Juan Gabriel Paredez v. The State of Texas--Appeal from 289th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00764-CR
Juan Gabriel PAREDEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 289th Judicial District Court, Bexar County, Texas
Trial Court No. 2001-CR-6564
Honorable Carmen Kelsey, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Sitting: Alma L. L pez, Chief Justice

Sarah B. Duncan, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: August 18, 2004

AFFIRMED

Juan Gabriel Paredez appeals his conviction for aggravated sexual assault. On appeal, Paredez argues that he was denied his constitutional right to a fair and impartial jury and that the evidence is legally and factually insufficient to prove that he used or exhibited a deadly weapon. We affirm.

Background

On the night of October 8, 2000, Alma Alcorta, snuck out of her house and left with her boyfriend, Thomas Valadez, and his two friends, Juan Paredez and Mauricio Garza. (1) Ultimately, they drove to Thomas's apartment. At some point, Alma and Thomas went to Thomas's room, where they had consensual sex. After they had sex, Thomas left the room to go to the bathroom. Paredez walked into the room saying things that Alma thought were a joke. Paredez left the room when Thomas returned. Alma asked Thomas, "what is up with your friend," and Thomas said that Paredez "was just tripping." At this point, Alma became suspicious because Thomas was holding a rag that smelled of rubbing alcohol. Thomas then left the room again, and Alma started to put on her clothes.

Thomas and Paredez reentered Thomas's room, and Paredez yelled to Thomas, "you have to do it." Both left the room, and when they returned, Thomas had the rag, and Paredez had a gun. Initially, Alma believed the gun was fake because she had never been around a real gun. Alma realized that the gun was real when she observed that Thomas and Mauricio were doing exactly what Paredez told them to do. As Paredez held Alma's hands behind her back with one of his hands, Paredez pointed the gun at Thomas with his other hand and instructed him "to do it." Thomas put the rag to Alma's nose, and Paredez told her, "breathe it in, bitch." Paredez became upset because Alma would not breathe it in, and Thomas and Paredez left the room. The two returned to the room with Mauricio. Paredez still had the gun, and Mauricio had duct tape. Mauricio taped Alma's arms to the bed and taped her mouth.

Thomas and Mauricio then left Paredez alone in the room with Alma. Paredez removed her clothing and had sexual intercourse with Alma without her consent. When Paredez was finished, he left the room and returned with Thomas and Mauricio. Paredez said that it was Mauricio's turn and that Thomas was going to have to stay and watch. Mauricio told Paredez to take Thomas out of the room. When Thomas and Paredez left the room, Mauricio had sexual intercourse with Alma without her consent. When Mauricio was finished, he removed the duct tape from Alma's mouth. Thomas came in, removed the duct tape from Alma's arms, and told her to spend the night there. Alma told him she wanted to go home. Paredez, Mauricio, and Thomas dropped her off near her house, but before she got out of the car, Paredez told her, "if you tell anybody, I will kill you." When she got home, Alma told Melinda Rodriguez, her cousin's girlfriend, about the sexual assault. DNA comparisons of Paredez's DNA and semen found on Alma's vaginal swab, panties, and jeans did not exclude Paredez as the source of the DNA.

Legal and Factual Sufficiency

In his second and third issues, Paredez complains that the evidence is legally and factually insufficient to prove that he used or exhibited a deadly weapon. To determine the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the verdict and ask if any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). For a factual sufficiency review, an appellate court looks at all the evidence to determine whether it is so weak as to make the verdict clearly wrong and manifestly unjust or whether the adverse finding is against the great weight and preponderance of the available evidence. Sims v. State, 99 S.W.3d 600, 601 (Tex. Crim. App. 2003). Appropriate deference must be given to the jury's decision to "prevent an appellate court from substituting its judgment for that of the fact finder." Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). "[A]ny evaluation should not substantially intrude upon the fact finder's role as the sole judge of the weight and credibility given to witness testimony." Id.

