Opinion
Nos. 05-03-00282-CR, 05-03-00384-CR
Opinion issued July 27, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F01-75552-I; F00-73072-PI. Affirmed.
Before Justices WHITTINGTON and O'NEILL
The Honorable Tom James, Retired, Court of Appeals, Fifth District of Texas at Dallas, was a member of the panel at the time this case was argued and submitted for decision. Due to his subsequent retirement from the Court, Justice James did not participate in the issuance of this opinion on rehearing. See Tex.R.App.P. 41.1(a) (b).
OPINION ON REHEARING
We grant the State's motion for rehearing and withdraw our opinion of February 6, 2004. This is now the opinion of the Court. Jorge Luis Mungaray appeals his convictions for sexual assault and aggravated sexual assault. A jury found appellant guilty and assessed the maximum punishment for each offense: confinement for twenty years and a $10,000 fine for cause F00-73072-PA, the sexual assault; and confinement for life plus a $10,000 fine for cause F01-75552-I, the aggravated sexual assault. Appellant brings three issues contending: (1) the evidence was factually insufficient to support a conviction in cause F00-73072-PA; (2) the court erred by failing to instruct the jury on the accomplice witness rule; and (3) the court erred in cumulating — "stacking" — the sentence from cause F00-775552-I because there was insufficient evidence of the prior conviction. We modify the judgment cumulating the sentence from cause F01-75552-I. We affirm the trial court's judgments as modified.
Background
Assault of T.A. Appellant was convicted for sexually assaulting his two stepdaughters, T.A. and M.A. He first sexually assaulted T.A. when the family lived in Gaines County and T.A. was twelve years old. Thereafter, appellant repeatedly sexually assaulted T.A. over the course of the next three years. Linda Mungaray, T.A.'s mother and appellant's wife, was present for these assaults and sometimes participated in sexual acts with appellant at the same time he was sexually assaulting T.A. Appellant and Linda would often give T.A. alcoholic drinks or Valium when appellant wanted to have sex with T.A. "to make her calm down." Appellant also offered T.A. money or clothes when he wanted to have sex with her. The State introduced calendar pages on which Linda had marked the days appellant sexually assaulted T.A. The calendar also showed marks by T.A. where she tracked her menstrual cycle; appellant had her mark her days of menstruation days to avoid the possibility of pregnancy. In early 2000, when T.A. was fifteen years old, appellant moved to Dallas County. After the school year ended, Linda moved with her four children to appellant's apartment in Dallas County. Shortly after arriving in Dallas, T.A. was again sexually assaulted by appellant. According to Linda, T.A. had been drinking mixed drinks appellant made and was "real drunk." Linda took T.A. to the restroom and T.A. stayed there. Linda went out onto the balcony, then appellant and T.A. appeared at the door; both were unclothed. Appellant said T.A. was hysterical and about to run outside. Linda laid T.A. on the air mattress in the living room, lay down with her-facing her-and tried to calm her. While Linda tried to calm T.A., appellant, was behind T.A. and was penetrating her vagina with his penis. Linda "couldn't take it anymore" and got up and went back outside. T.A. testified she had been drinking that night and had told her mother she felt weird. She next recalls waking on the air mattress. Appellant was beside her, naked, with his arm on her. T.A. went to her mother on the balcony and told her "why did she let this happen again." Within that week, T.A. returned to Gaines County to her father's house. T.A. finally told her father what appellant and Linda had been doing to her since 1997, and he made a report to the police. Assault of M.A. While still living in Gaines County, appellant also had begun to show interest in M.A., T.A.'s younger sister, when M.A. was seven years old. Appellant touched M.A.'s "private part" on three separate occasions while they all lived in Gaines County; Linda was at work during each of these occurrences. In Dallas County in August 2000, after T.A. had moved back to her father's house, appellant sexually assaulted M.A. while Linda was present. M.A. was almost nine years old at the time. Both M.A. and Linda testified to the facts surrounding the August 2000 sexual assault. After the assault, appellant said it was not the same; it was not T.A. Shortly after this occurrence, appellant asked Linda to move out. Assault of T.A. by Geraldo Appellant's brother, Geraldo Mungaray, moved from Mexico to live with appellant, Linda, and Linda's children in 1999, while the family still lived in Gaines County. While living there, Geraldo had sex with T.A. She told her mother, and they reported this to the police. T.A. was involved in counseling after the assault by Geraldo, but she did not report to anyone at that time what appellant and Linda had been doing to her. T.A. said that her mother had told her if she said anything about the sexual assault by appellant, T.A. would be sent to a girl's camp. After Geraldo assaulted T.A., appellant sent Geraldo back to Mexico on a bus. Appellant stated he did not know of the assault until after Geraldo left. Procedure When asked what happened to her case in Dallas