      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-00-00576-CR




                      Israel Yanez a/k/a/ Juan Miguel Yanez, Appellant

                                                v.

                                  The State of Texas, Appellee



    FROM THE DISTRICT COURT OF BASTROP COUNTY, 21ST JUDICIAL DISTRICT
           NO. 9268, HONORABLE JOHN L. PLACKE, JUDGE PRESIDING




               A jury found appellant Israel Yanez guilty of aggravated sexual assault and assessed

punishment at imprisonment for life and a $10,000 fine. See Tex. Pen. Code Ann. § 22.021(West

Supp. 2002). By ten points of error, Yanez complains of errors in the admission of evidence, in the

jury charge, and in jury argument. We will overrule these contentions and affirm the conviction.


Background

               The complainant testified that on the evening of June 6, 1999, she was riding her

bicycle on Knobbs Road near McDade when a station wagon approached her from behind and

stopped beside her. The two men in the car introduced themselves as Sam Hill (the driver) and Israel

Yanez. After chatting with the complainant for a few minutes, the men drove away. As they left, the

complainant noticed a bicycle in the luggage area of the station wagon. The complainant resumed

her ride in the growing darkness. A few minutes later, a man on a bicycle approached the
complainant from the direction in which the station wagon had traveled. The man collided with the

complainant, throwing her from her bicycle, then seized her in a headlock. The complainant

recognized this man as the Israel Yanez she had just met and she identified him at trial as the

appellant. Yanez threw the complainant to the ground and began to tear off her clothes. When she

fought back, Yanez choked and punched her. Yanez succeeded in pinning the complainant to the

ground, then penetrated her anus with his fingers. The complainant began to lose consciousness. At

some point, Yanez threw her over a barbed wire fence. The complainant’s hand became entangled

in the fence, cutting her palm. Eventually, the complainant heard another vehicle arrive and screamed

for help. Yanez fled.

               Charles Stephens testified that he and his friends Seth Jewell and B. J. Mitchell were

driving down Knobbs Road when they noticed two bicycles lying in a ditch. They stopped and saw

a woman lying on the ground with a man sitting on top of her. Mitchell asked the man if he and the

woman needed help. The man said no. Stephens drove on, but was concerned that “something

wasn’t right.” After unsuccessfully attempting to contact the Department of Public Safety officer

who lived in McDade, Stephens and his friends returned to Knobbs Road. They found the

complainant, naked and calling for help, lying inside the barbed wire fence. They gave her a shirt, put

her in their pickup, and drove her to a friend’s house in McDade, then summoned the police and

medical help. At trial, Mitchell and Jewell, but not Stephens, identified appellant Yanez as the man

they saw with the complainant.

               Samuel Hill testified that he and a friend spent the afternoon and early evening of June

6 with Yanez. Hill was driving Yanez home in his station wagon when they encountered a young



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woman riding a bicycle on Knobbs Road. They stopped to speak to her, then continued on their way.

A minute or two later, Yanez asked Hill to stop. Yanez got out of the car, took his bicycle, and

walked away. Hill then drove home alone.

                Michael Farris testified that he met Yanez around noon on June 6, when Yanez

purchased a car from Farris’s mother’s boyfriend. Yanez reappeared at the Farris residence between

10:00 and 11:00 that night, when he knocked on the door and asked Farris for a ride home. Yanez

was not wearing a shirt, seemed nervous, and was dirty and sweaty. His nose was bleeding and he

had a scratch on his neck. Farris drove Yanez to a trailer house on County Road 305. As Farris was

returning to his house, he noticed police and EMS vehicles parked at an acquaintance’s house in

McDade. He stopped and made inquiries. When Farris learned what had happened on Knobbs Road,

he told a police officer that he had just given a ride to a man fitting the assailant’s description. Farris

agreed to take the police to Yanez’s trailer.

                At the trailer, the officers’ knock was answered by Antonio Lopez. Lopez admitted

the officers, who found Yanez in the bathroom. Farris was asked to come inside the trailer, where

he identified Yanez as the man to whom he had earlier given a ride. Yanez was then arrested.

