State, No. 13-05-371-CR (Tex. App. 3/13/2008)
| Decision Date | 13 March 2008 |
| Docket Number | No. 13-05-371-CR.,13-05-371-CR. |
| Parties | ESTEBAN TREVINO VILLEGAS, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
On Appeal from the 92nd District Court of Hidalgo County, Texas.
Before Chief Justice VALDEZ and Justices GARZA and VELA.
A jury convicted appellant, Esteban Trevino Villegas, of capital murder of a child. Tex. Penal Code Ann. § 19.02(b)(1) (Vernon 2003), § 19.03 (Vernon Supp. 2007). The trial court assessed an automatic life sentence. Id. § 12.31(b). On appeal, appellant raises eleven issues, which, for purposes of organization, will be reordered, addressed as five, and referred to numerically as follows: (1) the evidence was legally insufficient to support a capital murder conviction; (2) the evidence was factually insufficient to support a capital murder conviction; (3) the trial court erred in denying appellant's motion for new trial based on newly discovered evidence and "in the interest of justice;" (4) the trial court abused its discretion in denying a new trial based upon the State's alleged withholding of material, exculpatory evidence; and (5) the State made inappropriate comments during closing arguments that improperly shifted the burden of proof to appellant, which constituted reversible error. We affirm.
On November 12, 2003, appellant's ten-week-old son, Alexander Noah Villegas ("Alex") stopped breathing while he was in appellant's sole care. Appellant reported that he had fed Alex at 11:00 a.m., Alex's usual meal time. Subsequently, appellant put Alex down for a nap and then discovered that Alex had stopped breathing at about 1:00 p.m. Alex was rushed to McAllen Medical Center, where doctors discovered that he had a large skull fracture and intracranial bleeding that had caused massive brain swelling. In addition, doctors found that Alex had twelve fractured ribs in various stages of healing, a fractured right arm bone, and fractures to both of his thigh bones.
Doctors conducted CT scans of Alex and found that he was brain dead. Furthermore, doctors reviewed the CT scans, other medical records, and appellant's statement that Alex was normal when he fed Alex at 11:00 a.m. and determined that the cause of Alex's injuries was child abuse, specifically shaken baby syndrome ("SBS") or shaken impact syndrome ("SIS").
In light of this information, appellant and his wife demanded a second opinion from Driscoll Children's Hospital ("Driscoll") in Corpus Christi. Doctors at Driscoll came to the same conclusion that Alex had been abused and that the abuse was the cause of his injuries. On November 15, 2003, Alex was pronounced dead. The Nueces County medical examiner concluded that Alex's cause of death was homicide by SBS or SIS.
On March 4, 2004, appellant was charged by indictment with one count of capital murder stemming from the death of his infant son, Alex. Tex. Penal Code Ann. § 19.02(b)(1), § 19.03(a)(8). On October 4, 2004, appellant filed a "MOTION TO PRODUCE EXCULPATORY AND MITIGATING EVIDENCE" pursuant toBrady v. Maryland, 373 U.S. 83 (1963). Subsequently, appellant pleaded not guilty to the crime alleged and proceeded to trial by jury in the 92nd District Court of Hidalgo County.
Trial commenced on January 17, 2005. At trial, the State's evidence demonstrated that Alex was normal and healthy until appellant was forced to miss his college classes for a fourth day in a row to babysit Alex on November 12, 2003. The State presented expert testimony from Alex's pediatrician—Jorge Kutagata, M.D., the obstetrician who delivered Alex—Mitchell Hughston, M.D., two pediatric intensive care physicians—Krishna Turlipati, M.D. and Karl Serrao, M.D., a pediatric resident—Beth Treviño, M.D., a pediatric neurologist—Wilson Sy, M.D., and the Nueces County medical examiner—Ray Fernandez, M.D., demonstrating that Alex's injuries could have only been caused by vigorous shaking and blunt force trauma to his head when left alone with appellant. Appellant presented two expert witnesses, his wife's current obstetrician/gynecologist—Ruben Martinez, M.D.—and an internist—Jerry Bush, M.D. Appellant also presented the testimony of Alex's mother, Ana Moya. All of appellant's witnesses testified that Alex's injuries were due to "acute infantile scurvy" or vitamin C deficiency.
