Nick Anthony Arredondo v. State ( 2005 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Nick Anthony Arredondo

Appellant

Vs.                   No. 11-04-00024-CR -- Appeal from Dawson County

State of Texas

Appellee

Nick Anthony Arredondo appeals his conviction by a jury of the offenses of assault-family violence, aggravated sexual assault, and two counts of sexual assault.  The jury assessed his punishment at 10 years in the Texas Department of Criminal Justice, Institutional Division, and a fine of $10,000, for the offense of assault-family violence; 20 years in the Texas Department of Criminal Justice, Institutional Division, for the offense of aggravated sexual assault; and 2 years in the Texas Department of Criminal Justice, Institutional Division, on each count of sexual assault.  He contends in two points that (1) the trial court erred by admitting his prior testimony from a protective order hearing, in violation of his right not to be compelled to be a witness against himself and (2) the evidence is legally and factually insufficient to support his convictions for aggravated sexual assault and sexual assault.  He presents no point complaining of error with respect to his conviction of the offense of assault-family violence.  We affirm.

Arredondo contends in point two that the evidence is legally and factually insufficient to support his convictions for the offenses of sexual assault and sexual assault. In a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict and then determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307 (1979).  In a factual sufficiency review, we view all of the evidence in a neutral light; and we will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust or if the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met.  Zuniga v. State, 144 S.W.3d 477 (Tex.Cr.App.2004).

Arredondo=s conviction for aggravated sexual assault was for penetrating or contacting the complainant=s female sexual organ with his male sexual organ on or about May 1, 1998, when the complainant was younger than 14 and not his spouse.  His two convictions for sexual assault were for the same conduct with the complainant when she was younger than 17 and not his spouse on or about March 27, 1999, and September 14, 2000.

The State introduced the complainant=s birth certificate, showing that she was born on May 14, 1984.  Janie Barron testified that she raised the complainant from the time she was born on May 14, 1984.  She indicated that the complainant got pregnant and had a baby when she was around 14 years old.  The child=s birth certificate shows that the child was born on December 27, 1999.  Barron stated that Arredondo is the child=s father.  Barron confirmed that the complainant got pregnant again when she was 16 years old and had another baby.  That child=s birth certificate indicates that the child was born on June 14, 2001.  Barron also identified Arredondo as the father of the second child.  Barron acknowledged that, when the complainant was 15, Barron had signed for the complainant to get a marriage license to marry Arredondo but that the couple never did marry.

Gloria Contreras, a licensed vocational nurse, testified that she took a buccal swab from Arredondo and the complainant=s two children for paternity testing.  Larry Flenniken, a detective with the Lamesa Police Department, confirmed the taking of the DNA samples to which Contreras had referred.  He said that he mailed the samples to the lab that was going to test them.

Dr. Raj Pandrangi testified that he is an associate director of Orchid Genescreen, a biotechnology company leading the paternity division.  He said that the purpose of the paternity testing is to determine Awhether a child belongs to which parent or not.@  He indicated that his testing showed that the probability that Arredondo was the father of the two children is 99.99 percent for the first child and 99.95 percent for the second child.  He stated that in his opinion Arredondo was the father of the two children.

Louis Harold Aten, a probation officer for Dawson County, testified that, when Arredondo gave information to him for his file in a case, Arredondo said that he was single at the time of the intake, January 16, 2001.  Johnny Sauseda, jail administrator for the Dawson County Sheriff=s Department, testified that, when Arredondo was booked into jail on November 23, 2000; April 28, 2001; October 16, 2001; November 19, 2002; and December 29, 2002, he indicated each time that he was single.

Alex Sauseda, a Lamesa police officer, testified that on November 22, 2000, when the complainant waved him over, he stopped Arredondo and the complainant, who were together in a car.  He indicated that, after stopping their vehicle, he noticed that the complainant was bleeding from the mouth.  He acknowledged that Arredondo told him that the complainant was his spouse.

Evidence was presented showing that, in a prior hearing in which the complainant was seeking a protective order, Arredondo acknowledged that he began having sex with the complainant when he was 17.  He further acknowledged that they were 5 years apart in age.  We hold that the evidence is legally and factually sufficient to support Arredondo=s convictions for aggravated sexual assault and sexual assault.  As noted by the State, Arredondo=s claim is based  upon two false legal premises.  First, he refers to his allegation that his testimony from the hearing on the protective order was improperly admitted into evidence, but ignores the fact that even evidence that might be improperly admitted is considered when the evidence is reviewed for sufficiency.  See Dewberry v. State, 4 S.W.3d 735, 739 (Tex.Cr.App.1999). Second, he relies on the reasonable hypothesis construct, suggesting that the evidence of penetration is circumstantial and that there is a reasonable hypothesis other than his guilt that has not been disproved.  The reasonable hypothesis construct has been rejected as a method of appellate review for evidentiary sufficiency in the appellate courts of Texas.  Geesa v. State, 820 S.W.2d 154, 161 (Tex.Cr.App.1991), rev=d in part on other grounds by Paulson v. State, 28 S.W.3d 570, 573 (Tex.Cr.App.2000); see Taylor v. State, 10 S.W.3d 673, 679 (Tex.Cr.App.2000); Wilson v. State, 7 S.W.3d 136, 141 (Tex.Cr.App.1999).  We overrule point two.

Arredondo urges in point one that the trial court erred by allowing into evidence his testimony from a prior hearing on a protective order, suggesting that it violated his right not to incriminate himself because he was not warned of that right prior to testifying.  If a witness under compulsion to testify makes disclosures instead of claiming the privilege, the government has not compelled him to incriminate himself.  Minnesota v. Murphy, 465 U.S. 420 (1984).  An individual may lose the benefit of the privilege not to be a witness against himself or herself without making a knowing and intelligent waiver.  Id. In urging that the State must show that he waived his right not to be a witness against himself, and that it failed to do so, Arredondo relies primarily upon the cases of Carroll v. State, 975 S.W.2d 630, 632 (Tex.Cr.App.1998); Robles v. State, 577 S.W.2d 699, 705 (Tex.Cr.App.1979); Allen v. State, 188 S.W. 979 (Tex.Cr.App.1916); and Dillard v. State, 640 S.W.2d 85, 86 (Tex.App. - Fort Worth 1982, no pet=n) 

We find all of these cases to be distinguishable.  In Carroll, the court held that, when a defendant in connection with his plea of guilty waived his right not to incriminate himself, he could be compelled to testify because of the waiver.  Carroll v. State, supra at 632.  In Robles, the court reversed the conviction because the case did not show a waiver of the defendant=s right to counsel.  Robles v. State, supra at 705.  In both Allen and Dillard, the court held that it was error to allow testimony concerning the defendant=s grand jury testimony where the defendant had not been warned of his or her right against self-incrimination.  Allen v. State, supra at 979; Dillard v. State, supra at 86.   Unlike the case at bar, none of these cases relates to instances where a defendant has testified in a civil proceeding that is not a part of the investigation of the crime of which he is accused.  We overrule point one. 

The judgment is affirmed.

PER CURIAM

September 29, 2005

Do not publish.  See TEX.R.APP.P. 47.2(b).

Panel consists of: Wright, J., and

McCall, J., and Hill, J.^[1]

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^[1]John G. Hill, Former Chief Justice, Court of Appeals, 2nd District of Texas at Fort Worth sitting by assignment.