Ana Maria Gonzalez-Angulo v. State ( 2015 )

ACCEPTED
01-14-00886-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
6/23/2015 2:14:34 PM
CHRISTOPHER PRINE
CLERK
No. 01-14-00886-CR
In the FILED IN
1st COURT OF APPEALS
Court of Appeals for the First District of Texas HOUSTON, TEXAS
At Houston 6/23/2015 2:14:34 PM
CHRISTOPHER A. PRINE
Clerk
Cause No. 1389543
In the 248th District Court
Of Harris County, Texas
ANA MARIA GONZALEZ-ANGULO
Appellant
v.
THE STATE OF TEXAS
Appellee
APPELLANT’S BRIEF
Barbara A. Drumheller
8501 Katy Fwy, Ste 201
Houston, Texas 77024
713-504-4492
Texas Bar No. 00793643
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Appellant: Ana Maria Gonzalez-Angulo
Counsel for Appellant at Trial:
Derek Hollingsworth
Texas Bar No. 24002305
Andy Drumheller
Texas Bar No. 00793642
Rusty Hardin & Associates
1402 McKinney, Suite 2250
Houston, Texas 77010
713-652-9000
John William Belk
Texas Bar No. 24038763
John William Belk & Associates
5 Houston Center
1401 McKinney, Suite 2250
Houston, Texas 77010
713-652-9044
Counsel for Appellant on Appeal:
Barbara A. Drumheller
650 West Bough Lane, Ste 150-130
Houston, Texas 77024
713-504-4492
Texas Bar No. 00793643
Counsel for the State at Trial:
Justin Keiter
Texas Bar No. 24044225
Nathan Hennigan
Texas Bar No. 24058612
Eric Kugler
Texas Bar No. 00796910
Assistant District Attorneys
1201 Franklin
Houston, Texas 77002
713-755-5800
Trial Judge: The Honorable Katherine Cabaniss
2
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL .............................................. 2
TABLE OF CONTENTS ............................................................................ 3
INDEX OF AUTHORITIES ....................................................................... 5
STATEMENT OF THE CASE ................................................................... 8
ISSUE PRESENTED .................................................................................. 9
The trial court erred by denying Ana Maria Gonzalez-
Angulo’s motion for new trial based on newly discovered
evidence.
The evidence presented at trial was insufficient to sustain
a conviction for aggravated assault because the State was
unable to connect Ana Maria Gonzalez-Angulo with the
injuries sustained by the complainant.
The State failed to establish Ana Maria Gonzalez-Angulo
was “in a dating relationship” under the terms of the
Family Code and the Penal Code and the evidence was
insufficient to support the offense as pled in the
indictment.
The trial court erred by allowing a State’s witness to
identify Ana Maria Gonzalez-Angulo’s voice in a
surreptitiously recorded telephone call based on two prior
anonymous telephone conversations during which the
State’s witness never learned the identity of the person
with whom he was talking.
3
SUMMARY OF THE ARGUMENT........................................................ 10
APPELLANT’S POINT OF ERROR ....................................................... 47
PRAYER ................................................................................................... 62
CERTIFICATE OF SERVICE.................................................................. 63
4
INDEX OF AUTHORITIES
Cases
Barley v. State, 906 S.W.2d 27 (Tex. Crim. App. 1995) ....................... 21, 26
Billodeau v. State, 277 S.W.3d 34 (Tex. Crim. App. 2009). ....................... 29
Bowen v. State, 374 S.W.3d 427 (Tex. Crim. App. 2012); .......................... 57
Boyett v. State, 692 S.W.2d 512 (Tex. Crim. App. 1985). ........................... 35
Cada v. State, 334 S.W.3d 776 (Tex. Crim. App. 2011). ............................ 42
Carsner v. State, 444 S.W.3d 1 (Tex. Crim. App. 2014). ............................ 34
Clayton v. State, 235 S.W.3d 772 (Tex. Crim. App. 2007). ........................ 44
Coyler v. State, 428 S.W.3d 117 (Tex. Crim. App. 2014) ........................... 35
Dispensa v. Lynaugh, 847 F.2d 211 (5th Cir. 1988) .................................... 27
Gamboa v. State, 296 S.W.3d 574 (Tex. Crim. App. 2009) ........................ 21
Garcia v. State, 367 S.W.3d 687 (Tex. Crim. App. 2012). .......................... 44
Garza v. State, 633 S.W.2d 508 (Tex. Crim. App. [Panel Op.] 1981)......... 24
Giglioblanco v. State, 201 S.W.3d 637 (Tex. Crim. App. 2006). ................ 30
Hacker v. State, 389 S.W.3d 860 (Tex. Crim. App. 2013). ......................... 46
Hobbs v. State, 298 S.W.3d 193 (Tex. Crim. App. 2009). .......................... 33
Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007). ............................. 44
Ibarra v. State, 11 S.W.3d 189 (Tex. Crim. App. 1999). ............................ 21
5
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560
(1979) ........................................................................................................... 42
Keeter v. State, 74 S.W.3d 31 (Tex. Crim. App. 2002). .............................. 34
Loserth v. State, 963 S.W.2d 770 (Tex. Crim. App. 1998) ......................... 21
Madden v. State, 799 S.W.3d 683 (Tex. Crim. App. 1990)......................... 23
Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972). ......... 26
Odelugo v. State, 443 S.W.3d 131 (Tex. Crim. App. 2014); ....................... 35
Richard Winfrey v. State, 323 S.W.3d 875 (Tex. Crim. App. 2010). ......... 44
Riley v. State, 378 S.W.3d 453 (Tex. Crim. App. 2012). ............................. 34
Routier v. State, 273 S.W.3d 241 (Tex. Crim. App. 2008),......................... 48
Sanchez v. State, ---S.W.3d--- (Tex. App.—Eastland, 2015) ...................... 53
Sierra v. State, 266 S.W.3d 72 (Tex. App.—Houston [1st Dist.] 2008,
pet ref’d)........................................................................................................ 26
Stobaugh v. State, 421 S.W.3d 787 (Tex. App.—Forth Worth 2014,
no pet.). ................................................................................................... 49, 50
Stokes v. State, 277 S.W.3d 20 (Tex. Crim. App. 2009). ............................ 33
Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967); .. 23
Temple v. State, 390 S.W.3d 341 (Tex. Crim. App. 2013). ................... 46, 48
Thornton v. State, 425 S.W.3d 289 (Tex. Crim. App. 2014). ..................... 57
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149
(1967). ....................................................................................................... 23
Villareal v. State, 286 S.W.3d 321 (Tex. Crim. App. 2009)........................ 53
6
Wallace v. State, 106 S.W.3d 103 (Tex. Crim. App. 2003); ........................ 34
Statutes
TEX. CODE CRIM P. ANN. art 42.12 sec. 4(d) ................................................ 14
TEX. CODE CRIM. P. ANN. art. 42.12 sec 4 .................................................... 11
TEX. CRIM. P. ANN. art. 37.01 (Vernon 2010). ............................................... 9
TEX. CRIM. P. ANN. art. 37.04 (Vernon 2010) ................................................ 9
Tex. Pen. Code Ann. sec. 12.33(a) ............................................................... 11
TEX. PENAL CODE 12.33 ............................................................................... 14
Rules
Tex. R. App. P. 21.3(f) ................................................................................. 15
Tex. R. App. P. 43.2(b .................................................................................. 17
7
STATEMENT OF THE CASE
Ana Maria Gonzalez-Angulo was charged by indictment with the
felony offense of aggravated assault, dating relationship (C.R. 23). In
particular, she was charged with unlawfully, intentionally and knowingly
causing serious bodily injury to a person with whom she had a dating
relationship by poisoning the complainant with ethylene glycol, a deadly
weapon (C.R. 23). The indictment included an alternative charge alleging
she unlawfully, intentionally and knowingly caused serious bodily injury to
a person with whom she had a dating relationship by causing the
complainant to ingest ethylene glycol, a deadly weapon (C.R. 23). The
appellant pled not guilty and the case was tried before a jury (R.R.5 – 18).
The jury found appellant guilty as charged in the indictment (C.R. 156).
Thereafter, the jury assessed punishment at confinement for ten years in the
Institutional Division of the Texas Department of Criminal Justice and also
assessed a $10,000 fine (C.R. 156). Motion for new trial was timely filed on
October 29, 2014 and notice of appeal was timely filed.
8
ISSUES PRESENTED
The trial court erred by denying Ana Maria Gonzalez-
Angulo’s motion for new trial based on newly discovered
evidence.
The evidence presented at trial was insufficient to sustain
a conviction for aggravated assault because the State was
unable to connect Ana Maria Gonzalez-Angulo with the
injuries sustained by the complainant.
The State failed to establish Ana Maria Gonzalez-Angulo
was “in a dating relationship” under the terms of the
Family Code and the Penal Code and the evidence was
insufficient to support the offense as pled in the
indictment.
The trial court erred by allowing a State’s witness to
identify Ana Maria Gonzalez-Angulo’s voice in a
surreptitiously recorded telephone call based on two prior
anonymous telephone conversations during which the
State’s witness never learned the identity of the person
with whom he was talking.
