                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS

                                                '
 MARTIN VIERA,                                                 No. 08-10-00332-CR
                                                '
                       Appellant,                                   Appeal from
                                                '
 v.                                                             384th District Court
                                                '
 THE STATE OF TEXAS,                                         of El Paso County, Texas
                                                '
                       Appellee.                '              (TC # 20090D02432)


                                         OPINION

       Martin Viera appeals his conviction of sexual assault (Count I), enhanced by a prior

felony conviction.   A jury found Appellant guilty of Count I and the trial court assessed

punishment. The court found the enhancement allegation true and assessed punishment at

imprisonment for fifty years. For the reasons that follow, we affirm.

                                    FACTUAL SUMMARY

       A grand jury returned a two-count indictment against Appellant. Count I alleged that

Appellant sexually assaulted his sister, Irma Enriquez, without her consent. Count II alleged that

Appellant engaged in prohibited sexual conduct with his sister. The case was tried before a jury.

       Forty-four year old Irma Enriquez grew up in El Paso, Texas with her younger sister and

her younger brother, Appellant. On March 17, 2009, Enriquez went to lunch with her cousin,

Christine Rosales. After lunch, Enriquez picked up Appellant and they went to the Ale House

where they were joined by Enriquez’s best friend, Irma Ontiveros, and Rosales. They drank at

the Ale House for approximately an hour and a half before going to Muggs. Enriquez recalled

that they drank beer and shots of liquor but she did not know how much she had drunk.         She
described herself as “very intoxicated.” Enriquez did not know what time they left. Despite

being intoxicated, Enriquez drove home with Appellant and she recalled falling asleep on her

couch after watching television. The next thing she remembered is waking up in her bed with

Appellant on top of her. She specifically testified that his penis was inside her vagina and he

was moving. Enriquez did not resist or fight because she was in shock. After a short period of

time, Appellant rolled off of her and fell asleep. Enriquez quietly “creeped off” of her bed so as

not to awaken Appellant. She went into her bathroom to get her robe because she was naked.

She grabbed her phone and went outside to call 911. She told the operator that her brother had

just raped her. The police and an ambulance arrived a few minutes later. Enriquez recalled that

one of her neighbors waited with her. On cross-examination, Enriquez testified that she did not

know how she got from the couch to her bedroom, how her clothes were removed, or who

removed them.

       Sometime after midnight on March 18, 2009, Enriquez’s neighbor, Krystal Anne Molina,

was driving home when she saw a woman dressed in a bathrobe walking towards the street.

Molina continued down the street and pulled into her driveway which was about four houses

down. The woman followed Molina to her house. When Molina got out of her car, she saw that

the woman was talking on a cell phone and crying hysterically. Molina heard her say, “My

brother. My brother. He’s still in the house. My brother.” Molina put her arm around the

woman and asked if she was okay. The woman put all of her weight on Molina and just kept

saying, “My brother.” Molina could smell alcohol on the woman’s breath. By that time, the

police and an ambulance had arrived.

       The ambulance was dispatched at 1:37 a.m. and arrived a few minutes later. Marco Isaac

Hernandez, an EMT, made contact with Enriquez at the scene. He described her as hysterical



                                              -2-
and agitated. Hernandez recalled that Enriquez had a slight odor of alcohol on her breath but she

was alert and oriented. The ambulance transported Enriquez to the hospital and arrived there at

2:59 a.m.

        The sexual assault examination of Enriquez began at 7:18 a.m. Courtney Perez, R.N., an

emergency room nurse, assisted Dr. Roberto Ochoa during the exam. Dr. Ochoa did not observe

any external or internal injuries during the exam but he testified that the absence of physical

trauma did not mean that a sexual assault had not occurred. Dr. Ochoa found non-motile sperm

in the vagina indicating that intercourse had occurred at least three hours before the exam.

