                                           NO. 07-04-0278-CR

                                    IN THE COURT OF APPEALS

                            FOR THE SEVENTH DISTRICT OF TEXAS

                                               AT AMARILLO

                                                  PANEL E

                                        MARCH 2, 2005
                                ______________________________

                                              ABEL REYNA,

                                                                              Appellant

                                                       v.

                                        THE STATE OF TEXAS,

                                                            Appellee
                              _________________________________

                 FROM THE 106TH DISTRICT COURT OF GARZA COUNTY;

               NO. 02-2122; HON. CARTER T. SCHILDKNECHT, PRESIDING
                          _______________________________

Before QUINN and REAVIS, JJ., and BOYD, S.J.1

        Appellant Abel Reyna appeals from his two convictions for aggravated sexual

assault. His appeal is premised on his contentions that 1) the trial court erred in admitting

two extraneous offenses during the guilt/innocence phase of the trial, 2) the trial court erred

in admitting the hearsay statements of a victim of an extraneous offense, and 3) the

evidence is legally and factually insufficient to show that the offense occurred in Garza

County. We affirm the judgment of the trial court.



        1
            John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. T E X . G O V ’T
C O D E A N N . §75.002 (a)(1) (V erno n Supp . 2004-20 05).
                                    Background

       On June 12, 2001, appellant and the 18-year-old complainant were at a party next

door to the home of appellant’s girlfriend. At some point, appellant and the complainant left

with other friends of the complainant in her car to purchase beer and drive around.

Eventually, the friends were dropped off at other locations, and the complainant was left

alone in the car with appellant driving it. She asked him to take her to her friend’s house,

but he did not do so. Instead, he made stops at several other places including a motel

room registered in his name. At one point, he returned with some cocaine which he told

the complainant to snort. She became drowsy, and when she awoke she did not know

where she was. Appellant removed her clothes in the car and assaulted her in the front

seat while threatening both to cut her throat and to anally rape her. After the assault was

over, appellant drove the complainant to the apartments where his parents lived, and when

he got out, she locked the doors and drove away. Shortly thereafter, she reported the

assault to police.

                     Issue One - Admission of Extraneous Offenses

       In his first issue, appellant contests the admission of evidence that two other women

had been sexually assaulted by him on separate occasions. We overrule the issue.

       Maria Garcia testified to a sexual assault by appellant in 1992. Treva Hill, a volunteer

with the Lubbock Rape Crisis Center, also testified to a sexual assault by appellant on

Amanda West in 2001. The State admitted the testimony as evidence of intent to engage

in sexual conduct without consent and found that the danger of unfair prejudice did not

substantially outweigh the probative value of the evidence. The jury received a limiting



                                              2
instruction informing them that they could consider the evidence only for the purpose of

determining the intent of the defendant and whether or not the sexual encounter was

consensual.

       The admission of extraneous offenses is reviewed for abuse of discretion. Rankin

v. State, 974 S.W.2d 707, 718 (Tex. Crim. App. 1996). Thus, we must uphold the trial

court’s decision to admit the evidence as long as it falls within the zone of reasonable

disagreement. Wheeler v. State, 67 S.W.3d 879, 889 (Tex. Crim. App. 2002).

       Under Rule 404(b) of the Rules of Evidence, evidence of other crimes, wrongs, and

acts may be admissible to prove motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident. If admissible for one of those reasons, the

evidence may nonetheless be excluded under Rule 403, “if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, or needless presentation of

cumulative evidence.” TEX . R. EVID . 403.

       Next, lack of consent is an essential element of aggravated sexual assault, which

element the State must prove. TEX . PEN . CODE ANN . §22.021(a)(1)(A) (Vernon Supp. 2004-

05); Brown v. State, 96 S.W.3d 508, 512 (Tex. App.–Austin 2002, no pet.); Garrett v. State,

998 S.W.2d 307, 316 (Tex. App.–Texarkana 1999, pet. ref’d, untimely filed). When the

accused raises a defensive theory of consent, as appellant did here, he necessarily

disputes his intent to commit the act without the complainant’s consent. Brown v. State,

96 S.W.3d at 512; Webb v. State, 995 S.W.2d 295, 298 (Tex. App.–Houston [14th Dist.]

1999, no pet.). Furthermore, evidence of extraneous offenses is admissible to prove the

requisite mental state if that mental state cannot be inferred from the act itself or if the

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accused presents evidence to rebut that inference. Brown v. State, 96 S.W.3d at 512.

