Catarino Jesus Sandoval v. State

IN THE
TENTH COURT OF APPEALS
No. 10-08-00070-CR
CATARINO JESUS SANDOVAL,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court No. 2007-178-C2
MEMORANDUM OPINION
A jury convicted Catarino Jesus Sandoval of aggravated robbery and sentenced
him to sixteen years in prison and a $10,000 fine. In three issues, Sandoval contends
that: (1) the State violated due process by knowingly using false testimony; (2) the State
violated due course of law by negligently using false testimony; and (3) the trial court
abused its discretion by denying his motion for new trial. We affirm.
FACTUAL BACKGROUND
Kathy Ryall was exiting her vehicle and preparing to enter Richland Mall when a
man approached her from behind, pressed a “sharp” object against her back, and
instructed her to give him her purse. When Ryall hesitated, the man pressed harder
and ordered her to give him her purse. As Ryall turned, the man grabbed her purse
and ran. Ryall did not see the man’s face, but described him as a young Hispanic male
of medium build, with dark hair, wearing a white t-shirt and blue jeans, and not very
tall. She observed the man enter a “white, small sedan.” She saw the driver of the
vehicle and memorized the license plate. She identified the driver, Catarino Sandoval’s
cousin Tommy Sandoval, from a photographic lineup.
Tommy testified that sometime between 8:00 and 9:00 a.m., “8:40-something” per
the car radio, he and Sandoval drove to Wal-Mart from Sandoval’s mother’s house,
about a twenty-minute drive. They drove around the parking lot for about thirty
minutes. From there, they drove to the mall. This drive takes about ten to fifteen
minutes, but Tommy testified that they arrived within ten minutes, probably five
minutes. When they spotted Ryall, Tommy parked and Sandoval opened a pocket knife
and exited the vehicle. He returned with both the knife and Ryall’s purse. Tommy kept
$40 of the $400 found in Ryall’s purse and used Ryall’s credit card to purchase gasoline.
Belinda Alaniz, Sandoval’s girlfriend and the owner of the vehicle, testified that
Sandoval dropped her off at work around 8:00 a.m. Around lunchtime, he called to
inform her that “something stupid” had happened and the car was at a park. Officers
DeAlan Adams and Mike Bradley were present during this phone call and testified that
Sandoval v. State Page 2
Alaniz told them that Sandoval said, “I’ve done something bad.” They located the
vehicle at a park approximately eight to ten miles from the mall. Sandoval’s left palm
print was found on the passenger’s side of the vehicle. Ryall’s checkbook and driver’s
license were inside the vehicle.
Adams testified that he received the call about the robbery around 10:00 a.m. and
believed that the robbery occurred around 9:50 a.m. Ryall testified that she arrived at
the mall close to 10:00 a.m. 9-1-1 records showed that the call came in at 10:18 a.m.
Crystal Perales, Sandoval’s former girlfriend, testified that she spoke with
Sandoval on the telephone from 9:20 a.m. to 9:34 a.m. She testified that Sandoval called
from his mother’s landline, not a cellular telephone. She knew this because she saw the
number on her caller ID, Sandoval had previously called from that number, and she
checked the number on 411.com, which listed the number as a landline.
The State requested fifteen minutes to investigate the status of this telephone
number. Investigator Don Marshall contacted Southwestern Bell security and learned
that the number had been assigned to a T-Mobile cellular telephone since September
2004. He did not inquire as to the owner of the number or whether the number was
assigned to a cellular telephone on the day of the robbery.
USE OF FALSE TESTIMONY
Arguing that Marshall’s testimony was false or misleading, Sandoval contends in
his first two issues that: (1) the State knowingly used false testimony in violation of his
due process rights provided by the Fourteenth Amendment to the United States
Sandoval v. State Page 3
Constitution; and (2) the State negligently used false testimony in violation of his due
course of law rights provided by article I, section 19 of the Texas Constitution.
A defendant must object to the State’s use of allegedly false evidence to preserve
the complaint for appeal. Davis v. State, No. 10-06-00009-CR, 2008 Tex. App. LEXIS
7146, at *18-19 (Tex. App.—Waco Sept. 24, 2008, no pet. h.) (citing Haliburton v. State, 80
S.W.3d 309, 315 (Tex. App.—Fort Worth 2002, no pet.)); see TEX. R. APP. P. 33.1. At the
time of Marshall’s testimony that the number was assigned to a cellular telephone,
Sandoval was aware of contrary information suggesting that the number was assigned
to a landline. He could have objected to Marshall’s testimony at trial, but failed to do
so. His first and second issues are not preserved for appellate review.