        The Texas Department of Public Safety Laboratory performed DNA testing on the

interior vaginal swabs collected during the sexual assault examination. Nicholas Ronquillo, a

forensic scientist, separated the sperm cells from the non-sperm cells in the sample. The DNA

from the sperm cells found on the vaginal swabs is consistent with Appellant’s DNA. The

probability of selecting an unrelated person at random who could be the source of the DNA

profile is approximately 1 in 1.431 quintillion for Caucasians, 1 in 264.7 quintillion for Blacks,

and one in 1.976 quintillion for Hispanics.      Thus, Ronquillo testified that Appellant, to a

reasonable degree of scientific certainty, is the source of the sperm cell fraction of the vaginal

swab.

        Appellant called Christine Rosales and Irma Ontiveros to testify regarding Enriquez’s

degree of intoxication.    Rosales said she was not qualified to guess Enriquez’s degree of

intoxication but Enriquez was not staggering and her speech was not slurred. She recalled that

Appellant was obnoxious and tried to force her to drink a Jell-O shot with him. She told the

police in a statement that Appellant was “highly intoxicated.” Ontiveros testified that Enriquez

was not intoxicated that evening.



                                               -3-
        The jury found Appellant guilty of Count I but found him not guilty of Count II.

Appellant did not elect for the jury to assess punishment.          During punishment, the State

introduced into evidence a pen packet establishing that Appellant had been convicted in 2007 of

aggravated assault with a deadly weapon and sentenced to serve two years in prison. His ex-

wife, Anna Margarita Garcia, testified that she was the complainant in the aggravated assault

case.   During that assault, Appellant beat Garcia and threatened to kill her with a knife.

Appellant hit her every day of their marriage and she described her daily life as torture.

        Enriquez testified about the impact of the sexual assault on her life. She had become

depressed and lost her job as a result of the sexual assault. She had tried to commit suicide. The

offense had also ruined her parents’ lives and had destroyed the entire family.

        Appellant testified at the punishment stage and denied beating Garcia every day. With

respect to Enriquez, Appellant described their relationship as a normal brother-sister relationship.

Appellant maintained that he was extremely drunk when they left Muggs and he passed out in

the car. Enriquez took him into the bedroom and put him in her bed. She got him some water

and aspirin and told him if he needed to urinate or be sick to use the bathroom. Appellant felt

sick and the room was spinning so he put one foot on the floor. Appellant passed out again and

the next time he woke up the police were pulling him out of the bed. He could not explain how

his sperm got inside of his sister. At the conclusion of the punishment stage, the trial judge

stated that he found it significant that the offense occurred only four days after Appellant was

released from prison.    The trial court found the enhancement allegation true and assessed

Appellant’s punishment at imprisonment for a term of fifty years.

                             SUFFICIENCY OF THE EVIDENCE




                                                -4-
       In Issue One, Appellant challenges the legal and factual sufficiency of the evidence

supporting his conviction. He argues that the evidence is insufficient to prove that he penetrated

the complainant’s vagina with his penis and without her consent.

       In Brooks v, State, the Court of Criminal Appeals abandoned factual sufficiency review

in those cases where the burden of proof is beyond a reasonable doubt. Brooks v. State, 323

S.W.3d 893, 894-95 (Tex.Crim.App. 2010)(finding no meaningful distinction between the legal

and factual sufficiency standards and no justification for retaining both standards, therefore

overruling the factual sufficiency review adopted in Clewis v. State, 922 S.W.2d 126, 133

(Tex.Crim.App. 1996)). The legal sufficiency standard articulated in Jackson v. Virginia, 443

U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), is the only standard a reviewing court

applies in determining whether the evidence is sufficient to support a conviction. Brooks, 323

S.W.3d at 894-95. Therefore, we will review the evidence under the Jackson legal sufficiency

standard and determine whether the evidence is sufficient to support the challenged elements

beyond a reasonable doubt. See Brooks, 323 S .W.3d 894-95, citing Jackson, 443 U.S. at 319, 99

S.Ct. at 2789.

