                                                                          ACCEPTED
                                                                      01-14-00886-CR
                                                           FIRST COURT OF APPEALS
                                                                   HOUSTON, TEXAS
                                                                 6/23/2015 2:14:34 PM
                                                                CHRISTOPHER PRINE
                                                                               CLERK

            No. 01-14-00886-CR

                    In the                           FILED IN
                                              1st COURT OF APPEALS
Court of Appeals for the First District of Texas HOUSTON, TEXAS
                 At Houston                   6/23/2015 2:14:34 PM
                                             CHRISTOPHER A. PRINE
                                                   Clerk

             Cause No. 1389543
          In the 248th District Court
           Of Harris County, Texas


   ANA MARIA GONZALEZ-ANGULO
             Appellant

                      v.

          THE STATE OF TEXAS
                Appellee


           APPELLANT’S BRIEF



                                    Barbara A. Drumheller
                                    8501 Katy Fwy, Ste 201
                                    Houston, Texas 77024
                                    713-504-4492
                                    Texas Bar No. 00793643




     ORAL ARGUMENT REQUESTED
                   IDENTITY OF PARTIES AND COUNSEL

Appellant: Ana Maria Gonzalez-Angulo

Counsel for Appellant at Trial:
             Derek Hollingsworth
             Texas Bar No. 24002305
             Andy Drumheller
             Texas Bar No. 00793642
             Rusty Hardin & Associates
             1402 McKinney, Suite 2250
             Houston, Texas 77010
             713-652-9000

             John William Belk
             Texas Bar No. 24038763
             John William Belk & Associates
             5 Houston Center
             1401 McKinney, Suite 2250
             Houston, Texas 77010
             713-652-9044

Counsel for Appellant on Appeal:
             Barbara A. Drumheller
             650 West Bough Lane, Ste 150-130
             Houston, Texas 77024
             713-504-4492
             Texas Bar No. 00793643

Counsel for the State at Trial:
              Justin Keiter
              Texas Bar No. 24044225
              Nathan Hennigan
              Texas Bar No. 24058612
              Eric Kugler
              Texas Bar No. 00796910
              Assistant District Attorneys
              1201 Franklin
              Houston, Texas 77002
              713-755-5800

Trial Judge: The Honorable Katherine Cabaniss


                                         2
                               TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL .............................................. 2

TABLE OF CONTENTS ............................................................................ 3

INDEX OF AUTHORITIES ....................................................................... 5

STATEMENT OF THE CASE ................................................................... 8

ISSUE PRESENTED .................................................................................. 9


              The trial court erred by denying Ana Maria Gonzalez-
              Angulo’s motion for new trial based on newly discovered
              evidence.

              The evidence presented at trial was insufficient to sustain
              a conviction for aggravated assault because the State was
              unable to connect Ana Maria Gonzalez-Angulo with the
              injuries sustained by the complainant.

              The State failed to establish Ana Maria Gonzalez-Angulo
              was “in a dating relationship” under the terms of the
              Family Code and the Penal Code and the evidence was
              insufficient to support the offense as pled in the
              indictment.

              The trial court erred by allowing a State’s witness to
              identify Ana Maria Gonzalez-Angulo’s voice in a
              surreptitiously recorded telephone call based on two prior
              anonymous telephone conversations during which the
              State’s witness never learned the identity of the person
              with whom he was talking.




                                               3
SUMMARY OF THE ARGUMENT........................................................ 10

APPELLANT’S POINT OF ERROR ....................................................... 47

PRAYER ................................................................................................... 62

CERTIFICATE OF SERVICE.................................................................. 63




                                                    4
                           INDEX OF AUTHORITIES

Cases

Barley v. State, 906 S.W.2d 27 (Tex. Crim. App. 1995) ....................... 21, 26

Billodeau v. State, 277 S.W.3d 34 (Tex. Crim. App. 2009). ....................... 29

Bowen v. State, 374 S.W.3d 427 (Tex. Crim. App. 2012); .......................... 57

Boyett v. State, 692 S.W.2d 512 (Tex. Crim. App. 1985). ........................... 35

Cada v. State, 334 S.W.3d 776 (Tex. Crim. App. 2011). ............................ 42

Carsner v. State, 444 S.W.3d 1 (Tex. Crim. App. 2014). ............................ 34

Clayton v. State, 235 S.W.3d 772 (Tex. Crim. App. 2007). ........................ 44

Coyler v. State, 428 S.W.3d 117 (Tex. Crim. App. 2014) ........................... 35

Dispensa v. Lynaugh, 847 F.2d 211 (5th Cir. 1988) .................................... 27

Gamboa v. State, 296 S.W.3d 574 (Tex. Crim. App. 2009) ........................ 21

Garcia v. State, 367 S.W.3d 687 (Tex. Crim. App. 2012). .......................... 44

Garza v. State, 633 S.W.2d 508 (Tex. Crim. App. [Panel Op.] 1981)......... 24

Giglioblanco v. State, 201 S.W.3d 637 (Tex. Crim. App. 2006). ................ 30

Hacker v. State, 389 S.W.3d 860 (Tex. Crim. App. 2013). ......................... 46

Hobbs v. State, 298 S.W.3d 193 (Tex. Crim. App. 2009). .......................... 33

Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007). ............................. 44

Ibarra v. State, 11 S.W.3d 189 (Tex. Crim. App. 1999). ............................ 21



                                           5
Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560
(1979) ........................................................................................................... 42

Keeter v. State, 74 S.W.3d 31 (Tex. Crim. App. 2002). .............................. 34

Loserth v. State, 963 S.W.2d 770 (Tex. Crim. App. 1998) ......................... 21

Madden v. State, 799 S.W.3d 683 (Tex. Crim. App. 1990)......................... 23

Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). ......... 26

Odelugo v. State, 443 S.W.3d 131 (Tex. Crim. App. 2014); ....................... 35

Richard Winfrey v. State, 323 S.W.3d 875 (Tex. Crim. App. 2010). ......... 44

Riley v. State, 378 S.W.3d 453 (Tex. Crim. App. 2012). ............................. 34

Routier v. State, 273 S.W.3d 241 (Tex. Crim. App. 2008),......................... 48

Sanchez v. State, ---S.W.3d--- (Tex. App.—Eastland, 2015) ...................... 53

Sierra v. State, 266 S.W.3d 72 (Tex. App.—Houston [1st Dist.] 2008,
pet ref’d)........................................................................................................ 26

Stobaugh v. State, 421 S.W.3d 787 (Tex. App.—Forth Worth 2014,
no pet.). ................................................................................................... 49, 50

Stokes v. State, 277 S.W.3d 20 (Tex. Crim. App. 2009). ............................ 33

Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); .. 23

Temple v. State, 390 S.W.3d 341 (Tex. Crim. App. 2013). ................... 46, 48

Thornton v. State, 425 S.W.3d 289 (Tex. Crim. App. 2014). ..................... 57

United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149
 (1967). ....................................................................................................... 23

Villareal v. State, 286 S.W.3d 321 (Tex. Crim. App. 2009)........................ 53



                                                         6
Wallace v. State, 106 S.W.3d 103 (Tex. Crim. App. 2003); ........................ 34


Statutes

TEX. CODE CRIM P. ANN. art 42.12 sec. 4(d) ................................................ 14

TEX. CODE CRIM. P. ANN. art. 42.12 sec 4 .................................................... 11

TEX. CRIM. P. ANN. art. 37.01 (Vernon 2010). ............................................... 9

TEX. CRIM. P. ANN. art. 37.04 (Vernon 2010) ................................................ 9

Tex. Pen. Code Ann. sec. 12.33(a) ............................................................... 11

TEX. PENAL CODE 12.33 ............................................................................... 14
Rules

Tex. R. App. P. 21.3(f) ................................................................................. 15

Tex. R. App. P. 43.2(b .................................................................................. 17




                                                     7
                      STATEMENT OF THE CASE

      Ana Maria Gonzalez-Angulo was charged by indictment with the

felony offense of aggravated assault, dating relationship (C.R. 23). In

particular, she was charged with unlawfully, intentionally and knowingly

causing serious bodily injury to a person with whom she had a dating

relationship by poisoning the complainant with ethylene glycol, a deadly

weapon (C.R. 23). The indictment included an alternative charge alleging

she unlawfully, intentionally and knowingly caused serious bodily injury to

a person with whom she had a dating relationship by causing the

complainant to ingest ethylene glycol, a deadly weapon (C.R. 23). The

appellant pled not guilty and the case was tried before a jury (R.R.5 – 18).

The jury found appellant guilty as charged in the indictment (C.R. 156).

Thereafter, the jury assessed punishment at confinement for ten years in the

Institutional Division of the Texas Department of Criminal Justice and also

assessed a $10,000 fine (C.R. 156). Motion for new trial was timely filed on

October 29, 2014 and notice of appeal was timely filed.




                                     8
              ISSUES PRESENTED


The trial court erred by denying Ana Maria Gonzalez-
Angulo’s motion for new trial based on newly discovered
evidence.

The evidence presented at trial was insufficient to sustain
a conviction for aggravated assault because the State was
unable to connect Ana Maria Gonzalez-Angulo with the
injuries sustained by the complainant.