County, Linda stated she received an offer of thirty-eight years to testify against appellant. Regarding appellant's case, the jury found him guilty. They assessed the maximum punishment in both cases: confinement for 20 years plus a $10,000 fine for F00-73072-PA, the sexual assault of T.A., and life imprisonment plus a $10,000 fine for F01-75552, the aggravated sexual assault of M.A. Appellant had also been convicted for sexual assault in Gaines County before this trial and was assessed a punishment of confinement for ninety-nine years. The court ordered the sentences to run consecutively; it "stacked" the sentences. The judgment reflects the punishment for cause F00-73072-PA was set to begin after the punishment in cause F01-75552-I has ceased to operate. The punishment for F01-75552 was set to begin after the punishment for cause 013136 from Gaines County had ceased to operate.Factual Sufficiency
In his third point of error, appellant complains the evidence is factually insufficient to support his conviction in cause F00-73072-I, the sexual assault of T.A. Appellant argues the only evidence that his sexual organ penetrated that of T.A. was the testimony of Linda. Appellant maintains this testimony was inherently suspect. He contends the verdict was clearly wrong and unjust and the proof of guilt was so obviously weak as to undermine confidence in the jury's determination or was greatly outweighed by contrary proof. When reviewing the factual sufficiency of the evidence, we view all the evidence, but not in the light most favorable to the prosecution. See Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). The question under a factual sufficiency challenge is whether, considering all of the evidence in a neutral light, a jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, No. 539-02, 2004 WL 840786, *7 (Tex.Crim.App. Apr. 21, 2004). Evidence can be factually insufficient if (i) the evidence is too weak to support the finding of guilt beyond a reasonable doubt, or (ii) contrary evidence exists that is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Zuniga, at *7. In examining a factual sufficiency challenge, we defer to the factfinder's determination of the credibility of the evidence. Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003). In this case, we have conducted a neutral review of the record and conclude the evidence of guilt is not too weak to support a finding of guilt beyond a reasonable doubt and contrary evidence is not strong enough that the beyond-a-reasonable-doubt standard could not have been met. The jury heard detailed accounts of appellant's sexual assaults of T.A. occurring in Gaines County. These assaults occurred over a three-year period before the assault in Dallas County, establishing a pattern of sexual assaults and demonstrating the nature of appellant's relationship with T.A. Regarding the sexual assault subject of this case-the one in Dallas County-Linda testified that appellant had penetrated T.A. while she was lying with T.A. attempting to calm her. While T.A. could not remember what happened that night, she did recall waking up beside appellant, that appellant was naked, had his arm on her, and she asked her mother why she had "let this happen again." Appellant argues that when Linda first spoke with a deputy in Gaines County about the assaults, she stated she had not been present during the June 2000 sexual assault in Dallas County. She testified at trial, though, she was lying with T.A. during the June 2000 Dallas County sexual assault. When asked about the discrepancy at trial, Linda said she had testified about having actually been present during the prior trial in Gaines County, held before the Dallas County trial. The only actual contradictory testimony was appellant's denial of sexually assaulting T.A. He opined that Linda, T.A., and M.A. had all invented the allegation because they were angry with appellant because his brother had sexually assaulted T.A. and had gone unpunished for his act. He also asserted Linda was angry with him for asking her to move out. The jury heard direct testimony of the Dallas County sexual assault of T.A. Although appellant denied committing the offense, the jury held the role of weighing credibility and reconciling conflicts in the evidence. See Swearingen, 101 S.W.3d at 97. Having reviewed all the evidence in the record, we conclude the evidence of guilt is not too weak to support a finding of guilt beyond a reasonable doubt and contrary evidence is not strong enough that the beyond-a-reasonable-doubt standard could not have been met. We overrule appellant's third point of error.Accomplice Witness