Proof of the use or exhibition of a deadly weapon is an essential element of the offense of aggravated sexual assault. See Tex. Pen. Code Ann. 22.021 (Vernon 2003). "[W]here the State alleges [an] unnecessary matter which is descriptive of the essential elements of the crime, the State must prove the descriptive matter as alleged." Gomez v. State, 685 S.W.2d 333, 336 (Tex. Crim. App. 1985); see Curry v. State, 30 S.W.3d 394, 399 (Tex. Crim. App. 2000). Since the State alleged the use of a firearm in its indictment, the State had to prove beyond a reasonable doubt that the weapon used was a firearm to sustain Paredez's conviction.

In this case, the evidence regarding the use and existence of a deadly weapon came from Alma's testimony. Alma testified that Paredez had a gun before, during, and after the sexual assault occurred. Paredez contends that since Alma could not even determine whether the gun was real or fake, Alma's testimony was ambiguous regarding the nature of the gun. He asserts that the evidence is therefore insufficient to prove that the gun was a firearm as defined in the charge of the court. (2) Paredez relies on Alma's initial impression that the gun might be fake in order to show that the evidence was insufficient. Paredez also directs this court to portions of Alma's testimony that show that Alma could not tell a revolver from any other sort of gun and that the gun used in this case had "an orange thing on the end."

Testimony regarding the use of a "gun" is sufficient to support a finding of use and exhibition of a deadly weapon in the absence of separate evidence indicating the use of a toy gun. See Wright v. State, 591 S.W.2d 458, 459 (Tex. Crim. App. 1980) (holding that witness need not testify using the term "firearm" and that using the terms "gun," "pistol," or "revolver" is sufficient); see also Cortez v. State, 732 S.W.2d 713, 715 (Tex. App.-Corpus Christi 1987, no pet.) (holding that testimony regarding use of a "pistol" was insufficient where it was uncontroverted that the "pistol" was a toy gun). In this case, the only evidence suggesting the use of a toy gun includes Alma's own testimony regarding her initial impression of the gun and the thin orange color on the end of the gun. Through Alma's testimony, however, the State explained how these observations were consistent with Paredez's use of a real gun.

Alma testified that her knowledge of guns was acquired from watching television and that when she first saw Gabriel with the gun, she thought it was fake. When the State asked her why she thought the gun was fake, Alma answered:

Because I didn't think - I never have been around real guns before, or any kind of guns. So I didn't know how a real gun looks like. And I thought from the looks of it I thought it was probably fake, because I didn't think anybody like them really owned one.

Alma explained that because she believed that the boys did not own a gun, she initially thought the gun was fake. Alma also testified that after Thomas put the rag to her nose and Mauricio taped her to the bed, "[she] started to realize [that] it was a real gun, because everybody seemed to be paying attention to [Paredez]." Alma unequivocally stated, both during direct and cross examination, that she believed the gun was real based on her observation of the way Paredez was using the gun. Alma testified that Paredez used the gun to tell her, Thomas, and Mauricio what to do and that she was scared of the gun. Alma also testified that the "orange thing" on the gun was "real light," and she thought it could have been dipped in orange paint and pulled out. Alma also testified that she could see a hole down the barrel of the gun. This evidence suggests that the gun was not a toy gun with an orange cap but instead a real gun with some orange paint on the end.

In our review, we must not substantially intrude on the weight and credibility the jury gave to Alma's testimony. Given Alma's testimony using the term "gun," her testimony regarding the gun and Paredez's use of the gun, and the weak evidence suggesting that the gun was fake, the evidence is legally and factually sufficient to support the jury's finding that Paredez used a deadly weapon. Paredez's second and third issues are overruled.

Fair and Impartial Jury

In his first issue, Paredez complains that the trial court erred in denying his motion for mistrial. Paredez contends that he was denied a fair and impartial jury because a juror failed to reveal during voir dire that she was previously represented by one of the prosecutors. Paredez argues that the juror's relationship with the prosecutor created a bias against the defendant. Paredez admits that the defense failed to specifically ask the panel whether anyone knew the prosecutors, but he contends that the juror was "given ample opportunity to state her obvious prejudice." In response, the State argues that Paredez has failed to demonstrate that the juror withheld information and that the trial court abused its discretion in denying the motion for mistrial.

