Santiago Margarito Rangel Varelas v. The State of Texas--Appeal from 10th District Court of Galveston County

MEMORANDUM OPINION
No. 04-02-00752-CR
Santiago Margarito Rangel VARELAS,
Appellant
v.
The STATE of Texas,
Appellee
From the 10th Judicial District Court, Galveston County, Texas
Trial Court No. 94-CR-1395
The Honorable David E. Garner, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Sitting: Alma L. L pez, Chief Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: February 25, 2004

AFFIRMED

A jury convicted Santiago Margarito Rangel Varelas ("Varelas") of capital murder and the trial court sentenced him to life in prison. On appeal, Varelas challenges the factual sufficiency of the evidence to support the verdict and also argues that the trial court erred in admitting evidence of extraneous offenses. We affirm.

Background

In August 1994, Varelas and Tina Tillman ("Tina") lived together with her five children from a previous marriage. At approximately 7:05 a.m. on August 23, 1994, Tina went to work and left Varelas at home alone with her two-year-old twins, G.W. and L.W., who were still in bed. Shortly thereafter, Varelas knocked on a neighbor's trailer and stated that L.W. had fallen and was not breathing. The neighbor called 911 between 7:38 a.m. and 7:40 a.m. Varelas returned to the neighbor's trailer carrying the child, who was not breathing and felt cold. Varelas attempted to resuscitate L.W. Within approximately two minutes after receiving the dispatch, paramedics arrived at the scene and determined that L.W. had no vital signs. A Life Flight helicopter arrived at the scene at 8:03 a.m. and transported L.W. to the University of Texas at Galveston Emergency Room. Upon arrival, L.W. was pronounced dead. Later that morning, Varelas was arrested by the Galveston County Sheriff's Department and charged with capital murder.

Discussion

Varelas argues that the evidence is factually insufficient to support his conviction. In support of his argument, Varelas contends there was no direct evidence linking him to L.W.'s death and that two of the State's witnesses were impeached. Varelas further argues that the medical evidence showed only that L.W.'s death was consistent with a hard blow and could not identify who actually struck L.W.

Upon reviewing all of the evidence, we find that the evidence is factually sufficient to support the jury's verdict. In a factual sufficiency challenge, we review all of the evidence in a neutral light and reverse only if the verdict is against the great weight and preponderance of the evidence or is so clearly wrong as to be manifestly unjust. See Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).

In this case, the evidence was undisputed that Varelas was home alone with L.W. when the fatal injury occurred. Varelas maintained in several oral statements to officers and paramedics at the scene and in a video statement, that the child had fallen from either a chair or the sofa. (1) As proof that L.W.'s death was not an accident, the State called Dr. Kevin Barrett ("Barrett") who was the attending physician for L.W. when she arrived at the emergency room. Barrett testified that his examination of L.W. revealed five to seven day old bruises on her abdomen, fresh bruises on her face, and a laceration on her cheek. Barrett also observed swelling to the right of L.W.'s breastbone and around the base of her skull, along with bruises behind her ears and around her eyes. He characterized these injuries as "battle signs" and "racoon signs" that together indicate a severe head injury. Barrett testified that the immediate cause of L.W.'s death was massive trauma to her body consistent with an adult kicking or punching her. Barrett further testified that L.W. had been dead anywhere from one to three hours by the time she arrived in the emergency room.

Dr. Marjorie Grafe ("Grafe") of the Galveston County Medical Examiner's Office performed the autopsy on L.W. Grafe observed multiple bruises on L.W.'s back, some of which were several days old, accompanied by bruises on her buttocks and legs, as well as a laceration under her eye and a large hematoma between her scalp and skull. Grafe agreed with Barrett's conclusion that L.W.'s death resulted from blunt force trauma. The immediate cause of death was four small tears in the atrium of her heart, combined with an accumulation of blood that killed her within two minutes. Grafe also concluded that L.W.'s injuries were caused by a very strong adult kick or punch, and were inconsistent with a fall or attempts at resuscitation.

At trial, Tina admitted that she had previously lied to authorities when she denied seeing bruises on L.W. in the past. Tina testified that on the night of August 22, she saw Varelas and L.W. together in the bathroom and heard L.W. crying from Varelas slapping her. Tina also testified that she had previously witnessed Varelas kick L.W. while visiting her friend, Lori Pettigrew ("Pettigrew"). Pettigrew testified that in the spring of 1994, she noticed bruises on L.W.'s back and witnessed Varelas kick L.W. from behind and repeatedly "thump" her on the head, as well as holding her under water when the family went out swimming. Pettigrew informed Child Protective Services about the physical abuse. L.W.'s two sisters testified that they had seen Varelas kick and hit L.W. hard enough to knock her down. Both sisters also testified that on different occasions they saw Varelas sexually abuse L.W. Finally, the State called David Coffman, a convicted felon and former cellmate of Varelas, to testify. He testified that Varelas admitted to him in English that he had kicked a little girl, but that it was an accident.

Varelas did not offer any contradictory evidence to rebut the State's theory that L.W.'s death was not an accident. He called two witnesses, both of whom testified to alleged translation errors and misunderstandings between Varelas and the Galveston County Sheriff's Office due to a language barrier. Despite some evidence of certain deficiencies in the Spanish spoken to Varelas, the evidence shows that Varelas did speak and comprehend some English. Furthermore, the State's witnesses described seeing him physically and sexually abuse L.W. on numerous occasions, evidence that did not pertain to his ability to speak or comprehend English.