MOTION FOR NEW TRIAL
In his third issue, Sandoval challenges the denial of his motion for new trial on
grounds that the State used false or misleading evidence to negate his alibi defense. We
review a trial court’s denial of a motion for new trial for abuse of discretion. Benton v.
State, 237 S.W.3d 400, 404 (Tex. App.—Waco 2007, pet. ref’d) (citing Salazar v. State, 38
S.W.3d 141, 148 (Tex. Crim. App. 2001)).
In his motion for new trial, Sandoval argued that he did not receive a fair trial
because the State used “inaccurate hearsay testimony”, i.e., Marshall’s testimony that
the telephone call to Perales was made from a cellular telephone rather than a landline,
which “completely destroyed [his] alibi defense.” In an affidavit, Guy Cox, Sandoval’s
trial attorney, described this testimony as “inaccurate and potentially misleading.” Cox
opined that Perales’s testimony that Sandoval called her from a landline approximately
Sandoval v. State Page 4
twenty-six minutes before the robbery, coupled with Tommy’s testimony that he and
Sandoval drove around for about an hour before the robbery, made Sandoval’s
“presence at the robbery very remote.” Cox was surprised by Marshall’s testimony
because he had “received information to the contrary and did not believe its veracity
was an issue.” Also attached to Sandoval’s motion was a computer printout from
411.com listing the number as a landline and telephone book pages showing the
number in the residential listings.
Sandoval subsequently filed telephone records from the AT&T custodian of
records, which identified the number as a landline at the time of the robbery.
Additional AT&T records showed an incoming call to Perales from this number at 8:29
a.m., a three-minute call, and 9:20 a.m., a fourteen-minute call.
At the hearing on Sandoval’s motion, Wanda Mathews, AT&T custodian of
records, testified that the number was a landline at the time of the robbery. Mathews
testified that cellular telephone numbers are not listed in the residential pages of the
telephone book, and Sandoval introduced residential pages from the AT&T telephone
book, which listed the number. According to Mathews, the address listed in the
telephone book matched the address on AT&T’s billing records. She further testified
that it was possible that the number was assigned to a cellular telephone at some point
in the past.
Cox testified that Marshall’s testimony “seriously undermined” Sandoval’s alibi
defense. He had hoped that Perales’s testimony establishing that Sandoval was
possibly at a different place at a different time than testified to by Tommy would
Sandoval v. State Page 5
convince the jury to find Sandoval not guilty. On cross-examination, he agreed that the
telephone records and books were not new evidence. The State provided Cox with a
Google map showing the distance from the house to the mall as 2.9 miles or seven
minutes. Cox agreed that a forty-four-minute time period existed between the end of
the call to Perales at 9:34 and the 9-1-1 call at 10:18; thus, Sandoval had time to get to the
mall even assuming that the number was a landline. However, he did not believe that
the 9-1-1 call was the most significant, as Ryall had estimated that the robbery occurred
at 9:50.
The prosecutor testified that Ryall did not identify a specific time when the
robbery occurred. She believed that the robbery occurred no earlier than 10:05 because
Ryall had testified that she was late for work and the mall opens at 10:00. The
prosecutor also believed that, assuming the number was assigned to a landline and the
robbery occurred sixteen minutes after the call ended, Sandoval still had time to commit
the robbery. In fact, she was able to drive the route from Sandoval’s home to the mall in
seven minutes and seventeen seconds, after stopping at a major intersection and driving
the forty mile-per-hour speed limit.
The prosecutor further testified that, although she had subpoenaed Perales as a
punishment witness, she learned about the landline allegation during Perales’s
testimony. She requested “five minutes” to investigate this testimony and asked
Marshall to contact the telephone company. She was not present when he contacted
Southwestern Bell; however, she also testified that the specific digits of the number
indicated to her that it was assigned to a cellular telephone, which made sense
Sandoval v. State Page 6
according to Tommy’s testimony. She would not have put someone on the stand to say
that the number was assigned to a cellular telephone when it had not been.
