James L. Estrada, Jr. v. The State of Texas--Appeal from 175th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-03-00887-CR

James ESTRADA,

Appellant

v.

The STATE of Texas,

Appellee

From the 175th Judicial District Court, Bexar County, Texas

Trial Court No. 2002-CR-5379

Honorable Mary Roman, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: July 20, 2005

AFFIRMED

James Estrada was convicted by a jury of aggravated sexual assault. The trial court sentenced Estrada to a term of life imprisonment as a repeat offender. On appeal, Estrada argues that (1) the trial court denied Estrada the right to present a defense in violation of the United States and Texas Constitutions; (2) Estrada received ineffective assistance of counsel; (3) the trial court erred in denying Estrada s motion for new trial; (4) the evidence is legally insufficient to sustain Estrada s conviction; and (5) the evidence is factually insufficient to sustain Estrada s conviction. We affirm the judgment of the trial court.

Background

The complainant in this case is Estrada s sister-in-law. On October 27, 2001, Estrada was at the complainant s home, watching a movie with the complainant and the complainant s children. When the movie was over, the children went to bed. The complainant testified that as she was setting a clock, Estrada grabbed her from behind and pressed a knife to her throat. The complainant s fingers were cut as she tried to push Estrada s hand and the knife away from her. Estrada ordered the complainant to her bedroom, pushing and poking at the complainant with the knife. Estrada began ranting at the complainant and continued threatening her with the knife; the complainant was cut several times. Estrada told the complainant that if she did not cooperate, he would kill both the complainant and her daughter.

The complainant testified that Estrada bound her hands and feet and gagged her. Estrada became concerned at the amount of blood coming from the complainant s cut fingers, so he allowed the complainant to clean the cut. He also allowed the complainant to use the restroom. Eventually, Estrada removed the gag and the ties from around the complainant s hands and feet. Estrada then had sexual intercourse with the complainant. The complainant testified that she did not consent to having sexual intercourse with Estrada, but she let him [Estrada] have his way because Estrada had threatened her life and the life of her daughter.

The complainant stated that Estrada then asked her if she would like to shower, but the complainant declined. The complainant testified that she tried to placate Estrada, telling him that everything would be okay in an effort to get Estrada to leave the house. As Estrada watched, the complainant put bloodied items in the washing machine. The complainant testified that once the items were in the washing machine, Estrada prepared to leave the house, but stopped to tell the complainant that what happened would remain between the two of them.

The complainant testified that once Estrada left the house, she ran to the phone, which she discovered was off the hook. The complainant phoned her mother, her best friend, and the police. She then went to her neighbors, looking for help. The complainant s Uncle James and her best friend, Cathy, arrived. Eventually, the police arrived; the complainant changed clothes and went with the police to the hospital for an examination.

Rebecca Silva, the Sexual Assault Nurse Examiner who examined the complainant at the hospital, testified that she found seven cuts on the complainant. The complainant had red marks on both her wrists and was bruised on her lips and chest area. Silva found bruising and tears on parts of the complainant s genitalia. A vaginal swab of the complainant collected motile sperm. At trial, evidence was presented indicating that Estrada s DNA was not excluded as part of the DNA sample collected on the vaginal swab.

Denial of Presentation of Defense

In his first issue, Estrada complains that the trial court effectively denied him his right to present a defense by cutting-off any attempt to develop the defensive theories of frame-up or consent when the following exchange occurred outside the presence of the jury:

Trial Court:What I m saying is that the State may be able to present the evidence regarding the rape conviction in rebuttal, depending on what your witnesses say.

. . . .

Counsel for Estrada:Are you telling me that if we discuss consent, that that is going to open the door?

Trial Court:It really has to do with the inference that is left with the jury. And I cannot answer your question. . . . It really just depends.

Prior to this exchange, during its case in chief, the State had attempted to introduce Estrada s previous rape conviction for the purpose of rebutting the defenses of consent and frame-up, which the State argued Estrada began presenting during opening argument and through cross-examination. At the close of its case in chief, the State again attempted to introduce the previous conviction. Each time, the trial court ruled that the previous conviction was not admissible at the time. When Estrada attempted to obtain a definitive ruling to completely exclude the previous conviction, the trial court indicated that it could not make such a ruling because there was a possibility that during his case, Estrada could present testimony that would cause the prior conviction to become relevant and admissible. Estrada chose to rest without presenting any witnesses, and now argues that the trial court s refusal to make the sought-after ruling denied him the right to present a defense.

