                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-08-00070-CR

CATARINO JESUS SANDOVAL,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                           From the 54th District Court
                            McLennan County, Texas
                           Trial Court No. 2007-178-C2


                          MEMORANDUM OPINION


      A jury convicted Catarino Jesus Sandoval of aggravated robbery and sentenced

him to sixteen years in prison and a $10,000 fine. In three issues, Sandoval contends

that: (1) the State violated due process by knowingly using false testimony; (2) the State

violated due course of law by negligently using false testimony; and (3) the trial court

abused its discretion by denying his motion for new trial. We affirm.
                              FACTUAL BACKGROUND

        Kathy Ryall was exiting her vehicle and preparing to enter Richland Mall when a

man approached her from behind, pressed a “sharp” object against her back, and

instructed her to give him her purse. When Ryall hesitated, the man pressed harder

and ordered her to give him her purse. As Ryall turned, the man grabbed her purse

and ran. Ryall did not see the man’s face, but described him as a young Hispanic male

of medium build, with dark hair, wearing a white t-shirt and blue jeans, and not very

tall. She observed the man enter a “white, small sedan.” She saw the driver of the

vehicle and memorized the license plate. She identified the driver, Catarino Sandoval’s

cousin Tommy Sandoval, from a photographic lineup.

        Tommy testified that sometime between 8:00 and 9:00 a.m., “8:40-something” per

the car radio, he and Sandoval drove to Wal-Mart from Sandoval’s mother’s house,

about a twenty-minute drive. They drove around the parking lot for about thirty

minutes. From there, they drove to the mall. This drive takes about ten to fifteen

minutes, but Tommy testified that they arrived within ten minutes, probably five

minutes. When they spotted Ryall, Tommy parked and Sandoval opened a pocket knife

and exited the vehicle. He returned with both the knife and Ryall’s purse. Tommy kept

$40 of the $400 found in Ryall’s purse and used Ryall’s credit card to purchase gasoline.

        Belinda Alaniz, Sandoval’s girlfriend and the owner of the vehicle, testified that

Sandoval dropped her off at work around 8:00 a.m. Around lunchtime, he called to

inform her that “something stupid” had happened and the car was at a park. Officers

DeAlan Adams and Mike Bradley were present during this phone call and testified that


Sandoval v. State                                                                   Page 2
Alaniz told them that Sandoval said, “I’ve done something bad.” They located the

vehicle at a park approximately eight to ten miles from the mall. Sandoval’s left palm

print was found on the passenger’s side of the vehicle. Ryall’s checkbook and driver’s

license were inside the vehicle.

        Adams testified that he received the call about the robbery around 10:00 a.m. and

believed that the robbery occurred around 9:50 a.m. Ryall testified that she arrived at

the mall close to 10:00 a.m. 9-1-1 records showed that the call came in at 10:18 a.m.

        Crystal Perales, Sandoval’s former girlfriend, testified that she spoke with

Sandoval on the telephone from 9:20 a.m. to 9:34 a.m. She testified that Sandoval called

from his mother’s landline, not a cellular telephone. She knew this because she saw the

number on her caller ID, Sandoval had previously called from that number, and she

checked the number on 411.com, which listed the number as a landline.

        The State requested fifteen minutes to investigate the status of this telephone

number. Investigator Don Marshall contacted Southwestern Bell security and learned

that the number had been assigned to a T-Mobile cellular telephone since September

2004. He did not inquire as to the owner of the number or whether the number was

assigned to a cellular telephone on the day of the robbery.

                             USE OF FALSE TESTIMONY

        Arguing that Marshall’s testimony was false or misleading, Sandoval contends in

his first two issues that: (1) the State knowingly used false testimony in violation of his

due process rights provided by the Fourteenth Amendment to the United States




Sandoval v. State                                                                       Page 3
Constitution; and (2) the State negligently used false testimony in violation of his due

course of law rights provided by article I, section 19 of the Texas Constitution.

        A defendant must object to the State’s use of allegedly false evidence to preserve

the complaint for appeal. Davis v. State, No. 10-06-00009-CR, 2008 Tex. App. LEXIS

7146, at *18-19 (Tex. App.—Waco Sept. 24, 2008, no pet. h.) (citing Haliburton v. State, 80

S.W.3d 309, 315 (Tex. App.—Fort Worth 2002, no pet.)); see TEX. R. APP. P. 33.1. At the

time of Marshall’s testimony that the number was assigned to a cellular telephone,

Sandoval was aware of contrary information suggesting that the number was assigned

to a landline. He could have objected to Marshall’s testimony at trial, but failed to do

so. His first and second issues are not preserved for appellate review.