In his second point of error, appellant argues the court erred by not instructing the jury on the accomplice witness rule. Appellant complains Linda was an accomplice and was therefore subject to the accomplice witness rule. The State argues appellant waived error, no error was present, or if error was present, appellant was not egregiously harmed. We begin by recognizing waiver as applied to an affirmative approval of a jury charge. This Court has applied waiver when addressing an offered defensive issue omitted from a jury charge. See McCray v. State, 861 S.W.2d 405, 410 (Tex. App.-Dallas 1993, no pet.). McCray, though, addressed a situation in which the court offered a defensive issue to be included in the charge; the defendant affirmatively rejected the issue. Id. However, the Houston Court of Appeals for the First District has applied this waiver more broadly. In Reyes v. State, the court stated, "An appellant should not be able to affirmatively approve a judge's charge, perhaps for sound strategic reasons to which the appellate court may never be privy, have it submitted to the jury, and then be able to attack the charge on appeal on the ground of fundamental error." 934 S.W.2d 819, 820 (Tex. App.-Houston [1st Dist.] 1996, pet. ref'd). On the other hand, other courts of appeals have declined to follow this waiver doctrine as applied to error in spite of an affirmative approval of the jury charge. See Ponce v. State, 89 S.W.3d 110, 117 (Tex. App.-Corpus Christi 2002, no pet.); Webber v. State, 29 S.W.3d 226, 232-35 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd). The court of criminal appeals has not specifically resolved this conflict. We distinguish the situation in McCray from that in the present case. Here, appellant was not offered an instruction he affirmatively rejected. Even so, we need not determine whether either the Reyes reasoning applies or that from other courts of appeals. Either reasoning would lead to the same outcome of appellant's point of error. Should we determine appellant did not waive error by affirmatively accepting the charge as presented, we would analyze his point under Almanza. Under Almanza, we first determine whether error actually exists in the charge. Arline v. State, 721 S.W.2d 348, 351 (Tex.Crim.App. 1986); Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984) (op. on reh'g). If we determine error was present, we then assess whether any resulting harm requires reversal. Almanza, 686 S.W.2d at 171. If no objection is made at trial, we will reverse only if the error is so egregious and created such harm that the appellant was denied a fair and impartial trial. See Arline, 721 S.W.2d at 351; Almanza, 686 S.W.2d at 171. Notwithstanding any possible waiver, appellant has failed to show egregious harm. SeeAlmanza, 686 S.W.2d at 171. Linda admitted to her participation in the sexual assaults, and she testified to her sentence of thirty-eight years. Therefore, if error was not waived, we recognize the trial court erred by not instructing the jury that Linda's testimony, as an accomplice witness, had to be corroborated. See Herron v. State, 86 S.W.3d 621, 631 (Tex.Crim.App. 2002) (stating a court has a duty to instruct on the accomplice witness rule when an accomplice is an accomplice as a matter of law, which he is when he "is indicted for a lesser included offense based upon alleged participation in commission of the greater offense" (quoting Ex parte Zepeda, 819 S.W.2d 874, 876 (Tex.Crim.App. 1991)); Saunders v. State, 817 S.W.2d 688, 689 (Tex.Crim.App. 1991). Accordingly, we examine the record to determine whether this error caused appellant egregious harm so as to require reversal. See Herron, 86 S.W.3d at 631; Almanza, 686 S.W.2d at 171. A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed. Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 1979). In determining harm when a trial court fails to charge the jury on the accomplice witness rule, the appellate court determines "whether jurors would have found the corroborating evidence so unconvincing as to render the State's overall case for conviction clearly and significantly less persuasive." Saunders, 817 S.W.2d at 692. It is not necessary that the corroborating evidence directly connect the defendant to the crime or that it be sufficient by itself to establish guilt; it need only tend to connect the defendant to the offense. Cathey v. State, 992 S.W.2d 460, 462 (Tex.Crim.App. 1999); Reed v. State, 744 S.W.2d 112, 126 (Tex.Crim.App. 1988). If the combined weight of the non-accomplice evidence tends to connect the defendant to the offense, the requirement of article 38.14 has been fulfilled. Cathey, 992 S.W.2d at 462; Gosch v. State, 829 S.W.2d 775, 777 (Tex.Crim.App. 1991). As discussed above, T.A.'s detailed accounts of the sexual assaults that occurred for a three-year period in Gaines County as well as T.A.'s testimony about the June 2000 assault tended to connect appellant to the offense, and thus corroborated Linda's testimony. We cannot conclude that, had the jury been instructed as to the need to corroborate Linda's testimony, it would have found T.A.'s testimony, standing alone, so unconvincing as to render the State's case for conviction clearly and significantly less persuasive. See Cathey, 992 S.W.2d at 462; Gosch, 829 S.W.2d at 777. Accordingly, appellant suffered no egregious harm. See Almanza, 686 S.W.2d at 171. We overrule appellant's third point of error.Cumulating — "Stacking" — the Sentences
In his first point of error, appellant argues the court erred by "stacking" the sentence from cause F01-75552-I on a sentence from the Gaines County conviction. The trial court cumulated — or "stacked" — the sentences by ordering that they run consecutively. Appellant argues there was no evidence about the prior conviction from Gaines County or that appellant was the person convicted for that offense. After the jury assessed punishment, the following exchange occurred between the State and the court:COURT:
And Mr. Corrigan, the defendant has previously been sentenced to a life sentence; is that correct?
