Anthony X. Cortez v. State of Texas--Appeal from 187th Judicial District Court of Bexar County

No. 04-00-00732-CR
Anthony X. CORTEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 1999-CR-4523
Honorable Raymond Angelini, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Tom Rickhoff, Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: August 29, 2001

AFFIRMED

Appellant Anthony X. Cortez pleaded not guilty to two counts of sexual assault of a child. A jury found him guilty of both counts and assessed his punishment at ten years imprisonment for each offense, running concurrently. Cortez contends the trial court erred in (1) improperly admitting DNA evidence; (2) making improper comments to the jury; (3) failing to suppress the fruits of an illegal search; and (4) failing to file findings of fact and conclusions of law. We affirm.

Background

The testimony at trial revealed the following events. In March 1999, Cortez and a friend, Enrique De La Rosa, rented a motel room at the Econolodge across the street from Holmes High School, where they spent several days hanging out, drinking, and using drugs. On the morning of March 31, 1999, the complainant, J.V., was skipping school to go to a job interview. The Texaco station where J.V. waited for a friend to give her a ride to the interview was adjacent to the Econolodge. Cortez could see her from his room, and pointed her out to De La Rosa.

J.V. was dressed in a gray suit and black heels, and had casual clothes and shoes with her in a bag. She waited at the Texaco station, talking with friends until school began, and smoking cigarettes. While she was repeatedly calling her friend, an older man came up to her and asked to buy her a beer, but she brushed him off. Soon after, Cortez approached J.V. and asked her if the man had been bothering her; he then offered to let her make phone calls from his motel room. J.V. initially refused to go up to the room, but decided to call from his room when she discovered Cortez knew her father because they both worked for the same restaurant chain.

When she went up to the room, she met De La Rosa and the three of them drank beer and talked for about thirty minutes. J.V. changed into her casual clothes, and sat on the bed to use the phone. When Cortez handed her a marihuana cigarette, she smoked most of it then lay on the bed watching television. She testified she felt very heavy, unable to move, and thought the marihuana might have had something else in it. De La Rosa left the room to get more beer and some wine for J.V. While De La Rosa was out, Cortez made a sexual overture to J.V., then removed her clothing, and had sex with her without her consent. When there was a knock on the door, J.V. hurriedly dressed.

After De La Rosa's return, J.V. stayed in the room for another fifteen to thirty minutes, drank some wine and more beer, then gathered her things and left. De La Rosa testified Cortez told him after J.V. left that he had had sex with J.V., but De La Rosa did not believe him because Cortez is married and had a baby at home, and because De La Rosa thinks it is impossible to have sex in fifteen minutes. When she left the motel, J.V. went immediately to a friend's house, and told her and another girlfriend what had happened. Her friends went to the Econolodge and confronted the men, asking them if they knew J.V. was only sixteen years old.

In the early evening, J.V. also told her mother what had happened; her mother called the police. Two police officers went to the Econolodge to talk with Cortez and De La Rosa. The room was registered in De La Rosa's name. The officers asked the men if they had had any visitors that day; both denied having visitors. The officers asked again if there had been any females in the room, and the men again denied it. The officers asked to take a look around the room. Without saying anything, De La Rosa stepped back to let them into the room. When one of the officers spotted a pair of ladies high heeled shoes by the bed, he got a consent to search form and asked De La Rosa to sign it, which he did. The officers took both men to police headquarters; they read Cortez his Miranda warnings and took his statement.

The trial court overruled Cortez's pretrial motion to suppress his oral statements to the police and the evidence seized from the motel room. It is from this ruling and the jury's verdict that Cortez now appeals.

Admission of DNA Evidence

State's Exhibit 13 was a sexual assault kit containing blood and swabbings taken from J.V. Several witnesses testified about the contents of the kit and DNA evidence based on the materials in the kit, but Exhibit 13 was not admitted into evidence. In point of error one, Cortez contends the trial court erred in admitting testimony regarding the results of the DNA tests on samples taken from J.V. because the chain of custody was not properly established. The nurse who prepared the kit did not testify, and Cortez argues that no one ever identified the blood and swabbings in State's Exhibit 13 as having been obtained from J.V.

