Ascencio, Luis v. The State of Texas--Appeal from 208th District Court of Harris County

Affirmed and Opinion filed February 24, 2005

Affirmed and Opinion filed February 24, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-03-00941-CR

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LUIS ASCENCIO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 208th District Court

Harris County, Texas

Trial Court Cause No. 947,388

O P I N I O N

A jury convicted appellant, Luis Ascencio, of aggravated sexual assault and assessed punishment at twenty years= confinement in the Texas Department of Criminal Justice, Institutional Division. Asserting four points of error, appellant contends: (1) the trial court committed reversible error and violated his due process rights when it failed to suppress his involuntary in-custody written statement; (2) the trial court committed reversible error when it overruled his objection and allowed the introduction of inadmissable hearsay; (3) the evidence is legally insufficient to support his conviction; and (4) the evidence is factually insufficient to support his conviction. We affirm.

Factual Background

Between 6:00 a.m. and 6:30 a.m. on August 13, 2002, the complainant agreed to accompany appellant and his companion in their van for twenty dollars. While appellant drove, his companion performed consensual oral sex on the complainant. Later, appellant stopped the van and entered the back while his companion grabbed a sawed-off shotgun and aimed it at the complainant=s face. Appellant told the complainant his friend would kill her if she did not have sex with him. The complainant pleaded for her life and ultimately succumbed to appellant=s demand. Shortly after sexual intercourse, the complainant escaped from the vehicle and ran into a nearby store where she told employees she had been sexually assaulted at gunpoint by two men in a van.

Shortly thereafter, Deputy Lancelin, of the Harris County Constable=s Office, saw appellant and his companion pushing a white van along the highway and stopped to assist. The two men explained to Lancelin in broken English that their van had run out of gas. As Lancelin was speaking with the two men, he saw a sawed-off shotgun in the passenger compartment of the van and arrested appellant and his companion.

After his arrest, appellant gave a written statement corroborating the complainant=s allegations. In his statement, appellant said he drove the van up to the complainant while his friend sat in the passenger seat holding a shotgun. The complainant entered the van thinking she would get twenty dollars, but appellant and his friend had no money. As appellant drove the van, his friend pointed the shotgun at the complainant while she pleaded for her life. Appellant parked the van, went into the back with the complainant, told her to raise her dress, and inserted his penis inside her vagina while his friend aimed the shotgun at her. Appellant admitted that before and during sexual intercourse the complainant pleaded for them not to kill her or aim the shotgun at her.

Voluntariness of Confession

In his first point of error, appellant contends the trial court erred and violated his due process rights when it failed to suppress his in-custody written statement because it was involuntarily rendered. Appellant=s complaint stems from the facts that his confession was taken late at night and some of his statements were spoken in Spanish but translated by an officer and rewritten in English.

We review the trial court=s ruling on a motion to suppress evidence under an abuse of discretion standard. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). If supported by the record, a trial court=s ruling on a motion to suppress will not be overturned. Hill v. State, 902 S.W.2d 57, 59 (Tex. App.CHouston [1st Dist.] 1995, pet. ref=d). At a suppression hearing, the trial judge is the sole finder of fact. Arnold v. State, 873 S.W.2d 27, 34 (Tex. Crim. App. 1993); Hill, 902 S.W.2d at 59. The trial judge is free to believe or disbelieve any or all of the evidence presented. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). We give almost total deference to the trial court=s determination of historical facts that the record supports, especially when the trial court=s findings turn on evaluating a witness=s credibility and demeanor. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000); Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We give the same amount of deference to the trial court=s ruling on mixed questions of law and fact if the question is resolved by evaluating credibility and demeanor. Ross, 32 S.W.3d at 856. However, we review de novo the trial court=s application of the law to the historical facts. Carmouche, 10 S.W.3d at 327.

When the voluntariness of a confession is challenged, the trial court must make an independent determination in the absence of the jury as to whether the statement was voluntarily made. Tex. Code Crim. Proc. Ann. art. 38.22, ' 6 (Vernon 1979); See Jackson v. Denno, 378 U.S. 368, 380 (1964). At this hearing, the State has the burden under the Fifth and Fourteenth Amendments to prove by a preponderance of the evidence the confession was voluntary. Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995); see also State v. Terrazas, 4 S.W.3d 720, 724 (Tex. Crim. App. 1999) (citing Tex. Code Crim. Proc. Ann. art. 38.22, ' 6) (stating the prosecution is not put to this burden unless a defendant presents evidence that raises a voluntariness question).

The statement of an accused may be used against him if it appears it was freely and voluntarily made without compulsion or persuasion. Tex. Code Crim. Proc. Ann. art. 38.21 (Vernon 1979). The statement is involuntary if there was official, coercive conduct of such nature that any statement obtained was unlikely to have been the product of an essentially free and unconstrained choice. Alvarado, 912 S.W.2d at 211. Voluntariness must be determined by considering the totality of the circumstances under which the statement was obtained. Creager v. State, 952 S.W.2d 852, 855 (Tex. Crim. App. 1997).