The State failed to establish Ana Maria Gonzalez-Angulo
was “in a dating relationship” under the terms of the
Family Code and the Penal Code and the evidence was
insufficient to support the offense as pled in the
indictment.

The trial court erred by allowing a State’s witness to
identify Ana Maria Gonzalez-Angulo’s voice in a
surreptitiously recorded telephone call based on two prior
anonymous telephone conversations during which the
State’s witness never learned the identity of the person
with whom he was talking.




                         9
                    SUMMARY OF THE ARGUMENT



      The trial court erred in overruling the appellant’s motion for new trial

based on newly discovered evidence. If a defendant discovers new evidence

within thirty days of the verdict and the four-part test is met, the granting of

a new trial is not discretionary. In this case, Mary Kara Bucci’s testimony

was newly discovered evidence and it satisfied all four prongs of the test so

Ana Maria Gonzalez-Angulo should have been granted a new trial.

      The evidence in this case was insufficient to prove the elements of

aggravated assault. Circumstantial evidence is treated exactly like direct

evidence in a sufficiency review and can even be more probative than direct

evidence in some situations. It must not amount to mere suspicion or a

catalogue of bizarre behaviors, however, and the cumulative effect of all the

incriminating facts must be sufficient to prove every element of the offense.

The State was unable to connect the appellant to any wrongdoing and was

not even able to prove the complainant was harmed by another person. At

most, the State presented a case based on opportunity and suspicious

behaviors that were unrelated to the actual injuries in the case.




                                       10
      The evidence wholly failed to establish a dating relationship between

the appellant and the complainant. None of the witnesses at trial, including

the complainant and the appellant, considered the relationship to be a dating

relationship. There was no evidence to contradict the complainant’s explicit

testimony that they were friends and colleagues and not involved in a dating

relationship.

      The rules of evidence provide authentication and identification

procedures for identifying voices prior to admitting audio recordings into

evidence. In this case, the State sought to do the opposite of what the rules

anticipate. The State elicited testimony from an investigating witness about

an anonymous caller. The witness spoke to the anonymous caller more than

a year before trial. The State tried to get the witness to identify the

anonymous caller as the appellant in this case by asking him to listen to a

recording of her voice and decide whether or not the person in the recording

was the same person he had spoken to anonymously over a cell phone more

than a year before. This testimony was harmful to the appellant because

there was a substantial risk of misidentification and it allowed the State to

give the jury the impression that she was the anonymous caller.




                                     11
                 STATEMENT OF APPLICABLE FACTS

      Ana Maria Gonzalez-Angulo worked closely with the complainant,

Dr. George Blumenschein, at the M.D. Anderson Cancer Center (R.R.9 –

157-158). The two doctors collaborated on cancer research over a period of

several years (R.R.9 – 157-158). The complainant had a relationship with

Dr. Evette Toney, a former M.D. Anderson employee, who was variously

described by witnesses at trial as his common-law wife (R.R.5 – 176, 7 -

218), his “long-term girlfriend” (R.R.5 – 95), his “on-again, off-again

girlfriend” (MNT Bucci Affidavit) and his “live-in girlfriend”. The

complainant characterized his relationship with Evette Toney as a

committed, serious relationship in which they were “taking the next step,”

(R.R.9 – 215) a relationship spanning approximately sixteen years at the

time of trial, but also described himself as a bachelor who feared

commitment (R.R.9 – 216).

      While he was living with Evette Toney in what she believed to be a

monogamous relationship, the complainant began a casual sexual

relationship with Ana Maria Gonzalez-Angulo sometime around the spring

or summer of 2011 (R.R.9 – 161). Both parties referred to this development

as “just sex” inside a relationship that was ninety-five percent or more based



                                     12
on work and research collaboration (R.R.10 – 48; R.R.11 – 85-87). The

complainant had engaged in these kinds of purely sexual, casual work

arrangements with other colleagues in the past (MNT Bucci Affidavit, Belk

Affidavit), and made a distinction between what he considered “real” or

romantic sex – intercourse – and the oral sex he enjoyed as part of his work

affairs (R.R.9 – 167-168). When colleagues questioned the complainant

about his private life or his affairs with women at work, he lied and said

there was nothing sexual involved (R.R.9 – 173, 10 - 69). In particular, the

complainant’s supervisor, Bonnie Glisson, thought the complainant’s

attentions to Ana Maria Gonzalez were “unseemly,” but when she asked him

about her suspicions and about the rumors going on in the office that there

was a sexual relationship between them, the complainant adamantly denied

it (R.R.10 – 90, R.R.7 – 104).

        The complainant traveled frequently for work and his extracurricular

sexual activities often took place during these trips (MNT Bucci Affidavit,

R.R.12 – 10, 12, 13, R.R.10 – 42, 45). The complainant had arrived home

from one of these trips on Saturday, January 26, 2013 (R.R.9 – 48-52, 240-

242).

        On the morning of January 27, 2013, a Sunday, the complainant had

coffee at home but said he didn’t want to eat (R.R.6 – 64-65). He told Evette



                                     13
Toney he was going to work but drove over to Ana Maria Gonzalez-

Angulo’s house instead (R.R.9 – 250). At her house, according to the

complainant, he drank a sip of coffee and shared some cheese bread with her

(R.R.9 – 251). The complainant told investigators and others, including the

grand jury, that Ana Maria Gonzalez-Angulo drank the same coffee with

him out of the same cup (R.R.10 – 65, 67). Evette Toney confirmed during

direct and cross-examination that the complainant liked to share her

beverages and that they frequently drank out of the same cup or glass. She

said, “That’s just the way he is.”        (R.R.11 – 21-22, 163-164). After

breakfast, the complainant, a man twice the size of Ana Maria Gonzalez-

Angulo, picked her up and carried her upstairs where they engaged in oral

sex (R.R.10 – 74). They shared a shot of vodka out of a sealed, unopened

bottle and went to the office (R.R.10 75-76, R.R.9 – 253-254).

      The complainant and Ana Maria Gonzalez-Angulo worked in the

offices of M.D. Anderson for much of the morning and afternoon. In the late

afternoon, the complainant began complaining of dizziness and may have

been slurring his words, although some of his colleagues at M.D. Anderson

maintained he was acting “tired, but normal.” (R.R.9 – 267, R.R.6 – 160,

170, 180-181). The complainant testified that Ana Maria Gonzalez-Angulo

suggested he might be experiencing low blood sugar, and invited him to her



                                     14
home for some cheese and sausage (R.R.9 – 268, 270, 272). At her home,

the complainant cut his thumb while trying to cut the sausage (R.R.9 – 273).

The cut bled enough that the two doctors discussed going to the emergency

room. Ultimately they decided to call a third doctor and close friend, an

M.D. Anderson cancer surgeon, to bandage his cut (R.R.9 – 273, R.R.5 – 79-

80). Dr. Funda Meric-Bernstram testified at trial that Ana Maria Gonzalez-

Angulo was concerned about the complainant’s cut and his behavior, which

seemed unusual (R.R.5 – 80-88). Dr. Meric-Bernstram conducted some brief

neurological tests and advised them to go to the hospital. The complainant

did not wish to go to the hospital and insisted he would be fine (R.R.5 – 88).

The complainant and Ana Maria Gonzalez-Angulo had an important work

dinner that evening with a senior staff member at M.D. Anderson. This

doctor, Doctor Hwu, had invited Ana Maria Gonzalez-Angulo to dinner to

discuss a potential career opportunity with her, and she suggested he include

the complainant and another colleague, Cathy Eng (R.R.5 – 185, 210-215,

R.R.5 – 239-341).

      During dinner, the complainant continued to show signs of what

appeared to be intoxication, dropping his phone several times, slurring his

words, and knocking his head against a ledge behind the table (R.R.5 – 186-

187). Ana Maria Gonzalez-Angulo agreed with Drs. Hwu and Eng that the



                                     15
complainant should go to the hospital, but could not convince the

complainant to do so (R.R.5 – 191-192). She texted Dr. Eng that the

complainant was refusing to go to the E.R (R.R.5 – 194). At least one

witness described Ana Maria Gonzalez as “frantic” about being unable to

convince the complainant to go to the hospital.

      The complainant accompanied Ana Maria Gonzalez-Angulo to her

home after the work meeting because he was adamant about getting his car

(R.R.9 – 279), as he had lied to Evette Toney that morning about where he

was going. Ana Maria Gonzalez was worried about letting him drive but he

got his keys from her (R.R.11 – 46). He agreed to drive to M.D. Anderson

while she followed him (R.R.11 – 46). Evette Toney had been in touch with

the complainant and Ana Maria Gonzalez off and on throughout the

afternoon and also called Ana Maria Gonzalez about the complainant’s

health (R.R.11 – 40-47, 180-185). In one text, she asked the complainant,

“why are you doing this? You need to get your levels checked. Please come

home.” (R.R.11 – 184). She met the complainant and Ana Maria Gonzalez at

the hospital. She testified she was near tears out of concern for the

complainant and believed he was dying based only on his intoxicated

behavior (R.R.11 – 48-50). She began videotaping him, not for purposes of

evidence collection, but just to record how bad he looked. The videotape



                                     16
was in evidence and shows the complainant talking to the treating nurse in a

friendly, flirtatious manner. By all accounts, the complainant walked into the

emergency room under his own power.

