Christopher Saenz v. The State of Texas--Appeal from 218th Judicial District Court of Atascosa County

MEMORANDUM OPINION

No. 04-03-00314-CR

Christopher SAENZ,

Appellant

v.

The STATE of Texas,

Appellee

From the 218th Judicial District Court, Atascosa County, Texas

Trial Court No. 02-05-0162-CRA

Honorable Olin B. Strauss, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: May 12, 2004

AFFIRMED

A jury found defendant, Christopher Saenz, guilty of attempted aggravated kidnaping and assessed his punishment at seventy-five years' confinement. Defendant complains of his conviction in two issues on appeal. We affirm.

BACKGROUND

On February 19, 2002, nine-year-old Jennifer Haley, was playing with five-year-old Louis Gomez, Jr. in his parent's front yard. While they were playing, defendant approached the two children. In an attempt to persuade them to accompany him across the street to a deserted peanut factory, defendant stated that he needed their help in retrieving some money that he had given someone earlier. After the children demonstrated an initial reluctance to accompany him, defendant leaned over, kissed Haley on the neck, and stated "you can trust me." Defendant proceeded to grab both of the children by the hand and lead them toward the peanut factory. Haley eventually pulled away from defendant and ran toward her house, which was across the street from Gomez's front yard. Defendant, still holding onto Gomez's hand, followed Haley to her parent's house. Defendant approached the house, entered it and Haley's father, Raul Saldivar, confronted defendant. Once confronted, defendant began to walk away and eventually fled the scene. Saldivar pursued defendant, eventually caught up to him, and then detained him. After Haley told her mother what had just occurred, her mother called the police to report the incident. Once the police arrived, they found Saldivar still detaining defendant and they arrested him.

In his first issue on appeal, defendant contends the evidence is insufficient to support his conviction. Defendant does not specify whether he is challenging the evidence on legal or factual sufficiency grounds. Although defendant cites to cases setting forth the standard for a factual sufficiency review, he does not brief this issue separately from his legal sufficiency claim, nor does he argue why the evidence was factually insufficient. See McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997) (merely stating the appropriate standard of review for determining the factual sufficiency of the evidence constitutes inadequate briefing and presents nothing for appellate review). In his prayer for relief, defendant requests reversal and acquittal. Because acquittal is only appropriate when we sustain a legal sufficiency challenge, we will review the evidence under a legal sufficiency standard.

When considering a legal sufficiency challenge, this court 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 all of the essential elements of the offense proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); see also Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). We evaluate all the evidence in the record, both direct and circumstantial, whether admissible or inadmissible. Dewberry, 4 S.W.3d at 740. In a sufficiency review, the trier of fact may draw reasonable inferences and is the exclusive judge of the witnesses' credibility and the weight to give their testimony. Jones v. State, 944 S.W.2d 642, 647-49 (Tex. Crim. App. 1996).

A person commits the offense of aggravated kidnaping if he intentionally or knowingly abducts another person with the intent to inflict bodily injury on him or violate or abuse him sexually or terrorize him or a third person. Tex. Pen. Code Ann. 20.04(a)(4),(5) (Vernon 2003). Further, "a person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends, but fails, to effect the commission of the offense intended." Id. at 15.01(a). The pertinent part of the State's indictment reads: "[w]ith the specific intent to commit the offense of aggravated kidnaping of Jennifer Haley, do an act, to-wit: by taking Jennifer Haley's hand and leading her away from the yard, which amounted to more than mere preparation that tended but failed to effect the commission of the offense intended." Defendant contends the allegation that he led Haley away from the yard is the act that amounts to more than mere preparation and, as such, the State was required to prove this "essential element" of his intent to commit the offense of aggravated kidnaping. According to defendant, the evidence is legally insufficient to establish that he led Haley away from the yard.