At the hearing on appellant=s motion to suppress, the trial judge heard testimony from Investigator Pedro Moreno and Sergeant D.L. Morgan. The officers testified they met with appellant at the Harris County Jail on August 14, 2002, sometime between 1:30 a.m. and 2:45 a.m. Investigator Moreno read appellant his Miranda warnings in English and Spanish, and appellant waived his rights. The officers spoke to appellant in a mix of both languages and had no trouble communicating with appellant in English. Appellant did not try to end the interview and did not appear to be under the influence of any narcotic or alcohol. The officers did not coerce, threaten, or promise appellant anything in exchange for his statement, nor was appellant deprived of food, restroom access, or any other basic necessities. As appellant made his statement, Moreno wrote what he said in English. The statement was completed approximately two hours after the beginning of the interview. Once complete, Moreno read the statement to appellant in English and in Spanish, and appellant signed it after making some changes. Because appellant did not testify at the hearing on the voluntariness of his confession, he failed to introduce any facts rebutting the State=s evidence the confession was voluntary.

The trial court denied appellant=s motion to suppress, finding the confession and waiver of his rights was made voluntarily and knowingly. Appellant contends the confession was involuntary because it was taken late at night and because some of his statements were spoken in Spanish but translated by an officer and rewritten in English. We find no merit in appellant=s contention.

The mere fact that appellant=s statements were given late at night does not render his confession involuntary. Johnson v. State, 698 S.W.2d 154, 159 (Tex. Crim. App. 1985) (stating lack of food or sleep alone will not render a confession involuntary). In this case, there is no evidence appellant had not slept prior to giving his confession and no evidence he was even tired.

Similarly, a statement is not rendered involuntary merely because a person who speaks only Spanish gives a statement in Spanish while an officer translates it in writing to English. See Montoyo v. State, 810 S.W.2d 160, 173B74 (Tex. Crim. App. 1989); see also Hernandez v. State, 978 S.W.2d 137, 140 (Tex. App.CAustin 1998, pet. ref=d) (holding confession was voluntary when defendant made statement in English even though Spanish was his primary language); Espinosa v. State, 899 S.W.2d 359, 362 (Tex. App.CHouston [14th Dist.] 1995, pet. ref=d) (finding voluntariness of appellant=s statement was not affected by the police officer=s inability to speak Spanish); Cf. Heiselbetz v. State, 906 S.W.2d 500, 512 (Tex. Crim. App. 1995) (stating officers may reduce a defendant=s oral statement into writing and may even paraphrase it). The record supports the trial court=s finding that appellant gave his confession voluntarily. There is no evidence contradicting the officers= testimony and no evidence the statement was involuntary. We find no abuse of discretion in denying appellant=s motion to suppress his written statement; accordingly, appellant=s first point of error is overruled.

Excited Utterance

In his second point of error, appellant contends the trial court committed reversible error when it overruled his objection and allowed the introduction of inadmissable hearsay. Specifically, appellant complains Officer Klaus=s testimony regarding what the complainant told him about the sexual assault was inadmissable hearsay. The State argues this testimony satisfies the excited-utterance exception to the hearsay rule. See Tex. R. Evid. 803(2). Appellant argues the statements the complainant made to Officer Klaus were responses to the officer=s questions, not excited utterances.

The admissibility of an out-of-court statement under an exception to the general hearsay exclusionary rule is within the trial court=s discretion. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003) (citing Lawton v. State, 913 S.W.2d 542, 553 (Tex. Crim. App. 1995)). Therefore, a reviewing court should not reverse unless a clear abuse of discretion is shown. AAn abuse of discretion occurs >only when the trial judge=s decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree.=@ Id. (quoting Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992)).

Hearsay is a statement, other than one made by the declarant while testifying at trial, offered in evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d). For hearsay to be admissible, it must fit into an exception provided by a statute or the Rules of Evidence. Tex. R. Evid. 802. An excited utterance under Texas Rule of Evidence 803(2) is one such exception. See Tex. R. Evid. 803(2).

An excited utterance is Aa statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.@ Tex. R. Evid. 803(2); Salazar v. State, 38 S.W.3d 141, 154 (Tex. Crim. App. 2001). For the excited-utterance exception to apply, three requirements must be shown: (1) the statement must be the product of a startling event; (2) the declarant must have been dominated by the emotion, excitement, fear, or pain of the event; and (3) the statement must have related to the circumstances of the startling event. Jackson v. State, 110 S.W.3d 626, 633 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d).

To determine whether a hearsay statement is admissible as an excited utterance, the court may consider such factors as time elapsed and whether the statement was in response to a question. Salazar, 38 S.W.3d at 154. However, these factors are not dispositive. See Lawton, 913 S.W.2d at 553. The Apivotal inquiry in determining whether a statement is an excited utterance is >whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event.=@ King v. State, 953 S.W.2d 266, 269 (Tex. Crim. App. 1997) (quoting McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992), overruled on other grounds by Bingham v. State, 915 S.W.2d 9, 14 (Tex. Crim. App. 1994)); Drew v. State, 76 S.W.3d 436, 457B58 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d); see Ricondo v. State, 475 S.W.2d 793, 796 (Tex. Crim. App. 1971) (stating an excited utterance is deemed trustworthy because Ait represents an event speaking through the person rather than the person speaking about the event@).