A party who offers an item of evidence must prove, before admission, that the item is what the party represents it to be. Tex. R. Evid. 901 (Vernon 2000). To admit the results of a blood test, the State must show the sample was the one actually drawn from the complainant or the defendant, as well as showing the proper chain of custody. Brown v. State, 156 Tex. Crim. 144, 240 S.W.2d 310, 311 (Tex. Crim. App. 1951). We review a trial court's decision to admit evidence under an abuse of discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000); Sexton v. State, 12 S.W.3d 517, 519 (Tex. App.--San Antonio 1999, no pet.).

The State contends Cortez has not preserved this error for review because the objection made was neither timely nor sufficiently specific. To preserve a complaint for review, a party must make a timely objection stating the grounds for the ruling, unless the grounds are apparent from the context; otherwise, the complaint is waived. Tex. R. App. P. 33.1.

Gabriel Briseno, a security officer at Santa Rosa Hospital, testified he watched the nurse package together and seal the sexual assault kit, then both he and the nurse signed the paperwork and sealed the envelope containing the kit. Briseno put the kit into the Santa Rosa property refrigerator. He testified the name on the kit was J.V. Officer Henry Huizar picked up the kit from Santa Rosa Hospital and delivered it to the San Antonio police department property room. He testified he took the kit to the Bexar County Forensic Science Center, picked it up again after testing was complete, and returned the kit to the property room.

Lonnie Ginsberg, a crime laboratory supervisor, testified the kit bore his initials, the date he received it, and J.V.'s name. When the State asked Ginsberg to list each item inside the kit, Cortez objected, "Excuse me, Your Honor, before we get into the testimony, I'd like to object, Your Honor, to any testimony about this. There's been no demonstration of how this kit was recovered, received, or how it was prepared. All we've established is that it arrived from a location to a location." The trial court overruled the objection.

Cortez's objection was sufficient to preserve error and it comports with his complaint on appeal--that no one identified the samples as being taken from J.V. Proof of the beginning and the end of a chain of custody will support admission of evidence even if there are gaps in the chain. See Penley v. State, 2 S.W.3d 534, 537 (Tex. App.--Texarkana 1999, pet. ref'd) (officer present in room during blood draw, thus minor gap in chain thereafter not fatal to admission of evidence); Hall v. State, 13 S.W.3d 115, 120 (Tex. App.--Fort Worth 2000, no pet.) (although doctor who obtained swabbings did not testify, testimony of nurse who was present when samples taken sufficient to support admission of evidence). Here, however, because (1) neither the doctor who performed the exam or the nurse who prepared the sexual assault kit testified; (2) no other witnesses testified they saw the samples being taken; and (3) the State did not introduce hospital records confirming how the samples were taken, there was no proof that the samples actually came from J.V. The beginning of the chain was never established; thus, the trial court erred in overruling the objection and in admitting testimony matching the DNA in the samples taken from J.V. to the DNA in the samples provided by Cortez.

Identification of error does not end our analysis. See Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997) (no error, subject to few exceptions, is categorically immune from harmless error analysis). We must examine whether the error is harmful; whether it constitutes reversible error. See Tex. R. App. P. 44.2. Constitutional error requires reversal of the judgment or punishment unless the reviewing court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment. Tex. R. App. P. 44.2(a). See, e.g., Blue v. State, 41 S.W.3d 129, 131-32 (Tex. Crim. App. 2000) (presumption of innocence tainted); Mayes v. State, 8 S.W.3d 354, 361 (Tex. App--Amarillo 1999, no pet.) (Sixth Amendment right to counsel violated); Jimenez v. State, 32 S.W.2d 233, 235 (Tex. Crim. App. 2000) (jury charge so erroneous defendant did not receive fair and impartial trial); Chavez v. State, 6 S.W.2d 56, 63 (Tex. Crim. App. 1999) (defendant deprived of right of confrontation); Rivera v. State, 12 S.W.3d 572, 579 (Tex. App.--San Antonio 2000, no pet.) (defendant deprived of 12-member jury).