STATE:
99 years, Judge.
COURT: And what county is that in?
STATE:
Gains [sic] County, Texas. It's not a final conviction.The judgment reflects the court's stacking order, but it specifies only cause F01-7552-I to run consecutively to the cause from Gaines County. Cause F00-73072-PA is ordered to run consecutively to cause F01-7552-I. A trial court may, within its discretion, cumulate two or more sentences rather than run them concurrently. See Tex. Code Crim. Proc. Ann. art. 42.08 (Vernon Supp. 2004). There must be some evidence connecting the defendant with the prior convictions to cumulate the sentences. See Miller v. State, 33 S.W.3d 257, 260 (Tex.Crim.App. 2000). The court of criminal appeals has reviewed what is required as "some evidence" to establish a connection between the defendant and the prior convictions. An admission by a defendant is sufficient evidence to link the defendant to the prior conviction. See Turner v. State, 733 S.W.2d 218, 221 (Tex.Crim.App. 1987). An admission by a defendant's counsel is also sufficient to establish the link to a prior conviction. See Resanovich v. State, 906 S.W.2d 40, 41-42 (Tex.Crim.App. 1995). And an admission by defense counsel in a pretrial hearing, when a motion has been filed identifying the convictions by cause number and offense, is sufficient to link the defendant to the prior conviction. See Miller, 33 S.W.3d at 262. The court of criminal appeals has not determined if a statement by the State, asserting no cause number and little other identifying information regarding the prior conviction, is sufficient to establish the necessary link. The First District Court of Appeals in Houston has addressed a factual situation more analogous to the case before our Court. See Satterwhite v. State, 36 S.W.3d 145 (Tex. App.-Houston [1st dist.] 2000, pet ref'd). In Satterwhite, the court noted: (1) there was no request the trial court take judicial notice of the prior convictions; (2) there was no stipulation concerning the prior conviction; (3) there was no stipulation establishing the appellant's identity or as the person who has been convicted; (4) "[n]o proof was offered concerning a date of conviction, cause number, or court number;" and (5) there was no proof of the title of the offense of the prior conviction. Id. at 151. In distinguishing its case from that in Resanovich, the court noted the sentence in Resanovich had been identified by "(1) offense name, (2) court of conviction, (3) county of conviction, (4) case number, and (5) date of the earlier sentence." Id. The Houston court noted the most it could find was a judicial admission of the county of the conviction, and the court concluded that evidence was insufficient to prove the prior offense. Id. The present case is similar. There is no admission by either appellant or his counsel as to the Gaines County conviction or sentence. There is no reference in the record, other than on the final judgment, to the cause number of the Gaines County offense. There are no stipulations, judicial admissions, or other proof of the title, date, cause number, or court number. At most, we have a discussion between the State and the trial judge that fails to identify the prior conviction by anything other than the county. We conclude, as the court did in Satterwhite, this is insufficient to establish a connection between appellant and the prior conviction. Accordingly we sustain appellant's first point of error. We modify the judgment of the trial court in cause number F01-75552-I to set aside the order cumulating the sentence with that sentence from Gaines County. As modified, we affirm the judgments of the trial court.