In this case, the trial court heard testimony from the owner of a local plumbing store describing how the complainant ran into the store crying, shaking, and screaming that she had just been raped at gunpoint by two men in a van and needed help.[1] The store owner said the police were called within three to four minutes after the complainant ran inside and arrived approximately five minutes later. The court also heard testimony from Officer Klaus, who responded to the distress call. Officer Klaus testified that he arrived at the store within approximately five minutes of the 9-1-1 call and within ten minutes after the incident occurred. Upon his arrival, Klaus testified the complainant had minor abrasions on her arm and was sitting on the ground with her head on her knees sobbing. Klaus testified the complainant had tear stains on her face, appeared extremely upset, and was still under the influence of the trauma she just experienced. Klaus said the complainant appeared to be in shock and was reluctant to talk at first, but she gave her statement about five minutes later.

Based on our review of the record, we cannot say the trial court=s admission of the officer=s testimony under the excited-utterance hearsay exception was outside the zone of reasonable disagreement. Therefore, appellant=s second point of error is overruled.

Legal and Factual Sufficiency

In his third and fourth points of error, appellant contends the evidence is legally and factually insufficient to support his conviction of aggravated sexual assault because the complainant=s testimony is not credible. In a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict and 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, 319 n.12 (1979); Garrett v. State, 851 S.W.2d 853, 857 (Tex. Crim. App.1993). 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 the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. See Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004).

Appellant contends the complainant=s allegations are not credible for the following reasons: she has previous convictions for prostitution and possession of cocaine; she used drugs the night before the alleged offense;[2] she agreed to have sex with appellant and his companion for money; she had a strong motive to fabricate the allegations because appellant and his companion did not have money to pay her and intended to leave without paying; she was hesitant to cooperate with the police; and she refused to consent to a rape kit examination.

The record reveals the complainant ran into a store appearing to be in distress and claiming she had just been raped. Officer Klaus arrived withing ten minutes of the alleged incident and asked the complainant what happened. The complainant responded that she wanted to go home. After about five minutes, the complainant told Klaus she was walking around the neighborhood when a white van pulled up next to her. A Hispanic male got out of the passenger side with a shotgun and forced her into the back of the van. The complainant told Klaus that one of the men had non consensual intercourse with her after she refused to perform oral sex on him. The complainant told Klaus that after the intercourse, the two men started talking, and she was able to jump out of the van and run into the store.

At trial, the complainant testified she was offered money to accompany the men in the van. She stated that appellant=s companion performed oral sex on her in the back of the van while appellant was driving. Later, the van stopped, appellant entered the back of the van, and his companion grabbed a sawed-off shotgun and aimed it at her face. Appellant told the complainant she would be killed by his friend if she refused to have sex with him. After pleading for her life, the complainant succumbed to appellant=s demand. Shortly after intercourse, she was able to escape.

After the complainant=s escape, Deputy Lancelin saw appellant and his companion pushing a white van. Deputy Lancelin pulled up to the van, exited his patrol car, and approached appellant and his companion. The two men explained to Lancelin in broken English that they had run out of gas. As Lancelin was speaking with the two men, he saw a sawed-off shotgun in the van=s passenger compartment and arrested appellant and his companion.

After his arrest, appellant gave a written statement corroborating the complainant=s allegations. His statement was admitted into evidence and read to the jury. In his statement, appellant said he inserted his penis inside the complainant=s vagina as his friend aimed the shotgun at her. Appellant admitted that before and during intercourse the complainant pleaded for them not to kill her or aim the shotgun at her.

The testimony of a victim, standing alone is sufficient to support a conviction for sexual assault. Villalon v. State, 791 S.W.2d 130, 133 (Tex. Crim. App. 1990); Jensen v. State, 66 S.W.3d 528, 534 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d). AA decision is not manifestly unjust merely because the jury resolved conflicting views of the evidence in favor of the State.@ Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997). Moreover, the jury is the sole judge of credibility of the witnesses at trial. See Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000). There is nothing in the record to suggest the jury=s resolution of this conflicting testimony was not reasonable. Viewing the evidence in a light most favorable to the verdict, we hold the evidence is legally sufficient to support the jury=s finding of guilt beyond a reasonable doubt. Similarly, after considering the evidence in a neutral light, we hold the evidence is factually sufficient because the evidence is not too weak to support the finding of guilt beyond a reasonable doubt, and contrary evidence was not so strong to conclude the reasonable doubt standard could not be met. Therefore, appellant=s third and fourth points of error are overruled.

The judgment of the trial court is affirmed.

/s/ John S. Anderson

Justice

Judgment rendered and Opinion filed February 24, 2005.

Panel consists of Justices Anderson, Hudson and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] Appellant did not assert any hearsay objections to this testimony.

[2] The complainant testified she drank alcohol, smoked marijuana, and took Ecstacy the night before the sexual assault; but, she said the affects had worn off when she encountered appellant and his companion that morning.