      Many doctors and nurses, all colleagues and co-workers, cared for the

complainant at M.D. Anderson. Both Ana Maria Gonzalez and a nurse in the

ICU noticed the whitish sediment in the complainant’s Foley urine bag,

suggesting the presence of crystals (R.R.5 – 161, 279, 296). The

complainant was already beginning to show other signs of kidney damage

(R.R.5 – 268). Dr. Lahoti, a nephrologist, began to suspect ethylene glycol

ingestion because of the constellation of symptoms: signs of intoxication,

metabolic acidosis as shown by his bloodwork, high levels of creatinine

indicating kidney failure, and the shape and appearance of crystals visible in

his urine as sediment and confirmed microscopically to be the unique shape

associated with calcium oxalate (R.R5 – 269-280). Blood tests for ethylene

glycol came back negative and no physical evidence or residue of ethylene

glycol was presented at trial (R.R.5 – 300). No evidence was found during

the investigation indicating the complainant ingested ethylene glycol or

encountered it in the days prior to his hospitalization outside of the

symptoms he experienced. One of the State’s experts, a leading toxicologist

specializing in toxic alcohols like ethylene glycol, testified he was “very



                                     17
surprised there was no ethylene glycol in the complainant’s blood result.”

(R.R.8 – 166). Nevertheless, through a process of elimination several

experts, including Dr. Lahoti, arrived at a confident conviction that the

complainant had ingested ethylene glycol. Ethylene glycol is a common

solvent used at M.D. Anderson, as well as in the outside world in the form of

antifreeze, and virtually everyone has access to ethylene glycol (R.R.5 – 272

and other).

      In the days immediately following his hospitalization, the complainant

admitted to Evette Toney he had cheated on her with Ana Maria Gonzalez

(R.R.11 – 78-79). According to Evette Toney, he also suggested that Ana

Maria Gonzalez poisoned him with coffee that morning at her house, but

urged her not to divulge the information to anyone (R.R.11 – 73-76, 77).

According to Evette Toney, the complainant said, “let’s keep this just

between ourselves. Let’s not tell anybody about this. Let’s not poke the

dragon.” (R.R.11 – 76-77, 205) Evette Toney told investigators that “maybe

it was some psycho waiter” who gave the complainant ethylene glycol

(R.R.11 – 77).

      Evette Toney continued to text and communicate with Ana Maria

Gonzalez, however, and even had a conversation with her about her sexual

relationship with the complainant. Ana Maria Gonzalez told her, “it’s just



                                     18
sex,” and told her “he used you and he used me.” (R.R.11 – 79-86, 205-208).

Ana Maria Gonzalez assisted Evette Toney with getting Family Medical

Leave during the complainant’s hospitalization and kept her updated and

informed about the complainant’s condition (R.R.11 – 208).

      The complainant told investigators he drank coffee with Ana Maria

Gonzalez in the same cup throughout the day and, although he mentioned he

did not like the taste of the coffee, he explained Ana Maria Gonzalez

sweetened it with Splenda (R.R.10 – 65, 67, 61-62). At trial, more than a

year later, he claimed the coffee was sickeningly sweet and he drank it to be

polite even though he could barely stand the taste of it (R.R.9 – 258-259).

He also claimed he participated in occasional sexual acts with Ana Maria

Gonzalez because she flirted with him and he didn’t know what to do and

didn’t want to offend her (R.R.9 – 162). The complainant had had a similar

arrangement with another younger female colleague in the past, however,

and she testified by affidavit that the complainant was flirtatious and he was

the aggressor in the relationship (MNT Bucci Affidavit).

      Ana Maria Gonzalez got wind of the complainant’s suppositions or

accusations and cried in Jennifer Litton’s office about the complainant’s

fixation on the coffee she had sweetened with Splenda (R.R.12- 70-71). She

pointed out that she, like almost everyone at M.D. Anderson, had easy



                                     19
access to ethylene glycol in her laboratory, and expressed to at least one

witness that she feared she might be blamed or suspected because of the

private and secret nature of her relationship with the complainant. She

voiced her concerns to several friends and colleagues about the possibility

the complainant had ingested ethylene glycol, contemporaneously with Dr.

Lahoti’s investigation going in the same direction (R.R.5 – 148, 160-161,

R.R.6 – 163, R.R.7 – 116, R.R.12 – 69). She also voiced her opinion that the

complainant did not seem like the kind of person who would commit suicide

(R.R.6 – 163). Ana Maria Gonzalez suggested to several people that Evette

Toney might be responsible or involved in the complainant’s ingestion of

ethylene glycol. She referred to an incident in December when she’d been

attacked at her home and gone with the complainant to the neighborhood

police station where she had made a report (R.R.7 – 70-92, R.R.5 – 92). The

people behind the attack were never identified but Ana Maria Gonzalez

expressed fears that Evette Toney’s family might have been involved in it

(R.R.5 – 90-91).

      The complainant and Evette Toney decided to secretly tape record

telephone conversations with Ana Maria Gonzalez. They recorded close to

fifteen hours of telephone conversations, all initiated by the complainant,

over many weeks before her arrest (R.R.10 – 106-109). The complainant



                                    20
never asked her whether she poisoned him with ethylene glycol or whether

she did something to his coffee on the morning of his hospitalization, and

changed the subject when she brought up another occasion when he had had

similar symptoms (R.R.10 – 106-110). Evette Toney and the complainant

decided not to mention their secret investigation to the police or to the grand

jury and did not disclose the tapes of the telephone conversations to the State

until immediately before trial (R.R.10 – 106-110). The complainant and

Evette Toney also testified they received an anonymous threatening letter

the previous November, but no letter was found or produced at trial.



                APPELLANT’S FIRST POINT OF ERROR

             The trial court erred by denying Ana Maria Gonzalez-
             Angulo’s motion for new trial based on newly discovered
             evidence.

Applicable Facts

      After the verdict but before time had expired for filing a motion for

new trial, a witness contacted defense counsel claiming she had pertinent

information she did not disclose prior to trial (MNT). The witness provided

an affidavit affirming that she was not forthcoming with the defense

investigation prior to trial because she did not want her personal information

disclosed in court proceedings or the news media (MNT, Bucci Affidavit).



                                      21
The witness provided testimony that rebutted the State’s “fatal attraction”

theory of the case. She also provided information that showed the State and

the State’s witnesses left the jury with a false impression regarding the

complainant’s behavior toward female colleagues in the workplace, the state

of his relationship with Evette Toney, and the degree to which Evette Toney

demonstrated jealousy and possessiveness in their relationship. The trial

judge held a hearing by affidavit on the motion for new trial and denied the

motion, expressly stating on the record that she had reviewed the affidavits

submitted by both the State and the defense. The appellant must satisfy the

procedural requirements that the motion was timely filed and actually

presented to the trial court within ten days’ of the motion’s filing date. Tex.

R. App. P. 21.6; Stokes v. State, 277 S.W.3d 20, 21 (Tex. Crim. App. 2009).

Once these requirements are met, the defendant has a right to a hearing if the

motion (1) raises matters that are not determinable from the record and (2)

establishes reasonable grounds upon which the defendant could be entitled

to a new trial. Hobbs v. State, 298 S.W.3d 193, 199 (Tex. Crim. App. 2009).

These requirements were met in the instant case.




                                      22
Standard of Review

      The Code of Criminal Procedure mandates “a new trial shall be

granted an accused where material evidence favorable to the accused has

been discovered since trial.” Tex. Code Crim. P. Ann. art. 40.001 (West

2014) (emphasis added). A ruling on a motion for new trial is reviewed

under an abuse of discretion standard. Keeter v. State, 74 S.W.3d 31, 37

(Tex. Crim. App. 2002). The decision should be reversed if the trial judge’s

opinion was clearly erroneous and arbitrary. Riley v. State, 378 S.W.3d 453,

457 (Tex. Crim. App. 2012).

Arguments and Authorities

      In order for a defendant to be entitled to a new trial on the basis of

newly discovered evidence, a four-prong test must be satisfied: (1) the newly

discovered evidence was unknown or unavailable to the defendant at the

time of trial; (2) the defendant’s failure to discover or obtain the new

evidence was not due to the defendant’s lack of due diligence; (3) the new

evidence is admissible and not merely cumulative, corroborative, collateral

or impeaching; and (4) the new evidence is probably true and will probably

bring about a different result in a new trial. Wallace v. State, 106 S.W.3d

103, 108 (Tex. Crim. App. 2003); Carsner v. State, 444 S.W.3d 1, 2-3 (Tex.

Crim. App. 2014). The trial court abuses its discretion if the record shows



                                     23
these four factors are met. Boyett v. State, 692 S.W.2d 512, 516 (Tex. Crim.

App. 1985). Although the trial judge has discretion to disbelieve testimony,

there must be at least one reasonable view of the record that would support

the trial court’s denial of the motion for new trial, notwithstanding the

“uncontroverted” nature of the appellant’s evidence. See Odelugo v. State,

443 S.W.3d 131 (Tex. Crim. App. 2014); see also, Coyler v. State, 428

S.W.3d 117 (Tex. Crim. App. 2014) (explaining that the trial judge can

disbelieve uncontroverted but patently biased evidence, as in the case of an

alibi provided by the defendant’s mother).