9
SUMMARY OF THE ARGUMENT
The trial court erred in overruling the appellant’s motion for new trial
based on newly discovered evidence. If a defendant discovers new evidence
within thirty days of the verdict and the four-part test is met, the granting of
a new trial is not discretionary. In this case, Mary Kara Bucci’s testimony
was newly discovered evidence and it satisfied all four prongs of the test so
Ana Maria Gonzalez-Angulo should have been granted a new trial.
The evidence in this case was insufficient to prove the elements of
aggravated assault. Circumstantial evidence is treated exactly like direct
evidence in a sufficiency review and can even be more probative than direct
evidence in some situations. It must not amount to mere suspicion or a
catalogue of bizarre behaviors, however, and the cumulative effect of all the
incriminating facts must be sufficient to prove every element of the offense.
The State was unable to connect the appellant to any wrongdoing and was
not even able to prove the complainant was harmed by another person. At
most, the State presented a case based on opportunity and suspicious
behaviors that were unrelated to the actual injuries in the case.
10
The evidence wholly failed to establish a dating relationship between
the appellant and the complainant. None of the witnesses at trial, including
the complainant and the appellant, considered the relationship to be a dating
relationship. There was no evidence to contradict the complainant’s explicit
testimony that they were friends and colleagues and not involved in a dating
relationship.
The rules of evidence provide authentication and identification
procedures for identifying voices prior to admitting audio recordings into
evidence. In this case, the State sought to do the opposite of what the rules
anticipate. The State elicited testimony from an investigating witness about
an anonymous caller. The witness spoke to the anonymous caller more than
a year before trial. The State tried to get the witness to identify the
anonymous caller as the appellant in this case by asking him to listen to a
recording of her voice and decide whether or not the person in the recording
was the same person he had spoken to anonymously over a cell phone more
than a year before. This testimony was harmful to the appellant because
there was a substantial risk of misidentification and it allowed the State to
give the jury the impression that she was the anonymous caller.
11
STATEMENT OF APPLICABLE FACTS
Ana Maria Gonzalez-Angulo worked closely with the complainant,
Dr. George Blumenschein, at the M.D. Anderson Cancer Center (R.R.9 –
157-158). The two doctors collaborated on cancer research over a period of
several years (R.R.9 – 157-158). The complainant had a relationship with
Dr. Evette Toney, a former M.D. Anderson employee, who was variously
described by witnesses at trial as his common-law wife (R.R.5 – 176, 7 -
218), his “long-term girlfriend” (R.R.5 – 95), his “on-again, off-again
girlfriend” (MNT Bucci Affidavit) and his “live-in girlfriend”. The
complainant characterized his relationship with Evette Toney as a
committed, serious relationship in which they were “taking the next step,”
(R.R.9 – 215) a relationship spanning approximately sixteen years at the
time of trial, but also described himself as a bachelor who feared
commitment (R.R.9 – 216).
While he was living with Evette Toney in what she believed to be a
monogamous relationship, the complainant began a casual sexual
relationship with Ana Maria Gonzalez-Angulo sometime around the spring
or summer of 2011 (R.R.9 – 161). Both parties referred to this development
as “just sex” inside a relationship that was ninety-five percent or more based
12
on work and research collaboration (R.R.10 – 48; R.R.11 – 85-87). The
complainant had engaged in these kinds of purely sexual, casual work
arrangements with other colleagues in the past (MNT Bucci Affidavit, Belk
Affidavit), and made a distinction between what he considered “real” or
romantic sex – intercourse – and the oral sex he enjoyed as part of his work
affairs (R.R.9 – 167-168). When colleagues questioned the complainant
about his private life or his affairs with women at work, he lied and said
there was nothing sexual involved (R.R.9 – 173, 10 - 69). In particular, the
complainant’s supervisor, Bonnie Glisson, thought the complainant’s
attentions to Ana Maria Gonzalez were “unseemly,” but when she asked him
about her suspicions and about the rumors going on in the office that there
was a sexual relationship between them, the complainant adamantly denied
it (R.R.10 – 90, R.R.7 – 104).
The complainant traveled frequently for work and his extracurricular
sexual activities often took place during these trips (MNT Bucci Affidavit,
R.R.12 – 10, 12, 13, R.R.10 – 42, 45). The complainant had arrived home
from one of these trips on Saturday, January 26, 2013 (R.R.9 – 48-52, 240-
242).
On the morning of January 27, 2013, a Sunday, the complainant had
coffee at home but said he didn’t want to eat (R.R.6 – 64-65). He told Evette
13
Toney he was going to work but drove over to Ana Maria Gonzalez-
Angulo’s house instead (R.R.9 – 250). At her house, according to the
complainant, he drank a sip of coffee and shared some cheese bread with her
(R.R.9 – 251). The complainant told investigators and others, including the
grand jury, that Ana Maria Gonzalez-Angulo drank the same coffee with
him out of the same cup (R.R.10 – 65, 67). Evette Toney confirmed during
direct and cross-examination that the complainant liked to share her
beverages and that they frequently drank out of the same cup or glass. She
said, “That’s just the way he is.” (R.R.11 – 21-22, 163-164). After
breakfast, the complainant, a man twice the size of Ana Maria Gonzalez-
Angulo, picked her up and carried her upstairs where they engaged in oral
sex (R.R.10 – 74). They shared a shot of vodka out of a sealed, unopened
bottle and went to the office (R.R.10 75-76, R.R.9 – 253-254).
The complainant and Ana Maria Gonzalez-Angulo worked in the
offices of M.D. Anderson for much of the morning and afternoon. In the late
afternoon, the complainant began complaining of dizziness and may have
been slurring his words, although some of his colleagues at M.D. Anderson
maintained he was acting “tired, but normal.” (R.R.9 – 267, R.R.6 – 160,
170, 180-181). The complainant testified that Ana Maria Gonzalez-Angulo
suggested he might be experiencing low blood sugar, and invited him to her
14
home for some cheese and sausage (R.R.9 – 268, 270, 272). At her home,
the complainant cut his thumb while trying to cut the sausage (R.R.9 – 273).
The cut bled enough that the two doctors discussed going to the emergency
room. Ultimately they decided to call a third doctor and close friend, an
M.D. Anderson cancer surgeon, to bandage his cut (R.R.9 – 273, R.R.5 – 79-
80). Dr. Funda Meric-Bernstram testified at trial that Ana Maria Gonzalez-
Angulo was concerned about the complainant’s cut and his behavior, which
seemed unusual (R.R.5 – 80-88). Dr. Meric-Bernstram conducted some brief
neurological tests and advised them to go to the hospital. The complainant
did not wish to go to the hospital and insisted he would be fine (R.R.5 – 88).
The complainant and Ana Maria Gonzalez-Angulo had an important work
dinner that evening with a senior staff member at M.D. Anderson. This
doctor, Doctor Hwu, had invited Ana Maria Gonzalez-Angulo to dinner to
discuss a potential career opportunity with her, and she suggested he include
the complainant and another colleague, Cathy Eng (R.R.5 – 185, 210-215,
R.R.5 – 239-341).
During dinner, the complainant continued to show signs of what
appeared to be intoxication, dropping his phone several times, slurring his
words, and knocking his head against a ledge behind the table (R.R.5 – 186-
187). Ana Maria Gonzalez-Angulo agreed with Drs. Hwu and Eng that the
15
complainant should go to the hospital, but could not convince the
complainant to do so (R.R.5 – 191-192). She texted Dr. Eng that the
complainant was refusing to go to the E.R (R.R.5 – 194). At least one
witness described Ana Maria Gonzalez as “frantic” about being unable to
convince the complainant to go to the hospital.
The complainant accompanied Ana Maria Gonzalez-Angulo to her
home after the work meeting because he was adamant about getting his car
(R.R.9 – 279), as he had lied to Evette Toney that morning about where he
was going. Ana Maria Gonzalez was worried about letting him drive but he
got his keys from her (R.R.11 – 46). He agreed to drive to M.D. Anderson
while she followed him (R.R.11 – 46). Evette Toney had been in touch with
the complainant and Ana Maria Gonzalez off and on throughout the
afternoon and also called Ana Maria Gonzalez about the complainant’s
health (R.R.11 – 40-47, 180-185). In one text, she asked the complainant,
“why are you doing this? You need to get your levels checked. Please come
home.” (R.R.11 – 184). She met the complainant and Ana Maria Gonzalez at
the hospital. She testified she was near tears out of concern for the
complainant and believed he was dying based only on his intoxicated
behavior (R.R.11 – 48-50). She began videotaping him, not for purposes of
evidence collection, but just to record how bad he looked. The videotape
16
was in evidence and shows the complainant talking to the treating nurse in a
friendly, flirtatious manner. By all accounts, the complainant walked into the
emergency room under his own power.