We review a trial court s ruling on the admissibility of evidence under an abuse of discretion standard. Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996). We will find a trial court s ruling erroneous if the court acted without reference to any guiding principles and Estrada was harmed. See Tex. R. App. P. 44.2; Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001). An erroneous evidentiary ruling may, but rarely does, rise to the level of denying an individual the right to present a meaningful defense. Potier v. State, 68 S.W.3d 657, 665 (Tex. Crim. App. 2002). Exclusion of Estrada s evidence is constitutional error only if the excluded evidence forms such a vital portion of Estrada s case that the exclusion effectively precludes Estrada from presenting a defense. Id. at 665. Portier reflects that, for there to be error, the trial court must have made a ruling affecting evidence that comprised a vital portion of Estrada s case. Id.

Two recent cases are instructive in analyzing this situation. In Sanchez v. State, the court of appeals determined the trial court erred in excluding the testimony of a teacher that the complainant was not an honest child when the complainant s grandfather had testified that the complainant was honest. Sanchez v. State, No. 13-99-591-CR, 2004 WL 1584923, *1 (Tex. App. Corpus Christi July 15, 2004, pet ref d) (not designated for publication). The court of appeals found that while the erroneous exclusion did not prevent Sanchez from presenting a defense, it did have a substantial and injurious effect on the verdict, and remanded the case to the trial court for a new trial. Id. at *3-5.

In Sauceda v. State, the complainant was cross-examined concerning a videotaped interview with Children s Protective Services Investigator Fiona Stephenson. Sauceda v. State, 129 S.W.3d 116, 118 (Tex. Crim. App. 2004). The complainant could not recall whether she had mentioned a knife during the interview. Id. at 118. Sauceda indicated that he wished to call Stephenson to testify that the complainant had not mentioned a knife during the interview. Id. at 118-19. The State argued that if Stephenson so testified, the entire videotaped interview should be admitted under the rule of optional completeness. Id. The trial court agreed, and Sauceda rested without calling any witnesses. Id. at 119. The court of appeals affirmed, but the Court of Criminal Appeals found that the trial court s ruling was erroneous and remanded the case to the court of appeals for a harm analysis. Id. at 124. On remand, the court of appeals determined that the trial court s erroneous ruling did not preclude Sauceda from presenting a defense. Sauceda v. State, 162 S.W.3d 591, 596-97 (Tex. App. Houston [14th Dist.] 2005, no pet.).

In the case at hand, unlike Sanchez and Sauceda, there is no erroneous ruling on the admissibility of any evidence. At the close of the State s case, the trial court ruled that Estrada s prior conviction was excluded. The statements subsequently made by the trial court were accurate statements of law; there was a possibility that the testimony of Estrada s witnesses could create a situation in which the prior conviction would become admissible. Unlike in Sanchez, the testimony of the defense witnesses in this case was not expressly excluded by a ruling of the trial court. And, unlike the trial court in Sauceda, the trial court in this case did not state definitively that it would admit the prior conviction, just that it could do so, depending on the testimony of the witnesses. The trial court merely reiterated the law that rulings on the admissibility of evidence are fluid and can change if future testimony opens the door. Because the trial court did not make an erroneous ruling, it neither abused its discretion nor denied Estrada the right to present a defense. Estrada s first issue is overruled.

Ineffective Assistance of Counsel

Estrada s second issue, in which he complains of ineffective assistance of counsel, is threefold. Estrada contends he received ineffective representation because trial counsel failed to (1) object to evidence of an extraneous offense; (2) call witnesses on Estrada s behalf; and (3) request a directed verdict. To prevail on a claim of ineffective assistance of counsel based on attorney error, Estrada must show that trial counsel s performance was deficient, i.e., that his assistance fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 687 (1984); Thompson v. State, 9 S.W.3d 808, 812-13 (Tex. Crim. App. 1999). Additionally, Estrada must show a reasonable probability that, but for trial counsel s unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687; Thompson, 9 S.W.3d at 812-13. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694.

