Edgar Juvention Barrientos v. State ( 2015 )

Affirmed and Opinion Filed March 10, 2015
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00041-CR
EDGAR JUVENTION BARRIENTOS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 401st Judicial District Court
Collin County, Texas
Trial Court Cause No. 401-80994-07
MEMORANDUM OPINION
Before Justices Francis, Lang-Miers, and Whitehill
Opinion by Justice Francis
A jury convicted Edgar Juvention Barrientos of aggravated sexual assault, and the trial
court assessed punishment at fifteen years in prison. In two issues, appellant challenges the
sufficiency of the evidence to support his conviction and the admission of photographs. We
affirm.
In December 2006, A.M.G. needed someone to prepare food for her birthday party and
hired a woman she met through a neighbor. The woman and her two children came to the party,
and the woman’s husband later picked them up. The woman’s husband was identified as
appellant.
After her guests left the party, at about 11 p.m. or midnight, A.M.G.’s roommate called
saying she forgot her key and would need to be let in the door when she got off work. About
forty minutes later, A.M.G. said there was a knock at the door. Assuming it was her roommate,
A.M.G. answered without first checking to see who it was. When she opened the door, appellant
grabbed her by the throat, threw her on the sofa, and closed the door. A.M.G. asked appellant
why he was hitting her and offered him her jewelry and credit cards so he would not hurt her.
Appellant told her he was coming for her and wanted to “have sex” with her. He tore off
A.M.G.’s clothes, threw her on the floor, and told her to cooperate. A.M.G. said appellant
threatened to kill her and told her he had raped and killed two fifteen-year-old girls in
Guatemala. A.M.G. believed appellant was going to kill her and said she was fighting for her
life as he hit her and threw her around the apartment.
According to A.M.G., appellant inserted three fingers into her vagina, licked her breasts
and vagina, and put his tongue inside her vagina. The assault lasted a long time, and at one point
as she tried to escape, he told her if she made “one wrong move,” he would “finish” her.
Eventually, appellant wanted to smoke a cigarette, and A.M.G. suggested he light it from the
stove in the kitchen. When appellant went into the kitchen, A.M.G. ran out the door naked and
screaming and banged on the door of a neighbor’s apartment. The neighbor’s son answered,
covered her in his jacket, and called 911. Officers were dispatched to the scene, and appellant
was arrested that night. A.M.G. was transported to the hospital, where she underwent a sexual
assault examination and police took photographs of her injuries. For reasons not developed in
the record, the police did not develop the film over the next seven years, and the prosecutor
found it in the evidence box on the first day of trial and had it developed. Fifteen photographs of
A.M.G. and two of appellant, one without his shirt on, were admitted over a defense objection
that they were not timely produced. The photographs of A.M.G. depicted bruises, scratches, and
lacerations to A.M.G.’s arms, legs, shoulder, and back.
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On cross-examination, A.M.G. acknowledged telling police she saw a tattoo on
appellant’s arm that night but did not mention he also had a large mole or birthmark on his side
that was depicted in one of the photographs. She also acknowledged the photographs of her did
not reveal any injuries to her neck where she said appellant had grabbed her or any marks on her
face where she said appellant hit her with his open hand. Finally, she acknowledged telling the
police that at one point, she told appellant he was “beautiful” and did not need to use force. She
explained, however, that she would have said anything to stop appellant from hitting her.
Dr. Rajiv Gala performed the sexual assault examination of A.M.G. According to Dr.
Gala, A.M.G. told him the man grabbed her, ripped off her clothes, and kissed her on the face
and “pubic hair area.” She told Dr. Gala there was no penile penetration. During his
examination, he noticed a number of bruises and scratches along A.M.G.’s arms and legs as well
as scratches and lacerations on her shoulder and back areas. He testified the injuries documented
in his report were consistent with the injuries depicted in the photographs. The report was
admitted into evidence. Dr. Gala took samples for DNA testing but was not surprised no DNA
was recovered because of the “relatively minimal contact” and no ejaculation or “internal
penetration into the vagina.” Additionally, he said, A.M.G. reported she urinated before coming
to the hospital. He explained that wiping after urination can remove DNA from the pubic area.
In his second issue, appellant contends the evidence is legally insufficient to support the
verdict. In reviewing a challenge of the sufficiency of the evidence, we examine the evidence in
the light most favorable to the verdict to determine whether any rational trier of fact could have
found the essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319
(1979). This standard accounts for the factfinder’s duty to resolve conflicts in the testimony, to
weigh the evidence, and to draw reasonable inferences from basic to ultimate facts. Clayton v.