Many doctors and nurses, all colleagues and co-workers, cared for the
complainant at M.D. Anderson. Both Ana Maria Gonzalez and a nurse in the
ICU noticed the whitish sediment in the complainant’s Foley urine bag,
suggesting the presence of crystals (R.R.5 – 161, 279, 296). The
complainant was already beginning to show other signs of kidney damage
(R.R.5 – 268). Dr. Lahoti, a nephrologist, began to suspect ethylene glycol
ingestion because of the constellation of symptoms: signs of intoxication,
metabolic acidosis as shown by his bloodwork, high levels of creatinine
indicating kidney failure, and the shape and appearance of crystals visible in
his urine as sediment and confirmed microscopically to be the unique shape
associated with calcium oxalate (R.R5 – 269-280). Blood tests for ethylene
glycol came back negative and no physical evidence or residue of ethylene
glycol was presented at trial (R.R.5 – 300). No evidence was found during
the investigation indicating the complainant ingested ethylene glycol or
encountered it in the days prior to his hospitalization outside of the
symptoms he experienced. One of the State’s experts, a leading toxicologist
specializing in toxic alcohols like ethylene glycol, testified he was “very
17
surprised there was no ethylene glycol in the complainant’s blood result.”
(R.R.8 – 166). Nevertheless, through a process of elimination several
experts, including Dr. Lahoti, arrived at a confident conviction that the
complainant had ingested ethylene glycol. Ethylene glycol is a common
solvent used at M.D. Anderson, as well as in the outside world in the form of
antifreeze, and virtually everyone has access to ethylene glycol (R.R.5 – 272
and other).
In the days immediately following his hospitalization, the complainant
admitted to Evette Toney he had cheated on her with Ana Maria Gonzalez
(R.R.11 – 78-79). According to Evette Toney, he also suggested that Ana
Maria Gonzalez poisoned him with coffee that morning at her house, but
urged her not to divulge the information to anyone (R.R.11 – 73-76, 77).
According to Evette Toney, the complainant said, “let’s keep this just
between ourselves. Let’s not tell anybody about this. Let’s not poke the
dragon.” (R.R.11 – 76-77, 205) Evette Toney told investigators that “maybe
it was some psycho waiter” who gave the complainant ethylene glycol
(R.R.11 – 77).
Evette Toney continued to text and communicate with Ana Maria
Gonzalez, however, and even had a conversation with her about her sexual
relationship with the complainant. Ana Maria Gonzalez told her, “it’s just
18
sex,” and told her “he used you and he used me.” (R.R.11 – 79-86, 205-208).
Ana Maria Gonzalez assisted Evette Toney with getting Family Medical
Leave during the complainant’s hospitalization and kept her updated and
informed about the complainant’s condition (R.R.11 – 208).
The complainant told investigators he drank coffee with Ana Maria
Gonzalez in the same cup throughout the day and, although he mentioned he
did not like the taste of the coffee, he explained Ana Maria Gonzalez
sweetened it with Splenda (R.R.10 – 65, 67, 61-62). At trial, more than a
year later, he claimed the coffee was sickeningly sweet and he drank it to be
polite even though he could barely stand the taste of it (R.R.9 – 258-259).
He also claimed he participated in occasional sexual acts with Ana Maria
Gonzalez because she flirted with him and he didn’t know what to do and
didn’t want to offend her (R.R.9 – 162). The complainant had had a similar
arrangement with another younger female colleague in the past, however,
and she testified by affidavit that the complainant was flirtatious and he was
the aggressor in the relationship (MNT Bucci Affidavit).
Ana Maria Gonzalez got wind of the complainant’s suppositions or
accusations and cried in Jennifer Litton’s office about the complainant’s
fixation on the coffee she had sweetened with Splenda (R.R.12- 70-71). She
pointed out that she, like almost everyone at M.D. Anderson, had easy
19
access to ethylene glycol in her laboratory, and expressed to at least one
witness that she feared she might be blamed or suspected because of the
private and secret nature of her relationship with the complainant. She
voiced her concerns to several friends and colleagues about the possibility
the complainant had ingested ethylene glycol, contemporaneously with Dr.
Lahoti’s investigation going in the same direction (R.R.5 – 148, 160-161,
R.R.6 – 163, R.R.7 – 116, R.R.12 – 69). She also voiced her opinion that the
complainant did not seem like the kind of person who would commit suicide
(R.R.6 – 163). Ana Maria Gonzalez suggested to several people that Evette
Toney might be responsible or involved in the complainant’s ingestion of
ethylene glycol. She referred to an incident in December when she’d been
attacked at her home and gone with the complainant to the neighborhood
police station where she had made a report (R.R.7 – 70-92, R.R.5 – 92). The
people behind the attack were never identified but Ana Maria Gonzalez
expressed fears that Evette Toney’s family might have been involved in it
(R.R.5 – 90-91).
The complainant and Evette Toney decided to secretly tape record
telephone conversations with Ana Maria Gonzalez. They recorded close to
fifteen hours of telephone conversations, all initiated by the complainant,
over many weeks before her arrest (R.R.10 – 106-109). The complainant
20
never asked her whether she poisoned him with ethylene glycol or whether
she did something to his coffee on the morning of his hospitalization, and
changed the subject when she brought up another occasion when he had had
similar symptoms (R.R.10 – 106-110). Evette Toney and the complainant
decided not to mention their secret investigation to the police or to the grand
jury and did not disclose the tapes of the telephone conversations to the State
until immediately before trial (R.R.10 – 106-110). The complainant and
Evette Toney also testified they received an anonymous threatening letter
the previous November, but no letter was found or produced at trial.
APPELLANT’S FIRST POINT OF ERROR
The trial court erred by denying Ana Maria Gonzalez-
Angulo’s motion for new trial based on newly discovered
evidence.
Applicable Facts
After the verdict but before time had expired for filing a motion for
new trial, a witness contacted defense counsel claiming she had pertinent
information she did not disclose prior to trial (MNT). The witness provided
an affidavit affirming that she was not forthcoming with the defense
investigation prior to trial because she did not want her personal information
disclosed in court proceedings or the news media (MNT, Bucci Affidavit).
21
The witness provided testimony that rebutted the State’s “fatal attraction”
theory of the case. She also provided information that showed the State and
the State’s witnesses left the jury with a false impression regarding the
complainant’s behavior toward female colleagues in the workplace, the state
of his relationship with Evette Toney, and the degree to which Evette Toney
demonstrated jealousy and possessiveness in their relationship. The trial
judge held a hearing by affidavit on the motion for new trial and denied the
motion, expressly stating on the record that she had reviewed the affidavits
submitted by both the State and the defense. The appellant must satisfy the
procedural requirements that the motion was timely filed and actually
presented to the trial court within ten days’ of the motion’s filing date. Tex.
R. App. P. 21.6; Stokes v. State, 277 S.W.3d 20, 21 (Tex. Crim. App. 2009).
Once these requirements are met, the defendant has a right to a hearing if the
motion (1) raises matters that are not determinable from the record and (2)
establishes reasonable grounds upon which the defendant could be entitled
to a new trial. Hobbs v. State, 298 S.W.3d 193, 199 (Tex. Crim. App. 2009).
These requirements were met in the instant case.
22
Standard of Review
The Code of Criminal Procedure mandates “a new trial shall be
granted an accused where material evidence favorable to the accused has
been discovered since trial.” Tex. Code Crim. P. Ann. art. 40.001 (West
2014) (emphasis added). A ruling on a motion for new trial is reviewed
under an abuse of discretion standard. Keeter v. State, 74 S.W.3d 31, 37
(Tex. Crim. App. 2002). The decision should be reversed if the trial judge’s
opinion was clearly erroneous and arbitrary. Riley v. State, 378 S.W.3d 453,
457 (Tex. Crim. App. 2012).
Arguments and Authorities
In order for a defendant to be entitled to a new trial on the basis of
newly discovered evidence, a four-prong test must be satisfied: (1) the newly
discovered evidence was unknown or unavailable to the defendant at the
time of trial; (2) the defendant’s failure to discover or obtain the new
evidence was not due to the defendant’s lack of due diligence; (3) the new
evidence is admissible and not merely cumulative, corroborative, collateral
or impeaching; and (4) the new evidence is probably true and will probably
bring about a different result in a new trial. Wallace v. State, 106 S.W.3d
103, 108 (Tex. Crim. App. 2003); Carsner v. State, 444 S.W.3d 1, 2-3 (Tex.
Crim. App. 2014). The trial court abuses its discretion if the record shows
23
these four factors are met. Boyett v. State, 692 S.W.2d 512, 516 (Tex. Crim.
App. 1985). Although the trial judge has discretion to disbelieve testimony,
there must be at least one reasonable view of the record that would support
the trial court’s denial of the motion for new trial, notwithstanding the
“uncontroverted” nature of the appellant’s evidence. See Odelugo v. State,
443 S.W.3d 131 (Tex. Crim. App. 2014); see also, Coyler v. State, 428
S.W.3d 117 (Tex. Crim. App. 2014) (explaining that the trial judge can
disbelieve uncontroverted but patently biased evidence, as in the case of an
alibi provided by the defendant’s mother).