We review a trial court's denial of a motion for mistrial under an abuse of discretion standard. See Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). With respect to voir dire, "error occurs where 'a prejudiced or biased juror is selected without fault or lack of diligence on the part of defense counsel, such counsel acting in good faith on the juror's responses and having no knowledge of their inaccuracy.'" Gonzales v. State, 3 S.W.3d 915, 916-17 (Tex. Crim. App. 1999) (quoting Brandon v. State, 599 S.W.2d 567, 577 (Tex. Crim. App. 1979)) (emphasis in original). "[D]efense counsel has an obligation to ask questions calculated to bring out that information which might be said to indicate a juror's inability to be impartial, truthful, and the like." Id. at 917. "Counsel must ask specific questions, not rely on broad ones, to satisfy this obligation." Id. If defense counsel fails to meet this obligation, "the purportedly material information which a juror fails to disclose is not really 'withheld' so as to constitute misconduct," and there is no error. Id.

During voir dire, the trial court introduced the prosecutors, the defendant, and defendant's counsel to the jury panel and later asked the panel if they had any questions or comments. The panel had none. During the State's general voir dire, the State asked the panel whether they were familiar with the defense attorney, the defendant, or the complainant. One panel member indicated that he had previously been represented by the defense attorney. The State also asked the panel whether anyone had been accused or had a close friend or family member who was accused of sexual assault. Several jurors, including juror 36, raised their hands. The State then asked whether anyone in that group felt that it "would make them unfair in the case or make them biased one way or another[.]" Juror 36 raised her hand again. Finally, the State asked the jury panel if there was anyone who felt that they could not sit on this case and hear the testimony. Several jurors, including juror 36, raised their hands. During the defense's general voir dire, the defense asked the jury panel whether they knew or were familiar with the names of the complainant and two other individuals who were involved in her sexual assault. Defense counsel also asked if anyone would have serious problems if the trial lasted through the week. Juror 36 again raised her hand.

Next, the State and defenses conducted individual voir dire. In response to the State's questions, Juror 36 indicated that she knew someone who was accused. She stated she could not be fair because she was in the middle of a court battle with her child's father, who she described as a convicted sex offender. She thought it would be nearly impossible to sit and listen to the evidence before making a decision regarding the defendant's guilt. During individual voir dire, Juror 36 was only questioned by prosecutor Jan Ischy and not by defense counsel. At no point during voir dire was the jury panel asked whether any panel member knew or was familiar with the prosecutors.

After the jury was sworn, juror 36, Anastacia Guerrero, informed the trial court that she knew Ms. Ischy because Ms. Ischy had represented her in the past. Ms. Ischy indicated that she did not recognize the juror. Initially, the trial court, the State, and the defense were under the impression that the panel had been asked if they knew the prosecutors and that juror 36 had withheld this information. The defendant moved for a mistrial, and the trial court questioned juror 36. The juror stated that Ms. Ischy had represented her in a 1996 child custody case against her daughter's father. She asserted that she was waiting for a question asking whether she knew the prosecutor, and if she had heard the question, she "would have definitely spoke[n] up at that point." She indicated that the reason she did not volunteer the unsolicited information was that, based on her answers to the voir dire questions, she believed she would not be selected. The trial court denied the motion for mistrial on the grounds that juror 36 appeared to be honest.

Having reviewed the record, we find that juror 36 was not specifically asked whether she knew prosecutor Jan Ischy. Defense counsel failed to satisfy his obligation to ask specific voir dire questions "calculated to bring out that information which might be said to indicate [juror 36's] inability to be impartial [or] truthful." Gonzales, 3 S.W.3d at 917. Therefore, juror 36 did not withhold any information, and there was no juror misconduct. See id. Moreover, during voir dire, juror 36 indicated that she could not be impartial due to her court battles with a convicted sex offender. Juror 36 never suggested that her impartiality stemmed from her relationship with Ms. Ischy. In this case, we cannot conclude that a prejudiced or biased juror was selected "without fault or lack of diligence on the part of defense counsel." Id. The trial court did not abuse its discretion in denying Paredez's motion for mistrial. Paredez's first issue is overruled.

Conclusion

For the foregoing reasons, the trial court's decision is affirmed.

Phylis J. Speedlin, Justice

DO NOT PUBLISH

1. Alma was fourteen years old at the time of the incident and seventeen years old at the time of the trial. Paredez was sixteen years old at the time of the incident.

2. The jury charge included the following definitions:

"Deadly weapon" means a firearm.

"Firearm" means any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use.