In this weekly blog, the Law Offices of Brandy Wingate Voss, PLLC will summarize recent decisions from the Thirteenth Court of Appeals and provide links to decisions on the court’s website.
Trevino v. State, No. 13-15-00010-CR (Memorandum Opinion by Chief Justice Valdez; Panel Members: Justices Benavides and Perkes)
In this appeal from a conviction for aggravated robbery, the Thirteenth Court of Appeals reviewed the trial court’s admission of evidence showing an extraneous robbery committed by the appellant as evidence of his identity.
On October 12, 2012, Trevino robbed a Compass Bank in Corpus Christi at gunpoint while wearing a bandana over his face, a hat on his head, and a green and white checkered shirt. No witnesses could identify Trevino as the robber. The State however, obtained DNA evidence of Trevino’s identity from his disguise.
The State admitted a video into evidence showing the robber discard his hat, bandana, and shirt behind a truck near the bank. The police recovered these items and submitted them for DNA testing through a law enforcement system called “CODIS.” The test returned a match with Trevino’s DNA, which was stored in a law enforcement database. The police then secured a search warrant for Trevino’s DNA and ran the test again to verify the match.
During trial, the State offered evidence of a liquor store robbery committed by Trevino only a week before the Compass Bank robbery, during which Trevino wore a similar mask and again left his hat behind, allowing the police to identify him via CODIS. The defense objected that such evidence would allow the jury to convict Trevino based on the evidence from another case, but the State insisted that the extraneous offense was offered to show Trevino’s identity based on his modus operandi. The trial court admitted the evidence “for identity purposes.”
Detective Lee testified that the liquor store robber was dressed similarly to the Compass Bank robber and carried a nearly identical weapon. Based on Detective Lee’s experience and the small-town nature of Corpus Christi, he testified that “9.9 times out of 10” two similar robberies occurring within a week of one another involve the same suspect. Detective Lee then testified about the DNA test performed on both the liquor store and bank robbery disguises, as well as the CODIS procedure, confirming that both tests showed a DNA match with Trevino.
Texas Ranger Steven Jeter testified that he took a DNA sample from Trevino, and that he asked Trevino if he wanted to talk about the charges being investigated. Trevino reportedly responded by denying the charges, but then stating that it “wasn’t something he would have done if he’d been sober.” Steven Jeter sent the samples directly to Detective Lee.
Finally, forensic scientist Cynthia Morales testified that she tested the cap, shirt, and buccal swabs of Trevino’s DNA, and confirmed that the disguise items came from Trevino.
The jury convicted Trevino of aggravated robbery. Trevino appealed, raising four issues: (1) the admission of evidence regarding his extraneous liquor store robbery violated the Rules of Evidence; (2) the State failed to prove the chain of custody for his DNA evidence; (3) the State failed to produce certified copies of his prior convictions to support the enhancement of his robbery offense; and (4) the trial court failed to record his waiver of the right to be heard.
Held: The Thirteenth Court of Appeals overruled Trevino’s issues and affirmed the judgment affirmed.
Trevino first claimed that the trial court erred by admitting evidence of his extraneous liquor store robbery and thereby prejudicing the jurors, in violation of Texas Rules of Evidence 403 and 404(b). However, Trevino’s objection at trial was limited to Rule 403. The Thirteenth Court thus held that Trevino’s challenge under Rule 404(b) was not preserved for review and limited its analysis to rule 403.
Under Rule 403, a trial court may exclude relevant evidence if its probative value is substantially outweighed by unfair prejudice, as determined by a six-factor analysis. The relevant factors include (1) the inherent probative force of the evidence offered; (2) the proponent’s need for the evidence; (3) any danger that the evidence may encourage the jury to base its decision on an improper basis; (4) any danger that the evidence might confuse or distract the jury; (5) whether the evidence may be given undue weight by the jury; and (6) whether the evidence is cumulative or requires substantial time to present.
