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Court of Appeals of Texas, Dallas.


No. 05–09–01024–CR

Decided: November 18, 2011

Before Justices FitzGerald, Francis, and Lang–Miers


Opinion By Justice Francis

Juan Heuerto Garcia appeals his conviction for sexual assault.   After the jury found him guilty, the trial court assessed punishment, enhanced by two prior convictions, at sixty-five years in prison.   In two issues, appellant claims the evidence is legally insufficient to support his conviction and the trial court erred in refusing to give the jurors certain evidence during their deliberations.   We affirm.

In his first issue, appellant claims the evidence is legally insufficient to support his conviction.   Appellant contends no rational trier of facts could conclude the sexual contact between appellant and the victim was not consensual because R.B. was so intoxicated at the time and appellant allowed her to use his brother's cell phone that night to make a call.

In reviewing a challenge to the sufficiency of the evidence, we review the evidence in the light most favorable to the jury's verdicts to determine whether any rational trier of fact could have found the essential elements of the offenses beyond a reasonable doubt.   See Jackson v. Virginia, 443 U.S. 307, 319 (1979);  Hooper v. State, 214 S.W.3d 9, 14 (Tex.Crim.App.2007).   We give deference to “the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.”  Hooper, 214 S.W.3d at 14.   The jury is the sole judge of the witnesses' credibility and the weight to be given their testimony and therefore, is free to accept or reject any or all evidence presented by either side.   See Lancon v. State, 253 S.W.3d 699, 707 (Tex.Crim.App.2008).   A person commits an offense if he intentionally or knowingly causes the penetration of another person's sexual organ by any means, without that person's consent.  Tex. Penal Code Ann. § 22.011(a)(1)(A) (West 2011).   The indictment and jury charge in this case alleged appellant intentionally or knowingly caused the penetration of R.B.'s female sexual organ by his sexual organ without her consent.

R.B. testified she grew up in West Texas but moved to Irving to live with Pagan.   On July 8, 2005, the couple went to the Granada Theater to a concert.   R.B. had a couple of beers and a couple of mixed drinks, and later wanted to smoke a cigarette.   Although Pagan did not want her to do so, she approached a group of people, asked for a cigarette, and smoked it.   When she returned to where Pagan had been standing, he was gone.

R.B. looked for Pagan for about an hour.   She had her cell phone but could not call him because the battery was dead.   The concert ended, and she borrowed someone's cell phone to call Pagan.   He did not answer, but she left him a message.   She was getting scared and began crying.   People were leaving the theater, and she did not know how to get home.   She walked out in the parking lot where she saw a pickup truck with three men.   One of the doors opened, and a man in the back seat asked her what was wrong.   She briefly told him what had happened, adding that she had no money, identification, or cell phone.   She then asked if they could give her a ride to the convenience store on Esters Road, near her apartment.   The men agreed to do so.

R.B. got in the backseat next to a man called George.   She asked if she could use a cell phone to call Pagan and one of the men handed her a phone.   Pagan did not answer, but she again left a message.   George was the only man who talked to her;  the driver and the passenger in the front seat spoke to each other and to George in Spanish.   R.B. told George she was scared because she was not familiar with Dallas and had heard about murders and rapes in the area.   When the pickup stopped moving, R.B. realized they were not at the convenience store but in a warehouse district.   George then told her what she said she feared was in fact going to happen to her.

The men in the front seat pulled her into the front seat by her legs.   She kicked and screamed but they removed her shoes, socks, pants, belt, and underwear.   When she continued to fight, they hit and punched her in the face.   The front seat passenger then straddled her face and forced her to perform oral sex while the driver placed his penis in her vagina and repeated assaulted her.   At some point, she felt “somebody in [her] rectum” and assumed it had to be George.   The men flipped her over, and the driver sexually assaulted her anally.   The driver dragged her out of the pickup and onto the grass where he continued to rape her.   By then, the other two were just watching.   R.B. begged them to let her go and to not kill her.   George finally told the driver to leave her alone and that they needed to go.   When the driver finally stopped, George put R.B.'s underwear and pants on her.   She did not have her shoes, socks, or belt, nor did she have the rings she was wearing that night.   The men drove off.

Unfamiliar with her location, R.B. began walking, looking for an open business.   By the time she arrived at the Odyssey Adult Bookstore, she was hysterical and crying.   A customer gave her a cell phone and she called 9–1–1.   She also called Pagan who was driving home from the Granada Theater and he drove to the bookstore where he found her.   Paramedics arrived and transported her to Parkland Hospital where she was given a rape examination and spoke with several officers.   After she was released, she and Pagan returned to the location of the assault to look for her rings, of sentimental value because her mother had given them to her.   Although they were unable to find the rings, they did find one of her earrings and a link to the belt she was wearing that night.

R.B. identified the clothing she was wearing on the night of the assault, noting the many blood and grass stains.   She could not identify appellant in a photographic line up nor could she identify him at trial.   R.B. told the jury she did not voluntarily have sex with appellant.