In the instant case, the witness Kara Bucci testified via affidavit that
she was contacted prior to trial by the defense and a lawyer “specifically
asked if I had had any romantic or intimate involvement with George. I told
him we were professional colleagues and friends only. I denied any romantic
or intimate involvement because I did not want my personal, private
relationship with George scrutinized in court proceedings or through the
news media.” Affiant John William (“Billy”) Belk confirmed he interviewed
the witness by telephone prior to trial but the witness was not truthful with
him.” (MNT, Bucci Affidavit).
The evidence provided by Mary Kara Bucci, including her knowledge
about his relationship with Evette Toney and his feelings for Ana Maria
24
Gonzalez, as well as other facts not known to the appellant, did not initiate
with the appellant and could not have been discovered by her or her
investigators prior to trial. Both affiants Billy Belk and Mary Kara Bucci
affirmed that the defense exercised due diligence in its investigation and the
lack of knowledge about Mary Kara Bucci’s information was not due to any
fault on the part of defense counsel. Thus, the record satisfies the first two
prongs of the test.
The third prong concerns whether the newly discovered evidence is
admissible and not cumulative, corroborative, collateral or impeaching.
Mary Kara Bucci provided several pieces of crucial evidence for the defense
in her affidavit. First, she stated that she had a romantic and intimate
relationship with the complainant in 2007, while he was in a relationship
with Evette Toney, and noticed he had a “spark of interest” in Ana Maria
Gonzalez as early as 2007. This evidence contradicted both the
complainant’s testimony at trial and the characterization of the evidence by
the State. It also shows that the complainant admired Ana Maria Gonzalez
long before she was aware of any relationship between them, and indicates
that the complainant may have targeted her for sexual harassment as early as
2007, unbeknownst to Ana Maria Gonzalez. Second, Mary Kara Bucci
affirmed the complainant was very flirtatious and that he pursued her under
25
circumstances extremely similar to the ones that occurred with Ana Maria
Gonzalez. In particular, he abused his position of authority by pursuing her,
a younger professional colleague, in order to engage in a casual sexual
relationship with her from summer 2006 until January 2010. Just as with
Ana Maria Gonzalez, this “relationship” consisted of oral sex at professional
conferences and at the home of the female colleague.
At trial, the State and the complainant gave the jury the impression
that the complainant was in a stable, happy and monogamous long-term
relationship with Evette Toney and that it was Ana Maria Gonzalez who
became obsessed and aggressively pursued him (R.R.9 – 162). He left the
jury with the false impression that he only had an affair with her because he
was too nice to say no (R.R.9 – 162). Had Ana Maria Gonzalez known about
his similar relationship with Mary Kara Bucci, she would have been able to
show a pattern of relationships he initiated with younger female colleagues
for his own benefit. This evidence, in turn, would have refuted the State’s
implications about motive and opportunity, which were key to its
circumstantial case.
Mary Kara Bucci stated that she believed the complainant was
unhappy with Evette Toney and did not want to stay in the relationship, that
Evette Toney pursued him with repeated phone calls on two phone lines
26
while they were together, and that he was beaten down by her attempts to
reach him (MNT, Bucci Affidavit). This evidence fits with evidence given
by Sherry Krantz about Evette Toney’s jealous and possessive behavior
(MNT, Belk Affidavit). Evette Toney testified at trial that she took the
complainant’s word at face value and believed him when he said he was not
having an affair with Ana Maria Gonzalez. The evidence presented in the
motion for new trial tells a different side of the story and provides important
information bearing on the nature of the relationship between the
complainant, Evette Toney, and his various work affairs.
Finally, Mary Kara Bucci stated that in July 2012, when she invited
the complainant to speak at a conference, he told her his relationship with
Evette was over and indicated that he had romantic feelings for Ana Maria
Gonzalez. At trial, the complainant and Evette Toney both testified they
were in a committed relationship in July 2012 and, in fact, Evette Toney was
pregnant with twins at that time.
The record must establish that the new evidence is probably true and
will probably bring a different result in a new trial. Mary Kara Bucci gave
specific and telling details in her affidavit with no motivation to lie and at
personal risk to her own reputation and privacy. She is a licensed physician
living in Palmer, Alaska, who contacted Ana Maria Gonzalez’ trial lawyers
27
on her own initiative to tell the truth about what she knew. She and Ana
Maria Gonzalez had never met and were not friends.
The evidence she provided in her affidavit changes the probable
outcome of a trial in several respects. First, the similarity of her relationship
with the complainant and the doubt it casts on his version of events could
persuade the trial court to reconsider its ruling on the State’s motion in
limine about the complainant’s extra-marital affairs. The court granted the
State’s motion in limine on the basis that the complainant’s extra-marital
affairs were too remote in time and not relevant to issues in the trial (R.R.5 –
7-12). Mary Kara Bucci, however, was engaged in an affair with the
complainant until 2010, and remained close friends with him up to and
including the time period covered by testimony in the trial (MNT, Bucci
Affidavit, Blumenschein Affidavit). Moreover, her knowledge of his
relationship with Evette and his feelings for Ana Maria Gonzalez were
relevant and the jury was left with a false impression about these things
without her testimony.
Second, the information provided by Mary Kara Bucci indicates that
the complainant left a false impression with the jury regarding his feelings
for Evette Toney and his intentions about starting a family with her.
28
Third, the evidence at trial gave the jury a false impression about
Evette Toney and her level of possessiveness and jealousy concerning the
complainant, as evidenced by Mary Kara Bucci’s disclosures about her
repeated and frequent phone calls to him when they were together.
Fourth, the information provided by Mary Kara Bucci rebuts the
State’s characterization of the complainant and Ana Maria Gonzalez in a
“fatal attraction” relationship, wherein Ana Maria Gonzalez pursued the
complainant. Contrary to this characterization, Mary Kara Bucci recalls the
complainant developing an interest in Ana Maria Gonzalez as early as 2007,
long before their relationship was anything other than professional. Ana
Maria Gonzalez had no way of knowing this fact and could not have known
she was targeted by the complainant for sexual harassment without this
information. Furthermore, Mary Kara Bucci affirms that the complainant
was flirtatious and pursued her to begin a relationship extremely similar to
the one he began with Ana Maria Gonzalez, contrary to the State’s theory
that Ana Maria Gonzalez chased or bullied the complainant into a
relationship.
The State provided an affidavit by the complainant purporting to
dispute the statements made by the new witness (C.R. 190). A careful read
of the complainant’s affidavit, however, reveals that not only does it fail to
29
explicitly refute the sworn testimony of a disinterested witness, it confirms it
in crucial respects. For example, the complainant takes issue with Mary Kara
Bucci’s characterization of their relationship when she says, “we spent time
together in a romantic context both at home in Houston as well as when we
were out of town on business trips.” His response is that they did not
schedule “dates,” he does not recall having dinner with her alone, they did
not schedule “romantic dinners” and they did not plan trips to be together
(C.R. 190-192). A careful read of what each witness says, however, shows
that Mary Kara Bucci never claimed they planned out-of-town trips to be
together or scheduled romantic dinners. Instead, she indicates that they had
an intimate relationship when they were out of town together on business
and spent time in Houston on an intimate basis. The complainant never
explicitly contradicted Mary Kara Bucci’s contention that they had an
“intermittently romantic or intimate” relationship over three and a half years,
beginning in the summer of 2006 (MNT, Bucci Affidavit). Instead, he
specifically admitted to a period of sexual involvement with Mary Kara
Bucci that fit conveniently within a time he had already established as a
period of breakup with Evette Toney (C.R. 190-192). He stated in his
affidavit that he believed the sexual aspect of their relationship ended in
2009 but does not state unequivocally that this was the case. Likewise, he
30
stated in his affidavit that he did not recall discussing his relationship with
Evette with Mary Kara Bucci, he did not recall an occasion on which Evette
made repeated and harassing phone calls to his office while he was with
Mary Kara Bucci and he did not remember meeting Ana Maria Gonzalez
before 2008. None of these uncertainties contradict the testimony given by
Mary Kara Bucci and they have the effect, overall, of confirming the truth of
much of her testimony.
Moreover, the complainant expressly admitted to lying extensively
about his private life while he was on the stand during trial (R.R.10 – 118-
121, R.R.7 – 104). It is patently obvious that Mary Kara Bucci does not
stand to benefit from providing her testimony, whereas the complainant’s
rebuttal is self-serving and supports his interest in protecting his personal
reputation and preventing any increased scrutiny into the events presented at
trial. The best evidence the State had in this case came from the
complainant. To connect Ana Maria Gonzalez with his injuries at all, the
jury had to take the complainant’s word that she gave him funny tasting
coffee on the morning of his hospitalization and continued to give it to him
even after he complained about its taste. The complainant demonstrably lied,
as he admitted on the stand, to everyone involved in the case, from his live-
in girlfriend to his supervisors and colleagues at work to the investigators
31
working the case. Evidence from a new witness conclusively demonstrating
the depth and reach of his lies is exculpatory admissible evidence.