There is a strong presumption that counsel s conduct fell within the wide range of reasonable professional assistance. Thompson, 9 S.W.3d at 813. To defeat the presumption of reasonable professional assistance, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id. at 814. The fact that another attorney might have pursued another trial strategy will not support a finding of ineffectiveness of counsel. Blott v. State, 588 S.W.2d 588, 592 (Tex. Crim. App. 1979). Estradabears the burden of proving by a preponderance of the evidence that trial counsel s representation was ineffective. Thompson, 9 S.W.3d at 813.

Failure to Object to Extraneous Offense Testimony

In his first complaint of ineffective assistance of counsel, Estrada argues that trial counsel failed to object to the testimony of an extraneous offense by the State s witness, Aaron Necoechea. Necoechea testified that prior to the assault the complainant told Necoechea that she [the complainant] thought someone was trying to get into the house and that she [the complainant] thought it was him [Estrada]. Estrada argues that the failure of trial counsel to object to the mentioning of this damaging testimony concerning extraneous conduct under Rule 404(b) or obtain a ruling on the prejudicial nature of the evidence under Rule 403 rises to the level of a single error so egregious as to cause trial counsel s assistance to fall below the Sixth Amendment standard. Estrada concludes that there is clearly a reasonable probability that but for trial counsel s failure to object to the testimony, the result of the trial would have been different.

This statement by Necoechea was elicited on cross examination while trial counsel for Estrada was questioning Necoechea whether the complainant had ever mentioned Estrada to Necoechea prior to the assault. The line of questioning in which trial counsel was engaged with Necoechea reveals a series of questions concerning whether Necoechea had seen Estrada at or in the complainant s home before the assault and whether Necoechea had ever seen the complainant and Estrada together. The questions trial counsel asked to follow up on Necoechea s answer centered around whether there had actually been any sign of forced entry, which Necoecha denied. Further, trial counsel elicited from Necoechea that the complainant did not really know whether anyone had actually tried to enter the home, but was paranoid whenever a window was found open.

During the hearing on the Motion for New Trial, trial counsel was not questioned as to why he pursued this line of questioning. Given the defense theory of an affair and consent, trial counsel may have been trying to establish that the complainant and Estrada spent a great deal of time together prior to the assault. Such speculation, however, is not material to our holding. See Jackson v. State, 877 S.W.2d 768, 771-72 (Tex. Crim. App. 1994). When faced with a silent record as to counsel s strategy, we will not speculate as to the reasons for counsel s actions. Id. at 771. Because the record is silent regarding trial counsel s reasoning, Estrada has failed to rebut the presumption that the decisions made by his trial attorney were the result of trial strategy. See Thompson, 9 S.W.3d at 813-14.

Failure to Call Witnesses

In his second complaint of ineffective assistance of counsel, Estrada finds fault with trial counsel for not calling witnesses to support his defensive theory of consent. During opening statement, trial counsel described an affair between Estrada and the complainant, and it appears that trial counsel fully intended to call witnesses to testify about the affair. At some point during trial, however, trial counsel changed his mind about calling the witnesses to testify.

At the hearing on the motion for new trial, Estrada called three witnesses and himself. The three witnesses testified as to the alleged affair between the complainant and Estrada and why each did not testify at trial. Each of the three witnesses admitted to speaking with either trial counsel or trial counsel s investigator before trial, and had been told they would be needed to testify at trial. Each was asked to be on stand by. Estrada testified that he and his trial counsel had discussed whether Estrada would testify. Estrada indicated that he wanted to testify all along, but that trial counsel told him it would be in his best interest not to testify. Trial counsel testified that he and Estrada had more than one conversation concerning whether Estrada would testify.

Evonnie Estrada, Estrada s wife and sister of the complainant, testified at the hearing that she would have told the jury that she knew that he [Estrada] was having an affair with [the complainant]. Alice Faye Payne, the step-mother of the complainant and step-mother-in-law of Estrada, testified at the hearing that she called the complainant and spoke with her between 7:30 and 8:30 p.m. on the evening of the assault, but that the complainant did not mention Estrada s presence in her home. Alice stated that she later spoke with Estrada, and that he was able to repeat to her the conversation she had had with her step-daughter. Estrada argues that because the complainant did not mention his presence in the home to Alice, the complainant must have been hiding the affair. Estrada also argues that the complainant must be lying about the assault because the complainant told Silva, the Sexual Assault Nurse Examiner, the assault occurred around 8:20 p.m., but Alice indicated that she was on the phone with the complainant at that time.