Yet, when the defendant’s intent to commit the offense is at issue and evidence of

extraneous offenses is to be used to establish intent, the extraneous offense evidence may

come in only if there is a similarity between the charged and extraneous offenses. Brown

v. State, 96 S.W.3d at 512; Faison v. State, 59 S.W.3d 230, 242 (Tex. App.–Tyler 2001,

pet. ref’d). But, a high degree of similarity is unnecessary when the issue is one of intent,

as opposed to identity. Brown v. State, 96 S.W.3d at 512-13; Webb v. State, 994 S.W.2d

at 299.

       Here, a blood sample from appellant was compared with the vaginal swabs from the

complainant, and the DNA profile was shown to be that of appellant. Further, appellant

admitted to having sexual relations with the complainant, but indicated that it was with her

consent.   Therefore, the issue of consent was raised, and the State proffered the

extraneous assaults to negate his allegation of consent and establish his true intent.

       The other two offenses involved girls who were approximately the same age as the

complainant and who were enticed into a car at night, driven to a location where they were

raped in the car, and threatened with injury or death during the assault. Moreover, the

1992 assault involved appellant offering the victim a substance which eventually caused

her to become sleepy before the assault occurred, much like what occurred to the victim

at bar. Given this, we cannot say that the trial court’s decision to admit the 1992 act fell

outside the zone of reasonable disagreement.

       Next, while it is true that the 2001 assault involved fewer similarities to the current

crime than did the 1992 rape, there were similarities as mentioned above. Moreover,

appellant later stated during his cross-examination by the State that he had been convicted

                                              4
of sexual assault as a result of the 2001 incident. So too did he testify about two other

convictions (both for burglary) and his use of controlled substances. Additionally, he does

not complain on appeal about the admissibility of those convictions. Given this, we cannot

say that the admission of the 2001 assault constituted reversible error.

        Finally, although the evidence had the potential of being prejudicial if considered for

any purpose selected by the jurors, the trial court did limit their usage of it. See Brown v.

State, 96 S.W.3d at 513 (assessing whether the trial court provided a limiting instruction

when determining the admissibility of the evidence). Moreover, appellant’s intent was in

dispute.2 Given those circumstances, the trial court’s decision to overrule his Rule 403

objection also fell within the zone of reasonable disagreement.

                  Issue Two - Hearsay Evidence of Extraneous Offense

        In his second issue, appellant complains about the testimony of Treva Hill, who

described appellant’s attack upon Amanda West in 2001. We overrule the issue.

           Although appellant argues that the admission of the evidence violated the

confrontation clause of the United States Constitution, nothing was said of that provision

at trial. He merely objected on the basis of hearsay. So, the constitutional complaint was

not preserved for review. Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App. 2000).

        Appellant also contends the trial court erred in admitting the testimony under the

excited utterance exception to the hearsay rule. Once again, we review the trial court’s

admission of the evidence for abuse of discretion. Salazar v. State, 38 S.W.3d 141, 153-54

(Tex. Crim. App. 2001). So too do we note that purported hearsay may be admissible


       2
          Indeed, he averred that each of the purported assaults involved consensual activity, even that
resulting in his 2001 conviction.

                                                   5
when it consists of a statement relating to a startling event or condition made while the

declarant was under the stress of excitement caused by the event or condition. TEX . R.

EVID . 803(2). And, that the statement may be made hours, Zuliani v. State, 97 S.W.3d 589,

596 (Tex. Crim. App. 2003) (20 hours), or days, Apolinar v. State, 106 S.W.3d 407, 417-19

(Tex. App.–Houston [1st Dist.] 2003), aff’d, No. PD-1057-03, 2005 Tex. Crim. App. 145

(Tex. Crim. App. February 2, 2005) (four days) later is not determinative. Id. Rather, the

critical determination is whether the declarant was dominated by the emotions, excitement,

fear, or pain of the event or condition at the time of the statement. Salazar v. State, 38

S.W.3d at 154.