At the conclusion of the hearing, the trial court noted that Sandoval’s mother was
“in the courtroom during the trial when the defense was putting on their evidence.” He
denied Sandoval’s motion.
Analysis
A defendant is entitled to a new trial based on the State’s use of false evidence
where: (1) the State “used” the testimony; (2) the testimony was “false”; (3) the
testimony was “knowingly used”; and (4) if these questions are affirmatively answered,
there is a reasonable likelihood that the false testimony could have affected the
judgment of the jury. Ramirez v. State, 96 S.W.3d 386, 394-95 (Tex. App.—Austin 2002,
pet. ref’d) (citing Mooney v. Holohan, 294 U.S. 103, 55 S. Ct. 340, 79 L. Ed. 791 (1935); Pyle
v. Kansas, 317 U.S. 213, 63 S. Ct. 177, 87 L. Ed. 214 (1942); Napue v. Illinois, 360 U.S. 264,
79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959)). A defendant need not show that a witness
“knew the testimony was false or otherwise harbored a sufficient culpable mental state
to render the witness subject to prosecution for perjury” or that the “witness’s specific
factual assertions were technically incorrect or ‘false.’” Id. at 395. “It is sufficient if the
witness’s testimony gives the trier of fact a false impression.” Id.
Evidence presented at the hearing on Sandoval’s motion for new trial establishes
that the number is a landline and that Perales received a telephone call from that
number on the morning of the robbery. Marshall’s testimony to the contrary is false
and misleading. The State used this testimony during closing to argue that Sandoval
Sandoval v. State Page 7
called Perales from a cellular telephone while driving around looking for someone to
rob. The State further argued that Sandoval failed to present anything to rebut this fact.
The record contains no evidence suggesting that Marshall or the State knew the
testimony was inaccurate, or even potentially inaccurate, at the time the testimony was
elicited. Nor does the record establish that the State should have known that Marshall’s
testimony was false or misleading. The evidence presented at trial did not conclusively
establish that the number was assigned to either a landline or a cellular telephone.
Neither the State nor Sandoval provided the jury with documentary evidence
confirming their respective positions or sought additional time to do so. Not until the
motion for new trial did Sandoval present evidence other than Perales’s testimony to
establish the number as a landline.
In fact, at the motion for new trial hearing, Mathews testified that the telephone
records would have been available at the time of trial. She would have appeared at trial
with the records had she received a subpoena. Neither were the telephone book pages
new. Sandoval could have procured other evidence supporting his contention that the
number was assigned to a landline, but he failed to do so.
Even assuming that the State was aware of or should have been aware of the
error and refused to correct it, we cannot say beyond a reasonable doubt that Marshall’s
testimony affected the judgment. During closing argument, the State presented the
possibility that, assuming the number was assigned to a landline, the call to Perales
ended in time to allow Sandoval to arrive at the mall with sufficient time to commit the
robbery. The call to Perales ended at 9:34, travel time to the mall takes five to ten
Sandoval v. State Page 8
minutes, and the 9-1-1 call came in at 10:18. Moreover, Sandoval’s palm print was
found on the passenger side of the vehicle.
Even had the State presented no evidence that the number was assigned to a
cellular telephone, the jury could still find Sandoval guilty of robbery by: (1)
discounting Tommy’s testimony and determining that Sandoval committed the robbery
after ending the conversation with Perales; or (2) accepting Tommy’s testimony and
determining that Perales’ testimony failed to conclusively establish that the number
belonged to a landline. As the sole judge of the weight and credibility of witness
testimony, the jury was entitled to resolve any inconsistencies in the witness’s
testimony and decide which evidence to believe.1 See Lancon v. State, 253 S.W.3d 699,
707 (Tex. Crim. App. 2008).
In summary, we cannot say that the trial court abused its discretion by denying
Sandoval’s motion for new trial. We overrule issue three.
The judgment is affirmed.
FELIPE REYNA
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
Affirmed
Opinion delivered and filed November 5, 2008
Do not publish
[CR25]
1 Sandoval also attempted to show that Tommy was either lying or mistaken when he identified
Sandoval as the robber. According to the record, Sandoval’s brother Rocky helped abandon Alaniz’s car
and his earnings statement was found in the car. The jury was at least presented with the possibility that
Rocky, not Sandoval, committed the robbery.
Sandoval v. State Page 9