There is no reasonable view of the case which supports the trial
court’s determination that appellant is not entitled to a new trial despite the
newly discovered evidence provided by Mary Kara Bucci. The appellant’s
motion for new trial meets all four of the Keefer factors and plainly
establishes that she is entitled to a new trial under the Code of Criminal
Procedure. While the court has some discretion in evaluating evidence based
on credibility, if an appellant can meet the four prongs of the test, the judge
shall order a new trial. This case should be reversed and remanded for a new
trial.
APPELLANT’S SECOND POINT OF ERROR
The evidence presented at trial was insufficient to sustain
a conviction for aggravated assault because the State was
unable to connect Ana Maria Gonzalez-Angulo with the
injuries sustained by the complainant.
Standard of Review
On a challenge to the legal sufficiency of the evidence, the court must
determine whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443
32
U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Evidence is
insufficient to support a conviction if, considering all the record evidence in
the light most favorable to the verdict, no rational factfinder could have
found that each essential element of the charged offense was proven beyond
a reasonable doubt. Id. Due process requires the State to prove every
element of the crime charged. Cada v. State, 334 S.W.3d 776, 772-3 (Tex.
Crim. App. 2011). The “elements of the offense” are the elements the State
is required to plead and prove, measured by the specific elements that the
State has alleged in the indictment. Id.
Arguments and Authorities
In the case at bar, the State was required to prove that Ana Maria
Gonzalez-Angulo unlawfully, intentionally and knowingly caused serious
bodily injury to a person with whom she had a dating relationship by
poisoning the complainant with ethylene glycol or by causing the
complainant to ingest ethylene glycol. The evidence at trial was wholly
insufficient to establish that the complainant and Ana Maria Gonzalez-
Angulo were in a “dating relationship,” and, in fact, conclusively established
that they were not. Appellant addresses this issue in Appellant’s Third Point
of Error, below, and incorporates by reference all arguments and authorities
in that point of error here. Because the State requested and obtained an
33
instruction on the lesser-included offense of aggravated assault, however,
appellant is dedicating this second point of error to the elements of that
offense.
The State presented legally sufficient evidence that the complainant
sustained serious bodily injury, as well as legally sufficient evidence that the
injury was caused by ethylene glycol, in the sense that the succession of
experts who believed he ingested ethylene glycol based on the differential
diagnosis they performed meets the minimum standard of more than a
“modicum” of evidence required under Jackson. Jackson v. Virginia, 443
U.S. at 314, 318 & n.11, 320, 99 S. Ct. at 2786, 2789 & n.11.; see also,
Garcia v. State, 367 S.W.3d 683, 687 (Tex. Crim. App. 2012). The State
failed to prove, however, that Ana Maria Gonzalez poisoned the
complainant or caused him to ingest ethylene glycol.
It is undisputed that the State lacked any direct evidence linking Ana
Maria Gonzalez to the complainant’s injuries and, in fact, any direct
evidence suggesting he was poisoned at all. The State’s case rested entirely
on circumstantial evidence and never excluded the possibility of ingestion
by accident or out of a desire for self-harm. A conviction can be based on
circumstantial evidence. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.
App. 2007). In fact, circumstantial evidence may be as probative as direct
34
evidence and circumstantial evidence alone can be sufficient to establish a
defendant’s guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.
2007). Nevertheless, the cumulative effect of all incriminating facts must be
sufficient to support the conviction. Id. If the evidence presented at trial
raises “only a suspicion of guilt, even a strong one, then that evidence is
insufficient to convict.” Richard Winfrey v. State, 323 S.W.3d 875, 882
(Tex. Crim. App. 2010).
The State’s evidence rested on the complainant’s after-the-fact
insistence that the coffee Ana Maria Gonzalez gave him on the morning of
his hospitalization must have contained ethylene glycol (R.R.10 60-62, 10 –
65, 67, R.R.9 – 258-259). At the time of his injury, however, the
complainant told investigators and physicians that Ana Maria Gonzalez
drank the same coffee from the same cup he did throughout the day (R.R.10
– 65-67). Furthermore, neither the complainant nor anyone else ever saw
Ana Maria Gonzalez make any coffee or sweeten any coffee (R.R.9 – 251-
252). The only cup he could logically deduce she made for him, the one at
her own home, was the one he did not drink (R.R.9 – 251). He testified he
had a couple of sips of the coffee (R.R.9 – 251). No ethylene glycol was
found in her possession or in any coffee mugs or glasses they drank out of
that day. The evidence conclusively showed every physician at M.D.
35
Anderson had as much access to ethylene glycol as she did. At most, the
complainant’s speculation about the coffee amounts to a suspicion or guess
regarding Ana Maria Gonzalez’ opportunity to poison him with ethylene
glycol, based almost entirely on the best guesses of his treating physicians
about the most likely window of ingestion. The evidence at trial showed that
the window of possible ingestion realistically extended as far back as the
previous Friday night, although some experts maintained that the most likely
time would have been during the day on Sunday, January 27.
Motive and opportunity may be circumstances indicative of guilt. See
Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). Evidence of
motive or opportunity may help link a defendant to wrongful conduct or it
may be supportive of other evidence of such conduct. Hacker v. State, 389
S.W.3d 860 870-871 (Tex. Crim. App. 2013). But without evidence that
wrongful conduct occurred, there is nothing for motive and opportunity
evidence to link the defendant to. Id. The complainant’s conclusion that Ana
Maria Gonzalez poisoned him based purely on her opportunity to do so does
not rise to the level of sufficient evidence. The complainant and Ana Maria
Gonzalez were not even alone at M.D. Anderson during the day on Sunday
when the complainant and the State suggest he was poisoned. Plenty of
evidence shows that the complainant spoke to other co-workers and
36
colleagues and that the complainant and Ana Maria Gonzalez wandered in
and out of other people’s offices throughout the day (R.R.9 – 267,
Testimony of Wendi Stone, Bonnie Glisson, Frank Fosella).
With regard to motive, the State attempted to demonstrate a motive
for Ana Maria Gonzalez to harm the complainant. Most of the circumstances
developed at trial contradicted this theory, and, as shown in the Appellant’s
Second Point of Error, above, the “fatal attraction” motif was a fabrication
of the State that was contradicted by other witnesses who showed him to be
a serial womanizer who preyed upon female doctors with whom he came
into contact. Yet those witnesses were prohibited from testifying or
unavailable at trial. The motive assigned by the State made no logical sense
when considered in light of the evidence developed at trial.
For example, the State suggested that Ana Maria Gonzalez was so
jealous of Evette Toney that she decided to harm the complainant. This has
no logical force and is hard to square with a lovelorn woman set on winning
the complainant. Such a suggestion might have made sense if Evette Toney
had been the one injured, but given that the complainant and Ana Maria
Gonzalez were still talking regularly on the phone, working together on a
daily basis, and occasionally engaging in casual sex, it does not follow that
she would harm him out of jealously over Evette Toney. Furthermore,
37
witnesses throughout trial, even witnesses called by the State, consistently
acknowledged Ana Maria Gonzalez’ dedication to her patients and her work
and her excellence as a physician. The evidence showed she had an
important business meeting on the night of the complainant’s
hospitalization, which she attended with the complainant (R.R.5. 180-185).
The evidence also showed that Ana Maria Gonzalez was at least familiar in a
rudimentary way with the effects of ethylene glycol poisoning (R.R.5 –
294). It is not a reasonable inference from the evidence to suppose she
would poison her research partner with an intoxicating toxin and then take
him to dinner with two senior members of her faculty, both accomplished
physicians, for a meeting she hoped would result in a new career
opportunity. The evidence showed Ana Maria Gonzalez told several doctors
she was concerned about the complainant, that she was worried and upset
when he refused to go to the emergency room, and that she followed him
and accompanied him to the emergency room herself.
The State also attempted to connect the mysterious events and strange
behaviors from the previous months with the injury sustained by the
complainant. For example, the State suggested that Ana Maria Gonzalez
staged an attack on herself and sent an anonymous letter to Evette Toney,
pretending to threaten herself and the complainant in an attempt to discredit
38
or frame Evette Toney. Even if the jury believed the State’s interpretation of
this evidence and thought Ana Maria Gonzalez faked an attack on herself
out of jealousy, that fact does not support a reasonable deduction that she
later tried to poison the complainant.
In some instances, the “staging” of a crime can be a circumstance
supporting a logical inference of guilt. In Temple v. State, 290 S.W.3d 341
(Tex. Crim. App. 2013), the evidence showed that the murder scene was
“staged” after the murder to make it look like a burglary. Likewise, in
Routier v. State, 273 S.W.3d 241 (Tex. Crim. App. 2008), there was
evidence supporting the staged nature of a crime, supporting an inference of
guilt in a circumstantial case. In both those cases, however, the staging relied
on by the courts concerned the charged offense itself. In the instant case,
Ana Maria Gonzalez and the complainant were open and exposed
throughout the day of his hospitalization, interacting with other physicians,
discussing his health and the status of his symptoms as he began to seem ill,
and participating in a group dinner together. Considering the evidence in the
light most favorable to the verdict, as the standard of review requires, and
assuming the jury believed Ana Maria Gonzalez staged an attack on herself
more than two months before, such evidence does not support a logical
39
inference that she harmed the complainant with ethylene glycol on the date
of his hospitalization.