State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
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To obtain a conviction for aggravated sexual assault, the State was required to prove
appellant intentionally or knowingly caused the penetration of A.M.G.’s sexual organ with his
fingers or mouth, without A.M.G.’s consent, and by acts or words placed A.M.G. in fear that
death or serious bodily injury would be imminently inflicted on her. See TEX. PENAL CODE ANN.
§ 22.021(a)(1)(A)(i), (a)(2)(A)(ii) (West Supp. 2014).
A.M.G. testified appellant forced his way into her apartment, tore off her clothes, and
penetrated her vagina with his fingers and mouth. During this encounter, he hit her repeatedly
and threw her around the apartment, all while threatening to kill her. A.M.G.’s testimony
established each element of the offense and was alone sufficient to support appellant’s
conviction. See TEX. CODE CRIM. PROC. ANN. art. 38.07(a) (West Supp. 2014) (stating that
uncorroborated testimony of victim alone sufficient to support conviction if victim informs
person, other than defendant, of offense within year of the date it occurred).
Appellant asserts A.M.G. is not credible because her testimony contained
“inconsistencies.” Specifically, he argues that A.M.G. recalled appellant’s tattoo but not a large
birthmark. A.M.G. explained that on the night of the assault, she had struggled with appellant
for a long time and her “memory was not working” afterwards. She recalled appellant’s face and
tattoo and gave the police information so they could find him. On seeing the picture of
appellant’s birthmark at trial, she said she remembered it. The jury could have believed A.M.G.
did not remember every detail immediately after going through a traumatic and violent assault.
Next, appellant asserts an “inconsistency” on the element of consent. Here, appellant
argues A.M.G. told him he was “beautiful” and did not need to use force. Additionally, he says,
no photographic evidence documents the condition of her apartment supporting her testimony
about a struggle. A.M.G. explained her remarks to appellant, saying she did not have the
strength to continue to fight him and was trying to stop him from hurting her. The absence of
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photographic evidence of her apartment does not render the evidence insufficient nor does it
render A.M.G.’s testimony incredible.
Appellant also asserts the evidence of penetration is insufficient because of the absence
of DNA evidence. The evidence showed A.M.G. was penetrated digitally and orally. Given that
no penile penetration or ejaculation occurred and because A.M.G. urinated before the
examination, Dr. Gala said he was not surprised no DNA was recovered.
Finally, appellant asserts the evidence is insufficient to establish he threatened A.M.G.
with death or serious bodily injury. He asserts nothing in the record shows he had any
connection to Guatemala or that he killed two girls there. Such a showing, however, was not
necessary. What is relevant is A.M.G.’s perception of the threat. She testified that during the
assault, appellant grabbed her by the throat, threw her around the apartment, hit her repeatedly in
the face and other parts of her body, all the while telling her he would kill her. At trial, she
testified she was “fighting for her life,” thought he “would kill her,” and told police he “wanted
to kill me, not just rape me.” From this evidence, the jury could have believed appellant placed
A.M.G. in fear that death or serious bodily injury would be imminently inflicted on her.
Considering all the evidence, we conclude a rational jury could have believed beyond a
reasonable doubt that appellant committed aggravated sexual assault. We overrule the second
issue.
In his first issue, appellant contends the trial court erred in admitting the photographs of
A.M.G.’s injuries because the film was not developed and produced until the second day of trial.
For reasons not clarified in the record, this case was not prosecuted for seven years. The
record does show, however, that the prosecutor was unaware of the undeveloped film until the
Dallas police arrived on the first day of trial with a “large box of stuff.” The film was in the box
but no explanation was given as to why the Dallas police did not develop it.
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On the second day of trial, the prosecutor had the film developed and tendered a full set
to defense counsel. In a hearing outside the presence of the jury, both sides saw the photographs
for the first time at the same time. The prosecutor noted the police report and other discovery
that had been handed over to appellant “mentioned multiple times” that photographs were taken,
which she asserted put appellant on notice and essentially negated any assertion of “surprise
photographs.” The trial judge stated “[w]e’re not ascribing dark and nefarious motives” to the
DA’s office and further said he was not suggesting the prosecutor had “done anything
inappropriate.” Defense counsel agreed.