Stephens, Jewell, and Mitchell were brought to the trailer a few minutes later and identified appellant

as the man they saw with the complainant on Knobbs Road.


Motion to suppress

                By two points of error, Yanez contends the district court erred by overruling his

motion to suppress physical evidence on the ground that the search of the trailer violated his rights

under the United States and Texas constitutions. U.S. Const. amends. IV, XIV; Tex. Const. art. I,

                                                    3
§ 9. Specifically, Yanez argues that Antonio Lopez was not authorized to consent to the warrantless

search of the trailer. In his brief, Yanez does not identify the evidence he believes was unlawfully

seized as a result of the search. At trial, the only evidence he sought to suppress pursuant to the

motion was the testimony regarding his identification at the arrest scene by Farris, Stephens, Jewell,

and Mitchell.

                 When reviewing the ruling on a motion to suppress, we defer to the trial court’s

factual determinations but review de novo the court’s application of the law to the facts. See Guzman

v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Because the district court did not make explicit

findings of fact, we review the evidence in the light most favorable to the court’s ruling and assume

the court made findings that are supported by the record and buttress its conclusion. Carmouche v.

State, 10 S.W.3d 323, 327-28 (Tex. Crim. App. 2000).

                 Lopez testified that he had leased the trailer, but had since moved to another location

and given possession of the trailer to his daughter Lisa Rivera. Lopez said that he gave money to his

daughter each month for the rent. Rivera testified that she was living in the trailer with her two minor

sisters and Yanez. Rivera claimed to be paying the rent with Yanez’s help and said that her father

did not have any authority or control over the premises. The owner of the trailer, Linda Guerrero

Valero, testified that Lopez signed a six-month lease for the trailer in January 1999, and that he, and

no one else, paid the rent each month. Valero had consented to Rivera moving into the trailer with

Lopez, but she said that Yanez was not authorized to live there and that she had ordered him off the

premises one week before the incident in question. 1


    1
        The State does not challenge Yanez’s standing, and we express no opinion on that issue.

                                                   4
               Sergeant Jack Sparkman was one of the officers who went to the trailer on the night

of the assault. He testified, “I told [Lopez] that we were there because we had information that a

gentleman had been just dropped off at this house that we thought – who we believed had been

involved in an assault. And then Officer Woolridge asked him if we could come in and he said sure.

And I said do you live here and he said yes, I do. I live here with my daughter.” Sparkman said he

had no doubt that Lopez was authorized to admit the officers. The other police officers gave similar

testimony.

                A warrantless entry and search does not violate the Fourth Amendment if the officers

have consent. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). All persons having common

authority over the premises may properly consent to a search. United States v. Matlock, 415 U.S.

164, 171 (1974). “Common authority” rests on “mutual use of property by persons generally having

joint access or control for most purposes.” Id. at 171 n.7. A third party may consent to a search

when the party has equal control over and equal use of the premises being searched. Becknell v.

State, 720 S.W.2d 526, 528 (Tex. Crim. App. 1986).

               The district court could reasonably find from the evidence before it that Antonio

Lopez was the lessor of the trailer, that he paid the rent each month, and that he lived in the trailer

with his daughters. These findings support the legal conclusion that Lopez had common authority

over the trailer and could lawfully give his consent to the officers’ entry and search. Points of error

seven and eight are overruled.




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In-court identifications

                Yanez urges that the complainant’s in-court identification of him as her assailant was

tainted by a suggestive pretrial identification procedure. At the hearing on Yanez’s motion to

suppress the identification testimony, the complainant testified that she was shown an array of

photographs at the sheriff’s office four days after the assault. Due to the poor quality of the

photographs, she did not make an identification. She was then taken to another room where she

viewed a live lineup. She immediately identified Yanez.