The Thirteenth Court began with the presumption that the probative value of the admitted evidence outweighed the danger of prejudice, and stated that the objecting party, i.e., Trevino, bore the burden to prove otherwise. The court noted that identity was a key disputed issue during trial, and that Detective Lee testified that the clothing, weapon, hat, and attempt to discard the robbery disguise were similar between the liquor store robbery and the bank robbery. The evidence was thus highly relevant to the disputed issue of identity. Furthermore, the trial court lessened the risk of prejudice by giving the jury a limiting instruction. The Thirteenth Court thus held that the trial court did not abuse its discretion by weighing the 403 factors and admitting evidence of the liquor store robbery.
Chain of Custody
Trevino next claimed that the State failed to prove the chain of custody for the DNA evidence. Trevino objected to Morales’s testimony regarding the chain of custody, but did not object to the testimony of Detective Lee. Thus, the issue was waived because the relevant chain of custody evidence was admitted without objection through Detective Lee.
Trevino asserts that the State did not produce certified copies of his prior convictions to enhance his robbery offense. The Thirteenth Court of Appeals quoted at length from the Texas Criminal Court of Appeals’ opinion in Flowers v. State, 220 S.W.3d 919 (Tex. Crim. App. 2007), reiterating that a prior conviction can be shown with any type of evidence; certified copies of the prior convictions are not required. Thus, the issue was overruled.
Right to Be Heard
Finally, Trevino claimed that the trial court failed to record his waiver of the right to be heard. However, the issue was inadequately briefed, and was therefore waived.
Having rejected each of Trevino’s challenges to the judgment, the Thirteenth Court of Appeals affirmed.
Rivera v. State, No. 13-15-00515-CR (Memorandum Opinion by Chief Justice Valdez; Panel Members: Justices Benavides and Perkes)
In this appeal from a conviction for sexual assault of a child, the Thirteenth Court reviewed the sufficiency of the evidence.
Angel Rodrigo Gonzalez Rivera admitted to sneaking into the room of his fourteen-year-old neighbor and assaulting her. The child went further, claiming that Rivera raped her. Sexual assault nurse examiner Martha Clow examined the child soon after the incident and found physical evidence that she had been raped. However, there was no evidence of anal penetration. At the time, the child gave a statement to Clow consistent with this physical evidence, stating that she had been raped.
At trial, the child’s story was different. The child testified that Rivera anally raped her from behind, and that she did not see his face but recognized his voice. The child remembered being taken to the hospital after the incident, but did not remember Clow’s examination or giving a statement that she had been raped.
The child testified that she did not want to attend school after the incident and had twice attempted to commit suicide. Her medical records indicated diagnoses of post-traumatic stress disorder, depression, and suicidal thoughts.
The State charged Rivera with four counts of sexual abuse of a child, one for each of the various configurations of rape to match the child’s shifting recollection of the incident. The jury convicted Rivera of count two—finding that appellant raped the child with his finger—and sentenced Rivera to two years’ confinement, probated for two years.
Held: Clow’s testimony was legally sufficient to support the verdict. The judgment of the trial court was affirmed.
Rivera challenged the sufficiency of the evidence under the due process clause of the United States Constitution and the due course of law clause of the Texas Constitution, as well as the trial court’s denial of his motion for new trial based on the same arguments. River asserted that no reasonable juror could have concluded that Rivera raped the child with his finger.
Viewing the evidence in a light most favorable to the verdict, the Thirteenth Court of Appeals emphasized the testimony of Martha Clow. Clow testified regarding the physical evidence of rape, and indicated that the child was scratched in a way that could have been caused by a finger. Contrary to Rivera’s assertion, this testimony was not negated by the child’s contradictory testimony at trial. It was within the jury’s discretion to believe Clow rather than the child regarding the specific nature of Rivera’s rape. Thus, Clow’s testimony was sufficient to support the jury’s verdict.