Unlike these cases, the erroneous admission of DNA evidence here did not involve the deprivation of a constitutional right. Any other error, defect, irregularity, or variance not affecting substantial rights must be disregarded. Tex. R. App. P. 44.2(b). Accordingly, we determine whether the error here in admitting the DNA evidence affected a substantial right.

To prove the offense of sexual assault of a child, the State was required to proved beyond a reasonable doubt that Cortez intentionally and knowingly penetrated the anus or female sexual organ of a person under the age of seventeen who was not his spouse. See Tex. Penal Code Ann. 22.011(a)(2)(A) & (c)(1) (Vernon Supp. 2001). J.V. was born July 23, 1982, thus she was under the age of seventeen at the time of the incident. She testified that Cortez penetrated her vaginally and anally. She told her girlfriends, her mother, and the police that this happened. Cortez's friend, De La Rosa, testified J.V. had been in the motel room and that Cortez told him he had sexual relations with J.V. The jury also heard testimony that Cortez had been partying for several days in a local motel despite having a wife and baby at home. Given this record, we conclude the jury could rationally have found the evidence sufficient to support the conviction, even without DNA testimony. The DNA evidence was thus cumulative, not dispositive. Therefore, we conclude the error was harmless.

We overrule point of error one.

Comments by the Trial Court

In point of error two, Cortez contends his right to a fair trial by an impartial jury was violated by comments the trial judge made in the jury's presence. When J.V. testified she smoked a marihuana cigarette, defense counsel said, "And that wasn't the first time that you ever smoked a marihuana cigarette?" despite a previous ruling requiring counsel to approach the bench before bringing up J.V.'s use of drugs on any other occasion. Before J.V. responded, the State objected. The trial judge sustained the objection and asked the jury to leave the courtroom. Out of the jury's presence, the judge strongly admonished defense counsel. When the jury came back in, the judge said:

Ladies and gentlemen, you're to disregard the last question of the defense attorney. It was asked only in an attempt to prejudice you. It is in no way admissible and fair, and in any way acceptable in this Court. All right? Go ahead.

Defense counsel did not object or seek an instruction to the jury to disregard the judge's comments. Although Cortez likens these comments to those made in Kincade v. State, 552 S.W.2d 832, 835 (Tex. Crim. App. 1977), the comparison is not an apt one. Here, only one comment was made and it was not flagrantly prejudicial. In contrast, the trial judge's comments in Kincade were both egregious and ongoing. The judge injected extraneous offenses into the record, repeatedly accused counsel of trying to mislead the court, and refused counsel's repeated requests that he instruct the jury to disregard his own comments. Id. at 833-35. In addition, one of the judge's comments went directly to the presumption of innocence when he said to the jury:

[I]t is very misleading to the Jury to say to the Jury that this case was dismissed because it was not a good case. It was dismissed because it is customary to let him plead out on one of them and dismiss the others. And he plead out on the old case and got this one dismissed. Now, whether he was guilty or not guilty, no one really knows.

Id. at 835. The Kincade court reversed, holding these statements amounted to an improper comment on the evidence that was reasonably calculated to benefit the State and prejudice the rights of the appellant. Here, the trial judge instructed the jury to disregard the question after sustaining the State's objection, then added his opinion of the question itself--that it was asked to prejudice the jury. We do not find this comparable to the comments in Kincade. Moreover, several objections were made to the comments in Kincade, but none was made here.

