Roland Salazar v. State

Opinion issued March 5, 2009

In The  

Court of Appeals

For The  

First District of Texas

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NO. 01-07-00507-CR

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ROLAND SALAZAR, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 263rd District Court

Harris County, Texas

Trial Court Cause No. 1118235

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MEMORANDUM OPINION

A jury convicted appellant Roland Salazar of capital murder. ⁽¹⁾ Appellant had two prior convictions--a robbery conviction in 1984 and a burglary of a motor vehicle conviction in 1991. The trial court, having found one enhancement paragraph in the indictment true, assessed punishment at life imprisonment. In ten issues, appellant contends that the evidence presented at trial is legally and factually insufficient to prove that he (1) intentionally or knowingly caused the complainant's death by smothering her with a pillow; (2) intentionally or knowingly caused the complainant's death by smothering her with an unknown object; (3) committed or attempted to commit aggravated sexual assault on the complainant; (4) committed or attempted to kidnap the complainant; and (5) committed capital murder of the complainant.

We affirm the judgment of the trial court.

Background

Appellant and the complainant, Norma Torres, were residents at an apartment complex located at 17103 Imperial Valley Drive in Houston, Texas. At approximately 6:00 a.m on July 19, 1990, the complainant accompanied her common-law husband, George Davila to a restaurant to meet her father, who supervised Davila on a construction work site. The complainant parted company with Davila and her father to return to her residence at the apartment complex. Appellant took his co-habitant, Annette Andrade, to work at approximately 7:00 a.m. on July 19, 1990 and subsequently returned to his residence at the apartment complex.

Silvia Hernandez, a resident of the complex living in an apartment immediately below the complainant's residence, awoke at approximately 7:00 a.m. As she watched her sister leave the apartment complex to go to work, she saw appellant standing by the apartment swimming pool. At approximately 7:45 a.m., Hernandez returned to her apartment and went back to bed. At approximately 8:00 a.m., Hernandez heard noises resembling a fight coming from the complainant's apartment. The noises continued for five to ten minutes. She then heard "somebody [try] to scream and it's like something fell on the floor real hard and it's no more noise." Hernandez later identified appellant to police.

Davila left work and went to his mother's residence at 5:00 p.m., where he waited for the complainant to pick him up. When the complainant did not come, Davila took a taxicab to his residence at the apartment complex. When Davila arrived at the apartment he shared with the complainant, the door was unlocked. Davila entered the apartment and found it disheveled. Davila entered the bedroom and found the complainant's body underneath a pile of clothes. The complainant was clothed only in a shirt and had a pillow over her head, a shirt wrapped around her face, and a sock stuffed in her mouth. The complainant's wrists and right ankle were bound by ligatures made of tube socks. After attempting to revive the complainant, Davila left the apartment and ran to the apartment complex office to contact the police.

Houston Police Department ("HPD") crime scene investigator James Kay walked through the complainant's apartment on July 19, 1990 and observed the complainant while her body was still in the apartment. Kay noticed that the complainant's patio door located to the left of the front door was ajar when he entered the complainant's apartment. Kay saw that the complainant's bathroom had three towels on the floor, which he assumed were wet because the complainant had taken a shower just prior to her death. Kay observed several hair products and a blow dryer in the bathroom that Kay assumed the complainant used to prepare herself to go out for the day. He noticed a flesh wound on the complainant's hip, and saw that the complainant had a foaming mouth indicative of pulmonary edema, a sign of suffocation trauma. In addition to those injuries, the complainant's eyes had signs of hemorrhaging indicative of suffocation trauma. The complainant's mouth had abrasions and contusions indicative of death by asphyxia, possibly caused by the pillow found over the complainant's face.

The complainant's body was autopsied by the Harris County Medical Examiner's Office. The autopsy report indicated that the complainant died from causes related to asphyxiation. The report also indicated that there was semen present in the complainant's vagina and rectum. Kay found a semen-stained fitted bed sheet, a semen-stained blue striped towel, and a semen-stained peach colored rag in the complainant's apartment. Kay also found a bedspread and a pastel shirt in the complainant's apartment that were soiled with blood stains and other DNA material.

Police questioned appellant after Sylvia Hernandez identified him to HPD homicide investigator Sergeant C.T. Mosqueda. Police also obtained blood and saliva samples from appellant and Davila. The police shipped all semen evidence, blood stains and blood samples and other DNA materials to the genetics laboratory at Baylor College of Medicine in Houston, Texas. The initial tests done in 1990, using the materials found by police in the complainant's apartment and obtained from the complainant's body, appellant, and Davila produced inconclusive results. Due to the inconclusive results, the case was closed.