The State called several witnesses to establish that defendant led Haley "away from the yard." Haley testified that defendant asked her to go with him to the peanut factory and when she refused, he took her hand and started leading her toward the peanut factory. She testified that, while still within the confines of the yard, she eventually broke free from defendant's grasp and ran to her parent's house across the street. Gomez testified that defendant "took [Haley] and me to - he was going to take us to the peanut factory but [Haley] ran away." The State also offered the testimony of Officer Sanchez, the initial responding police officer. He testified that in his discussion with Haley shortly after the incident, she stated that defendant grabbed her and started to drag her toward the peanut factory. In addition, Haley's brother, Andrew, testified that defendant took Haley's hand and began "dragging her down the street" toward the peanut factory. He testified that Haley broke free from defendant's grasp near the dirt road at the edge of the yard.

Defendant argues that the State failed to prove that he led Haley anywhere, much less away from the yard. However, the State did not allege that defendant led Haley "out of the yard." Instead, it alleged defendant led Haley "away from the yard." The State provided the jury with testimony from several witnesses to prove defendant accomplished an act more than mere preparation by "leading or dragging" Haley from the position where she originally stood in the yard. Therefore, because we believe the jury could find all of the essential elements of the offense beyond a reasonable doubt, we find the evidence is legally sufficient.

Defendant also argues that a variance exists between the language in the indictment and the evidence offered at trial. When faced with a sufficiency of the evidence claim based upon a variance between the indictment and the proof, only a 'material' variance will render the evidence insufficient. Fuller v. State, 73 S.W.3d 250, 253 (Tex. Crim. App. 2002). A variance that is not prejudicial to defendant's "substantial rights" is immaterial. Gollihar v. State, 46 S.W.3d 243, 247-48 (Tex. Crim. App. 2001). Defendant carries the burden of showing surprise or prejudice. Santana v. State, 59 S.W.3d 187, 194 (Tex. Crim. App. 2001). The test for materiality involves a two-pronged inquiry into whether a defendant's substantial rights have been prejudiced. Id. at 195. First, we must determine if the indictment sufficiently informed defendant of the charges against him to prepare an adequate defense. Id. Second, we must determine whether prosecution under the alleged deficiently drafted charging instrument would subject defendant to subsequent prosecution for the same offense. Id.

Even if a variance existed, we believe it was immaterial. Under the first prong of the test, defendant must demonstrate how the variance surprised him. However, defendant does not make any claims of surprise on appeal. Further, under the second prong of the test, defendant must establish the variance subjects him to a subsequent prosecution for the same crime. Again, defendant fails to demonstrate how the variance would subject him to a subsequent prosecution. Even so, we conclude the variance would not subject him to a subsequent prosecution because the indictment clearly identifies the offense, the date and the place of the occurrence, and if prosecuted again, defendant may avail himself to the entire record and not just the charging instrument. See id. Therefore, after applying both prongs of the materiality test, we conclude the variance was immaterial. We overrule defendant's first issue on appeal.

EXTRANEOUS CONDUCT EVIDENCE

In his second issue on appeal, defendant argues the trial court erred in admitting evidence of his extraneous conduct. The State offered evidence of defendant's extraneous conduct through the testimony of Tina Sanchez in order to prove his specific intent to sexually abuse Haley. Sanchez testified that, while selling some coupon books for her church with her sisters in April of 2001, defendant exposed his penis to her behind a trailer home. She testified defendant tricked her into following him behind the trailer home by promising to purchase some coupon books. Sanchez testified that she followed him behind a trailer home where nobody else was present. Once behind the trailer home, she testified that she turned her back to defendant because he told her he needed to use the restroom. Sanchez testified, however, that defendant asked her to turn around and when she did so, he exposed himself to her.

Evidence is relevant and admissible if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. See Tex. R. Evid. 401, 402. In order to admit evidence of defendant's extraneous conduct, the proponent must establish that the evidence has relevance apart from its tendency to prove the character of a person. See Tex. R. Evid. 404(b). We review the trial court's decision to admit or exclude evidence using an abuse of discretion standard and will not reverse a trial judge whose ruling was within the "zone of reasonable disagreement." See Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991).