A.M.G. then testified about the photographs, again without the jury present. Appellant
objected they were “untimely provided.” Of the forty photographs, the State offered twenty-
three into evidence. Ultimately, the trial court ruled admissible fifteen photographs depicting
A.M.G. and her injuries and two photographs of appellant, one showing his tattoo and birthmark.
The trial court excluded two other photographs of appellant, including one A.M.G. said depicted
where she had bitten appellant that night. At no point did defense counsel indicate he needed a
postponement or continuance to prepare in light of the ruling. During cross-examination of
A.M.G., defense counsel used the photographs to suggest A.M.G. was lying about the assault
because the photographs did not show injuries to her face or neck.
On appeal, appellant asserts the evidence was a “surprise” that caused him actual harm
and relies on cases holding that “[e]vidence that is willfully withheld from disclosure under a
discovery order should be excluded from evidence.” See Henricks v. State, 293 S.W.3d 267,
274 (Tex. App.—Eastland 2009, pet. ref’d) (citing Oprean v. State, 201 S.W.3d 724, 726 (Tex.
Crim. App. 2006); Osbourn v. State, 59 S.W.3d 809, 815 (Tex. App.—Austin 2001), aff’d, 92
S.W.3d 531 (Tex. Crim. App. 2002)).
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Under the line of cases relied upon by appellant, evidence excluded in this context is in
the nature of a court-fashioned sanction for prosecutorial misconduct. Francis v. State, 428
S.W.3d 850, 854–55 (Tex. Crim. App. 2014). Whether the trial court should exclude evidence
on this basis hinges on “whether the prosecutor acted with the specific intent to willfully disobey
the discovery order[.]” Id. Extreme negligence or even recklessness on the prosecutor’s part in
failing to comply with a discovery order will not, standing alone, justify the sanction of
excluding relevant evidence. Id.
There is no discovery order in this case or even a discovery motion ruled on by the judge,
and appellant acknowledges as much. Instead, he relies on an implied agreement with the State
to produce discovery. Nothing in the record substantiates any such agreement. Further, he offers
no support for the claim that an “informal agreement” would be tantamount to an order signed by
the judge under the code of criminal procedure. The State has a constitutional duty to disclose
exculpatory evidence to the defense, but has no general duty to disclose inculpatory evidence.1
Rivera v. State, 808 S.W.2d 80, 95 (Tex. Crim. App. 1991). Thus, given the absence of any
order in this case, appellant has not shown the State had a duty to disclose the photographs.
Even if there had been a violation of a trial court’s pre-trial discovery order which caused
surprise to appellant, the proper procedure at that point would have been to request a continuance
of the trial. Duff-Smith v. State, 685 S.W.2d 26, 32 (Tex. Crim. App. 1985); Massimo v. State,
144 S.W.3d 210, 215 (Tex. App.—Fort Worth 2004, no pet). The failure to request a
postponement or seek a continuance waives any error urged in an appeal on the basis of surprise.
Lindley v. State, 635 S.W.2d 541, 544 (Tex. Crim. App. [Panel Op.] 1982); see Oprean, 201
1
The Michael Morton Act, which creates a general discovery duty, is not implicated in this case because the Act did not take effect until
after this case was tried. See Act of May 16, 2013, 83rd Leg., R.S., ch. 49 (S.B. 1611), § 2 (codified at TEX. CODE CRIM. PROC. ANN. art. 39.14.
(providing the change in law applies to the prosecution of an offense committed on or after the Act’s effective date of Jan. 1, 2014). Therefore,
we need not consider how the Act might affect this case.
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S.W.3d at 730 n.10 (Cochran, J., concurring) (“Thus, the trial court may always exclude the
undisclosed evidence, but if he does not, any error in causing ‘surprise’ to the defense is forfeited
on appeal unless the defendant has also requested a postponement or recess.”). Appellant did not
request a postponement or continuance; thus, error, if any, is waived. We overrule the first issue.
We affirm the trial court’s judgment.
Do Not Publish /Molly Francis/
TEX. R. APP. P. 47.2(b) MOLLY FRANCIS
140041F.U05 JUSTICE
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
EDGAR JUVENTION BARRIENTOS, On Appeal from the 401st Judicial District
Appellant Court, Collin County, Texas
Trial Court Cause No. 401-80994-07.
No. 05-14-00041-CR V. Opinion delivered by Justice Francis;
Justices Lang-Miers and Whitehill
THE STATE OF TEXAS, Appellee participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered March 10, 2015.
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