                              MOTION FOR NEW TRIAL

        In his third issue, Sandoval challenges the denial of his motion for new trial on

grounds that the State used false or misleading evidence to negate his alibi defense. We

review a trial court’s denial of a motion for new trial for abuse of discretion. Benton v.

State, 237 S.W.3d 400, 404 (Tex. App.—Waco 2007, pet. ref’d) (citing Salazar v. State, 38

S.W.3d 141, 148 (Tex. Crim. App. 2001)).

        In his motion for new trial, Sandoval argued that he did not receive a fair trial

because the State used “inaccurate hearsay testimony”, i.e., Marshall’s testimony that

the telephone call to Perales was made from a cellular telephone rather than a landline,

which “completely destroyed [his] alibi defense.” In an affidavit, Guy Cox, Sandoval’s

trial attorney, described this testimony as “inaccurate and potentially misleading.” Cox

opined that Perales’s testimony that Sandoval called her from a landline approximately


Sandoval v. State                                                                    Page 4
twenty-six minutes before the robbery, coupled with Tommy’s testimony that he and

Sandoval drove around for about an hour before the robbery, made Sandoval’s

“presence at the robbery very remote.” Cox was surprised by Marshall’s testimony

because he had “received information to the contrary and did not believe its veracity

was an issue.” Also attached to Sandoval’s motion was a computer printout from

411.com listing the number as a landline and telephone book pages showing the

number in the residential listings.

        Sandoval subsequently filed telephone records from the AT&T custodian of

records, which identified the number as a landline at the time of the robbery.

Additional AT&T records showed an incoming call to Perales from this number at 8:29

a.m., a three-minute call, and 9:20 a.m., a fourteen-minute call.

        At the hearing on Sandoval’s motion, Wanda Mathews, AT&T custodian of

records, testified that the number was a landline at the time of the robbery. Mathews

testified that cellular telephone numbers are not listed in the residential pages of the

telephone book, and Sandoval introduced residential pages from the AT&T telephone

book, which listed the number.        According to Mathews, the address listed in the

telephone book matched the address on AT&T’s billing records. She further testified

that it was possible that the number was assigned to a cellular telephone at some point

in the past.

        Cox testified that Marshall’s testimony “seriously undermined” Sandoval’s alibi

defense.    He had hoped that Perales’s testimony establishing that Sandoval was

possibly at a different place at a different time than testified to by Tommy would


Sandoval v. State                                                                 Page 5
convince the jury to find Sandoval not guilty. On cross-examination, he agreed that the

telephone records and books were not new evidence. The State provided Cox with a

Google map showing the distance from the house to the mall as 2.9 miles or seven

minutes. Cox agreed that a forty-four-minute time period existed between the end of

the call to Perales at 9:34 and the 9-1-1 call at 10:18; thus, Sandoval had time to get to the

mall even assuming that the number was a landline. However, he did not believe that

the 9-1-1 call was the most significant, as Ryall had estimated that the robbery occurred

at 9:50.

        The prosecutor testified that Ryall did not identify a specific time when the

robbery occurred. She believed that the robbery occurred no earlier than 10:05 because

Ryall had testified that she was late for work and the mall opens at 10:00.              The

prosecutor also believed that, assuming the number was assigned to a landline and the

robbery occurred sixteen minutes after the call ended, Sandoval still had time to commit

the robbery. In fact, she was able to drive the route from Sandoval’s home to the mall in

seven minutes and seventeen seconds, after stopping at a major intersection and driving

the forty mile-per-hour speed limit.

        The prosecutor further testified that, although she had subpoenaed Perales as a

punishment witness, she learned about the landline allegation during Perales’s

testimony.     She requested “five minutes” to investigate this testimony and asked

Marshall to contact the telephone company. She was not present when he contacted

Southwestern Bell; however, she also testified that the specific digits of the number

indicated to her that it was assigned to a cellular telephone, which made sense


Sandoval v. State                                                                       Page 6
according to Tommy’s testimony. She would not have put someone on the stand to say

that the number was assigned to a cellular telephone when it had not been.

        At the conclusion of the hearing, the trial court noted that Sandoval’s mother was

“in the courtroom during the trial when the defense was putting on their evidence.” He

denied Sandoval’s motion.