This case is similar to Stobaugh v. State, 421 S.W.3d 787 (Tex.
App.—Forth Worth 2014, no pet.). In that case, the court of appeals reversed
and acquitted the defendant of murder after he was convicted entirely on
circumstantial evidence. The court pointed out that lies and inconsistent
statements in the absence of proof of wrongful conduct did not support an
inference of mens rea for murder. Stobaugh v. State, 421 S.W.3d at 787.
The defendant in that case behaved in an occasionally bizarre manner
following the disappearance of his wife, but the court concluded that “the
fact that he lied about calling Kathy or lied about hiring a private
investigator with her money does not support a reasonable deduction that he
possessed intent to kill her.” Id. The court continued, “just theorizing or
guessing by the jury as to the meaning of his suspicious conduct is not a
logical deduction from the conduct.” Id.
Likewise, in the instant case, the State encouraged the jury to theorize
or guess as to the meaning of some conduct it labeled as suspicious both
before and after the complainant’s injury. Much of the State’s case was
based on doctors recounting things Ana Maria Gonzalez said in the days and
months following the complainant’s injury that they theorized might be
40
suspicious. None of those things rose to the level of establishing any actual
connection between Ana Maria Gonzalez and the apparent ingestion of
ethylene glycol, and none were inconsistent with a person concerned about a
close friend or colleague, especially after she found herself the target of an
investigation based purely on circumstances and her opportunity to commit a
crime.
One of the most bizarre aspects of the State’s case was the
complainant’s insistence, well after the fact, and at trial, that he noticed a
sickeningly sweet taste in the coffee Ana Maria Gonzalez shared with him.
He testified he found it almost unbearably disgusting, yet continued to drink
it throughout the day out of politeness (R.R.9 – 258-259). Throughout much
of the day of his injury the complainant was less than a few yards away from
a coffee machine, where he could have presumably made all the coffee he
wanted. It strains credibility to believe that he would drink something he
found sickening, disgusting and perhaps even toxic because he did not want
to hurt the feelings of someone he had been using for casual sex at the office
over the previous two years. This testimony was matched by the equally
bizarre testimony of Evette Toney that the complainant told her within a day
or two that he suspected Ana Maria Gonzalez of poisoning him with the
coffee but wanted her to “keep this just between ourselves,” and “not poke
41
the dragon,” leading her to lie to law enforcement and suggest “maybe it was
some psycho waiter.” (R.R.10 – 61-62, R.R.11 – 73-77, 205). In this regard,
the arguably strange conduct of Ana Maria Gonzalez following the
hospitalization of the complainant, relied upon by the State as
“circumstantial evidence” of her guilt, was exceeded by the even stranger
behavior of the complainant and his girlfriend, starting with her video
recording of the complainant at the hospital and culminating in the secret
taping of phone conversations they made over hours and hours of solicited
conversations with Ana Maria Gonzalez (R.R.10 – 107-109).
It was not enough to show that the complainant ingested ethylene
glycol and Ana Maria Gonzalez had the opportunity to give it to him, even
when coupled with supposition, suspicions and curious conduct in the days
following the complainant’s injury. These circumstances do not rise to the
level of sufficient evidence to establish the elements of aggravated assault,
even in an entirely circumstantial case. The State’s evidence was legally
insufficient to support the conviction, and the case should be reversed and
the appellant acquitted.
42
APPELLANT’S THIRD POINT OF ERROR
The State failed to establish Ana Maria Gonzalez-Angulo
was “in a dating relationship” under the terms of the
Family Code and the Penal Code and the evidence was
insufficient to support the offense as pled in the
indictment.
Ana Maria Gonzalez-Angulo was charged with aggravated assault on
a “person with whom she had a dating relationship.” Under the Penal Code,
aggravated assault under section 22.02 is a second degree felony unless
certain further aggravating circumstances apply, one of which is being in a
dating relationship as described by the Family Code in section 71.0021(b).
Under that provision, a “dating relationship” means a relationship between
individuals who have or have had a continuing relationship of a romantic or
intimate nature. Tex. Fam. Code Ann. sec 71.0021(b) (West 2014). The
existence of such a relationship shall be determined based on consideration
of: (1) the length of the relationship; (2) the nature of the relationship; and
(3) the frequency and type of interaction between the person involved in the
relationship. Id. When an aggravated assault is between two people with a
“dating relationship,” the offense is a first-degree felony with a significantly
greater punishment range. A casual acquaintanceship or ordinary
fraternization in a business or social context does not constitute a “dating
relationship”. Tex. Fam. Code Ann. sec 71.0021(c) (West 2014).
43
Courts of appeals in Texas have struggled with the broad definition of
“dating relationship.” As one justice explained, “I believe the legislature did
not intend to include within the purview of section 22.01 all persons who
had ever dated in their lifetime.” Sanchez v. State, ---S.W.3d--- (Tex.
App.—Eastland, 2015) (Wright, J., dissenting and concurring). In one recent
case, the Court of Criminal Appeals agreed with the State that the defendant
and the complainant were in a “dating relationship” when they spent the
night at each other’s residences and had dated about a month. Villareal v.
State, 286 S.W.3d 321, 324 (Tex. Crim. App. 2009).
The evidence presented at trial established conclusively that the
complainant did not consider himself to be in a dating relationship with Ana
Maria Gonzalez (R.R.10 – 44, 129). He testified explicitly that he did not
consider the relationship a romantic one, that he did not love her (R.R.10 –
48), and that it was not a dating relationship (R.R.10 – 44, 129). He further
testified that the relationship was at least 95% work and only 5% casual sex
(R.R.11 – 85-87). He explained that he withheld intercourse in the
relationship specifically because he made a distinction between that kind of
intimacy and the casual, meaningless sexual act of oral sex (R.R.9 - 167-
168). He said that the incidences of sexual acts were perhaps as infrequent as
once a month or less and that he was in a committed and loving relationship
44
with Evette Toney (R.R.9 – 167). Ana Maria Gonzalez was quoted by Evette
Toney as saying, “it was just sex,” referring to the physical aspect of her
relationship with the complainant (R.R.11 – 83-86). The complainant and
Ana Maria Gonzalez never lived together, never told anyone they were
boyfriend and girlfriend, never went out on a date and did not engage in
demonstrations of affection in the office. Ana Maria Gonzalez was quoted
several times in the record as saying she loved the complainant “like a
brother,” (R.R.9 – 163, 170, R.R.5 – 129, R.R.7 – 175) and told one
colleague he was “her best friend in the United States.” (R.R.7 – 176).
Even more to the point, the provisions regarding aggravation of
offenses in the context of a dating relationship are intended to protect
individuals from domestic violence by punishing them more severely than
other assaults. To hold Ana Maria Gonzalez accountable for injuries to the
complainant within a “dating relationship” under the facts of this case
violates the spirit of the law. Ana Maria Gonzalez told Evette Toney, “he
used you and he used me.” (R.R.11 – 86). The record shows that she helped
the complainant in his career and his liaison with her resulted in promotions
for him at work and an increased visibility for his research. (R.R.9 – 171-
172, R.R.10 – 40-45, R.R.5 – 126). It shows that the complainant was senior
to Ana Maria Gonzalez at M.D. Anderson and came from an influential and
45
successful family of physicians (R.R.9 – 145 – 149, 156). The complainant
testified that when he had sexual relations with Ana Maria Gonzalez, those
acts were confined to her giving him oral sex, but not the other way around
(R.R.9 – 164-165). The complainant’s supervisor called him into her office
because his behavior around Ana Maria Gonzalez was, as she put it,
“unseemly.” (R.R.7 – 104). The complainant did not wish to risk his own
medical license and career by writing a fake doctor’s note for his common-
law wife, Evette Toney, so he induced Ana Maria Gonzalez to write one for
him (R.R.9 220 – 224). At trial, the complainant reluctantly conceded to
“partial responsibility” for his common-law wife’s loss of employment after
she turned in the fake note he got from Ana Maria Gonzalez (R.R.9 – 223).
One of the State’s witnesses, Dr. Jennifer Litton, testified that she felt the
relationship was unhealthy for Ana Maria Gonzalez and that she noticed
throughout the fall that Ana Maria Gonzalez was losing weight, was more
tearful than usual, frail, agitated and sad (R.R.12 – 56-57). These
observations do not describe a relationship where Ana Maria Gonzalez was
domineering or controlling of the complainant or where she was abusive or
inclined toward domestic violence. To the contrary, the record shows the
complainant remorselessly using a woman in a weaker position, a younger
faculty member without the contacts and background he had in the Houston
46
area, to advance his own career while using her for his own sexual
gratification and lying to his common-law wife (and anyone else who
inquired about it).