                A pretrial identification procedure may be so suggestive and conducive to mistaken

identification as to taint any subsequent in-court identification and render it inadmissible as a denial

of due process. Stovall v. Denno, 388 U.S. 293, 301-02 (1967); Barley v. State, 906 S.W.2d 27, 32-

33 (Tex. Crim. App. 1995). A two-step analysis is used to determine the admissibility of an in-court

identification: (1) whether the pretrial identification procedure was impermissibly suggestive and if

so, (2) whether that suggestive process gave rise to a very substantial likelihood of irreparable

misidentification. Barley, 906 S.W.2d at 33 (citing Simmons v. United States, 390 U.S. 377, 384

(1968)). In carrying out this analysis, the totality of the circumstances of the particular case must be

considered. Loving v. State, 947 S.W.2d 615, 617 (Tex. App.—Austin 1997, no pet.).

                Yanez does not indicate in his brief whether he considers the photo array or the lineup

or both to have been impermissibly suggestive, or why. The complainant testified that when shown

the photo array, she was told “to pick him out of the photos.” But she also testified that she did not

remember being told that the person suspected of being her assailant was in the photo array, and in

any event, she did not identify Yanez’s photograph. The complainant said that the officers made no



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statements or comments to her regarding the persons in the lineup. We find no basis in the record

for concluding that either the photo array or the lineup was conducted in an impermissibly suggestive

manner. Point of error two is overruled.

                Yanez also complains of in-court identifications by Charles Stephens, B. J. Mitchell,

and Michael Farris. He contends that these identifications were tainted by the witnesses having

previously identified Yanez as he sat in a police car outside the trailer after his arrest. On-the-scene

confrontations of this sort are routinely criticized for their suggestiveness, but they are not

impermissibly suggestive as a matter of law. Stovall, 388 U.S. at 302; Garza v. State, 633 S.W.2d

508, 512 (Tex. Crim. App. 1982) (op. on reh’g).

                Although Yanez moved to suppress these in-court identifications on the ground that

they were tainted by the on-the-scene confrontation, this issue was neither addressed nor ruled on at

the pretrial hearing on the motion. At trial, Yanez did not object to Mitchell’s in-court identification

of him as being the man he saw assaulting the complainant or to Farris’s in-court identification of him

as being the man he gave a ride to on the night of the assault. He did object to Stephens’s in-court

identification of him as the man he saw sitting in a police car outside the trailer, but not on the ground

that the identification procedure was unduly suggestive.2 The contention that these witnesses’ in-

court identifications were tainted by suggestive out-of-court identification procedures was not

preserved for review. Tex. R. App. P. 33.1. Points of error three, four, and five are overruled.

Expert testimony




   2
     As previously noted, Stephens did not identify Yanez at trial as the man he saw at the scene of
the assault.

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               Yanez contends the district court erred by admitting Kathleen Smith’s opinion

testimony. Smith, a registered nurse employed in the emergency room of an Austin hospital,

conducted the sexual assault examination of the complainant on the night of the incident. Smith

testified to her observations during the examination and opined that they were consistent with the

complainant’s description of the assault. Specifically, Smith testified that a redness around the

complainant’s throat was consistent with her report of being strangled; that the many scratches and

abrasions on the complainant’s body were consistent with her report of having her clothes torn off

and being tangled in a barbed wire fence; that it is common for sexual assault victims to experience

tearing in the area of sexual penetration; and that a tear of the complainant’s rectum was consistent

with her report of anal penetration.

               If scientific, technical, or other specialized knowledge will assist the trier of fact to

understand the evidence or to determine a fact in issue, a qualified expert may testify thereto in the

form of an opinion. Tex. R. Evid. 702. To be admissible under rule 702, expert testimony must be

both relevant and reliable. Kelly v. State, 824 S.W.2d 568, 572 (Tex. Crim. App. 1992). Yanez

asserts that Smith’s testimony was neither relevant nor reliable.

               Evidence is relevant if it has any tendency to make the existence of a fact of

consequence to the cause of action more or less probable than it would be without the evidence. Tex.

