Esequiel Echavarria v. The State of Texas--Appeal from 175th Judicial District Court of Bexar County

99-00206 Echavarria v State of Texas.wpd No. 04-99-00206-CR
Esequiel ECHAVARRIA,
Appellant
v.
The STATE of Texas,
Appellee
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 98-CR-1698
Honorable Henry Schuble, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: August 23, 2000

AFFIRMED

Esequiel Echavarria appeals his conviction for sexual assault, arguing (1) the trial court erred in admitting evidence of an extraneous offense during the guilt-innocence phase of the trial, and (2) the evidence is factually insufficient to support the jury's verdict. We affirm.

Factual and Procedural Background

Jamie, the complainant, testified at trial that one evening, while she was waiting for a bus after work, Echavarria stopped and offered her a ride. Jamie accepted, climbed into Echavarria's truck and gave him directions to her home. However, before they reached her house, Echavarria asked Jamie if she minded if he picked up some beer at a gas station. Jamie agreed. Then, after Echavarria purchased the beer, he began driving in the opposite direction of Jamie's home. After driving for about five minutes, Echavarria stopped the car on the side of a road, and according to Jamie, he tried to get on top of her and began kissing and touching her. Jamie screamed, and Echavarria turned back around and began driving toward her house. But, before they got to her house, Echavarria stopped his truck again, this time behind a grocery store. Jamie testified Echavarria then forced himself on top of her and began kissing her again. Echavarria proceeded to pull up Jamie's shirt and rip off her bra. Jamie claims she screamed and pleaded for Echavarria to stop and take her home, but Echavarria unbuttoned her pants and penetrated her vagina with his finger. Next, Jamie claims Echavarria undid his own pants and asked Jamie for oral sex. When Jamie refused, Echavarria pulled her by her head and her breast down toward his crotch. Although her mouth contacted his penis, she refused to perform oral sex. So, according to Jamie, Echavarria resumed penetrating her vagina with his finger. At this point, Jamie claims she was crying hysterically, and after about ten minutes behind the grocery store, Echavarria proceeded back toward Jamie's house. Before they got to her house, however, Jamie jumped out of the slow moving truck and ran home, where she called the police.

Echavarria testified Jamie flagged him down and asked him for a ride while she was waiting for a bus. Echavarria agreed, so Jamie got in and asked him to take her home. Before they got to her house, however, Echavarria asked Jamie if she would like some beer and Jamie responded affirmatively. Echavarria pulled into a gas station and bought beer and cigarettes. According to Echavarria, both he and Jamie began drinking beer and they both agreed to drive around for a while. Echavarria testified that while driving, he and Jamie began flirting with each other, and Jamie eventually touched his leg and kissed him. Echavarria began to fondle Jamie's breasts on the outside of her clothing, at which point Jamie allegedly lifted up her shirt and attempted to lift up her bra. According to Echavarria, Jamie broke her bra in attempting to lift it up and then arranged the bra so he could continue fondling her. They continued to kiss and Echavarria began to touch Jamie between her legs. Echavarria testified Jamie then unbuttoned her own pants and slid them down so he could touch her vagina. At that point, Echavarria acknowledged pulling in behind the grocery store where he claimed he and Jamie "made out." Echavarria testified Jamie never tried to get out of the truck during this time, and after about ten minutes behind the store, he dropped her off at her house.

A medical examination conducted within twenty-four hours of the incident revealed a bruise on Jamie's left arm, which she claimed was the result of Echavarria's grabbing her, redness and swelling of the hymen, redness at the entrance of the vagina, and a red dot on the clitoris. The nurse concluded that the redness and swelling in the vaginal area was consistent with digital penetration.

Echavarria was charged with sexual assault. The jury found him guilty and sentenced him to eight years in prison. Echavarria appeals.

Other Crimes, Wrongs, or Acts

Echavarria first argues the trial court erred in admitting evidence of other crimes, wrongs, or acts of his during the guilt-innocence phase of the trial. Specifically, he argues the trial court should not have allowed Jamie to testify that he forced her mouth to come into contact with his penis while they were parked behind the grocery store. We disagree.

