Neftali Cisneros v. State ( 2004 )

11th Court of Appeals

Eastland, Texas

Opinion

Neftali Cisneros

            Appellant

Vs.                  No. 11-03-00164-CR – Appeal from Taylor County

State of Texas

            Appellee

            The jury convicted Neftali Cisneros of the aggravated sexual assault of his ex-wife, and the trial court assessed his punishment at confinement for 35 years. We affirm.

            Appellant’s court-appointed counsel has filed a brief in which he reviews the indictment, the sufficiency of the evidence, the trial court’s evidentiary rulings, the judgment and the sentence, and the effectiveness of trial counsel and concludes that there are no arguable issues which might support an appeal. Counsel has furnished appellant with a copy of the brief and has advised appellant of his right to review the record and file a pro se brief. A pro se brief has not been filed. Counsel has complied with the procedures outlined in Anders v. California, 386 U.S. 738 (1967); Stafford v. State, 813 S.W.2d 503 (Tex.Cr.App.1991); High v. State, 573 S.W.2d 807 (Tex.Cr.App.1978); Currie v. State, 516 S.W.2d 684 (Tex.Cr.App.1974); and Gainous v. State, 436 S.W.2d 137 (Tex.Cr.App.1969).

            Following the procedures outlined in Anders, we have independently reviewed the record. In order to determine if the evidence is legally sufficient, we must review all of the evidence in the light most favorable to the verdict and determine whether any 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); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App.2000). In order to determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak as to render the conviction clearly wrong and manifestly unjust or whether the evidence supporting guilt, although adequate when taken alone, is so greatly outweighed by the overwhelming weight of contrary evidence as to render the conviction clearly wrong and manifestly unjust. Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Cr.App.2002); Goodman v. State, 66 S.W.3d 283 (Tex.Cr.App.2001); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Cr.App.2000); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996).

            The victim testified that, when she entered her home at 8:50 a.m., she noticed that the bathroom door was “cracked open.” She pushed the door open and found appellant standing in front of her with a hammer in his right hand. His right arm was raised over his shoulder, and she was afraid that he was going to hit her with the hammer. The victim testified that she “just took off running,” that appellant grabbed her by her hair, and that they struggled. She fell, and appellant fell on top of her. The victim screamed: “Please, stop” and “Help.” Appellant responded by telling her to “shut up” or he would beat her “f-----g head in with the hammer.”

            During the next two hours, appellant hit her on the head twice with the hammer, inserted first the head of the hammer and then the handle of the hammer into her rectum, cut the cord off of a curling iron and used it to bind her hands behind her back, cut her shirt off with a razor blade, held a knife to her neck, forced her to perform oral sex, and then penetrated her vaginally. During this time, appellant asked her if she “enjoyed pain”; told her that this was for the pain she had put him and their sons through; hit her in the head with the hammer to make her be quiet; told her if she was not quiet that he would beat her “f-----g head in with the hammer”; told her not to bother fighting because she was not going to live to see her boyfriend; and asked her if she would like to go to a “safe house” where he could torture her, she could scream, and no one would hear her. One time while she was on her stomach, the victim turned her head to see appellant holding the knife in one hand and the hammer in the other.

            After the sexual acts, appellant and the victim took a shower together. She followed his instructions because she was afraid of what he might do if she refused. Appellant was “nice” in the shower; however, when he selected the clothes that he wanted her to wear, appellant told her that “those were the clothes that [she] was going to wear on the day that [she] died.”

            Appellant put the curling iron cord together with her pants and underwear in a plastic bag and took the bag with him when he left. He also put the knife in his pocket. The victim convinced appellant to let her drive him to where he parked his mother’s car and then to let her follow him in her vehicle to an Easter egg hunt for one of their sons. When she had the opportunity, the victim turned and drove to the elementary school where their youngest son was a student and where she knew the people working in the school office. While she was driving, she noticed in her rear view mirror that appellant tried to make a U-turn to follow her.

            The victim testified that, during their ten-year marriage, she and appellant had experimented sexually with ice, fruit, and a curling iron. She had been drunk when appellant used the curling iron and did not remember. The victim testified, however, that they had not had “rough sex” during their relationship and that she did not want to do the type of things that occurred that day. The victim stated that she had had sex with appellant after their divorce because he would give her money.

            The medical testimony supported the victim’s statements that the various sexual acts were not consensual. Her labia area was tender which was consistent with non-consensual sex and blunt force trauma. Her rectum was red and tender, and her sphincter muscle was slightly relaxed. Both conditions were consistent with recent penetration. She had a “goose egg” or hematoma over her ear as the result of blunt force trauma and ligature marks on her wrist consistent with a cord pressing on her wrists. Her shoulders and upper arms were bruised. The back of her neck was tender which was consistent with being “roughed around and pulled by her hair.”

            At trial, it was undisputed that appellant and the victim had engaged in sexual activity. The issue was whether the victim had consented to the activity. The victim repeatedly stated that she did not consent to any of the sexual acts, and the medical evidence supported her denial of consensual sexual activity. A rational jury could have found beyond a reasonable doubt that appellant committed the offense of aggravated sexual assault. Likewise, the evidence supporting appellant’s guilt is neither so weak as to render the conviction clearly wrong and manifestly unjust nor so greatly outweighed by the overwhelming weight of contrary evidence as to render the conviction clearly wrong and manifestly unjust. We find that the evidence is both legally and factually sufficient to support the verdict.

            In considering the effectiveness of trial counsel, we must indulge a strong presumption that trial counsel’s conduct fell within the wide range of reasonable professional assistance; and appellant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Stafford v. State, supra at 508-09. The record reflects that trial counsel rendered reasonably effective assistance. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex.Cr.App.1999).

            Pursuant to TEX. PENAL CODE ANN. § 22.021 (Vernon Supp. 2004), aggravated sexual assault is a first degree felony. The range of punishment for the offense is confinement for life or for a term of not more than 99 years and not less than 5 years. TEX. PENAL CODE ANN. § 12.32 (Vernon 2003). Section 12.32 also authorizes an optional fine not to exceed $10,000. We note that the punishment assessed was well within the limits established by the legislature and was supported by the record and that the trial court did not abuse its discretion. Jackson v. State, 680 S.W.2d 809, 814 (Tex.Cr.App.1984); Salinas v. State, 9 S.W.3d 338, 340 (Tex.App. - San Antonio 1999, no pet’n); Flores v. State, 936 S.W.2d 478 (Tex.App. - Eastland 1996, pet’n ref’d); see Buerger v. State, 60 S.W.3d 358, 363 (Tex.App. - Houston [14th Dist.] 2001, pet’n ref’d); Ramirez v. State, 36 S.W.3d 660, 667 (Tex.App. - Waco 2001, pet’n ref’d).

            The record does not reflect any reversible error. We agree that the appeal is without merit.

            The judgment of the trial court is affirmed.

                                                                                    PER CURIAM

January 22, 2004

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

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.