        Here, Treva Hill described the victim as “extremely upset” and that she was reluctant

to talk, sat with her hands in her lap, would look away, and would cry. That these indicia

illustrate that West continued to suffer from the emotional impact of the assault when

talking to Hill is not something outside the zone of reasonable disagreement. See Salazar

v. State, 38 S.W.3d at 154 (holding that regardless of the time that had elapsed between

the event and the statement, the testimony showed the child was upset and in pain at the

time of the statement, and thus it could not be said that the trial court abused its discretion).

And, to the extent that appellant complains that the statement is simply a narrative of past

events as opposed to a spontaneous utterance, appellant did not specifically object on that

basis at trial.3 Moreover, it has been held that a police officer could testify about the

victim’s description of her attacker, her description of the car, her statement that she had

been raped, and the details surrounding the rape (much like what occurred between West


        3
            At trial, appellant made the following objection: “Your Honor, I object at this time to hearsay. And
if it’s going to b e excited utterance, what is the utteranc e?”

                                                       6
and Hill at bar) if the circumstances surrounding the exchange permitted the trial court to

conclude that the statements were nonetheless excited utterances. Brown v. State, 96

S.W.3d at 513-14.

                                     Issue Three - Venue

       Appellant contends in his final issue that the evidence is both legally and factually

insufficient to show that the offense occurred in Garza County. We overrule the issue.

       Venue must be established by a preponderance of the evidence, TEX . CODE CRIM .

PROC . ANN . art. 13.17 (Vernon 1977), and the evidence used to satisfy the burden may be

either direct or circumstantial. Black v. State, 645 S.W.2d 789, 790 (Tex. Crim. App. 1983).

Additionally, it is sufficient if it permits the factfinder to reasonably conclude that the offense

was committed in the county alleged. Sudds v. State, 140 S.W.3d 813, 818 (Tex.

App.–Houston [14th Dist.] 2004, no pet.); Flowers v. State, 133 S.W.3d 853, 856 (Tex.

App.–Beaumont 2004, no pet.). Next, where venue is sought to be established by

someone in a moving vehicle, specific points of reference and measurable passages of

time constitute circumstantial evidence susceptible to consideration by the factfinder.

Edwards v. State, 97 S.W.3d 279, 286 (Tex. App.–Houston [14th Dist.] 2003, pet. ref’d).

       Here, the victim testified that she fell asleep, and when she awoke, they were parked

at a lake with a field to the right and a diesel truck parked nearby. After the assault, she

stated that appellant began to drive back to Lubbock, she saw a sign with the words “Garza

County” on it, they traveled through Post (which we judicially notice to be located in Garza

County), and it took them 40-45 minutes to get to Lubbock. Additionally, when she was

shown photographs of a rest area called Green Tank situated along U.S. Highway 84 and

which is nine miles southeast of Post and about 45 minutes from Lubbock, she stated she

                                                7
recognized the area and that it was the locale whereat she was assaulted. A Garza County

deputy also testified that Green Tank was an area he patrolled. This is some evidence

upon which a reasonable factfinder could conclude that the assault occurred in Garza

County.

       Though appellant testified that he and the complainant had sexual relations in Clapp

Park in Lubbock County, it was for the jury to resolve the inconsistent statements and

determine the credibility of the witnesses. Sudds v. State, 140 S.W.3d at 818. And, it had

ample evidence upon which to conclude, as stated above, that the assault occurred in

Garza County. Thus, the evidence is both legally and factually sufficient to support the

verdict, assuming of course one can attack the factual sufficiency of the finding. See

Sudds v. State, 140 S.W.3d at 817-18 (stating that venue determinations cannot be

challenged on the basis of factual insufficiency).

       Accordingly, the judgment of the trial court is affirmed.



                                                 Brian Quinn
                                                   Justice

Do not publish.




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