Standard of Review

We review a trial court's admission of evidence under the abuse of discretion standard of review. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (on rehearing). That is, we will uphold the trial court's ruling "as long as the trial court's ruling was at least within the zone of reasonable disagreement." Id.

Discussion

According to Jamie, Echavarria pulled behind a grocery store, forced himself onto her, ripped her bra and penetrated her vagina with his finger. Jamie then testified as follows:

STATE: What happened next?

JAMIE: Then he started to undo his pants and he asked me if I would give him a blow job.

STATE: What did you say?

JAMIE: I told him he was crazy. I told him that I needed to go home.

.

JAMIE: And then he tried to force my head to do it but he really - you can't really force someone to give you a blow job, you know.

STATE: How did he try to force you?

JAMIE: There was contact - he put his hand behind my head.

STATE: You said there was contact?

JAMIE: He pulled me and pulled my breast towards him.

STATE: You said there was contact. Contact with what?

JAMIE: Between my mouth -

DEFENSE COUNSEL: Your Honor, I'm going to object to extraneous offenses. He's proving up matters that are not charged in the indictment.

COURT: Overruled.

STATE: And you said he forced your head and then something else?

JAMIE: He forced my head - he forced my mouth to touch his dick but you can't really force someone to give you a blow job, you know because -

STATE: What happened next?

JAMIE: He just got forceful. It hurt. He just - he just kept fingering me because he realized I wasn't going to play with him or give him a blow job .

On appeal, Echavarria argues Jamie's testimony constituted extraneous offense evidence inadmissable under Texas Rules of Evidence 403 and 404(b). Because Echavarria only excepted to Jamie's testimony on the ground that it was improper extraneous offense evidence, Echavarria has waived any Rule 403 argument. Montgomery, 810 S.W.2d at 388-89. However, we will address Echavarria's Rule 404(b) argument. Under Rule 404(b)

[e]vidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident .

Tex. R. Evid. 404(b). Thus, the question on appeal is whether the trial court abused its discretion in finding the evidence of other crimes, wrongs, or acts has relevance beyond character conformity. Montgomery, 810 S.W.2d at 391. Here, the evidence that Echavarria grabbed Jamie by the head and breast and forced her mouth to come in contact with his penis was relevant beyond character conformity because it tended to show a key element of the charge--lack of consent. That is, Echavarria's alleged actions tended to make it more probable that he used force and violence in compelling Jamie to submit to his penetrating Jamie's vagina with his finger than if the evidence had not been admitted. See Tex. R. Evid. 401; Garrett v. State, 998 S.W.2d 307, 315-16 (Tex. App.--Texarkana 1999, pet. ref'd, untimely filed). We therefore hold the trial court did not abuse its discretion in finding Jamie's testimony had relevancy beyond proving character conformity and thus admitting the evidence. See Montgomery, 810 S.W.2d at 390-91, 393-94; Garrett, 998 S.W.2d at 315-16.

Factual Sufficiency

Echavarria next argues the evidence is factually insufficient to support the jury's verdict. Specifically, Echavarria contends the evidence is insufficient to show that he sexually assaulted Jamie without her consent by using force or violence. See Tex. Pen. Code Ann. 22.011 (b)(1) (Vernon Supp. 1999). We disagree.

Standard of Review

When reviewing the record for factually sufficient evidence to support the verdict, we view all of the evidence "'without the prism of "in the light most favorable to the prosecution" [and] set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.'" Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). In making this determination, we must keep in mind that the trier of fact is the sole judge of the credibility of witnesses and the weight to be given their testimony. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997).

Discussion

Here, there are two conflicting versions of events. Under Jamie's version, Echavarria forced himself on top of her, ripped off her bra, grabbed her by the arm, head, and breast, and penetrated her vagina with his finger repeatedly, while she screamed at him to stop and take her home. Under Echavarria's version, Jamie flirted with him and invited his sexual advancements. While Echavarria attacks the credibility of Jamie's testimony, we are in no position to determine the credibility of a witness or the weight that should be given her testimony. Id. Under the evidence, we cannot hold the verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust, see Gonzales v. State, 2 S.W.3d 411, 414-16 (Tex. App.--San Antonio 1999, no pet.), and we therefore affirm the trial court's judgment.

Sarah B. Duncan, Justice

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