                                        Standard of Review

       Under the Jackson standard, a reviewing court must consider all evidence in the light

most favorable to the verdict and in doing so determine whether a rational justification exists for

the jury’s finding of guilt beyond a reasonable doubt. Brooks, 323 S.W.3d at 894-95, citing

Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. As the trier of fact, the jury is the sole judge as to the

weight and credibility of witness testimony, and therefore, on appeal we must give deference to

the jury’s determinations. Brooks, 323 S.W.3d at 894-95. If the record contains conflicting

inferences, we must presume the jury resolved such facts in favor of the verdict and defer to that



                                                -5-
resolution. Id. On appeal, we serve only to ensure the jury reached a rational verdict, and we

may not reevaluate the weight and credibility of the evidence produced at trial and in so doing

substitute our judgment for that of the fact finder.       King v. State, 29 S.W.3d 556, 562

(Tex.Crim.App. 2000). In our review, we consider both direct and circumstantial evidence and

all reasonable inferences that may be drawn from the evidence. Hooper v. State, 214 S.W.3d 9,

13 (Tex.Crim.App. 2007). The standard of review as to the sufficiency of the evidence is the

same for both direct and circumstantial evidence cases. Id.; Arzaga v. State, 86 S.W.3d 767, 777

(Tex.App.--El Paso 2002, no pet.). Each fact need not point directly and independently to the

guilt of the accused, so long as the cumulative force of all the evidence, when coupled with

reasonable inferences to be drawn from that evidence, is sufficient to support the conviction. Id.

                          Elements of Sexual Assault and Relevant Law

       A person commits sexual assault if he intentionally or knowingly causes the penetration

of another person’s sexual organ by any means without that person’s consent. TEX.PENAL

CODE ANN. § 22.011(a)(1)(A)(West 2011). Count I of the indictment alleged that Appellant

penetrated Enriquez’s sexual organ with his sexual organ without her consent. The Penal Code

sets forth several circumstances in which a sexual assault is without the complainant’s consent.

See TEX.PENAL CODE ANN. § 22.011(b)(1)-(11). In this case, Paragraphs A and B of Count I

alleged lack of consent under Subsections (b)(3) and (b)(5) respectively. Under subsection

(b)(3), a sexual assault is without the other person’s consent if “the other person has not

consented and the actor knows the other person is unconscious or physically unable to resist.”

TEX.PENAL CODE ANN. § 22.011(b)(3). Under subsection (b)(5), a sexual assault is without

the other person’s consent if “the other person has not consented and the actor knows the other

person is unaware that the sexual assault is occurring.”          TEX.PENAL CODE ANN. §



                                               -6-
22.011(b)(5)(West 2011). The uncorroborated testimony of the victim alone is sufficient to

support a conviction for sexual assault, as long as the victim tells someone other than the

defendant within a year of the offense. TEX.CODE CRIM.PROC.ANN. Art. 38.07(a)(West

Supp. 2012); Quincy v. State, 304 S.W.3d 489, 497 (Tex.App.--Amarillo 2009, no pet.).

                                          The Evidence

       Enriquez testified that she was “very intoxicated” when she arrived at her house and the

last thing she remembered was falling asleep or passing out on her couch. She woke up in her

bed and found Appellant on top of her with his penis inside of her vagina. Enriquez testified that

she would never have sex with her brother. This testimony, if believed by the jury, is sufficient

to permit a jury to rationally find beyond a reasonable doubt all of the elements of sexual assault

in that it proved Appellant penetrated Enriquez’s sexual organ with his penis, she did not consent

to the penetration, and she was unconscious or asleep when the penetration occurred, and

therefore, she was either unconscious and unable to resist or unaware that it was occurring. See

TEX.PENAL CODE ANN. § 22.011(a)(1), (b)(3), (b)(5); Corbo v. State, No. 14-08-00201-CR,

2009 WL 5551376, at *5-6 (Tex.App.--Houston [14th Dist.] Sept. 24, 2009, no pet.)(mem.

op.)(not designated for publication)(victim’s testimony that defendant drugged her, she was

unconscious when he had sex with her, and she would not have had sex with him was sufficient

under Article 38.07(a) to support defendant’s conviction and showed lack of consent under

Section 22.011(b)(3) or (b)(5)). We overrule Issue One.




                                               -7-
                                EXCULPATORY EVIDENCE

         In Issue Two, Appellant contends that the trial court erred by denying leave to depose

  persons of knowledge and by not compelling the State to produce exculpatory or mitigating

  evidence. The State first responds that the issue is multifarious and should not be reviewed.