Kelvin Payne, a non-related next-door neighbor of the complainant s mother, testified that he witnessed Estrada and the complainant horse playing and giggling together. Payne also testified that he saw Estrada touching the complainant s private parts, but that the complainant did not complain. Additionally, Payne stated that he saw Estrada and the complainant kiss passionately on the lips. Finally, Payne testified that he asked Estrada whether Estrada and the complainant were having an affair and that Estrada said yes.

Two family members testified via affidavit. Sharon Rossi, the sister of the complainant, stated that she had spoken with Estrada two weeks before the assault. Rossi stated that Estrada told her that Evonnie was acting jealous and accusing him of cheating on her with the complainant. Rossi indicated that, at the time of the conversation, she thought that Estrada s behavior in helping the complainant out around her house and picking up the complainant s daughters from day care was not out of the ordinary. In retrospect, however, Rossi believed that these were indications that Estrada was admitting he was having an affair and [the complainant] was being named as the other woman. Raine Nobles Payne, Estrada s mother-in-law and mother of the complainant, stated that two days before the date of the assault, she spoke privately with the complainant and told her that [Estrada] is Evonnie s husband and to have respect for Evonnie and to leave [Estrada] alone. Raine further stated that she admonished the complainant to stop asking Estrada over to the complainant s house every day.

Estrada asserts that if the jury had heard the witnesses, the jury would have recognized that Estrada and the complainant were having an affair. Estrada concludes that because the jury would have seen that the two were having an affair, the jury would have also determined that the sexual intercourse was consensual, and the outcome of the trial would have been different.

The record from the hearing on the Motion for New Trial reveals that trial counsel was concerned these witnesses could open the door on the admissibility of Estrada s prior conviction for rape. Trial counsel expressed concern that introduction of the prior conviction to the jury would have a devastating effect on Estrada s case. Additionally, trial counsel indicated the witnesses could only testify as to their perceptions of an affair between Estrada and the complainant because none of those witnesses has any direct knowledge of an affair.

In reviewing the trial strategy and decisions made by trial counsel, we do not second guess decisions that do not fall below an objective standard of reasonableness. See Young v. State, 991 S.W.2d 835, 837 (Tex. Crim. App. 1997). Estrada does not demonstrate that trial counsel s decision not to call the witnesses falls below an objective standard of reasonableness. Nor does Estrada demonstrate a reasonable probability that the trial results would have been different had the witnesses been called to testify.

Failure to Move for Directed Verdict

In his third complaint of ineffective assistance of counsel, Estrada argues that trial counsel failed to move for a directed verdict. Estrada complains that the State failed to demonstrate the vital element of lack of consent, thereby making a motion for directed verdict necessary. Estrada argues that because making a motion for directed verdict was necessary and is standard practice, trial counsel rendered ineffective assistance of counsel by not doing so.

Estrada s argument that the trial court may have granted a motion for directed verdict because the State failed to carry its burden on the element of lack of consent is not sufficient. McGarity v. State, 5 S.W.3d 223, 229 (Tex. App. San Antonio 1999, no pet.). The simple fact that trial counsel could have moved for a directed verdict on the possibility that the motion could be granted does not show that trial counsel s assistance was ineffective. Id. Estrada must show that there is a reasonable probability that, but for the lack of the motion, the trial result would have been different. Id. Asserting that making such a motion is standard practice is not sufficient to show that trial counsel s failure to make the motion was deficient performance that prejudiced Estrada s defense. Id; see also Blott, 588 S.W.2d at 592.

The record is silent regarding this issue. At the hearing on the motion for new trial, trial counsel was not questioned why he decided not to move for a directed verdict. The trial record shows that an examination of the complainant revealed injuries consistent with lack of consent. Additionally, the complainant denied that she consented to sexual intercourse with Estrada. Therefore, Estrada s argument that a directed verdict would have been forthcoming because the State failed to prove lack of consent beyond a reasonable doubt cannot be sustained. Trial counsel s failure to move for a directed verdict neither fell below an objective standard of reasonableness nor prejudiced the outcome of Estrada s trial. Therefore, trial counsel s failure to move for a directed verdict does not equate to ineffective assistance of counsel.

Because Estrada has not met his burden under Strickland on any of his complaints of ineffective assistance of counsel, his second issue is overruled.