R. Evid. 401. As applied to expert testimony under rule 702, relevance requires that the expert

witness tie or relate the pertinent facts of the case to the subject of her testimony. Morales v. State,

32 S.W.3d 862, 865 (Tex. Crim. App. 2000); Jordan v. State, 928 S.W.2d 550, 555 (Tex. Crim. App.

1996). In this cause, the subject of Smith’s testimony was the physical effects of assault, both sexual



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and otherwise. She described her observations of the complainant on the night of the incident and

explained how the complainant’s physical condition was consistent with the reported assault. Smith’s

testimony “fit” the facts of the case. Morales, 32 S.W.3d at 865. The district court did not abuse

its discretion by overruling Yanez’s relevance objection.

                Yanez argued at trial that Smith’s opinion testimony was not supported by a scientific

theory. See Kelly, 824 S.W.2d at 573 (criteria for determining reliability of scientific evidence). This

argument misapprehended the nature of Smith’s testimony. While nursing is a scientific profession

in some respects, Smith’s testimony in this cause was not based on scientific principles or theory, but

on technical or specialized knowledge. To determine the reliability of such expert testimony, the

appropriate questions are (1) whether the field of expertise is a legitimate one; (2) whether the subject

matter of the expert’s testimony is within the scope of that field; and (3) whether the expert’s

testimony properly relies on or utilizes the principles involved in the field. Nenno v. State, 970

S.W.2d 549, 561 (Tex. Crim. App. 1998).

                Smith testified that she is a certified emergency care nurse. She had also completed

her training for certification as a sexual assault nurse. Smith had conducted over four hundred sexual

assault exams during the five years preceding Yanez’s trial. While this testimony was primarily

offered to show Smith’s expertise, it also supports the conclusion that emergency and sexual assault

nursing are legitimate fields of expertise. There is no question that Smith’s testimony was within the

scope of those fields. Smith stated that her testimony was “going to be based on my experience of

five years of doing sexual assault exams and being an emergency room nurse with other injuries. I

have built my practice on experience.” In other words, Smith’s testimony properly utilized the



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principles involved in the fields of emergency and sexual assault nursing. The district court did not

abuse its discretion by overruling Yanez’s reliability objection. Point of error ten is overruled.


Lesser included offense

               Yanez requested jury charges on the lesser offenses of sexual assault and attempted

sexual assault. Both were refused. By point of error one, Yanez contends the district court erred by

denying the requested instruction on the “attempt offense.”

               Sexual assault and attempted sexual assault are both lesser included offenses of

aggravated sexual assault. See Tex. Code Crim. Proc. Ann. art. 37.09(1), (4) (West 1981). Yanez

argues that testimony raised an issue as to whether the complainant was sexually penetrated, and thus

as to whether he was guilty only of attempted sexual assault.

                Yanez refers us to the testimony of an emergency medical technician who said that

“the general impression that I got when I started talking to [the complainant] was that someone had

tried to rape her.” The technician later testified that the complainant told her the assailant “put his

finger in her.” Yanez also notes that the first police officer to speak to the complainant following the

assault indicated in his report that when he asked her if she had been sexually assaulted, the

complainant answered that she did not think so. At trial, the officer testified that the complainant had

not been told at that time that penetration of her anus by Yanez’s finger would constitute sexual

assault. In her own testimony, the complainant explained that she thought the officer “was meaning

like intercourse. That’s what I thought he was referring to.”

               Viewing this testimony in its entirety, and considering the record as a whole, we hold

that the jury could not rationally find that Yanez was guilty only of attempted sexual assault. See

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Rousseau v. State, 855 S.W.2d 666, 673 (Tex. Crim. App. 1993). The testimony does not raise a

legitimate issue as to whether or not the complainant was sexually penetrated. Further, there is no

evidence that Yanez did not threaten or place the complainant in fear of imminent serious bodily

injury as alleged in the indictment. Tex. Pen. Code Ann. § 22.021(a)(2)(A)(ii), (iii) (West Supp.

2002). Yanez did not request a charge on attempted aggravated sexual assault, and does not contend

that he was entitled to one. Point of error one is overruled.