In a transparent attempt to increase the punishment range and over-
charge Ana Maria Gonzalez, the State attempted to characterize what
amounted to sexual harassment by a senior M.D. Anderson staff member as
a “dating relationship.” The State failed to prove that the complainant and
Ana Maria Gonzalez were in a dating relationship within the meaning of the
Penal Code and the Family Code. Because the State requested and obtained
an instruction on the lesser included offense of aggravated assault, the next
step would be for this Court to consider the sufficiency of the evidence to
support a conviction for aggravated assault, as argued in Point of Error
Three. If this Court concludes that the evidence was legally sufficient to
support the lesser-included offense, the proper remedy would be to reverse
and reform the judgment to reflect a conviction for the lesser-included
offense, and then remand for a new punishment hearing. Bowen v. State,
374 S.W.3d 427, 431-32 (Tex. Crim. App. 2012); see also, Tex. R. App. P.
43.2(d); Thornton v. State, 425 S.W.3d 289, 299-300 (Tex. Crim. App.
2014).
47
APPELLANT’S FOURTH POINT OF ERROR
The trial court erred by allowing a State’s witness to
identify Ana Maria Gonzalez-Angulo’s voice in a
surreptitiously recorded telephone call based on two prior
anonymous telephone conversations during which the
State’s witness never learned the identity of the person
with whom he was talking.
Applicable Facts
During its case-in-chief, the State introduced the testimony of Mike
DeSilva, a compliance investigator for GlaxoSmithKline (GSK). (R.R.10 –
184). The witness was presented as an expert of sorts, with about twenty-two
years of law enforcement experience (R.R.10 – 184). DeSilva testified he
was investigating complaints about the conduct of Evette Toney, a
GlaxoSmithKline employee, through conversations with an anonymous
informant at M.D. Anderson. The investigation began in early February
because of an anonymous letter (R.R.10 – 190-193). In early March, an
unknown individual called the compliance hotline to inquire about the status
of the complaint (R.R.10 - 192). DeSilva testified that it was not uncommon
for GSK to receive complaints from anonymous callers because people
reporting conflicts of interest often do not want friends or colleagues to
know they are reporting the conflict (R.R.10 – 240). Mike DeSilva told the
hotline personnel to ask the individual to call him on his cell phone and on
48
April 30, 2013, he received a call from an individual entirely unknown to
him. The call was short because it was evening and he was in the car with
his son (R.R.10 – 195). The next day, however, on May 1, 2013, DeSilva
had a conversation with the unknown person for approximately thirty
minutes (R.R.10 – 195). He described the caller as female with a Hispanic
accent (R.R.10 – 196).
Based on this thirty minute conversation with a person entirely
unknown to him, described only as “female with a Hispanic accent,”
DeSilva was permitted to testify over defense objection that he recognized
the voice as being the same one as in State’s Exhibit 127, one of the secretly
recorded phone calls the complainant made of Ana Maria Gonzalez. This
testimony amounted to an in-court identification of Ana Maria Gonzalez as
the anonymous person behind the complaints to GlaxoSmithKline.
Standard of Review
An in-court identification is inadmissible if tainted by an unduly
suggestive pretrial identification. Loserth v. State, 963 S.W.2d 770, 772
(Tex. Crim. App. 1998). A pretrial identification procedure may be so
suggestive and conducive to mistaken identification that subsequent use of
that identification at trial would deny the accused due process. Barley v.
State, 906 S.W.2d 27, 32-33 (Tex. Crim. App. 1995). Appellate courts
49
review de novo the question of whether a pretrial identification procedure
amounted to a denial of due process. Gamboa v. State, 296 S.W.3d 574, 581
(Tex. Crim. App. 2009). First, the court determines whether the pretrial
identification procedure was impermissibly suggestive. Id. Second, if the
court concludes the procedure was impermissibly suggestive, the court
determines if the impermissibly suggestive nature of the pretrial
identification gave rise to a substantial likelihood of irreparable
misidentification. Id. For an identification based on an impermissibly
suggestive procedure to be admissible, the totality of the circumstances must
show no substantial likelihood of misidentification. Ibarra v. State, 11
S.W.3d 189, 195 (Tex. Crim. App. 1999).
Arguments and Authorities
To set the stage for DeSilva’s in-court identification of Ana Maria
Gonzalez, the prosecutor asked, “have you had occasion to listen to known
recordings of the defendant speaking?” (R.R.10 – 196). The court asked the
prosecutor, “Voice identifications are admissible because why?” (R.R.10 –
197). The prosecutor was unable to come up with a basis for admission.
Defense counsel objected on the basis of an impermissibly suggestive out-
of-court identification procedure, because DeSilva listened to tapes of Ana
Maria Gonzalez, and only Ana Maria Gonzalez, after she had already been
50
arrested, identified as the key suspect by Detective Sosa, and charged with
aggravated assault (R.R.10 – 196).
Defense counsel rightly distinguished the ordinary authentication and
identification procedure for voices prior to the admission of recorded calls.
Rule 901(b) of the Texas Rules of Evidence provides for voice identification
by a witness prior to the admission of an audio recording. Tex. R. Evid.
901(b). In those circumstances, the witness can identify a voice “by opinion
based upon hearing the voice at any time under circumstances connecting it
with the alleged speaker.” Tex. R. Evid. 901(b)(5). In the instant case, the
State had no recordings of DeSilva’s phone conversation with the
anonymous caller and did not seek to admit any such evidence. Instead, the
State hoped to use evidence of Ana Maria Gonzalez’ voice, already admitted
into evidence, as a vehicle for DeSilva to testify to an in-court identification
in an attempt to establish her as the anonymous caller in the GSK
complaints. This was, as defense counsel pointed out, the opposite of
authenticating an audio recording for admission as contemplated by Rule
901(b). (R.R.10 – 198). The court agreed that the State was not seeking to
authenticate an audio recording under Rule 901, stating, “Right, but that’s
not what this is.” (R.R.10 – 198). It was an identification procedure similar
to a photo lineup based on voice recognition. Voice exemplars are
51
sometimes used in place of photos to identify defendants in out-of-court
procedures, but they require multiple suspects reading the words of an
assailant so the witness has the opportunity to pick out the correct voice. See,
e.g., United States v. Wade, 388 U.S. 218, 221-23, 87 S. Ct. 1926, 1929-30,
18 L. Ed. 2d 1149 (1967).
It is impermissibly suggestive to show a witness a single photograph,
inform the witness that the suspect in the photograph has already been
arrested for the crime, and ask the witness to identify the suspect. Stovall v.
Denno, 388 U.S. 293, 302, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967); Madden
v. State, 799 S.W.3d 683, 694-95 (Tex. Crim. App. 1990). This is true even
when the suspect has not yet been identified or arrested as the likely
perpetrator. Id. Likewise, in the instant case, it was impermissibly
suggestive to ask DeSilva to identify Ana Maria Gonzalez’ voice as the
anonymous caller by asking him to listen to a recording of her voice without
providing exemplars of other female voices with Hispanic accents for
comparison purposes. In addition, by the time DeSilva heard Ana Maria
Gonzalez’ voice on the recording with the complainant, she had already
been arrested and charged with the underlying offense. Moreover, DeSilva
knew Ana Maria Gonzalez had been arrested and charged with a crime
52
because Evette Toney notified him during an interview in July 2013 (R.R.10
– 237).
With visual identification, on-the-scene confrontations, also referred
to as show-up identifications, have some degree of suggestiveness but may
be acceptable, particularly when the viewing occurs immediately after the
commission of the offense while the witness’ memory is still fresh and
accurate. Garza v. State, 633 S.W.2d 508, 512 (Tex. Crim. App. [Panel Op.]
1981). Thus, law enforcement may occasionally ask a single suspect or a
procession of suspects to parade in front of a witness to a crime, one at a
time, if circumstances support a finding that the procedure is not suggestive.
Id. In the case at bar, however, DeSilva testified he spoke to the anonymous
caller at the end of April and the beginning of May, 2013, for a total of about
forty minutes over two calls, and then heard a recording of Ana Maria
Gonzalez’ voice for the first time in September 2014 (R.R.10 – 243). Nearly
eighteen months had elapsed between his brief exposure to the voice of an
anonymous caller over his cell phone and his opportunity to hear the
identified voice of Ana Maria Gonzalez prior to trial. DeSilva was informed
that the voices on the recording belonged to the complainant and Ana Maria
Gonzalez (R.R.10 – 244). He affirmed on cross-examination that he already
knew Ana Maria Gonzalez had been charged with a crime and that he had
53
discussed the case with Detective Sosa (R.R.10 – 244). Although he
admitted he was not an expert in voice identification and had never been
trained in recognizing voices, and he admitted discussing the case at length
with Detective Sosa before listening to the recording of Ana Maria
Gonzalez’ voice, he insisted that in his opinion, the anonymous caller from
the previous year was Ana Maria Gonzalez. He said, “the pitch sounded the
same, the cadence, the accent, it sounded like the same person I spoke with
on the phone on those two occasions, yes.” (R.R.10 – 247).