When Pagan arrived at the bookstore, R.B. was sitting on the steps, crying, shaking, and holding herself.   She had blood all over her face and “stuff” in her hair.   Pagan described it as being “like something out of a horror movie.”   R.B. told him she used the cell phone of one her assailants;  Pagan passed this information on to the police.   In the days following the assault, R.B. had bruises and swelling all over her body.   The bridge of her nose and area around one eye turned black and yellow.

Police traced the phone number Pagan gave them to a man named Juan Pablo Garcia (later identified as appellant's brother).   Detective Paul King got a buccal swab from Garcia for DNA testing, but the DNA did not match that found on R.B. Although there was insufficient evidence to charge him, King believed Garcia was the front seat passenger.   Appellant occasionally lived at the same address as Garcia, and his DNA was also tested.   Ken Balagot, formerly a forensic biologist with the Southwestern Institute of Forensic Sciences, stated the DNA taken from appellant's buccal swab matched that taken from R.B's rape examination, specifically the anal and vaginal swabs.

Dr. Muriel Boreham was on call when R.B. was taken to Parkland and examined her the following morning.   R.B. reported being assaulted vaginally, anally, and orally by three men.   R.B. also reported she had one shot of liquor and three drinks over the course of the previous evening.   Although her toxicology report showed a .10 blood alcohol level, Dr. Boreham stated R.B. did not appear intoxicated nor did her prior night's consumption appear to interfere with R.B.'s ability to communicate.

R.B. had facial trauma, including a deep red mark across the bridge of her nose which was most likely an early bruise, multiple abrasions and welts, red marks across her buttocks and back that looked like they were from grass, and a skinned left calf and inner right ankle.   Dr. Boreham recalled picking burrs and leaves out of R.B.'s hair for evidence, remarking that it was “unusual.”   When asked to elaborate on what she meant, the doctor replied that fewer than five percent of all sexual assault patients have physical trauma and to have as much trauma as R.B. did was unusual.

In contrast, appellant told the jury he attended the concert that night alone.   As he got ready to leave, R.B. flagged him down and asked for a ride.   She was “wobbling” and she appeared drunk.   He thought she might fall down so he pulled over and let her in the truck.   They talked as he drove and she appeared to be upset at her boyfriend.   He tried to comfort her and calm her down.   She repeatedly asked him not to leave her and began to kiss his neck.   He eventually pulled over because she was kissing him “all over” and it was difficult to drive.   They kissed and later had sexual intercourse.   He then let her borrow his brother's cell phone to make a call while he continued driving toward Irving.   When R.B. told him to take her to her apartment and that her boyfriend would be there, he refused.   He stopped the truck, made her get out, and drove away.   According to appellant, he was the only man in the truck that evening and the sexual intercourse was consensual.   He denied hitting R.B. and sexually assaulting her anally although he conceded she gave him oral sex before he penetrated her vaginally with his penis.   Appellant also claimed they did not leave the truck during their sexual intercourse.

Appellant claims the evidence shows the sexual intercourse was consensual because R.B. was intoxicated and he allowed her to use his brother's cell phone after they had sex.   He does not argue how R.B.'s intoxication makes the intercourse consensual;  with respect to the cell phone use, he states, “No one contemplating the assault ․ would leave such a clear and obvious trail to their identity.”   The jury, however, was the fact finder and, after hearing the evidence, rejected appellant's interpretation of the events that evening.   Viewing the record in the light most favorable to the judgment, we conclude a rational jury could have found beyond a reasonable doubt that appellant sexually assaulted R.B. We overrule his first issue.

In his second issue, appellant claims the trial court erred in refusing to give the jury certain testimony requested during deliberations as permitted by article 36.28 of the code of criminal procedure.   He argues the error was clearly harmful because the jury found him guilty “without resolving their dispute” on the testimony at issue.

To preserve a complaint that the trial court did not comply with article 36.28, a defendant must either object or file a formal bill of exception.   Hollins v. State, 805 S.W.2d 475, 476 (Tex.Crim.App.1991);  Boatwright v. State, 933 S.W.2d 309, 311 (Tex.App.—Houston [14th Dist.] 1996, no pet.).   When error is not preserved by one of these methods, the trial court's actions are presumed to be in compliance with the requirements of the statute, and any alleged error is waived.  Hollins, 805 S.W.2d at 477;  Williamson v. State, 771 S.W.2d 601, 605 (Tex.App.—Dallas 1989, pet. ref'd).

Here, the jurors sent a note requesting “all the testimony” and later the testimony of R.B. “pertaining to being taken out of the truck and having sex on the ground.”   In response, the trial court instructed the jurors to continue deliberations.   The jurors later sent a note requesting the testimony of three witnesses without specifying a particular disagreement about the evidence.   The following morning, the trial court instructed the jurors that testimony could be read only when they had a dispute over a particular portion of the testimony.   The trial court sent the jurors back for further deliberations.   The next communication from the jury was that a verdict had been reached.

At no time did appellant object to the trial court's instructions or to the failure to allow testimony to be read to the jury.   Nor did appellant request the trial court provide any portion of the testimony to the jurors.   Likewise, appellant did not file a bill of exception.   Because he did not object or file a bill of exception, we conclude he has failed to preserve error, if any.   See Hollins, 805 S.W.2d at 477.   We overrule appellant's second issue.

We affirm the trial court's judgment.


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