Third party consent

               Yanez also complains that the district court erred by refusing to give an article 38.23

instruction with respect to Antonio Lopez’s authority to consent to the search of the trailer. Tex.

Code Crim. Proc. Ann. art. 38.23(a) (West Supp. 2002). This statute provides that in any case in

which the issue is raised, the jury should be instructed to disregard evidence that it believes, or has

a reasonable doubt, was obtained in violation of the constitution or laws of Texas or the United

States. An article 38.23 instruction is required when there are factual disputes as to how the evidence

was obtained. Bell v. State, 938 S.W.2d 35, 48 (Tex. Crim. App. 1996).

               In this cause, there was conflicting testimony regarding whether Lopez was living in

the trailer or merely visiting, whether Lopez or his daughter was the lessee, and whether Lopez or

his daughter paid the rent. These facts were relevant to the question of whether Lopez was

authorized to consent to the search of the trailer. We conclude that the court did err by refusing the

requested article 38.23 instruction.

               We hold, however, that the error was harmless. As previously noted, Yanez sought

to suppress as the fruit of the search only the testimony regarding his identification by Charles

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Stephens, B. J. Mitchell, and Michael Farris at the scene of his arrest. Thus, even if the jury had

resolved the factual disputes relevant to the legality of the trailer search in Yanez’s favor and had

disregarded the identification testimony to which Yanez objected, it still would have had before it the

in-court identifications by Mitchell and Farris, as well as the in-court identifications by the

complainant and by Seth Jewell (to which Yanez did not object on any ground). Under the

circumstances, the denial of the article 38.22 instruction was not calculated to injure Yanez’s rights.

Tex. Code Crim. Proc. Ann. art. 36.19 (West 1981); Almanza v. State, 686 S.W.2d 157, 171 (Tex.

Crim. App. 1985) (op. on reh’g); see Atkinson v. State, 923 S.W.2d 21, 27 (Tex. Crim. App. 1996).

Point of error nine is overruled.


Punishment stage argument

                At the punishment stage, the State offered evidence by a police officer and the victim

regarding a sexual assault committed by Yanez in Minnesota in 1989. Then, during his closing

argument, the prosecutor told the jurors, “Send a message to [the complainant] and send a message

to [the earlier victim]. He has sentenced them to a lifetime of nightmares, reoccurring terror.” Yanez

objected that “it is improper to have this jury consider facts as to prior offenses in assessing their

punishment.” This objection was overruled. The prosecutor added, over Yanez’s continuing

objection, “[I]f you even have an inclination to feel sorry for that criminal sitting over there, think of

[the complainant]. Feel sorry for her. Think of [the earlier victim]. Feel sorry for her. Don’t feel

sorry for him.” Yanez urges that the prosecutor was erroneously allowed to encourage the jury to

assess additional punishment based on the earlier offense.




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                In the opinions on which Yanez relies, convictions were reversed because the

prosecutor explicitly asked the jury to assess additional punishment for a collateral offense for which

the defendant was not on trial. Lomas v. State, 707 S.W.2d 566, 568-70 (Tex. Crim. App. 1986)

(jury urged to “tack on” additional years for collateral misconduct); Brown v. State, 530 S.W.2d 118,

119 (Tex. Crim. App. 1975) (jury asked to assess ten years each for charged offense and two

collateral offenses). The prosecutor’s argument in this cause was not comparable. He did not ask

the jury to assess extra punishment for the earlier offense, but merely called the jury’s attention to the

fact that Yanez was a repeat sexual offender. A defendant’s criminal record is a matter relevant to

punishment and may be considered by the jury in assessing punishment for the offense on trial. Tex.

Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (West Supp. 2002); Fields v. State, 1 S.W.3d 687, 688

(Tex. Crim. App. 1999). Point of error six is overruled.

                The judgment of conviction is affirmed.




                                                Bea Ann Smith, Justice

Before Chief Justice Aboussie, Justices B. A. Smith and Puryear

Affirmed

Filed: January 25, 2002

Do Not Publish




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