Kay stored all the materials he took from the complainant's apartment and the "stick portions" of the swabs taken from the complainant's body in the property room of the Houston Police Department and personally tagged the evidence. Grace Das, an HPD officer working as a crime lab technician in 1990, took blood and saliva samples obtained from appellant and Davila and soft portions of the swabs taken from the complainant's vaginal and rectal areas and transferred them to a criminologist working for the HPD crime lab.

In 2004, Sergeant Eric Mehl of the HPD homicide "cold case" squad reopened the case. Mehl retrieved the materials stored by Kay in the HPD property room. Mehl also retrieved the portions of the swabs taken from the complainant's body stored in the crime lab. Using the stored samples from appellant, Davila, and the complainant, Mehl submitted the samples to Orchid Cellmark laboratory in Dallas, Texas. Using newer technology and the never tested "stick portions" of the swabs taken from the complainant's body, the laboratory isolated DNA on a swab taken from the complainant's body consistent with appellant's DNA. Mehl sought and obtained an arrest warrant for appellant based on the new results. Appellant was arrested on June 29, 2005 at a city park across the street from Houston City Hall. Mehl obtained a new buccal sample from appellant and submitted the sample for additional testing at the Orchid CellMark laboratory. The test results again indicated the presence of appellant's DNA when compared with a swab taken from the complainant's rectal area.

Appellant was indicted for capital murder for intentionally and knowingly causing the death of the complainant in the course of committing aggravated sexual assault and kidnaping. Appellant testified at trial that he was not involved in the complainant's death. He testified that he did not know the complainant, but he had seen her at the apartment complex, and he thought the complainant "was very beautiful." He testified that he knew that the complainant lived in an apartment near the pool in the complex. He also testified that he was at lunch with his mother at the time of the complainant's death. He disputed the State's assertions and police testimony that he lived with Annette Andrade at the apartment complex at the time of the complainant's death and stated that he lived alone at the complex. When asked on cross-examination to explain the presence of his semen on the complainant's body, appellant explained that the Texas Department of Corrections took his semen from a tissue he kept in a plastic bag to give to his parents. HPD Sergeant John W. Belk testified that he interviewed appellant after his arrest on June 29, 2005 and said that appellant told him that "[appellant] would lie if it were to protect a family member or to protect himself."

Legal and Factual Sufficiency

  Standard of Review

       To review the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the verdict and then determine whether a rational juror could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 320-21, 99 S. Ct. 2781, 2790 (1979). In conducting this review, we do not reevaluate the weight and credibility of the evidence, but act only to ensure that the jury reached a rational decision.   Muniz v. State  , 851 S.W.2d 238, 246 (Tex. Crim. App. 1993). Evidence that is legally sufficient to support a conviction may not be factually sufficient to support a conviction.   Rollerson v. State  , 227 S.W.3d 718, 724 (Tex. Crim. App. 2007).

"Evidence is factually insufficient to support the verdict if it is clearly wrong or manifestly unjust or against the great weight and preponderance of the evidence."   Rollerson  , 227 S.W.3d at 724. A factual sufficiency review involves three ground rules.   Lancon v. State  , 253 S.W.3d 699, 704 (Tex. Crim. App. 2008). First, we must recognize that a jury has already passed on the facts and we must accord the jury the proper deference to avoid substituting our judgment for that of the jury.   Id.   at 704-05 (citing   Clewis v. State  , 922 S.W.2d 126 (Tex. Crim. App. 1996)). Second, when we find the facts determined by the jury to be insufficient to affirm a conviction, we must clearly lay out and explain how the evidence supporting the verdict is too weak on its own, or how contradicting evidence greatly outweighs evidence supporting the verdict.    Id.   at 705. Finally, we view all of the evidence in a neutral light when conducting this review.    Id.   We may set aside a verdict only when the evidence supporting the verdict is so weak as to render the verdict clearly wrong or manifestly unjust.    Id.   (citing   Cain v. State  , 958 S.W.2d 404, 406 (Tex. Crim. App. 1997)).   

       Aggravated Sexual Assault

   In his fifth and sixth points of error, appellant argues that the evidence is legally and factually insufficient to prove appellant committed or attempted to commit aggravated sexual assault against the complainant. A person commits aggravated sexual assault when he intentionally or knowingly causes penetration of the anus or sexual organ of someone else without the person's consent and causes the death of that person in the course of the same criminal episode.   See   Tex. Penal Code Ann.   § 22.021(a)(1)(A)(i) (Vernon Supp. 2008);   see also id.

§ 22.021(  a)(2)(A)(i) (Vernon Supp. 2008). A sexual assault occurs without consent when some force is used by the actor to coerce the person into the sexual act.   Edoh v. State  , 245 S.W.3d 606, 611 (Tex. App.--Houston [1st   Dist.] 2007,   no pet  .).

