Ruben Lopez v. State ( 2011 )

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Opinion issued June 30, 2011



In The

Court of Appeals

For The

First District of Texas

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NO. 01-10-00543-CR

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RUBEN LOPEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 176th District Court

Harris County, Texas

Trial Court Case No. 1184459

MEMORANDUM OPINION

          A jury found appellant, Ruben Lopez, guilty of aggravated sexual assault.[1] Appellant pleaded true to one felony-enhancement allegation, and the jury assessed appellant’s punishment at 80 years in prison. In one issue, appellant contends that the trial court erred when it denied his motion for directed verdict in which he argued that the State had failed to offer sufficient evidence to establish venue.

          We affirm.

Background

          In September 2008, the complainant, Y.M., lived with her six minor children in a trailer home off Aldine Westfield Road. At that time, Y.M. was not able to pay the rent on the trailer. Y.M. heard that she could get a loan by using her car title as collateral. Y.M. searched for a place that would give her such a loan. As a result of the search, Y.M. found appellant, a car mechanic. Appellant told Y.M. that he would fix her car, which had been damaged by Hurricane Ike, and said that he could give her a loan for her car title.

          The next night, appellant came to Y.M.’s home. Appellant told Y.M. that he would loan $1,500 to her but stated that they needed to go to his brother’s house to get the money. Y.M. agreed and got in appellant’s car. Y.M. did not know where appellant’s brother lived, but was familiar with the main streets that appellant took en route. Appellant then turned onto a dark side street with which Y.M. was not familiar. Appellant was drinking a beer while driving. When Y.M. asked him to stop drinking, appellant called her derogatory names and became angry.

Appellant pulled into an empty lot and held a knife to Y.M.’s side. Y.M. begged him not to kill her because she had children. Appellant responded by threatening her children. Appellant then told Y.M. to take off her clothes. After she took off her clothes, appellant put away the knife and started choking Y.M. Appellant got out of the car and physically removed Y.M. from the vehicle. Y.M. tried to run away but appellant grabbed her. Appellant choked Y.M. again and made her lie down on the grass. Appellant continued to choke Y.M. and had sexual intercourse with her. After appellant allowed Y.M. to get back into the car, appellant continued to engage in sexual intercourse with Y.M. When he had finished, appellant retrieved a handgun from the backseat and threatened to kill Y.M. Appellant then allowed Y.M. to get dressed and said that they were leaving. After driving a short distance from the lot, appellant ran over a branch, which got stuck on the undercarriage of the car.

At that time, much of the area was without electricity following Hurricane Ike. Y.M. convinced appellant to drive to a Texaco gas station that had electricity. Appellant parked at the Texaco. While appellant was under the car trying to dislodge the branch, Y.M. got out and ran into the Texaco store where the clerk was working. She told the clerk that she had been raped, and the clerk called the police. While they waited for the police, appellant came in and tried to convince Y.M. to leave with him. She refused, and appellant left in his car.

The police arrived a short time later. Y.M. told the officers about the sexual assault. After the police took her home to check on her children, Y.M. was transported to the hospital for a sexual-assault examination. The forensic nurse conducting the examination noted that Y.M. had red bruising on her neck. The nurse collected samples from Y.M. for DNA analysis. A laboratory analysis confirmed that appellant’s sperm was in the vaginal and perineal swabs taken from Y.M. during the examination.

          Appellant was arrested and charged with the offense of aggravated sexual assault. The indictment alleged that the offense had been committed in Harris County, Texas. The indictment also included an enhancement paragraph alleging that appellant had been previously convicted of the felony offense of theft.

          The case was tried to a jury. At the close of the State’s case, appellant moved for directed verdict. Appellant argued that the State had failed to prove that Y.M. was sexually assaulted in Harris County. The trial court denied the motion.

          The jury found appellant guilty of aggravated sexual assault as alleged in the indictment. Appellant pleaded guilty to the enhancement allegation. The jury assessed punishment at 80 years in prison. This appeal followed.

Motion for Directed Verdict Based on Venue Challenge

          In one issue, appellant asserts, “The trial court committed reversible error by denying appellants motion for a directed verdict because the State failed to establish venue in Harris County.” More specifically, appellant contends that the State failed to “prove that the offense occurred in Harris County,” as was alleged in the indictment.

A.      Legal Principles: Sufficiency Review for Establishing Venue

          We view a challenge to a trial court’s denial of a motion for instructed verdict on the ground that venue was not proven as an attack on the sufficiency of the evidence to establish venue. Thierry v. State, 288 S.W.3d 80, 90 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d). Although it must be established, venue is not a “criminative fact” and thus not a constituent element of an offense. Id. (citing Fairfield v. State, 610 S.W.2d 771, 779 (Tex. Crim. App. 1981)). As a result, the State need only prove venue by a preponderance of the evidence. Id.; see also Tex. Code Crim. Proc. Ann. art. 13.17 (Vernon 2005). Because it is not an essential element of an offense, the sufficiency of the evidence to establish venue is not reviewed under the traditional Jackson v. Virginia[2] standard, nor any other standard established for reviewing the sufficiency of the essential elements of an offense. Thierry, 288 S.W.3d at 90. Rather, we determine whether the trier of fact could reasonably conclude from the evidence that the offense was committed in the county alleged. Id. (citing Rippee v. State, 384 S.W.2d 717, 718 (Tex. Crim. App. 1964)).