The jury found appellant guilty of capital murder; however, the State did not seek the death penalty. On February 9, 2005, appellant received the automatic sentence of life imprisonment. Subsequently, on March 10, 2005, appellant filed a motion for new trial with the trial court based upon newly discovered evidence regarding Dr. Cesar Costa-Luna's expert opinion that the date of occurrence of Alex's linear skull fracture cannot be determined unless a microscopic slide examination is performed. Appellant's motion also complained of the failure of the State to disclose exculpatory evidence pertaining to statements made by Anastasio Farias, an employee of Pro Medic EMS and a prosecution witness, that were allegedly favorable to appellant.
On March 11, 2005, appellant filed an amended motion for new trial reasserting the contentions he raised in his original motion for new trial and alleging that the jury's verdict does not comply with rule 21.3(c) of the Texas Rules of Appellate Procedure.1 See Tex. R. App. P. 21.3(c) (). On April 21, 2005, the State filed a motion to strike the juror affidavits appellant relied upon in his amended motion for new trial. The trial court subsequently granted the State's motion to strike.2 After a hearing, the trial court denied appellant's original and amended motions for new trial on April 25, 2005.3 This appeal ensued.
By his first issue, appellant contends that the evidence supporting his capital murder conviction is neither legally nor factually sufficient. In support of this contention, appellant argues that: (1) the fact that the evidence tended to show that appellant was the last person to be seen with the child is insufficient to sustain the conviction and (2) newly discovered expert, Dr. Costa-Luna, opined that the fracture Alex sustained could not be dated without a microscopic examination, and testimony from other physicians regarding the fracture is mere speculation and therefore unreliable. Conversely, the State contends that: (1) appellant has provided "numerous highly improbable explanations of his son's injuries;" (2) appellant waived any objection to the reliability of the State's expert witnesses; and (3) the State was not required to perform any particular scientific test to properly establish causation.
In a legal sufficiency review, we view the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Watson v. State, 204 S.W.3d 404, 414-17 (Tex. Crim. App. 2006). The trier of fact is the sole judge of the facts, the credibility of the witnesses, and the weight given to testimony. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Jackson, 443 U.S. at 318-39;Beckham v. State, 29 S.W.3d 148, 151 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd). We do not reevaluate the weight and credibility of the evidence, whether circumstantial or direct, nor do we substitute our own judgment for that of the trier of fact. Mosley v. State, 141 S.W.3d 816, 821 (Tex. App.-Texarkana 2004, pet. ref'd); Beckham, 29 S.W.3d at 151. Instead, we consider whether the jury reached a rational decision. Beckham, 29 S.W.3d at 151.
In legal sufficiency review, each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993); Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994); Alexander v. State, 740 S.W.2d 749, 758 (Tex. Crim. App. 1987)). Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor; circumstantial evidence alone can be sufficient to establish guilt. Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). On appeal, both circumstantial and direct evidence cases are examined using the same standard of review. Id.
We measure the sufficiency of the evidence by the elements of the offense as defined by the hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997);Adi v. State, 94 S.W.3d 124, 131 (Tex. App.-Corpus Christi 2002, pet. ref'd). "Such a charge would accurately set out the law, would be authorized by the indictment, and would not unnecessarily increase the State's burden of proof." Malik, 953 S.W.2d at 240. The elements of the charged offense in this case are: (1) appellant intentionally or knowingly caused the death of an individual; and (2) the individual was under six years of age. See Tex. Penal Code Ann. § 19.02(b)(1), § 19.03(a)(8). A successful legal sufficiency challenge will result in the rendition of an acquittal by the reviewing court. Adi, 94 S.W.3d at 128 (citing Tibbs v. Florida, 457 U.S. 31, 41-42 (1982)).
In his first sub-issue, appellant argues that the State's evidence was legally insufficient as to identity. In support of his contention, appellant cites to a litany of cases and compares the strength of evidence...
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