      In the instant case, the witness Kara Bucci testified via affidavit that

she was contacted prior to trial by the defense and a lawyer “specifically

asked if I had had any romantic or intimate involvement with George. I told

him we were professional colleagues and friends only. I denied any romantic

or intimate involvement because I did not want my personal, private

relationship with George scrutinized in court proceedings or through the

news media.” Affiant John William (“Billy”) Belk confirmed he interviewed

the witness by telephone prior to trial but the witness was not truthful with

him.” (MNT, Bucci Affidavit).

      The evidence provided by Mary Kara Bucci, including her knowledge

about his relationship with Evette Toney and his feelings for Ana Maria



                                     24
Gonzalez, as well as other facts not known to the appellant, did not initiate

with the appellant and could not have been discovered by her or her

investigators prior to trial. Both affiants Billy Belk and Mary Kara Bucci

affirmed that the defense exercised due diligence in its investigation and the

lack of knowledge about Mary Kara Bucci’s information was not due to any

fault on the part of defense counsel. Thus, the record satisfies the first two

prongs of the test.

      The third prong concerns whether the newly discovered evidence is

admissible and not cumulative, corroborative, collateral or impeaching.

Mary Kara Bucci provided several pieces of crucial evidence for the defense

in her affidavit. First, she stated that she had a romantic and intimate

relationship with the complainant in 2007, while he was in a relationship

with Evette Toney, and noticed he had a “spark of interest” in Ana Maria

Gonzalez as early as 2007. This evidence contradicted both the

complainant’s testimony at trial and the characterization of the evidence by

the State. It also shows that the complainant admired Ana Maria Gonzalez

long before she was aware of any relationship between them, and indicates

that the complainant may have targeted her for sexual harassment as early as

2007, unbeknownst to Ana Maria Gonzalez. Second, Mary Kara Bucci

affirmed the complainant was very flirtatious and that he pursued her under



                                     25
circumstances extremely similar to the ones that occurred with Ana Maria

Gonzalez. In particular, he abused his position of authority by pursuing her,

a younger professional colleague, in order to engage in a casual sexual

relationship with her from summer 2006 until January 2010. Just as with

Ana Maria Gonzalez, this “relationship” consisted of oral sex at professional

conferences and at the home of the female colleague.

      At trial, the State and the complainant gave the jury the impression

that the complainant was in a stable, happy and monogamous long-term

relationship with Evette Toney and that it was Ana Maria Gonzalez who

became obsessed and aggressively pursued him (R.R.9 – 162). He left the

jury with the false impression that he only had an affair with her because he

was too nice to say no (R.R.9 – 162). Had Ana Maria Gonzalez known about

his similar relationship with Mary Kara Bucci, she would have been able to

show a pattern of relationships he initiated with younger female colleagues

for his own benefit. This evidence, in turn, would have refuted the State’s

implications about motive and opportunity, which were key to its

circumstantial case.

      Mary Kara Bucci stated that she believed the complainant was

unhappy with Evette Toney and did not want to stay in the relationship, that

Evette Toney pursued him with repeated phone calls on two phone lines


                                     26
while they were together, and that he was beaten down by her attempts to

reach him (MNT, Bucci Affidavit). This evidence fits with evidence given

by Sherry Krantz about Evette Toney’s jealous and possessive behavior

(MNT, Belk Affidavit). Evette Toney testified at trial that she took the

complainant’s word at face value and believed him when he said he was not

having an affair with Ana Maria Gonzalez. The evidence presented in the

motion for new trial tells a different side of the story and provides important

information bearing on the nature of the relationship between the

complainant, Evette Toney, and his various work affairs.

      Finally, Mary Kara Bucci stated that in July 2012, when she invited

the complainant to speak at a conference, he told her his relationship with

Evette was over and indicated that he had romantic feelings for Ana Maria

Gonzalez. At trial, the complainant and Evette Toney both testified they

were in a committed relationship in July 2012 and, in fact, Evette Toney was

pregnant with twins at that time.

      The record must establish that the new evidence is probably true and

will probably bring a different result in a new trial. Mary Kara Bucci gave

specific and telling details in her affidavit with no motivation to lie and at

personal risk to her own reputation and privacy. She is a licensed physician

living in Palmer, Alaska, who contacted Ana Maria Gonzalez’ trial lawyers


                                      27
on her own initiative to tell the truth about what she knew. She and Ana

Maria Gonzalez had never met and were not friends.

      The evidence she provided in her affidavit changes the probable

outcome of a trial in several respects. First, the similarity of her relationship

with the complainant and the doubt it casts on his version of events could

persuade the trial court to reconsider its ruling on the State’s motion in

limine about the complainant’s extra-marital affairs. The court granted the

State’s motion in limine on the basis that the complainant’s extra-marital

affairs were too remote in time and not relevant to issues in the trial (R.R.5 –

7-12). Mary Kara Bucci, however, was engaged in an affair with the

complainant until 2010, and remained close friends with him up to and

including the time period covered by testimony in the trial (MNT, Bucci

Affidavit, Blumenschein Affidavit). Moreover, her knowledge of his

relationship with Evette and his feelings for Ana Maria Gonzalez were

relevant and the jury was left with a false impression about these things

without her testimony.

      Second, the information provided by Mary Kara Bucci indicates that

the complainant left a false impression with the jury regarding his feelings

for Evette Toney and his intentions about starting a family with her.




                                       28
      Third, the evidence at trial gave the jury a false impression about

Evette Toney and her level of possessiveness and jealousy concerning the

complainant, as evidenced by Mary Kara Bucci’s disclosures about her

repeated and frequent phone calls to him when they were together.

      Fourth, the information provided by Mary Kara Bucci rebuts the

State’s characterization of the complainant and Ana Maria Gonzalez in a

“fatal attraction” relationship, wherein Ana Maria Gonzalez pursued the

complainant. Contrary to this characterization, Mary Kara Bucci recalls the

complainant developing an interest in Ana Maria Gonzalez as early as 2007,

long before their relationship was anything other than professional. Ana

Maria Gonzalez had no way of knowing this fact and could not have known

she was targeted by the complainant for sexual harassment without this

information. Furthermore, Mary Kara Bucci affirms that the complainant

was flirtatious and pursued her to begin a relationship extremely similar to

the one he began with Ana Maria Gonzalez, contrary to the State’s theory

that Ana Maria Gonzalez chased or bullied the complainant into a

relationship.

      The State provided an affidavit by the complainant purporting to

dispute the statements made by the new witness (C.R. 190). A careful read

of the complainant’s affidavit, however, reveals that not only does it fail to


                                     29
explicitly refute the sworn testimony of a disinterested witness, it confirms it

in crucial respects. For example, the complainant takes issue with Mary Kara

Bucci’s characterization of their relationship when she says, “we spent time

together in a romantic context both at home in Houston as well as when we

were out of town on business trips.” His response is that they did not

schedule “dates,” he does not recall having dinner with her alone, they did

not schedule “romantic dinners” and they did not plan trips to be together

(C.R. 190-192). A careful read of what each witness says, however, shows

that Mary Kara Bucci never claimed they planned out-of-town trips to be

together or scheduled romantic dinners. Instead, she indicates that they had

an intimate relationship when they were out of town together on business

and spent time in Houston on an intimate basis. The complainant never

explicitly contradicted Mary Kara Bucci’s contention that they had an

“intermittently romantic or intimate” relationship over three and a half years,

beginning in the summer of 2006 (MNT, Bucci Affidavit). Instead, he

specifically admitted to a period of sexual involvement with Mary Kara

Bucci that fit conveniently within a time he had already established as a

period of breakup with Evette Toney (C.R. 190-192). He stated in his

affidavit that he believed the sexual aspect of their relationship ended in

2009 but does not state unequivocally that this was the case. Likewise, he



                                      30
stated in his affidavit that he did not recall discussing his relationship with

Evette with Mary Kara Bucci, he did not recall an occasion on which Evette

made repeated and harassing phone calls to his office while he was with

Mary Kara Bucci and he did not remember meeting Ana Maria Gonzalez

before 2008. None of these uncertainties contradict the testimony given by

Mary Kara Bucci and they have the effect, overall, of confirming the truth of

much of her testimony.

      Moreover, the complainant expressly admitted to lying extensively

about his private life while he was on the stand during trial (R.R.10 – 118-

121, R.R.7 – 104). It is patently obvious that Mary Kara Bucci does not

stand to benefit from providing her testimony, whereas the complainant’s

rebuttal is self-serving and supports his interest in protecting his personal

reputation and preventing any increased scrutiny into the events presented at

trial. The best evidence the State had in this case came from the

complainant. To connect Ana Maria Gonzalez with his injuries at all, the

jury had to take the complainant’s word that she gave him funny tasting

coffee on the morning of his hospitalization and continued to give it to him

even after he complained about its taste. The complainant demonstrably lied,

as he admitted on the stand, to everyone involved in the case, from his live-

in girlfriend to his supervisors and colleagues at work to the investigators


                                      31
working the case. Evidence from a new witness conclusively demonstrating

the depth and reach of his lies is exculpatory admissible evidence.