                                          Analysis

        A defendant is entitled to a new trial based on the State’s use of false evidence

where: (1) the State “used” the testimony; (2) the testimony was “false”; (3) the

testimony was “knowingly used”; and (4) if these questions are affirmatively answered,

there is a reasonable likelihood that the false testimony could have affected the

judgment of the jury. Ramirez v. State, 96 S.W.3d 386, 394-95 (Tex. App.—Austin 2002,

pet. ref’d) (citing Mooney v. Holohan, 294 U.S. 103, 55 S. Ct. 340, 79 L. Ed. 791 (1935); Pyle

v. Kansas, 317 U.S. 213, 63 S. Ct. 177, 87 L. Ed. 214 (1942); Napue v. Illinois, 360 U.S. 264,

79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959)). A defendant need not show that a witness

“knew the testimony was false or otherwise harbored a sufficient culpable mental state

to render the witness subject to prosecution for perjury” or that the “witness’s specific

factual assertions were technically incorrect or ‘false.’” Id. at 395. “It is sufficient if the

witness’s testimony gives the trier of fact a false impression.” Id.

        Evidence presented at the hearing on Sandoval’s motion for new trial establishes

that the number is a landline and that Perales received a telephone call from that

number on the morning of the robbery. Marshall’s testimony to the contrary is false

and misleading. The State used this testimony during closing to argue that Sandoval


Sandoval v. State                                                                        Page 7
called Perales from a cellular telephone while driving around looking for someone to

rob. The State further argued that Sandoval failed to present anything to rebut this fact.

        The record contains no evidence suggesting that Marshall or the State knew the

testimony was inaccurate, or even potentially inaccurate, at the time the testimony was

elicited. Nor does the record establish that the State should have known that Marshall’s

testimony was false or misleading. The evidence presented at trial did not conclusively

establish that the number was assigned to either a landline or a cellular telephone.

Neither the State nor Sandoval provided the jury with documentary evidence

confirming their respective positions or sought additional time to do so. Not until the

motion for new trial did Sandoval present evidence other than Perales’s testimony to

establish the number as a landline.

        In fact, at the motion for new trial hearing, Mathews testified that the telephone

records would have been available at the time of trial. She would have appeared at trial

with the records had she received a subpoena. Neither were the telephone book pages

new. Sandoval could have procured other evidence supporting his contention that the

number was assigned to a landline, but he failed to do so.

        Even assuming that the State was aware of or should have been aware of the

error and refused to correct it, we cannot say beyond a reasonable doubt that Marshall’s

testimony affected the judgment. During closing argument, the State presented the

possibility that, assuming the number was assigned to a landline, the call to Perales

ended in time to allow Sandoval to arrive at the mall with sufficient time to commit the

robbery. The call to Perales ended at 9:34, travel time to the mall takes five to ten


Sandoval v. State                                                                   Page 8
minutes, and the 9-1-1 call came in at 10:18. Moreover, Sandoval’s palm print was

found on the passenger side of the vehicle.

        Even had the State presented no evidence that the number was assigned to a

cellular telephone, the jury could still find Sandoval guilty of robbery by: (1)

discounting Tommy’s testimony and determining that Sandoval committed the robbery

after ending the conversation with Perales; or (2) accepting Tommy’s testimony and

determining that Perales’ testimony failed to conclusively establish that the number

belonged to a landline. As the sole judge of the weight and credibility of witness

testimony, the jury was entitled to resolve any inconsistencies in the witness’s

testimony and decide which evidence to believe.1 See Lancon v. State, 253 S.W.3d 699,

707 (Tex. Crim. App. 2008).

        In summary, we cannot say that the trial court abused its discretion by denying

Sandoval’s motion for new trial. We overrule issue three.

        The judgment is affirmed.



                                                                 FELIPE REYNA
                                                                 Justice
Before Chief Justice Gray,
       Justice Vance, and
       Justice Reyna
Affirmed
Opinion delivered and filed November 5, 2008
Do not publish
[CR25]

1  Sandoval also attempted to show that Tommy was either lying or mistaken when he identified
Sandoval as the robber. According to the record, Sandoval’s brother Rocky helped abandon Alaniz’s car
and his earnings statement was found in the car. The jury was at least presented with the possibility that
Rocky, not Sandoval, committed the robbery.


Sandoval v. State                                                                                  Page 9