Here, HPD crime scene investigator James Kay found the complainant's body at the scene. The body was clothed only in a shirt. The complainant's head was covered by a pillow, and her face was wrapped in a sheet. Kay testified that the complainant's wrists and ankles were bound by ligatures made of tube socks and other articles of clothing. Kay also testified that he noted abrasions on the complainant's body. He also testified that, when he discovered the complainant's body at the crime scene, he noticed a pillow with a pink pillowcase near the complainant's head. Kay testified that there were towels strewn throughout the crime scene. He also testified, based on evidence found in the apartment, that the complainant was probably attacked after she took a shower and was preparing to go out for the day.

Matthew Quartero, a forensic scientist with expertise in DNA analysis, testified on the basis of his analysis of DNA material found on swabs taken from the complainant's vaginal and rectal areas, that the DNA found was consistent with appellant's DNA. Hernandez heard noises from a fight that lasted five to ten minutes, which indicates the sexual conduct was not consensual. Dr. Stephen Wilson, a Harris County assistant medical examiner, reviewed the autopsy records completed in 1990 and testified that the complainant's mouth had abrasions and contusions consistent with suffocation trauma and that the complainant's eyes had signs of hemorrhaging consistent with suffocation trauma.

Viewing the evidence in a light most favorable to the verdict, we hold that a rational jury could find, beyond a reasonable doubt, that appellant committed aggravated sexual assault of the complainant. See Jackson, 443 U.S. at 320-21, 99 S. Ct.   at 2790; Edoh  , 245 S.W.3d at 611. Therefore, the evidence presented at trial that appellant committed aggravated sexual assault of the complainant is legally sufficient to support the conviction.

Appellant testified at trial that he did not kill the complainant, because he was at lunch with his mother at the time. He also explained that the Texas Department of Corrections took his semen from a tissue he kept in a plastic bag and the police subsequently used the semen to implicate him in the complainant's sexual assault. Giving due deference to the jury's findings of fact, we hold that the evidence that appellant committed aggravated sexual assault is not such that the verdict is clearly wrong or manifestly unjust or against the great weight and preponderance of the evidence.   See Lancon  , 253 S.W.3d at 704. Therefore, the evidence presented at trial that appellant committed aggravated sexual assault of the complainant is factually sufficient to support the conviction.

We overrule appellant's fifth and sixth points of error. ⁽²⁾

       Kidnaping

   In his seventh and eighth points of error, appellant argues that the evidence is legally and factually insufficient to prove that he committed or attempted to commit the offense of kidnaping the complainant.

A defendant commits kidnaping when he intentionally or knowingly restricts another person's movements without consent by confining the person through use of force, intimidation, or coercion. See Tex. Penal Code Ann. § 20.03(a) (Vernon 2003); see also Swearington v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003). The offense is complete when the defendant successfully restrains the other person and there is evidence to show that the defendant intended to restrain the other person by "either secretion or the use or threat to use deadly force." Swearington, 101 S.W.3d at 95.

The State presented testimony from HPD crime scene investigator James Kay, who observed the complainant's body at the crime scene. Kay testified that the complainant's wrists and right ankle were tightly bound by ligatures made of tube socks and other articles of clothing. The State also presented testimony from forensic scientist and DNA expert Matthew Quartaro, who testified that he discovered skin cells on the socks used to bind the complainant. Quartero testified he could not exclude appellant as a contributor after analyzing the skin cells found on the socks.

Viewing the evidence in a light most favorable to the verdict, a rational juror could find, beyond a reasonable doubt, that appellant committed the offense of kidnaping. See Jackson, 443 U.S. at 320-21, 99 S. Ct. at 2790; Swearington, 101 S.W.3d at 95. Therefore, the evidence of kidnaping presented at trial is legally sufficient.

Appellant denied that he ever bound anyone in the manner the complainant was bound in his "whole life." Giving due deference to the jury's findings of fact, we hold that the conclusion that appellant kidnaped the complainant is not clearly wrong or manifestly unjust or against the great weight and preponderance of the evidence. See Lancon, 253 S.W.3d at 704.

We overrule appellant's seventh and eighth points of error.

Death by Asphyxiation

In his first, second, third and fourth points of error, appellant argues that the evidence is legally and factually insufficient to prove appellant caused the death of the complainant by smothering the complainant with a pillow or an unknown object. A physician's testimony that the complainant died from asphyxia is legally sufficient to prove that the complainant's death was caused by a method of asphyxiation. Morales v. State, 792 S.W.2d 789, 791 (Tex. App.--Houston [1st Dist.] 1990, no pet.).