         There is no reasonable view of the case which supports the trial

court’s determination that appellant is not entitled to a new trial despite the

newly discovered evidence provided by Mary Kara Bucci. The appellant’s

motion for new trial meets all four of the Keefer factors and plainly

establishes that she is entitled to a new trial under the Code of Criminal

Procedure. While the court has some discretion in evaluating evidence based

on credibility, if an appellant can meet the four prongs of the test, the judge

shall order a new trial. This case should be reversed and remanded for a new

trial.

                 APPELLANT’S SECOND POINT OF ERROR

               The evidence presented at trial was insufficient to sustain
               a conviction for aggravated assault because the State was
               unable to connect Ana Maria Gonzalez-Angulo with the
               injuries sustained by the complainant.

Standard of Review

         On a challenge to the legal sufficiency of the evidence, the court must

determine whether, after viewing the evidence in the light most favorable to

the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443



                                        32
U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Evidence is

insufficient to support a conviction if, considering all the record evidence in

the light most favorable to the verdict, no rational factfinder could have

found that each essential element of the charged offense was proven beyond

a reasonable doubt. Id.     Due process requires the State to prove every

element of the crime charged. Cada v. State, 334 S.W.3d 776, 772-3 (Tex.

Crim. App. 2011). The “elements of the offense” are the elements the State

is required to plead and prove, measured by the specific elements that the

State has alleged in the indictment. Id.

Arguments and Authorities

      In the case at bar, the State was required to prove that Ana Maria

Gonzalez-Angulo unlawfully, intentionally and knowingly caused serious

bodily injury to a person with whom she had a dating relationship by

poisoning the complainant with ethylene glycol or by causing the

complainant to ingest ethylene glycol. The evidence at trial was wholly

insufficient to establish that the complainant and Ana Maria Gonzalez-

Angulo were in a “dating relationship,” and, in fact, conclusively established

that they were not. Appellant addresses this issue in Appellant’s Third Point

of Error, below, and incorporates by reference all arguments and authorities

in that point of error here. Because the State requested and obtained an



                                      33
instruction on the lesser-included offense of aggravated assault, however,

appellant is dedicating this second point of error to the elements of that

offense.

      The State presented legally sufficient evidence that the complainant

sustained serious bodily injury, as well as legally sufficient evidence that the

injury was caused by ethylene glycol, in the sense that the succession of

experts who believed he ingested ethylene glycol based on the differential

diagnosis they performed meets the minimum standard of more than a

“modicum” of evidence required under Jackson. Jackson v. Virginia, 443

U.S. at 314, 318 & n.11, 320, 99 S.Ct. at 2786, 2789 & n.11.; see also,

Garcia v. State, 367 S.W.3d 683, 687 (Tex. Crim. App. 2012). The State

failed to prove, however, that Ana Maria Gonzalez poisoned the

complainant or caused him to ingest ethylene glycol.

      It is undisputed that the State lacked any direct evidence linking Ana

Maria Gonzalez to the complainant’s injuries and, in fact, any direct

evidence suggesting he was poisoned at all. The State’s case rested entirely

on circumstantial evidence and never excluded the possibility of ingestion

by accident or out of a desire for self-harm. A conviction can be based on

circumstantial evidence. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.

App. 2007). In fact, circumstantial evidence may be as probative as direct



                                      34
evidence and circumstantial evidence alone can be sufficient to establish a

defendant’s guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.

2007). Nevertheless, the cumulative effect of all incriminating facts must be

sufficient to support the conviction. Id. If the evidence presented at trial

raises “only a suspicion of guilt, even a strong one, then that evidence is

insufficient to convict.” Richard Winfrey v. State, 323 S.W.3d 875, 882

(Tex. Crim. App. 2010).

      The State’s evidence rested on the complainant’s after-the-fact

insistence that the coffee Ana Maria Gonzalez gave him on the morning of

his hospitalization must have contained ethylene glycol (R.R.10 60-62, 10 –

65, 67, R.R.9 – 258-259). At the time of his injury, however, the

complainant told investigators and physicians that Ana Maria Gonzalez

drank the same coffee from the same cup he did throughout the day (R.R.10

– 65-67). Furthermore, neither the complainant nor anyone else ever saw

Ana Maria Gonzalez make any coffee or sweeten any coffee (R.R.9 – 251-

252). The only cup he could logically deduce she made for him, the one at

her own home, was the one he did not drink (R.R.9 – 251). He testified he

had a couple of sips of the coffee (R.R.9 – 251). No ethylene glycol was

found in her possession or in any coffee mugs or glasses they drank out of

that day. The evidence conclusively showed every physician at M.D.



                                     35
Anderson had as much access to ethylene glycol as she did. At most, the

complainant’s speculation about the coffee amounts to a suspicion or guess

regarding Ana Maria Gonzalez’ opportunity to poison him with ethylene

glycol, based almost entirely on the best guesses of his treating physicians

about the most likely window of ingestion. The evidence at trial showed that

the window of possible ingestion realistically extended as far back as the

previous Friday night, although some experts maintained that the most likely

time would have been during the day on Sunday, January 27.

      Motive and opportunity may be circumstances indicative of guilt. See

Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). Evidence of

motive or opportunity may help link a defendant to wrongful conduct or it

may be supportive of other evidence of such conduct. Hacker v. State, 389

S.W.3d 860 870-871 (Tex. Crim. App. 2013). But without evidence that

wrongful conduct occurred, there is nothing for motive and opportunity

evidence to link the defendant to. Id. The complainant’s conclusion that Ana

Maria Gonzalez poisoned him based purely on her opportunity to do so does

not rise to the level of sufficient evidence. The complainant and Ana Maria

Gonzalez were not even alone at M.D. Anderson during the day on Sunday

when the complainant and the State suggest he was poisoned. Plenty of

evidence shows that the complainant spoke to other co-workers and



                                    36
colleagues and that the complainant and Ana Maria Gonzalez wandered in

and out of other people’s offices throughout the day (R.R.9 – 267,

Testimony of Wendi Stone, Bonnie Glisson, Frank Fosella).

      With regard to motive, the State attempted to demonstrate a motive

for Ana Maria Gonzalez to harm the complainant. Most of the circumstances

developed at trial contradicted this theory, and, as shown in the Appellant’s

Second Point of Error, above, the “fatal attraction” motif was a fabrication

of the State that was contradicted by other witnesses who showed him to be

a serial womanizer who preyed upon female doctors with whom he came

into contact. Yet those witnesses were prohibited from testifying or

unavailable at trial. The motive assigned by the State made no logical sense

when considered in light of the evidence developed at trial.

      For example, the State suggested that Ana Maria Gonzalez was so

jealous of Evette Toney that she decided to harm the complainant. This has

no logical force and is hard to square with a lovelorn woman set on winning

the complainant. Such a suggestion might have made sense if Evette Toney

had been the one injured, but given that the complainant and Ana Maria

Gonzalez were still talking regularly on the phone, working together on a

daily basis, and occasionally engaging in casual sex, it does not follow that

she would harm him out of jealously over Evette Toney. Furthermore,



                                      37
witnesses throughout trial, even witnesses called by the State, consistently

acknowledged Ana Maria Gonzalez’ dedication to her patients and her work

and her excellence as a physician. The evidence showed she had an

important   business   meeting    on    the   night   of   the   complainant’s

hospitalization, which she attended with the complainant (R.R.5. 180-185).

The evidence also showed that Ana Maria Gonzalez was at least familiar in a

rudimentary way with the effects of ethylene glycol poisoning (R.R.5 –

294). It is not a reasonable inference from the evidence to suppose she

would poison her research partner with an intoxicating toxin and then take

him to dinner with two senior members of her faculty, both accomplished

physicians, for a meeting she hoped would result in a new career

opportunity. The evidence showed Ana Maria Gonzalez told several doctors

she was concerned about the complainant, that she was worried and upset

when he refused to go to the emergency room, and that she followed him

and accompanied him to the emergency room herself.

      The State also attempted to connect the mysterious events and strange

behaviors from the previous months with the injury sustained by the

complainant. For example, the State suggested that Ana Maria Gonzalez

staged an attack on herself and sent an anonymous letter to Evette Toney,

pretending to threaten herself and the complainant in an attempt to discredit



                                       38
or frame Evette Toney. Even if the jury believed the State’s interpretation of

this evidence and thought Ana Maria Gonzalez faked an attack on herself

out of jealousy, that fact does not support a reasonable deduction that she

later tried to poison the complainant.

      In some instances, the “staging” of a crime can be a circumstance

supporting a logical inference of guilt. In Temple v. State, 290 S.W.3d 341

(Tex. Crim. App. 2013), the evidence showed that the murder scene was

“staged” after the murder to make it look like a burglary. Likewise, in

Routier v. State, 273 S.W.3d 241 (Tex. Crim. App. 2008), there was

evidence supporting the staged nature of a crime, supporting an inference of

guilt in a circumstantial case. In both those cases, however, the staging relied

on by the courts concerned the charged offense itself. In the instant case,

Ana Maria Gonzalez and the complainant were open and exposed

throughout the day of his hospitalization, interacting with other physicians,

discussing his health and the status of his symptoms as he began to seem ill,

and participating in a group dinner together. Considering the evidence in the

light most favorable to the verdict, as the standard of review requires, and

assuming the jury believed Ana Maria Gonzalez staged an attack on herself

more than two months before, such evidence does not support a logical




                                         39
inference that she harmed the complainant with ethylene glycol on the date

of his hospitalization.