B.      Analysis: Sufficiency of Evidence to Establish Venue in Harris County

          Here, the indictment alleged, and the jury implicitly found, that appellant committed the offense of aggravated sexual assault against Y.M. in Harris County. We must determine whether the jury could have reasonably concluded from the evidence that the offense had been committed in Harris County.

          At trial, the evidence showed that although she knew the general area where she had been sexually assaulted, Y.M. was not able to tell the investigating police officers the specific location of the abandoned lot where she had been attacked. Y.M. testified that not long before trial, however, a police investigator had contacted her and requested that she make an attempt to locate the place where she had been assaulted. Y.M. testified that she and a friend drove to the area. Y.M. stated that while they drove around, she recognized the abandoned lot where she had been sexually assaulted. The lot was on Raymac Street. Y.M. testified that she was able to identify the lot by surrounding landmarks. She stated that she got out of the car and walked around the lot to be certain that it was the location where she had been sexually assaulted.

Y.M also testified that when she and appellant were driving before he assaulted her, she knew that they were driving down Airline Drive. Y.M.’s testimony indicates that appellant turned from Airline Drive onto the street, which she later determined to be Raymac Street, where she was sexually assaulted. Y.M. confirmed that when they turned off Airline Drive they were still in Harris County.

One of the investigating police officers testified that the Texaco station to which Y.M. escaped is located in Harris County. The officer also testified that Harris County extends for 10 miles in all directions from the Texaco station. The State introduced an aerial photographic map on which Y.M. identified the location of the Texaco station and the location on Raymac where she was sexually assaulted. The map shows that the Raymac location and the Texaco are in the same area.

In addition, Y.M. testified that the branch got stuck under appellant’s car a short distance from the lot on Raymac. When asked whether, at the time, she knew where she was, she said that she knew they were “near Airline.” When asked, Y.M. confirmed that the location was in Harris County.

In his brief, appellant intimates that certain evidence undermines the credibility of Y.M.’s testimony, including her testimony supporting a finding that the sexual assault occurred in Harris County. Appellant points out that when she initially spoke to the police, Y.M. did not know the exact location of where she had been sexually assaulted. One investigating officer testified that Y.M. had indicated that she knew the general area of where she had been attacked. Another officer testified that Y.M. knew that the attack had occurred “in the area of Airline,” which the officer confirmed was in Harris County.

Appellant also points out that when the prosecutor asked Y.M. whether she had “traveled in the neighborhood” since the attack to determine whether she could remember the exact location of the assault, Y.M. responded, “No.” The prosecutor then rephrased the questioned and asked Y.M., “Did you recently drive to the scene?” Y.M. responded in the affirmative and described how she was able to locate the abandoned lot where she had been sexually assaulted.

Appellant further points out that Y.M. referred to the location of the sexual assault as a “wooded lot,” but then at another time, she referred to it as an “abandoned lot.” When asked about the distinction, Y.M. testified it was the “same thing” to her.

The credibility of the witnesses and their testimony is within the domain of those matters entrusted to a jury for resolution. Tex. Code Crim. Proc. art. 38.04 (Vernon 1979); Sudds v. State, 140 S.W.3d 813, 818 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (explaining jury’s right to judge credibility of complaining witness and resolve any inconsistency in testimony relevant to venue). To the extent there were inconsistencies in Y.M.’s own testimony, between her testimony and that of the other witnesses, or between her testimony and what she may have stated earlier to the police, such conflicts were matters to be resolved by the jury in determining the credibility and weight to be accorded her testimony. See Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998); Sudds, 140 S.W.3d at 818.

Appellant also cites evidence weighing against a finding that the offense was committed in Harris County. Appellant asserts that the evidence shows that Y.M. was uncertain how long she was with appellant the night of the offense and asserts that “it was probably at least four hours.” He contends, “In four hours, a lot of distance can be driven, including [to] areas outside of Harris County.” Appellant appears to base this calculation on Y.M.’s cross-examination testimony that she believed that she got in the car with appellant between 7:00 p.m. and 8:00 p.m., and evidence that the police were not called to the Texaco station until approximately midnight.

In this line of questioning, however, Y.M. also stated that she “[did] not recall” what time the police were called “because I was focusing on what had happened to me, not the hour.” When the defense asked Y.M., “So then you were in the vehicle with Mr. Lopez from 8:00 o’clock at night ’til midnight, for four hours,” Y.M. responded, “Yes, where he—to the place where he took me and abused me.”