Although Cortez further argues, based on Blue, that no objection was necessary, we again disagree. The court held in Blue that a judge's comments regarding plea negotiations imparted information to the venire that tainted the presumption of innocence, because a juror who knows at the outset that a defendant seriously considered entering into a plea agreement no longer begins with a presumption that the defendant is innocent. 41 S.W.3d at 132. Thus, the comments were fundamental error of constitutional dimension and required no objection. Id. Such is not the case here. Cortez' presumption of innocence was not tainted. Accordingly, we apply the general rule that counsel was required to object to the judge's comments to preserve error. Id. at 131.

We overrule the second point of error.

Seizure of Appellant's Blood

In point of error three, Cortez argues the trial court erred by not suppressing the fruits of an illegal arrest--specifically, samples of his hair and blood. He contends there was no evidence at the suppression hearing to explain how or why he was arrested, let alone how or why the police obtained these samples, thus the State did not meet its burden to prove the seizure was reasonable. The record of the hearing, however, contradicts this claim.

The testimony revealed that the room was registered in De La Rosa's name, and he testified he paid cash for it. When the police officers asked to come inside, he stepped back and let them in. When they asked him to sign a form consenting to a search of the room, he signed it. Despite the men having denied having had any female visitors, the officers saw a pair of women's shoes. Appellant was detained and taken to the police station. He received his Miranda warnings, and signed a card acknowledging this. He also signed a form consenting to provide hair and blood samples to the police for analysis. Cortez did not testify at the suppression hearing. De La Rosa testified he did not tell the officers they could come into the motel room, but stepped back to allow them to come in. He also said he signed the consent form while the search was taking place, not before it began.

As a general rule, appellate courts should afford almost total deference to a trial court's determination of the historical facts that the record supports, particularly when the trial court's fact findings are based on an evaluation of credibility and demeanor. Guzman v. State, 955 W.W.2d 85, 89 (Tex. Crim. App. 1997). To take blood from a defendant, the police must obtain either a warrant or the defendant's consent. Ferguson v. State, 573 S.W.2d 516, 520 (Tex. Crim. App. 1978). The State must show by clear and convincing evidence that the consent was given freely and voluntarily. Martin v. State, 610 S.W.2d 491, 492 (Tex. Crim. App. 1980). Neither Cortez nor De La Rosa testified concerning Cortez's consent to provide hair and blood samples. Detective Morris testified that he explained to Cortez why the police needed the samples. Cortez signed the consent form, as did Morris, the technician, and two witnesses. There was no testimony to indicate consent was anything other than freely and voluntarily given. Therefore, the trial court did not abuse its discretion in overruling the motion to suppress.

We overrule point of error three.

Findings of Fact and Conclusions of Law

In point of error four, Cortez contends the trial court erred by not filing written findings of fact and conclusions of law concerning his pretrial motion to suppress oral statements he made to the police. It is unclear from either the record of the suppression hearing or the trial record what statements were challenged. The State surmises the statement was his assertion to the police that no one had visited the motel room. Given the absence of any other statement in the record, we assume this to be true.

When a question is raised as to the voluntariness of a statement, the trial court must make an independent finding as to whether the statement was voluntarily made, and must enter an order stating its conclusion as to voluntariness and specific fact findings on which the conclusion is based. Tex. Code Crim. Proc. Ann. art. 38.22 6 (Vernon 2000). Here, however, no question was raised about the voluntariness of Cortez's statement. There was no objection to the police officer's testimony, no testimony disputing it, and no evidence that raised a fact issue regarding the voluntariness of the answer Cortez gave when he was asked whether there had been visitors in the motel room. Accordingly, we hold the trial court did not err in not filing written findings of fact and conclusions of law. See State v. Terrazas, 4 S.W.3d 720, 725 (Tex. Crim. App. 1999) (holding article 38.22 6 inapplicable when defendant fails to sufficiently raise issue of voluntariness).

We overrule point of error four.

Conclusion

We affirm the trial court's judgment.

Catherine Stone, Justice

DO NOT PUBLISH