                            Multifarious Issue and Deficient Briefing

       A point of error or issue is multifarious if it embraces more than one specific ground of

error. Mays v. State, 318 S.W.3d 368, 385 (Tex.Crim.App. 2010). By combining independent

grounds together in a single issue, an appellant risks rejection of his arguments on the basis that

nothing has been presented for review.         See Wood v. State, 18 S.W.3d 642, 649 n.6

(Tex.Crim.App. 2000)(refusing to address multifarious grounds). A complaint that the trial court

erred by denying a defendant’s request to depose a witness is distinct from a complaint that the

State failed to disclose exculpatory or mitigating evidence as required by Brady v. Maryland, 373

U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Thus, Issue Two is multifarious.

       Appellate courts have discretion to address multifarious issues and often do so provided

that the issues are adequately briefed. While Appellant has briefed the Brady issue, his brief

does not adequately address the deposition issue. He does not direct us to where in the record he

sought leave to depose a witness or the trial court ruled on such a request, nor does his brief

provide any argument or authorities in support of this issue. See TEX.R.APP.P. 38.1(g), (i). As

an appellate court, it is not our task to comb the record in an effort to verify an appellant’s

claims. See Alvarado v. State, 912 S.W.2d 199, 210 (Tex.Crim.App. 1995). Likewise, we are

not obligated to construct and compose an appellant’s issues, facts, and arguments for him.

Busby v. State, 253 S.W.3d 661, 673 (Tex.Crim.App. 2008). Because Appellant has failed to

brief the deposition argument, we decline to address it. We will, however, address the Brady



                                               -8-
issue.

                                       Exculpatory Evidence

         Appellant raised the Brady issue in his motion for new trial. He alleged that the State

failed to disclose a supplemental report by Officer J. Van Valen. Appellant attached to his

motion for new trial an affidavit by a private investigator who related that he interviewed Van

Valen after the trial. Van Valen told the investigator that he entered the bedroom and found

Appellant covered with a bed sheet. It appeared to Van Valen that Appellant was pretending to

be asleep. Van Valen told the investigator that Appellant was wearing a pair of shorts and a T-

shirt. He said that he included this information in a supplemental report. In its response to the

motion for new trial, the State alleged that Van Valen did not make any supplemental reports.

The trial court conducted a hearing on the motion for new trial, but Appellant did not offer any

evidence in support of his Brady claim. The prosecutor stated in open court that she had checked

the police computer system to make sure that the State’s file was complete and contained every

supplemental report and witness statement and there were no supplemental reports.              The

prosecutor acknowledged the investigator’s affidavit and stated that Officer Van Valen did not

create a supplemental report and such a supplemental report did not exist. Appellant did not call

Officer Van Valen to testify at the new trial hearing and he did not introduce the affidavit into

evidence. The trial court did not rule on the motion for new trial and it was overruled by

operation of law.

         An appellate court reviews a trial court’s ruling on a motion for mistrial using an abuse-

of-discretion standard of review. Webb v. State, 232 S.W.3d 109, 112 (Tex.Crim.App. 2007).

We view the evidence in the light most favorable to the trial court’s ruling and uphold that ruling

if it was within the zone of reasonable disagreement. Id. We do not substitute our judgment for



                                                -9-
that of the trial court, but rather we decide whether the trial court’s decision was arbitrary or

unreasonable. Id. Thus, a trial court abuses its discretion in denying a motion for new trial only

when no reasonable view of the record could support the trial court’s ruling. Id.

       In Brady, the United States Supreme Court concluded that the suppression by the

prosecution of evidence favorable to a defendant violates due process if the evidence is material

either to guilt or punishment, without regard to the good or bad faith of the prosecution. Harm v.

State, 183 S.W.3d 403, 406 (Tex.Crim.App. 2006), citing Brady, 373 U.S. at 87, 83 S.Ct. at

1196-97. A defendant must satisfy three requirements to establish a Brady violation: (1) the

State suppressed evidence; (2) the suppressed evidence is favorable to defendant; and (3) the

suppressed evidence is material. Harm, 183 S.W.3d at 406. There can be no Brady violation

without suppression of favorable evidence. Id. Brady does not require prosecuting authorities to

disclose exculpatory information to defendants that the State does not have in its possession and

that is not known to exist. Id., 183 S.W.3d at 406-07.