Relevance of Defendant's Extraneous Conduct

A trial court may admit evidence of defendant's extraneous conduct for purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident or other similar purposes. See Tex. R. Evid. 404(b). In addition, a trial court may admit evidence of extraneous conduct when intent is an essential element of the State's case and where one cannot infer intent from the act itself. See Williams v. State, 662 S.W.2d 344, 345-46 (Tex. Crim. App. 1983). However, where the State's direct evidence "clearly shows the intent element of the crime and that evidence is uncontradicted by the defendant . . . the offer of other crimes is unjustified due to lack of relevancy." Corley v. State, 987 S.W.2d 615, 619 (Tex. App.--Austin 1999, no pet.).Because specific intent to inflict bodily harm or sexually abuse a person is an element of aggravated kidnaping, defendant's intent was an essential fact in the case. See Tex. Pen Code Ann. 20.04(a)(4).

Defendant argues the State had sufficient direct evidence clearly demonstrating his intent and did not require the additional evidence of his extraneous conduct. However, the only evidence of defendant's intent to abuse Haley, absent his extraneous conduct, consisted of testimony that he kissed Haley on the neck and his statement that they "would be friends." Without more, we cannot say that kissing someone on the neck and proposing a friendship clearly demonstrates the intent to sexually abuse a person. Therefore, because the State must prove defendant's intent as an element of the charged offense and defendant's intent was not inferrable from the act itself, we conclude the trial court did not err in determining that the evidence was relevant and probative of something other than defendant's character.

Admissibility Under Rule 403

Defendant contends the trial court erred when it determined the probative value of the evidence relating to his extraneous conduct outweighed its prejudicial effect.

A trial court may exercise its discretion in excluding extraneous conduct evidence only when the danger of unfair prejudice, confusion of the issues, misleading the jury, by considerations of undue delay, or needless presentation of cumulative evidence substantially outweighs its probative value. See Tex. R. Evid. 403; Mozon v. State, 991 S.W.2d 841, 846-47 (Tex. Crim. App. 1999). We review the trial court's balancing test determination using an abuse of discretion standard. Mozon, 991 S.W.2d at 847. Further, this court cannot simply conclude the trial judge did in fact conduct the required balancing and did not rule arbitrarily or capriciously. Id. Instead, we must measure the trial court's ruling against the relevant criteria it must use to make a Rule 403 decision by determining both the relevance and the State's need for the evidence. Id. The relevant criteria in determining whether the prejudice of an extraneous offense outweighs its probative value include: (1) how compellingly the extraneous offense evidence serves to make a fact of consequence more or less probable; (2) the potential the other offense evidence has to impress the jury "in some irrational but nevertheless indelible way;" (3) the time the proponent will need to develop the evidence, during which the evidence will distract the jury from consideration of the indicted offense; (4) the force of the proponent's need for this evidence to prove a fact of consequence, i.e., does the proponent have other probative evidence available to him to help establish this fact, and is this fact related to an issue in dispute. Id.

The trial judge heard arguments, on the record and outside the presence of the jury, from both parties on the admissibility of the evidence under Rule 403. The charged offense entailed a similar situation to that of the extraneous offense. The offenses both dealt with trickery and deception to lure a young female away from a group to a secluded area. However, in the extraneous offense, defendant completed the act by exposing himself to Sanchez. Here, defendant did not complete the act in the charged offense because Haley ran away. Therefore, the similarity of these offenses makes it more probable than not that defendant intended to sexually assault Haley. In addition, the trial court instructed the jury in the charge that they were not to consider the evidence of defendant's extraneous conduct unless they believed, beyond a reasonable doubt, he committed the extraneous offense. Further, defendant does not establish how the time it took to present the extraneous offense evidence distracted the jury from the indicted offense. The record contains a total of 170 pages of testimony. While the record contains thirty-three pages of testimony on defendant's extraneous conduct, only half of that testimony was actually before the jury. Finally, the State established its need for this evidence because, as stated above, the State must prove defendant's specific intent to sexually abuse Haley. The State's only direct evidence on defendant's intent, thus far, consisted of defendant's acts of kissing Haley on the neck and telling her they would be friends. After reviewing the record, we believe the trial court properly balanced the required factors. Accordingly, we hold the trial court did not abuse its discretion in admitting the evidence of defendant's extraneous conduct and we overrule defendant's second issue on appeal.

We overrule defendant's issues on appeal and affirm the trial court's judgment.

Sandee Bryan Marion, Justice

DO NOT PUBLISH