Gonzalez v. State
337 S.W.3d 473
| Tex. App. | 2011Background
- Complainant was assaulted in Sept. 2007 after accepting a ride from Gonzalez; he forced her to remove clothes and committed oral, vaginal, and anal penetrations.
- During the assaults, Gonzalez used force and a chokehold, threatening harm and causing fear and pain to the complainant.
- DNA testing showed sperm from appellant in both the sexual-organ and anal specimens; anal specimen contained sperm from appellant only.
- Two indictments charged aggravated sexual assault for penetration of the complainant's sexual organ and anus; trial court allowed a lesser-included offense instruction for the sexual-organ penetration.
- Ortiz testified during punishment about a 2006 aggravated sexual assault; the State conceded no explicit 404(b) notice for Ortiz but argued notice was effectively provided; the jury assessed 20 years for sexual assault and life for aggravated sexual assault.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for aggravated sexual assault | Gonzalez contends insufficiency in law and fact for the anus penetration count. | State argues evidence supports the offending conduct placing victim in fear of imminent serious bodily injury. | Sufficient evidence supports aggravated sexual assault based on the chokehold and fear during the anal penetration. |
| Material variance between indictment and proof for without-consent element | Indictment for sexual-organ penetration omits without-consent language. | Indictment alleged compulsion by force/violence, satisfying without-consent element. | No material variance; force/violence language aligns with without-consent requirement. |
| Double jeopardy for separate penetrations | Two aggravated offenses for same transaction violate double jeopardy. | Statutory language contemplates separate offenses for penile and anal penetration. | Dual convictions not barred; Gonzales reasoning applies to adult statute similarly. |
| Improper closing arguments | State's remarks about credibility and prostitution testimony were improper. | Arguments were based on reasonable inferences from evidence; court failed to rule on objections. | Appellant waived error on one remark; the other argument was proper as a reasonable deduction from evidence. |
| Admission of Ortiz testimony during punishment without proper 404(b) notice | Ortiz testimony was extraneous evidence not listed in 404(b) notice. | State had notice by virtue of related proceedings; error, if any, harmless. | Harmless error; substantial rights not affected; notice issues did not surprise defense. |
Key Cases Cited
- Jackson v. Virginia, 443 S.W.2d 307 (U.S. 1979) (legal sufficiency standard; rational juror could find every element beyond reasonable doubt)
- Gonzales v. State, 304 S.W.3d 838 (Tex. Crim. App. 2010) (double jeopardy and multiple punishments under Gonzales factors for adult offenses)
- Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001) (materiality of variance between indictment and proof; immaterial variances may be disregarded)
- Ex parte Ervin, 991 S.W.2d 804 (Tex. Crim. App. 1999) (considerations for legislative intent and double jeopardy implications)
- Missouri v. Hunter, 459 U.S. 359 (U.S. 1983) (cumulative punishment under two statutes possible when legislature so intends)
- McKay v. State, 707 S.W.2d 23 (Tex. Crim. App. 1985) (prosecutor's opinion on witness credibility must be based on reasonable deductions)
- Vasek v. State, 294 S.W.2d 810 (Tex. Crim. App. 1956) (credibility impressions may be drawn from witness demeanor)