       A motion for new trial is not self-proving.       Rouse v. State, 300 S.W.3d 754, 762

(Tex.Crim.App. 2009); Jackson v. State, 139 S.W.3d 7, 20 (Tex.App.--Fort Worth 2004, pet.

ref’d), citing Lamb v. State, 680 S.W.2d 11, 13 (Tex.Crim.App. 1984). During a hearing on a

motion for new trial, a trial court may receive evidence by affidavits. TEX.R.APP.P. 21.7;

Jackson, 139 S.W.3d at 20; Godoy v. State, 122 S.W.3d 315, 319 (Tex.App.--Houston [1st Dist.]

2003, pet. ref’d). An affidavit attached to the motion is merely “a pleading that authorizes the

introduction of supporting evidence” and is not evidence itself. Jackson, 139 S.W.3d at 20,

quoting Stephenson v. State, 494 S.W.2d 900, 909-10 (Tex.Crim.App. 1973). To constitute

evidence, the affidavit must be introduced as evidence at the hearing on the motion. Rouse, 300

S.W.3d at 762; Stephenson, 494 S.W.2d at 909-10; Jackson, 139 S.W.3d at 20.



                                              - 10 -
       Appellant did not introduce the investigator’s affidavit into evidence at the new trial

hearing and he did not introduce any other evidence that would show that the supplemental

report actually existed. Given the absence of evidence to substantiate the Brady claim, we

conclude that the trial court did not abuse its discretion by failing to grant the motion for new

trial. See State v. Herndon, 215 S.W.3d 901, 909 (Tex.Crim.App. 2007)(stating that the trial

court does not abuse its discretion by granting a new trial if the defendant: (1) articulated a valid

legal claim in his motion for new trial; (2) produced evidence or pointed to evidence in the trial

record that substantiated his legal claim; and (3) showed prejudice to his substantial rights under

the standards in Rule 44.2 of the Texas Rules of Appellate Procedure). We overrule Issue Two.

                                 INCONSISTENT VERDICTS
                                  AND JURY MISCONDUCT

       In his third issue, Appellant complains that the trial court abused its discretion by denying

his motion for new trial on the grounds of jury misconduct and inconsistent verdicts.

                                         Jury Misconduct

       Appellant alleged jury misconduct in his motion for new trial and attached the affidavit of

one of the jurors, Ramiro Galvan. Galvan stated that he did not believe Appellant was guilty but

he was pressured by other jurors to find Appellant guilty; several jurors wondered during

deliberations why Appellant had not testified; some jurors spoke about their own personal

experiences; and Galvan felt some jurors were biased because they said during deliberations that

they were moved by the complainant’s tears. During the new trial hearing, defense counsel did

not offer the Galvan affidavit into evidence and when he began to discuss it as part of his

argument, the prosecutor objected to the court considering the affidavit because it was

incompetent evidence under TEX.R.EVID. 606(b). The trial court did not expressly rule on the

objection but pointed out to counsel that the affidavit did not state that any outside influence was

                                               - 11 -
brought to bear upon the jurors. By failing to offer the Galvan affidavit into evidence at the new

trial hearing, Appellant did not establish his entitlement to a new trial. See Rouse, 300 S.W.3d at

762; Jackson, 139 S.W.3d at 20.

       Even if Appellant had offered the Galvan affidavit into evidence at the hearing, it would

have been inadmissible under Rule 606(b). That rule provides that, upon an inquiry into the

validity of a jury’s verdict, a juror may not testify as to any matter or statement occurring during

the jury’s deliberations or to the effect of anything on any juror’s mind or emotions or mental

processes as influencing any juror’s assent to or dissent from the jury’s verdict. TEX.R.EVID.

606(b). A juror may, however, testify to “whether any outside influence was improperly brought

to bear upon any juror[.]” TEX.R.EVID. 606(b); see also White v. State, 225 S.W.3d 571, 574-

75 (Tex.Crim.App. 2007). An outside influence is an influence from a source other than the

jurors. White, 225 S.W.3d at 574. Galvan’s affidavit did not address whether outside influences

were brought to bear upon any juror. Consequently, the affidavit is inadmissible and does not

constitute competent evidence. The trial court did not abuse its discretion by failing to grant the

motion for new trial.