      This case is similar to Stobaugh v. State, 421 S.W.3d 787 (Tex.

App.—Forth Worth 2014, no pet.). In that case, the court of appeals reversed

and acquitted the defendant of murder after he was convicted entirely on

circumstantial evidence. The court pointed out that lies and inconsistent

statements in the absence of proof of wrongful conduct did not support an

inference of mens rea for murder. Stobaugh v. State, 421 S.W.3d at 787.

The defendant in that case behaved in an occasionally bizarre manner

following the disappearance of his wife, but the court concluded that “the

fact that he lied about calling Kathy or lied about hiring a private

investigator with her money does not support a reasonable deduction that he

possessed intent to kill her.” Id. The court continued, “just theorizing or

guessing by the jury as to the meaning of his suspicious conduct is not a

logical deduction from the conduct.” Id.

      Likewise, in the instant case, the State encouraged the jury to theorize

or guess as to the meaning of some conduct it labeled as suspicious both

before and after the complainant’s injury. Much of the State’s case was

based on doctors recounting things Ana Maria Gonzalez said in the days and

months following the complainant’s injury that they theorized might be



                                     40
suspicious. None of those things rose to the level of establishing any actual

connection between Ana Maria Gonzalez and the apparent ingestion of

ethylene glycol, and none were inconsistent with a person concerned about a

close friend or colleague, especially after she found herself the target of an

investigation based purely on circumstances and her opportunity to commit a

crime.

         One of the most bizarre aspects of the State’s case was the

complainant’s insistence, well after the fact, and at trial, that he noticed a

sickeningly sweet taste in the coffee Ana Maria Gonzalez shared with him.

He testified he found it almost unbearably disgusting, yet continued to drink

it throughout the day out of politeness (R.R.9 – 258-259). Throughout much

of the day of his injury the complainant was less than a few yards away from

a coffee machine, where he could have presumably made all the coffee he

wanted. It strains credibility to believe that he would drink something he

found sickening, disgusting and perhaps even toxic because he did not want

to hurt the feelings of someone he had been using for casual sex at the office

over the previous two years. This testimony was matched by the equally

bizarre testimony of Evette Toney that the complainant told her within a day

or two that he suspected Ana Maria Gonzalez of poisoning him with the

coffee but wanted her to “keep this just between ourselves,” and “not poke



                                     41
the dragon,” leading her to lie to law enforcement and suggest “maybe it was

some psycho waiter.” (R.R.10 – 61-62, R.R.11 – 73-77, 205). In this regard,

the arguably strange conduct of Ana Maria Gonzalez following the

hospitalization of the complainant, relied upon by the State as

“circumstantial evidence” of her guilt, was exceeded by the even stranger

behavior of the complainant and his girlfriend, starting with her video

recording of the complainant at the hospital and culminating in the secret

taping of phone conversations they made over hours and hours of solicited

conversations with Ana Maria Gonzalez (R.R.10 – 107-109).

      It was not enough to show that the complainant ingested ethylene

glycol and Ana Maria Gonzalez had the opportunity to give it to him, even

when coupled with supposition, suspicions and curious conduct in the days

following the complainant’s injury. These circumstances do not rise to the

level of sufficient evidence to establish the elements of aggravated assault,

even in an entirely circumstantial case. The State’s evidence was legally

insufficient to support the conviction, and the case should be reversed and

the appellant acquitted.




                                     42
                APPELLANT’S THIRD POINT OF ERROR

             The State failed to establish Ana Maria Gonzalez-Angulo
             was “in a dating relationship” under the terms of the
             Family Code and the Penal Code and the evidence was
             insufficient to support the offense as pled in the
             indictment.

      Ana Maria Gonzalez-Angulo was charged with aggravated assault on

a “person with whom she had a dating relationship.” Under the Penal Code,

aggravated assault under section 22.02 is a second degree felony unless

certain further aggravating circumstances apply, one of which is being in a

dating relationship as described by the Family Code in section 71.0021(b).

Under that provision, a “dating relationship” means a relationship between

individuals who have or have had a continuing relationship of a romantic or

intimate nature. Tex. Fam. Code Ann. sec 71.0021(b) (West 2014). The

existence of such a relationship shall be determined based on consideration

of: (1) the length of the relationship; (2) the nature of the relationship; and

(3) the frequency and type of interaction between the person involved in the

relationship. Id. When an aggravated assault is between two people with a

“dating relationship,” the offense is a first-degree felony with a significantly

greater punishment range. A casual acquaintanceship or ordinary

fraternization in a business or social context does not constitute a “dating

relationship”. Tex. Fam. Code Ann. sec 71.0021(c) (West 2014).



                                       43
      Courts of appeals in Texas have struggled with the broad definition of

“dating relationship.” As one justice explained, “I believe the legislature did

not intend to include within the purview of section 22.01 all persons who

had ever dated in their lifetime.” Sanchez v. State, ---S.W.3d--- (Tex.

App.—Eastland, 2015) (Wright, J., dissenting and concurring). In one recent

case, the Court of Criminal Appeals agreed with the State that the defendant

and the complainant were in a “dating relationship” when they spent the

night at each other’s residences and had dated about a month. Villareal v.

State, 286 S.W.3d 321, 324 (Tex. Crim. App. 2009).

      The evidence presented at trial established conclusively that the

complainant did not consider himself to be in a dating relationship with Ana

Maria Gonzalez (R.R.10 – 44, 129). He testified explicitly that he did not

consider the relationship a romantic one, that he did not love her (R.R.10 –

48), and that it was not a dating relationship (R.R.10 – 44, 129). He further

testified that the relationship was at least 95% work and only 5% casual sex

(R.R.11 – 85-87). He explained that he withheld intercourse in the

relationship specifically because he made a distinction between that kind of

intimacy and the casual, meaningless sexual act of oral sex (R.R.9 - 167-

168). He said that the incidences of sexual acts were perhaps as infrequent as

once a month or less and that he was in a committed and loving relationship



                                      44
with Evette Toney (R.R.9 – 167). Ana Maria Gonzalez was quoted by Evette

Toney as saying, “it was just sex,” referring to the physical aspect of her

relationship with the complainant (R.R.11 – 83-86). The complainant and

Ana Maria Gonzalez never lived together, never told anyone they were

boyfriend and girlfriend, never went out on a date and did not engage in

demonstrations of affection in the office. Ana Maria Gonzalez was quoted

several times in the record as saying she loved the complainant “like a

brother,” (R.R.9 – 163, 170, R.R.5 – 129, R.R.7 – 175) and told one

colleague he was “her best friend in the United States.” (R.R.7 – 176).

      Even more to the point, the provisions regarding aggravation of

offenses in the context of a dating relationship are intended to protect

individuals from domestic violence by punishing them more severely than

other assaults. To hold Ana Maria Gonzalez accountable for injuries to the

complainant within a “dating relationship” under the facts of this case

violates the spirit of the law. Ana Maria Gonzalez told Evette Toney, “he

used you and he used me.” (R.R.11 – 86). The record shows that she helped

the complainant in his career and his liaison with her resulted in promotions

for him at work and an increased visibility for his research. (R.R.9 – 171-

172, R.R.10 – 40-45, R.R.5 – 126). It shows that the complainant was senior

to Ana Maria Gonzalez at M.D. Anderson and came from an influential and



                                      45
successful family of physicians (R.R.9 – 145 – 149, 156). The complainant

testified that when he had sexual relations with Ana Maria Gonzalez, those

acts were confined to her giving him oral sex, but not the other way around

(R.R.9 – 164-165). The complainant’s supervisor called him into her office

because his behavior around Ana Maria Gonzalez was, as she put it,

“unseemly.” (R.R.7 – 104). The complainant did not wish to risk his own

medical license and career by writing a fake doctor’s note for his common-

law wife, Evette Toney, so he induced Ana Maria Gonzalez to write one for

him (R.R.9 220 – 224). At trial, the complainant reluctantly conceded to

“partial responsibility” for his common-law wife’s loss of employment after

she turned in the fake note he got from Ana Maria Gonzalez (R.R.9 – 223).

One of the State’s witnesses, Dr. Jennifer Litton, testified that she felt the

relationship was unhealthy for Ana Maria Gonzalez and that she noticed

throughout the fall that Ana Maria Gonzalez was losing weight, was more

tearful than usual, frail, agitated and sad (R.R.12 – 56-57). These

observations do not describe a relationship where Ana Maria Gonzalez was

domineering or controlling of the complainant or where she was abusive or

inclined toward domestic violence. To the contrary, the record shows the

complainant remorselessly using a woman in a weaker position, a younger

faculty member without the contacts and background he had in the Houston



                                       46
area, to advance his own career while using her for his own sexual

gratification and lying to his common-law wife (and anyone else who

inquired about it).