Based on our review of all the evidence, including the fact that Varelas was the only adult supervising L.W. at the time of her injuries, we conclude that the jury's verdict is not so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Because the jury is the sole judge of the weight and credibility of the witnesses' testimony, we decline to substitute our judgment for that of the jury. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). Furthermore, Varelas' guilt is not so obviously weak as to undermine confidence in the jury's determination, nor is it so greatly outweighed by contrary evidence that would render the verdict manifestly unjust. Zuliani v. State, 97 S.W.3d 589, 593 (Tex. Crim. App. 2003). Accordingly, we hold that the evidence is factually sufficient to support the verdict.

Extraneous Offenses

In his remaining issues, Varelas argues the trial court erred when it admitted the extraneous offense evidence of past physical and sexual abuse of L.W. over his Rule 403 and Rule 404(b) objections. See Tex. R. Evid. 403, 404(b). We review the trial court's rulings concerning admissibility of evidence under an abuse of discretion standard. See Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). A trial court abuses its discretion when its decision lies outside the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App.1990). In determining whether the trial court abused its discretion, we consider if it acted without reference to guiding rules or principles. Id. at 380.

The general rule is that a defendant may not be tried for a crime he is not accused of committing. See Couret v. State, 792 S.W.2d 106, 107 (Tex. Crim. App. 1990). Evidence of other crimes, wrongs, or acts of a defendant is not admissible unless it is relevant to prove a material issue other than the character of the defendant. See Tex. R. Evid. 404(b). Rule 404(b) states that such evidence may be admissible as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake. Id. Extraneous offense evidence may also be admissible for the purpose of rebutting a defensive theory. Wheeler v. State, 67 S.W.3d 879, 886-87 (Tex. Crim. App. 2002). Once the evidence is determined to be relevant, the court must determine whether its probative value outweighs the danger of unfair prejudice. See Tex. R. Evid. 403. In addition, Article 38.36(a) of the Texas Code of Criminal Procedure provides that in all prosecutions for murder, the State may offer evidence of the defendant's prior relationship with the victim, together with all the facts and circumstances going to show the state of the mind of the defendant at the time of the murder. See Tex. Code Crim. Proc. Ann. Art. 38.36(a) (Vernon 2002).

On appeal, Varelas does not contend that he didn't physically and sexually abuse L.W. in the past. Varelas instead argues such evidence was inadmissible because it was not relevant to a material issue in the murder case. He maintains that because he did not testify or present any evidence to rebut the State's theory, his intent was not at issue. Varelas further argues that the testimony of L.W.'s sisters pertaining to his sexual abuse of L.W. was irrelevant because he was charged with capital murder, not a sexual offense against L.W. Finally, Varelas maintains that the potential for unfair prejudice outweighed any probative value of the above evidence. Therefore, he claims that under Rules 403 and 404(b), the evidence of prior physical and sexual abuse was inadmissible and should have been excluded.

We conclude that Varelas put his intent in issue when he went beyond a simple plea of not guilty by vigorously cross-examining the State's witnesses and presenting a defensive theory that L.W.'s death occurred because she fell from a chair or sofa. See Robbins v. State, 88 S.W.3d 256, 261 (Tex. Crim. App. 2002). Therefore, L.W.'s prior physical injuries and sexual abuse by Varelas is relevant on the issue of whether her death was, while under the care of Varelas, accidental or intentional. See id. at 262. Additionally, the instant offense and the evidence of past physical abuse were substantially similar because they both involved violent acts against L.W., i.e., hitting and kicking. See Johnson v. State, 932 S.W.2d 296, 302 (Tex. App.--Austin 1996, pet. ref'd). Thus, the evidence of prior physical and sexual abuse was both relevant and admissible to show the prior relationship between Varelas and L.W., while also serving to rebut Varelas' defensive theory of an accident. See Tex. R. Evid. 404(b); Wheeler, 67 S.W.3d at 887. It is at least subject to reasonable disagreement whether the extraneous offenses made Varelas' intent to kill and his defensive theory of an accident more or less probable. See Tex. R. Evid. 404(b); Montgomery, 810 S.W.2d at 387-88; Keen v. State, 85 S.W.3d 405, 414 (Tex. App.--Tyler 2002, pet. ref'd).

Extraneous evidence of physical and sexual abuse of a child necessarily carries with it the danger of unfair prejudice. See Tex. R. Evid. 403. The trial court, however, provided a limiting instruction to the jury each time extraneous offense evidence was introduced to guard against the danger of unfair prejudice to Varelas. See Ex Parte Varelas,45 S.W.3d 627, 630 (Tex. Crim. App. 2001). Under the circumstances, the trial court could have reasonably determined that the probative value of the evidence substantially outweighed the danger of unfair prejudice. See Tex. R. Evid. 403, 404(b). Accordingly, we hold that the extraneous offense evidence was admissible under Article 38.36(a) and the trial court did not abuse its discretion in admitting the evidence during the guilt/innocence phase of trial.

Phylis J. Speedlin, Justice

DO NOT PUBLISH

1. The admissibility of such statements by Varelas is not raised on appeal.