Motion For New Trial

In his third issue, Estrada argues the trial court abused its discretion when it denied the Motion for New Trial following a hearing. Estrada advances two arguments in support of his contention that he was fundamentally required to receive a new trial. First, Estrada relies on Drew v. State, 743 S.W.2d 207 (Tex. Crim. App. 1987), apparently arguing that the testimony of the witnesses who were not called by trial counsel equates to new evidence. Second, Estrada claims that because he received ineffective assistance of counsel, he was denied the right to a fair trial.

We review a trial court s ruling denying a defendant s motion for new trial under an abuse of discretion standard. Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004). We do not substitute our judgment for that of the trial court, but rather we decide whether the trial court s decision was arbitrary or unreasonable. Id. We view the evidence in the light most favorable to the trial court s ruling and presume that all reasonable factual findings that could have been made against Estrada were so made. Id. Thus, the denial of Estrada s motion for new trial equates to an abuse of discretion only if no reasonable view of the record could support the trial court s ruling. Id. At a hearing on a motion for new trial, the trial judge is the trier of fact and the sole judge of the credibility of the witnesses. Woodall v. State, 77 S.W.3d 388, 393 (Tex. App. Fort Worth 2002, pet. ref d).

Newly Discovered Evidence

The trial court did not abuse its discretion in denying Estrada a new trial unless the record shows: (1) the newly discovered evidence was unknown or unavailable to Estrada at the time of trial; (2) Estrada s failure to discover or obtain the evidence was not due to lack of diligence; (3) the new evidence is admissible and is not merely cumulative, corroborative, collateral, or impeaching; and (4) the new evidence is probably true and will probably bring about a different result on another trial. Wallace v. State, 106 S.W.3d 103, 108 (Tex. Crim. App. 2003). Failure to establish any of these essential requirements warrants a refusal to grant a new trial. Markham v. State, 644 S.W.2d 53, 55 (Tex. App. San Antonio 1982, no pet.).

The record shows that Estrada was aware of the evidence the witnesses would have presented and that evidence was available at the time of trial. A new trial should not be granted for the purpose of obtaining evidence that was known and accessible to a defendant at the time of trial. Drew, 743 S.W.2d at 227 n.14. Therefore, it was not error for the trial court to deny the motion for new trial based on this argument.

Ineffective Assistance of Counsel

Estrada also argues that the trial court abused its discretion in denying the Motion for New Trial because he received ineffective assistance of counsel at trial. Estrada complains that trial counsel failed to present a defense by not calling any witnesses on Estrada s behalf. This, Estrada contends, denied him a fair trial.

For this argument to succeed, Estrada must show that his trial counsel s performance fell below an objective standard of reasonableness and that, but for trial counsel s unprofessional errors, the outcome of the trial would have been different. Strickland, 466 U.S. at 687; Thompson, 9 S.W.3d at 812-13. For the reasons discussed earlier, Estrada did not meet his burden. Therefore, the trial court did not abuse its discretion in denying Estrada s motion for new trial.

Estrada failed to present any evidence compelling a new trial. The trial court s denial of the motion for new trial is not arbitrary, unreasonable, or against the strength of the evidence presented at the hearing. Therefore, the trial court did not abuse its discretion in overruling the motion for new trial.

Sufficiency of the Evidence

In his fourth and fifth issues, Estrada argues that the evidence at trial was both legally and factually insufficient to support his conviction for aggravated sexual assault.

In reviewing a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict, and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Wilson v. State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999). In conducting a factual sufficiency review, we view all the evidence in a neutral light and will set aside the verdict only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004) (citing Zuniga v. State, 144 S.W.3d 477, 481 (Tex. Crim. App. 2004)).

When conducting either sufficiency review, we recognize that the jury may draw reasonable inferences from the evidence before it. Jones v. State, 944 S.W.2d 642, 647-48 (Tex. Crim. App. 1996). It is the province of the jury to evaluate the credibility and demeanor of witnesses and determine the weight afforded contradicting testimony. Cain v. State, 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997). The jury may also choose to accept or reject any or all testimony of any witness. Williams v. State, 692 S.W.2d 671, 676 (Tex. Crim. App. 1984). We do not substitute our own judgment for that of the jury. Jones, 944 S.W.2d at 648. Rather, we defer to the jury s findings, particularly those based on credibility determinations. Cain, 958 S.W.2d at 407-09.