The Due Process Clause of the Fourteenth Amendment of the United
States Constitution protects an accused from the admission of a pretrial
identification into evidence if it is “so suggestive and conducive to mistaken
identification that subsequent use of that identification at trial would deny
the accused due process of law.” Barley v. State, 906 S.W.2d 27, 32-33
(Tex. Crim. App. 1995). The accused has to show (1) the pretrial
identification procedure was impermissibly suggestive; and (2) it created a
substantial likelihood of irreparable misidentification.” Sierra v. State, 266
S.W.3d 72, 75 (Tex. App.—Houston [1st Dist.] 2008, pet ref’d). The second
prong of the test is based on an evaluation of the following factors: (1) the
witness’ opportunity to view the perpetrator at the time of the offense; (2)
the witness’ degree of attention during the offense; (3) the accuracy of the
54
witness’ prior description of the perpetrator; (4) the witness’ level of
certainty regarding identification at the time of confrontation; (5) the lapse
of time between the offense and the subsequent confrontation. Neil v.
Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 382, 34 L. Ed. 2d 401 (1972). In
the instant case, these factors should be evaluated based on what DeSilva
heard rather than saw, and instead of an offense, his comparison would be to
the anonymous call reporting the conflict of interest to GSK.
DeSilva had two short, long-distance telephone calls on a cell phone
with an anonymous informant. He was following up on a routine lead as part
of his job as a compliance investigator. Unlike many witness identification
situations, these circumstances did not involve a compelling or startling
moment or a traumatic event for DeSilva. In terms of his accuracy in
describing the anonymous caller, DeSilva could only ever say it was a
“female with a Hispanic accent.” DeSilva insisted at trial that the voices
were the same, but also admitted to a long career in law enforcement and a
lengthy interview with Detective Sosa during which Sosa shared his feelings
about the case and about Ana Maria Gonzalez. Finally, with respect to the
last factor, a substantial amount of time elapsed between the evenings when
he heard the anonymous caller’s voice and the day he was asked to listen to
a recording of Ana Maria Gonzalez.
55
An analysis of the so-called Biggers factors leads inevitably to a
finding that there was a substantial likelihood of irreparable
misdentification. When a witness identifies a defendant based on an
impermissibly suggestive pretrial procedure, the case will be reversed when
there is a substantial doubt raised about the reliability of the identification.
Dispensa v. Lynaugh, 847 F.2d 211, 221 (5th Cir. 1988) (out-of-court
identification was inadmissible and the in-court identification could not
stand without it). The trial judge asked the lawyers at the bench “why can’t
you just cross-examine on this?” The answer is that any time a witness
becomes certain about his or her identification of a suspect because of an
impermissibly suggestive pretrial procedure, the State has created a certainty
in the witness’ mind out of whole cloth. See id.
In the instant case, the State was never able to establish a connection
between the injuries sustained by the complainant and Ana Maria Gonzalez.
DeSilva’s testimony, however, provided one attempt at a link that knitted the
State’s circumstantial case together in terms of identification. DeSilva’s
testimony sought to establish that the anonymous caller was the same person
who set up the Conflict Report email account. In addition, his testimony
strongly suggested that the anonymous caller was the author of the
anonymous letters that precipitated GSK’s investigation into Evette Toney’s
56
behavior. The prosecutor used this evidence to try to establish a link between
the anonymous letter the complainant testified he received during
Thanksgiving 2012. The complainant testified the anonymous letter
contained specific misspellings of the names of the people involved. DeSilva
identified the same misspellings in the letter GSK received. Significantly,
the jury never saw the letter the complainant claimed he received. Likewise,
the jury did not have an opportunity to hear a recording of DeSilva’s
conversation with the unknown caller and compare the voice to the voice of
Ana Maria Gonzalez themselves.
The State’s case hinged on a theory of “fatal attraction,” and part of
that theory required proving that Ana Maria Gonzalez staged an attack on
herself and sent anonymous letters and emails to the complainant and GSK
in an effort to harass or entrap or otherwise harm the complainant and Evette
Toney. The State’s proof fell short of connecting Ana Maria Gonzalez with
these events and DeSilva’s identification testimony, tainted by Detective
Sosa’s view of the case, was an attempt to shore up this connection. His
testimony was a violation of Ana Maria Gonzalez’ rights to due process
under the United States Constitution and under the similar due process
provision of the Texas Constitution, and the trial court erred in admitting it.
57
Even if this Court analyzes the admission of DeSilva’s testimony
under the rules of evidence rather than considering it under the law
applicable to pretrial and in-court identifications, the trial court still erred in
admitting the evidence. Defense counsel also objected to the admission of
the testimony under Rule 403, arguing that its probative value was
outweighed by the danger of unfair prejudice. A trial court should exclude
otherwise admissible evidence under Rule 403 if the probative value of such
evidence is substantially outweighed by the danger of unfair prejudice. Tex.
R. Evid. 403. When an appellant challenges a trial court’s ruling under the
rules of evidence, the appellate court reviews the decision under an abuse of
discretion standard. See Billodeau v. State, 277 S.W.3d 34, 39 (Tex. Crim.
App. 2009). To evaluate the admission of evidence under Rule 403, the court
balances a variety of factors including: (1) whether the evidence had
significant probative value; (2) whether the State had a compelling need for
the evidence; (3) whether the evidence tended to suggest the jury make a
decision on an improper basis; (4) any tendency of the evidence to confuse
or distract the jury from the main issues; (5) the possibility that the jury
might give undue weight to the evidence; and (6) the likelihood that
presentation of the evidence would consume an inordinate amount of time or
58
repeat evidence already admitted. Giglioblanco v. State, 201 S.W.3d 637,
641-42 (Tex. Crim. App. 2006).
In the instant case, the investigator’s testimony about an anonymous
caller to GSK reporting a real and valid conflict of interest did not have
significant probative value with respect to the key issues at bar. The conflict
of interest with GSK and the loss of Evette Toney’s job as a result of her
own dishonesty were side issues in the case used by the prosecutor to
suggest animosity toward Evette Toney and establish a motive for Ana
Maria Gonzalez to hurt either her or the complainant. Motive is not an
element of aggravated assault. For the same reason, the second factor argues
against the admission of the evidence. The State only had a compelling need
for this evidence because its direct evidence, and even its circumstantial
evidence on the elements of the offense, was weak and inconsistent. The
State used DeSilva’s testimony to hint at its theory of the case, carried
throughout the trial and into closing argument in place of actual evidence:
that Ana Maria Gonzalez had a “fatal attraction” and attempted to frame
Evette Toney for something she did not do. The third factor also militates
against the admission of the evidence, because the purpose of DeSilva’s
testimony was to influence the jury to make a decision based on vague
suppositions and innuendo about Ana Maria Gonzalez’ character and
59
perhaps even her emotional stability, rather than on the evidence presented
on each of the elements of the offense. The fourth factor requires the court to
consider whether the evidence has a tendency to distract the jury from the
issues or confuse the issues. As stated above, the State’s intent was to
distract the jury from the paucity of evidence connecting Ana Maria
Gonzalez to the actual offense at issue, and instead focus them on a series of
confusing and unrelated incidents, many of which took place long after the
complainant was injured.
Finally, while the evidence did not take a substantial amount of time,
there was nevertheless a legitimate concern that the jury would place undue
weight on it. The State spent a lot of time in its case-in-chief trying to
suggest that Ana Maria Gonzalez was lying about phone calls she received,
faking an attack and authoring anonymous letters. Despite the repeated
emphasis on these allegations, little or no evidence was ever produced
showing that she did, in fact, lie about any phone calls, fake an attack or
author any anonymous letters. The State relied on DeSilva’s testimony to
establish a crucial link in its evidence that otherwise simply was not there.
The admission of this false identification testimony was distracting
and confusing for another reason: even if the State had sufficient evidence to
prove Ana Maria Gonzalez authored anonymous letters or faked an attack on
60
herself, none of these events would tend to prove or disprove any of the
elements of the offense. The effect of this evidence and other evidence like it
was to focus the jury on the theory the State was trying to put forward about
the relationship between the complainant and Ana Maria Gonzalez rather
than the elements of the charged offense.
The trial court erred in admitting the in-court identification made by
DeSilva based on voice recognition and the admission denied Ana Maria
Gonzalez her rights to due process and harmed her under the harmless error
rule of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 44.2.
The case should be reversed and remanded for a new trial.
61
PRAYER
Appellant respectfully prays this Honorable Court to reverse the
conviction and acquit the appellant on the basis of insufficient evidence.
Alternatively, appellant prays this Honorable Court to reverse and remand
for a new trial.
Respectfully submitted,
/s/ Barbara Drumheller
Barbara A. Drumheller
8501 Katy Fwy, Ste 201
Houston, Texas 77024
713-504-4492
Texas Bar No. 00793643
62
CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing instrument has been
served on the Harris County District Attorney’s Office as required by the
Texas Rules of Appellate Procedure.
/s/ Barbara Drumheller
Barbara A. Drumheller
8501 Katy Fwy, Ste 201
Houston, Texas 77024
713-504-4492
Texas Bar No. 00793643
63
CERTIFICATE OF COMPLIANCE
This is to certify that the foregoing computer-generated brief has no
more than 12,726 words in compliance with Rule 9 of the Texas Rules of
Appellate Procedure.
/s/ Barbara Drumheller
Barbara A. Drumheller
8501 Katy Fwy, Ste 201
Houston, Texas 77024
713-504-4492
Texas Bar No. 00793643
64