HPD crime scene investigator James   Kay surveyed the crime scene at the time of the offense in 1990 and testified at trial that when he entered the apartment to investigate the crime scene, he found the patio door ajar. Kay also testified that a pillow was found near the face of the complainant and that the complainant had signs of pulmonary edema, a condition consistent with death through asphyxia. George Davila, the complainant's common-law husband, testified that when he discovered the complainant's body, the complainant had a shirt wrapped around her head, a sock stuffed in her mouth and a pillow over her head. Dr. Stephen Wilson, Harris County assistant medical examiner, testified that the complainant's mouth had abrasions and contusions consistent with suffocation trauma and the complainant's eyes had signs of hemorrhaging consistent with suffocation trauma. He testified that the complainant's injuries could have been the result of asphyxiation by a pillow. Sylvia Hernandez, the complainant's downstairs neighbor, testified that she saw appellant by the pool of the apartment complex at 7:00 a.m. on the date the complainant died. Hernandez also testified that, at approximately 8:00 a.m., she heard noises resembling a struggle coming from the complainant's apartment. Skin cells consistent with appellant's DNA were found on the socks used to bind the complainant.

Viewing the evidence in a light most favorable to the verdict, a rational juror could find, beyond a reasonable doubt, that appellant caused the death of the complainant by a method of asphyxiation. See Jackson, 443 U.S. at 320-21, 99 S. Ct. at 2790; Morales, 792 S.W.2d at 791. Therefore, the evidence presented at trial is legally sufficient to support the conclusion that appellant caused the death of the complainant by smothering the complainant with a pillow or an unknown object. Appellant testified that he did not cause the death of the complainant in any manner. Giving due deference to the jury's findings of fact, we hold that the conclusion that appellant caused the complainant's death by smothering her with a pillow or an unknown object is not clearly wrong or manifestly unjust or against the great weight and preponderance of the evidence. See Lancon, 253 S.W.3d at 704. Therefore, the evidence presented at trial is factually sufficient to support the conclusion that appellant caused the death of the complainant by smothering her with a pillow or an unknown object.

We overrule appellant's first, second, third and fourth points of error.

Capital Murder

In his ninth and tenth points of error, appellant argues that the evidence is legally and factually insufficient to support his conviction for capital murder. A person commits capital murder when he intentionally commits a murder in the course of committing aggravated sexual assault. Tex. Penal Code Ann. § 19.03(a)(2) (Vernon Supp. 2008). We have already held that the State presented legally and factually sufficient evidence to prove that appellant committed aggravated sexual assault against the complainant. We have also held that the State presented legally and factually sufficient evidence to prove that appellant caused the complainant's death by a method of asphyxiation through the use of a pillow or an unknown object. As these offenses occurred concurrently, the evidence is legally and factually sufficient to support appellant's conviction for capital murder. See Jackson, 443 U.S. at 320-21, 99 S. Ct. at 2790; Lancon, 253 S.W.3d at 704.

We overrule appellant's ninth and tenth points of error.

    Conclusion

We affirm the judgment of the trial court.

Evelyn Keyes

Justice

Panel consists of Justices Taft, Keyes, and Alcala.

Do not publish. Tex. R. App. P. 47.4.

1.

See Tex. Penal Code Ann. § 19.03(a)(2) (Vernon Supp. 2008).

2.

Appellant also argues that the evidence stored by police in 1990 and used at trial in 2007 was legally insufficient to support his conviction because the State failed to establish the chain of custody of the evidence from the time it was initially stored. Proof of chain of custody goes to the weight of the evidence presented at trial.   Lagone v. State  , 942 S.W.2d 602, 617 (Tex. Crim. App. 1997). A jury trumps either a trial or an appellate court on weight of evidence determinations.   Evans v. State  , 202 S.W.3d 158, 164 (Tex. Crim. App. 2006). Chain of custody is sufficiently authenticated when the State has shown the beginning and the end of the chain, particularly when the chain ends at a laboratory.   Martinez v. State  , 186 S.W.3d 59, 62 (Tex. App.--Houston [1st Dist.] 2005, pet. ref'd). Kay testified that he gathered evidence from the complainant's apartment that bore semen stains and other DNA materials and submitted the evidence for genetic testing. Kay also testified that, after the testing was completed, he took the evidence to the HPD property room and tagged the evidence itself. Grace Das, a HPD officer who worked as a crime lab technician in 1990, testified that she turned over appellant's blood and saliva samples and portions of swabs taken from the complainant's body to a criminologist working in the HPD crime lab. HPD Sergeant Eric Mehl retrieved the materials stored by Kay in the HPD property room. Mehl also retrieved the portions of the swabs taken from the complainant's body stored in the crime lab. The jury weighed the evidence regarding the chain of custody and apparently determined that proof of chain of custody was satisfied. We cannot trump the jury's analysis.   Evans  , 202 S.W.3d at 164.