Although it could have inferred from the evidence that appellant and Y.M. were driving for nearly four hours, nothing required the jury to draw such inference. From Y.M.’s testimony, the jury could have reasonably inferred that the amount of time that Y.M. was with appellant is uncertain because Y.M. was traumatized by the sexual assault, or it could have reasonably believed that appellant was assaulting Y.M. for most of the four hours.[3]

Appellant also contends that the evidence is not sufficient to support the venue finding because the State did not offer evidence directly showing that the abandoned lot on Raymac identified by Y.M. was in Harris County. Appellant asserts that the State showed only that the site was in an area and provided only a “vague location.” Appellant also points out that a map proffered by the State to show venue “had no indicators of county lines or any other jurisdictional markers.”

Venue may be proved by direct or circumstantial evidence, Black v. State, 645 S.W.2d 789, 790 (Tex. Crim. App. 1983), and a jury may make reasonable inferences from the evidence to decide the issue of venue. Thierry, 288 S.W.3d at 92 (citing Edwards v. State, 97 S.W.3d 279, 285 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d)). Here, the record shows that Y.M testified that when she and appellant were driving before the assault, she knew that they were driving down Airline Drive. Y.M.’s testimony indicates that appellant turned from Airline Drive onto the street, which she later determined to be Raymac Street, where she was sexually assaulted. Y.M. confirmed that when they turned off Airline Drive they were still in Harris County. One of the investigating officers testified that Y.M. knew that the attack had occurred “in the area of Airline,” which the officer confirmed was in Harris County. Y.M. also testified that the branch got stuck under appellant’s car after they had driven a short distance from the lot on Raymac. When asked whether she knew where she was at the time, Y.M. stated that she knew they were “near Airline.” Y.M. confirmed that the location was in Harris County.

One of the investigating police officers testified that the Texaco station to which Y.M. escaped is located in Harris County. The officer also testified that Harris County extends for 10 miles in all directions from the Texaco station. The State introduced an aerial photographic map on which Y.M. identified the location of the Texaco station and the location on Raymac where she was sexually assaulted. The map shows that the Raymac location and the Texaco are in the same area.

To reiterate, venue need not be proved beyond a reasonable doubt but may be shown by a preponderance of the evidence. See Rippee, 384 S.W.2d at 718; see also Murphy v. State, 112 S.W.3d 592, 604 (Tex. Crim. App. 2003) (citing Tex. Code Crim. Proc. Ann. art. 13.17). Here, the State offered sufficient evidence to meet its burden. We conclude the jury could have reasonably concluded from the evidence that appellant sexually assaulted Y.M. in Harris County.[4] See Rippee, 384 S.W.2d at 718; see also Vanschoyck v. State, 189 S.W.3d 333, 335–36 (Tex. App.—Texarkana 2006, pet. ref’d) (holding that venue established by preponderance of evidence in case in which victim testified that sexual assault occurred “around the Lodi road, a blacktop”; investigator testified that “no one knew exactly the location. It was somewhere in the Lodi area, which is in the south part of the county”; investigator was further asked, “and that’s in Cass County, correct?” to which he answered, “Yes,” and there was no evidence to contrary).

We hold that the trial court did not err when it denied appellant’s motion for directed verdict. We overrule appellant’s sole issue.

Conclusion

          We affirm the judgment of the trial court.

                                                                   Laura Carter Higley

                                                                   Justice

Panel consists of Justices Jennings, Higley, and Brown.

Do not publish. Tex. R. App. P. 47.2(b).

[1]           See Tex. Penal Code Ann. § 22.021 (Vernon 2011).

[2]        443 U.S. 307, 99 S. Ct. 2781, (1979).

[3]        Appellant’s argument regarding the amount of time appellant and Y.M. were together rings similar to the “reasonable hypotheses” standard, which required the evidence to exclude every reasonable hypothesis inconsistent with the appellant’s guilt. However, the Court of Criminal Appeals abolished the “reasonable hypotheses” standard in Geesa v. State, 820 S.W.2d 154, 161 (Tex. Crim. App. 1991), overruled on other grounds by Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000).

[4]        Appellant argues that under the authority of Black v. State, 645 S.W.2d 789, 790 (Tex. Crim. App. 1983), the State failed to prove that Harris County was the proper venue. We note that the facts of Black are distinct from the instant case in significant aspects. In Black, the appellant challenged his conviction for possession of marijuana and argued that the State failed to prove that the offense occurred in Smith County, as alleged in the information. Id. There, the only evidence offered to prove venue was the testimony of two police officers, who testified that they worked for Tyler Police Department. See id. at 790–91. One officer testified that he was “in the twenty-one hundred block of North Alfred” on the day of the appellant’s arrest, and the other officer testified that he was “on duty” and assisted the other officer in arresting the appellant. Id. The Court of Criminal Appeals concluded that because the record was otherwise “devoid of either direct or circumstantial evidence relating to venue,” the State failed to establish venue. Id. In contrast, here, there is ample evidence, including Y.M.’s testimony, the police officers’ testimony, and maps of the area offered in conjunction with the testimony, supporting a reasonable inference that the offense occurred in Harris County. In his brief, appellant fails to account for the critical evidentiary distinctions between this case and Black.