A person commits the offense of aggravated sexual assault if he intentionally or knowingly causes the sexual organ of another person, without that person s consent, to contact the sexual organ of another person, including the actor, and the actor uses or exhibits a deadly weapon in the course of the same criminal episode. Tex. Pen. Code Ann. 22.021 (Vernon 1994). On appeal, Estrada contends that the state failed to prove the element of lack of consent because the complainant and Estrada were having an affair. To support his contention, Estrada points to a jury request to have the following testimony read back:

State:What do you mean your mom was grumpy?

Complainant:She confronted Deveena and myself and she kind of made Deveena mad, you know. And then she hinted at the fact that I had something going on with [Estrada]. And I just couldn t believe it. I said I think I need to go home, so I left and I was headed for home.

State:What do you mean you couldn t believe what your mom said?

Complainant:Well, for one thing, it wasn t true, so where does she get this thought from.

. . . .

All I could think about, to be honest, was I wanted to go home. I was so embarrassed I just wanted to go home.

. . . .

Counsel for Estrada:The conversation dinner [sic] occurred and after the conversation with Ms. Payne occurred about the hinting, as you said, of intimacy between you and [Estrada]

Complainant:That happened after the surgery.

Counsel for Estrada:After the surgery?

Complainant:Yes.

Counsel for Estrada:All right. At that point you said you were so embarrassed you wanted to go home?

Complainant:Yes, because I didn t understand what she was trying to get at.

Counsel for Estrada:You got up and you left?

Complainant:I went outside. I was in tears and I came back in and I got my things and I left.

Estrada argues that this shows the jury was clearly pondering the consent issue and thus proves that the proof of Estrada s guilt was so obviously weak that it undermines the jury s verdict. Estrada further contends the proof of Estrada s guilt was greatly outweighed by the evidence adduced at and post trial.

At trial, the jury heard testimony from the complainant that Estrada grabbed her from behind and pressed a knife to her throat. The complainant cut herself on the knife when she attempted to push it away. The complainant testified that Estrada then ordered her into the bedroom, poking and pushing at her with the knife and threatening to kill both the complainant and her daughter if the complainant did not cooperate. Ultimately, the complainant testified, Estrada had sexual intercourse with the complainant without her consent, penetrating her vagina with his penis.

The complainant s neighbor, Necoechea, testified that the complainant came to his house and asked for help. Necoechea testified that the complainant was shaken and scared and was bleeding from her hand. Cathy Cannon, the complainant s best friend, testified that the complainant called her, told her that Estrada had attacked her, and asked her to call 911.

Rebecca Silva, the Sexual Assault Nurse Examiner who examined the complainant at the hospital, testified that the complainant had seven cuts on her body, ranging in length from one to eight and one-half centimeters. Silva testified that the complainant told her that she had been forced to have sexual intercourse against her consent. Silva also testified that the complainant had red marks on both of her wrists and was bruised on her lips and chest. Silva indicated that she found bruising and tears on parts of the complainant s genitalia. Silva conducted a vaginal swab of the complainant, which collected motile sperm.

Erin Reat, with the Bexar County Criminal Investigation Laboratory, testified concerning the results from a comparison between the sperm found on the complainant s vaginal swab and a sperm sample collected from Estrada. Reat testified that Estrada s DNA was not excluded as part of the DNA found on the vaginal swab.

The jury was within its discretion as the trier of fact and the judge of the witnesses credibility when it determined what weight to afford the testimony presented at trial. The jury could choose to believe or disbelieve all or any part of the testimony presented. We defer to the jury s evaluation of the credibility of witnesses in finding that the evidence is sufficient to sustain Estrada s conviction. Based on the evidence presented, and viewing it in the light most favorable to the judgment, we conclude that a rational trier of fact could have found the essential elements of aggravated sexual assault, including lack of consent. Further, after reviewing the evidence in a neutral light, we do not find the verdict clearly wrong or manifestly unjust. Nor do we find the evidence adduced at and post trial so strong that the standard of proof, beyond a reasonable doubt, could not have been met by the State. Estrada s fourth and fifth issues are overruled.

Conclusion

Having overruled each of Estrada s issues, we affirm the judgment of the trial court.

Alma L. L pez, Chief Justice

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