                                       Inconsistent Verdicts

       Appellant also alleged in his motion for new trial that the jury’s verdict that Appellant

was guilty of sexual assault (Count I) is inconsistent with its determination that Appellant was

not guilty of incest (Count II).     We understand Appellant to argue that the evidence is

insufficient to support his conviction because the jury acquitted him of Count II, or alternatively,

the inconsistent verdicts show that there is jury misconduct. Inconsistent verdicts in prosecutions

based on the same evidence do not require a reversal on the ground of legal insufficiency. Dunn

v. United States, 284 U.S. 390, 393-94, 52 S.Ct. 189, 191, 76 L.Ed. 356 (1932); Thomas v. State,



                                               - 12 -
352 S.W.3d 95, 101 (Tex.App.--Houston [14th Dist.] 2011, pet. ref’d); Jackson v. State, 3

S.W.3d 58, 61 (Tex.App.--Dallas 1999, no pet.). Inconsistent verdicts do not necessarily imply

that the jury convicted the defendant on insufficient evidence, but may simply stem from the

jury’s desire to be lenient or to execute its own brand of executive clemency. Thomas, 352

S.W.3d at 101; Jackson, 3 S.W.3d at 61. Even where an inconsistent verdict might have been

the result of compromise or mistake, the verdict should not be upset by appellate speculation or

inquiry into such matters. Jackson, 3 S.W.3d at 61-62, citing United States v. Powell, 469 U.S.

57, 64-67, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984). Consequently, we are limited to determining

whether the evidence is sufficient to support the jury’s guilty verdict, a matter we addressed in

our review of Appellant’s first issue. The trial court did not abuse its discretion by failing to

grant Appellant’s motion for new trial on the ground of inconsistent verdicts. Issue Three is

overruled.

                           EXTRANEOUS OFFENSE EVIDENCE

       In Issue Four, Appellant asserts that the trial court erred by admitting extraneous offense

evidence during the punishment phase because the witness “was hidden from Appellant until the

time of trial.” Appellant’s ex-wife, Anna Margarita Garcia, testified without objection that

Appellant beat, sexually assaulted, and threatened to kill her with a knife on June 9, 2006.

Garcia testified that, on March 13, 2007, Appellant assaulted her and threatened to kill her while

holding a knife to her throat. This assault resulted in Appellant’s conviction of aggravated

assault with a deadly weapon. Garcia also testified, without objection, that Appellant hit her

every day of their thirteen years of marriage and often forced himself on her sexually.

       To preserve a complaint for appellate review, a party must have presented to the trial

court a timely request, objection, or motion that states the specific grounds for the desired ruling



                                               - 13 -
if they are not apparent from the context of the request, objection, or motion. TEX.R.APP.P.

33.1(a)(1); Lovill v. State, 319 S.W.3d 687, 691-92 (Tex.Crim.App. 2009); Moff v. State, 131

S.W.3d 485, 489 (Tex.Crim.App. 2004). Appellant did not object to Garcia’s testimony at trial

on the ground that the extraneous offenses were inadmissible during the punishment phase.

Consequently, the arguments raised on appeal are waived. See Bernal v. State, 74 S.W.3d 76, 78

(Tex.App.--Eastland 2002, pet. ref’d)(defendant did not preserve complaints related to admission

of extraneous offenses during punishment phase because he failed to object). Issue Four is

overruled.

                                   CUMULATIVE ERROR

       In his final issue, Appellant argues that his conviction should be reversed due to

cumulative error. We have rejected Appellant’s claims of error raised in Issues One through

Four. The Court of Criminal Appeals has recognized that a number of errors may be found

harmful in their cumulative effect, but there is no authority holding that non-errors may in their

cumulative effect cause error. Chamberlain v. State, 998 S.W.2d 230, 238 (Tex.Crim.App.

1999). We overrule Issue Five and affirm the judgment of the trial court.



September 19, 2012                   ________________________________________________
                                     ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Antcliff, JJ.

(Do Not Publish)




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