      In a transparent attempt to increase the punishment range and over-

charge Ana Maria Gonzalez, the State attempted to characterize what

amounted to sexual harassment by a senior M.D. Anderson staff member as

a “dating relationship.” The State failed to prove that the complainant and

Ana Maria Gonzalez were in a dating relationship within the meaning of the

Penal Code and the Family Code. Because the State requested and obtained

an instruction on the lesser included offense of aggravated assault, the next

step would be for this Court to consider the sufficiency of the evidence to

support a conviction for aggravated assault, as argued in Point of Error

Three. If this Court concludes that the evidence was legally sufficient to

support the lesser-included offense, the proper remedy would be to reverse

and reform the judgment to reflect a conviction for the lesser-included

offense, and then remand for a new punishment hearing. Bowen v. State,

374 S.W.3d 427, 431-32 (Tex. Crim. App. 2012); see also, Tex. R. App. P.

43.2(d); Thornton v. State, 425 S.W.3d 289, 299-300 (Tex. Crim. App.

2014).




                                      47
              APPELLANT’S FOURTH POINT OF ERROR

            The trial court erred by allowing a State’s witness to
            identify Ana Maria Gonzalez-Angulo’s voice in a
            surreptitiously recorded telephone call based on two prior
            anonymous telephone conversations during which the
            State’s witness never learned the identity of the person
            with whom he was talking.

Applicable Facts

      During its case-in-chief, the State introduced the testimony of Mike

DeSilva, a compliance investigator for GlaxoSmithKline (GSK). (R.R.10 –

184). The witness was presented as an expert of sorts, with about twenty-two

years of law enforcement experience (R.R.10 – 184). DeSilva testified he

was investigating complaints about the conduct of Evette Toney, a

GlaxoSmithKline employee, through conversations with an anonymous

informant at M.D. Anderson. The investigation began in early February

because of an anonymous letter (R.R.10 – 190-193). In early March, an

unknown individual called the compliance hotline to inquire about the status

of the complaint (R.R.10 - 192). DeSilva testified that it was not uncommon

for GSK to receive complaints from anonymous callers because people

reporting conflicts of interest often do not want friends or colleagues to

know they are reporting the conflict (R.R.10 – 240). Mike DeSilva told the

hotline personnel to ask the individual to call him on his cell phone and on

                                    48
April 30, 2013, he received a call from an individual entirely unknown to

him. The call was short because it was evening and he was in the car with

his son (R.R.10 – 195). The next day, however, on May 1, 2013, DeSilva

had a conversation with the unknown person for approximately thirty

minutes (R.R.10 – 195). He described the caller as female with a Hispanic

accent (R.R.10 – 196).

      Based on this thirty minute conversation with a person entirely

unknown to him, described only as “female with a Hispanic accent,”

DeSilva was permitted to testify over defense objection that he recognized

the voice as being the same one as in State’s Exhibit 127, one of the secretly

recorded phone calls the complainant made of Ana Maria Gonzalez. This

testimony amounted to an in-court identification of Ana Maria Gonzalez as

the anonymous person behind the complaints to GlaxoSmithKline.

Standard of Review

      An in-court identification is inadmissible if tainted by an unduly

suggestive pretrial identification. Loserth v. State, 963 S.W.2d 770, 772

(Tex. Crim. App. 1998). A pretrial identification procedure may be so

suggestive and conducive to mistaken identification that subsequent use of

that identification at trial would deny the accused due process. Barley v.

State, 906 S.W.2d 27, 32-33 (Tex. Crim. App. 1995). Appellate courts



                                     49
review de novo the question of whether a pretrial identification procedure

amounted to a denial of due process. Gamboa v. State, 296 S.W.3d 574, 581

(Tex. Crim. App. 2009). First, the court determines whether the pretrial

identification procedure was impermissibly suggestive. Id. Second, if the

court concludes the procedure was impermissibly suggestive, the court

determines if the impermissibly suggestive nature of the pretrial

identification gave rise to a substantial likelihood of irreparable

misidentification. Id. For an identification based on an impermissibly

suggestive procedure to be admissible, the totality of the circumstances must

show no substantial likelihood of misidentification. Ibarra v. State, 11

S.W.3d 189, 195 (Tex. Crim. App. 1999).

Arguments and Authorities

      To set the stage for DeSilva’s in-court identification of Ana Maria

Gonzalez, the prosecutor asked, “have you had occasion to listen to known

recordings of the defendant speaking?” (R.R.10 – 196). The court asked the

prosecutor, “Voice identifications are admissible because why?” (R.R.10 –

197). The prosecutor was unable to come up with a basis for admission.

Defense counsel objected on the basis of an impermissibly suggestive out-

of-court identification procedure, because DeSilva listened to tapes of Ana

Maria Gonzalez, and only Ana Maria Gonzalez, after she had already been



                                     50
arrested, identified as the key suspect by Detective Sosa, and charged with

aggravated assault (R.R.10 – 196).

      Defense counsel rightly distinguished the ordinary authentication and

identification procedure for voices prior to the admission of recorded calls.

Rule 901(b) of the Texas Rules of Evidence provides for voice identification

by a witness prior to the admission of an audio recording. Tex. R. Evid.

901(b). In those circumstances, the witness can identify a voice “by opinion

based upon hearing the voice at any time under circumstances connecting it

with the alleged speaker.” Tex. R. Evid. 901(b)(5). In the instant case, the

State had no recordings of DeSilva’s phone conversation with the

anonymous caller and did not seek to admit any such evidence. Instead, the

State hoped to use evidence of Ana Maria Gonzalez’ voice, already admitted

into evidence, as a vehicle for DeSilva to testify to an in-court identification

in an attempt to establish her as the anonymous caller in the GSK

complaints. This was, as defense counsel pointed out, the opposite of

authenticating an audio recording for admission as contemplated by Rule

901(b). (R.R.10 – 198). The court agreed that the State was not seeking to

authenticate an audio recording under Rule 901, stating, “Right, but that’s

not what this is.” (R.R.10 – 198). It was an identification procedure similar

to a photo lineup based on voice recognition. Voice exemplars are



                                      51
sometimes used in place of photos to identify defendants in out-of-court

procedures, but they require multiple suspects reading the words of an

assailant so the witness has the opportunity to pick out the correct voice. See,

e.g., United States v. Wade, 388 U.S. 218, 221-23, 87 S.Ct. 1926, 1929-30,

18 L.Ed.2d 1149 (1967).

      It is impermissibly suggestive to show a witness a single photograph,

inform the witness that the suspect in the photograph has already been

arrested for the crime, and ask the witness to identify the suspect. Stovall v.

Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Madden

v. State, 799 S.W.3d 683, 694-95 (Tex. Crim. App. 1990). This is true even

when the suspect has not yet been identified or arrested as the likely

perpetrator. Id. Likewise, in the instant case, it was impermissibly

suggestive to ask DeSilva to identify Ana Maria Gonzalez’ voice as the

anonymous caller by asking him to listen to a recording of her voice without

providing exemplars of other female voices with Hispanic accents for

comparison purposes. In addition, by the time DeSilva heard Ana Maria

Gonzalez’ voice on the recording with the complainant, she had already

been arrested and charged with the underlying offense. Moreover, DeSilva

knew Ana Maria Gonzalez had been arrested and charged with a crime




                                      52
because Evette Toney notified him during an interview in July 2013 (R.R.10

– 237).

      With visual identification, on-the-scene confrontations, also referred

to as show-up identifications, have some degree of suggestiveness but may

be acceptable, particularly when the viewing occurs immediately after the

commission of the offense while the witness’ memory is still fresh and

accurate. Garza v. State, 633 S.W.2d 508, 512 (Tex. Crim. App. [Panel Op.]

1981). Thus, law enforcement may occasionally ask a single suspect or a

procession of suspects to parade in front of a witness to a crime, one at a

time, if circumstances support a finding that the procedure is not suggestive.

Id. In the case at bar, however, DeSilva testified he spoke to the anonymous

caller at the end of April and the beginning of May, 2013, for a total of about

forty minutes over two calls, and then heard a recording of Ana Maria

Gonzalez’ voice for the first time in September 2014 (R.R.10 – 243). Nearly

eighteen months had elapsed between his brief exposure to the voice of an

anonymous caller over his cell phone and his opportunity to hear the

identified voice of Ana Maria Gonzalez prior to trial. DeSilva was informed

that the voices on the recording belonged to the complainant and Ana Maria

Gonzalez (R.R.10 – 244). He affirmed on cross-examination that he already

knew Ana Maria Gonzalez had been charged with a crime and that he had



                                      53
discussed the case with Detective Sosa (R.R.10 – 244). Although he

admitted he was not an expert in voice identification and had never been

trained in recognizing voices, and he admitted discussing the case at length

with Detective Sosa before listening to the recording of Ana Maria

Gonzalez’ voice, he insisted that in his opinion, the anonymous caller from

the previous year was Ana Maria Gonzalez. He said, “the pitch sounded the

same, the cadence, the accent, it sounded like the same person I spoke with

on the phone on those two occasions, yes.” (R.R.10 – 247).

      The Due Process Clause of the Fourteenth Amendment of the United

States Constitution protects an accused from the admission of a pretrial

identification into evidence if it is “so suggestive and conducive to mistaken

identification that subsequent use of that identification at trial would deny

the accused due process of law.” Barley v. State, 906 S.W.2d 27, 32-33

(Tex. Crim. App. 1995). The accused has to show (1) the pretrial

identification procedure was impermissibly suggestive; and (2) it created a

substantial likelihood of irreparable misidentification.” Sierra v. State, 266

S.W.3d 72, 75 (Tex. App.—Houston [1st Dist.] 2008, pet ref’d). The second

prong of the test is based on an evaluation of the following factors: (1) the

witness’ opportunity to view the perpetrator at the time of the offense; (2)

the witness’ degree of attention during the offense; (3) the accuracy of the



                                     54
witness’ prior description of the perpetrator; (4) the witness’ level of

certainty regarding identification at the time of confrontation; (5) the lapse

of time between the offense and the subsequent confrontation. Neil v.

Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972). In

the instant case, these factors should be evaluated based on what DeSilva

heard rather than saw, and instead of an offense, his comparison would be to

the anonymous call reporting the conflict of interest to GSK.

      DeSilva had two short, long-distance telephone calls on a cell phone

with an anonymous informant. He was following up on a routine lead as part

of his job as a compliance investigator. Unlike many witness identification

situations, these circumstances did not involve a compelling or startling

moment or a traumatic event for DeSilva. In terms of his accuracy in

describing the anonymous caller, DeSilva could only ever say it was a

“female with a Hispanic accent.” DeSilva insisted at trial that the voices

were the same, but also admitted to a long career in law enforcement and a

lengthy interview with Detective Sosa during which Sosa shared his feelings

about the case and about Ana Maria Gonzalez. Finally, with respect to the

last factor, a substantial amount of time elapsed between the evenings when

he heard the anonymous caller’s voice and the day he was asked to listen to

a recording of Ana Maria Gonzalez.



                                     55
      An analysis of the so-called Biggers factors leads inevitably to a

finding   that   there   was    a   substantial    likelihood   of   irreparable

misdentification. When a witness identifies a defendant based on an

impermissibly suggestive pretrial procedure, the case will be reversed when

there is a substantial doubt raised about the reliability of the identification.

Dispensa v. Lynaugh, 847 F.2d 211, 221 (5th Cir. 1988) (out-of-court

identification was inadmissible and the in-court identification could not

stand without it). The trial judge asked the lawyers at the bench “why can’t

you just cross-examine on this?” The answer is that any time a witness

becomes certain about his or her identification of a suspect because of an

impermissibly suggestive pretrial procedure, the State has created a certainty

in the witness’ mind out of whole cloth. See id.

      In the instant case, the State was never able to establish a connection

between the injuries sustained by the complainant and Ana Maria Gonzalez.

DeSilva’s testimony, however, provided one attempt at a link that knitted the

State’s circumstantial case together in terms of identification. DeSilva’s

testimony sought to establish that the anonymous caller was the same person

who set up the Conflict Report email account. In addition, his testimony

strongly suggested that the anonymous caller was the author of the

anonymous letters that precipitated GSK’s investigation into Evette Toney’s



                                      56
behavior. The prosecutor used this evidence to try to establish a link between

the anonymous letter the complainant testified he received during

Thanksgiving 2012. The complainant testified the anonymous letter

contained specific misspellings of the names of the people involved. DeSilva

identified the same misspellings in the letter GSK received. Significantly,

the jury never saw the letter the complainant claimed he received. Likewise,

the jury did not have an opportunity to hear a recording of DeSilva’s

conversation with the unknown caller and compare the voice to the voice of

Ana Maria Gonzalez themselves.

      The State’s case hinged on a theory of “fatal attraction,” and part of

that theory required proving that Ana Maria Gonzalez staged an attack on

herself and sent anonymous letters and emails to the complainant and GSK

in an effort to harass or entrap or otherwise harm the complainant and Evette

Toney. The State’s proof fell short of connecting Ana Maria Gonzalez with

these events and DeSilva’s identification testimony, tainted by Detective

Sosa’s view of the case, was an attempt to shore up this connection. His

testimony was a violation of Ana Maria Gonzalez’ rights to due process

under the United States Constitution and under the similar due process

provision of the Texas Constitution, and the trial court erred in admitting it.




                                       57
      Even if this Court analyzes the admission of DeSilva’s testimony

under the rules of evidence rather than considering it under the law

applicable to pretrial and in-court identifications, the trial court still erred in

admitting the evidence. Defense counsel also objected to the admission of

the testimony under Rule 403, arguing that its probative value was

outweighed by the danger of unfair prejudice. A trial court should exclude

otherwise admissible evidence under Rule 403 if the probative value of such

evidence is substantially outweighed by the danger of unfair prejudice. Tex.

R. Evid. 403. When an appellant challenges a trial court’s ruling under the

rules of evidence, the appellate court reviews the decision under an abuse of

discretion standard. See Billodeau v. State, 277 S.W.3d 34, 39 (Tex. Crim.

App. 2009). To evaluate the admission of evidence under Rule 403, the court

balances a variety of factors including: (1) whether the evidence had

significant probative value; (2) whether the State had a compelling need for

the evidence; (3) whether the evidence tended to suggest the jury make a

decision on an improper basis; (4) any tendency of the evidence to confuse

or distract the jury from the main issues; (5) the possibility that the jury

might give undue weight to the evidence; and (6) the likelihood that

presentation of the evidence would consume an inordinate amount of time or




                                        58
repeat evidence already admitted. Giglioblanco v. State, 201 S.W.3d 637,

641-42 (Tex. Crim. App. 2006).

      In the instant case, the investigator’s testimony about an anonymous

caller to GSK reporting a real and valid conflict of interest did not have

significant probative value with respect to the key issues at bar. The conflict

of interest with GSK and the loss of Evette Toney’s job as a result of her

own dishonesty were side issues in the case used by the prosecutor to

suggest animosity toward Evette Toney and establish a motive for Ana

Maria Gonzalez to hurt either her or the complainant. Motive is not an

element of aggravated assault. For the same reason, the second factor argues

against the admission of the evidence. The State only had a compelling need

for this evidence because its direct evidence, and even its circumstantial

evidence on the elements of the offense, was weak and inconsistent. The

State used DeSilva’s testimony to hint at its theory of the case, carried

throughout the trial and into closing argument in place of actual evidence:

that Ana Maria Gonzalez had a “fatal attraction” and attempted to frame

Evette Toney for something she did not do. The third factor also militates

against the admission of the evidence, because the purpose of DeSilva’s

testimony was to influence the jury to make a decision based on vague

suppositions and innuendo about Ana Maria Gonzalez’ character and



                                      59
perhaps even her emotional stability, rather than on the evidence presented

on each of the elements of the offense. The fourth factor requires the court to

consider whether the evidence has a tendency to distract the jury from the

issues or confuse the issues. As stated above, the State’s intent was to

distract the jury from the paucity of evidence connecting Ana Maria

Gonzalez to the actual offense at issue, and instead focus them on a series of

confusing and unrelated incidents, many of which took place long after the

complainant was injured.

      Finally, while the evidence did not take a substantial amount of time,

there was nevertheless a legitimate concern that the jury would place undue

weight on it. The State spent a lot of time in its case-in-chief trying to

suggest that Ana Maria Gonzalez was lying about phone calls she received,

faking an attack and authoring anonymous letters. Despite the repeated

emphasis on these allegations, little or no evidence was ever produced

showing that she did, in fact, lie about any phone calls, fake an attack or

author any anonymous letters. The State relied on DeSilva’s testimony to

establish a crucial link in its evidence that otherwise simply was not there.

      The admission of this false identification testimony was distracting

and confusing for another reason: even if the State had sufficient evidence to

prove Ana Maria Gonzalez authored anonymous letters or faked an attack on



                                      60
herself, none of these events would tend to prove or disprove any of the

elements of the offense. The effect of this evidence and other evidence like it

was to focus the jury on the theory the State was trying to put forward about

the relationship between the complainant and Ana Maria Gonzalez rather

than the elements of the charged offense.

      The trial court erred in admitting the in-court identification made by

DeSilva based on voice recognition and the admission denied Ana Maria

Gonzalez her rights to due process and harmed her under the harmless error

rule of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 44.2.

The case should be reversed and remanded for a new trial.




                                      61
                                PRAYER

      Appellant respectfully prays this Honorable Court to reverse the

conviction and acquit the appellant on the basis of insufficient evidence.

Alternatively, appellant prays this Honorable Court to reverse and remand

for a new trial.

                                           Respectfully submitted,



                                           /s/ Barbara Drumheller

                                                 Barbara A. Drumheller
                                                 8501 Katy Fwy, Ste 201
                                                 Houston, Texas 77024
                                                 713-504-4492
                                                 Texas Bar No. 00793643




                                   62
                      CERTIFICATE OF SERVICE

      This is to certify that a copy of the foregoing instrument has been

served on the Harris County District Attorney’s Office as required by the

Texas Rules of Appellate Procedure.


                                                /s/ Barbara Drumheller

                                                Barbara A. Drumheller
                                                8501 Katy Fwy, Ste 201
                                                Houston, Texas 77024
                                                713-504-4492
                                                Texas Bar No. 00793643




                                      63
                   CERTIFICATE OF COMPLIANCE

      This is to certify that the foregoing computer-generated brief has no

more than 12,726 words in compliance with Rule 9 of the Texas Rules of

Appellate Procedure.


                                                 /s/ Barbara Drumheller


                                                 Barbara A. Drumheller
                                                 8501 Katy Fwy, Ste 201
                                                 Houston, Texas 77024
                                                 713-504-4492
                                                 Texas Bar No. 00793643




                                    64
