                                              /6t7ff
                   NO.    03-13-00601 -CR




       IN    THE   COURT    OF       CRIMINAL      APPEALS
                                                                         ORIGINAL
                         AUSTIN,       TEXAS



                                                                          FILED IN
           Jose Godinez Matute,                Appellant
                                                                  COURT OF CRIMINAL APPEALS
                                 v .
                                                                          MAR 03 2015
            The State of Texas,                Appellee
                                                                        Abel Acosta, Clerk

FROM THE   DISTRICT       COURT      OF     TRAVIS    COUNTY.   TEXAS

             147TH       JUDICIAL           DISTRICT


                   NO.    D-1-DC-12-202260


              HONORABLE         CLIFFORD          BROUN


                     JUDGE       PRESIDING


                                                                   RECEIVED IN
                          APPELLANTS                         COURT OF CRIMINAL APPEALS

                          PETITION          FOR
                                                                      MAR 02 2015

                   DISCRETIONARY             REVIEW
                                                                 Abe! Acosta, Clerk

                   Jose    Godinez          Matute


                         TDCJ   #01879418


                          Wallace         Unit


                     1675       S.     FM   3525


            Colorado City,              Texas,     79512




 DISCRETIONARY       REVIEW       CONDITIONALLY           REQUESTED
 IDENTITY OF PARIjES •' AIRDvOOUtyS&L


 Texas    Court       of   Criminal         Appeals
                P.O .    Box    12308
          Austin.        Texas.      78711


         Texas      Court      of   Appeals
                Third      District
                Austin,        Texas

The    District      Court      ofTravis       County
        147th       Judicial        District
        Honorable        Clifford       Broun
               Judge       Presiding

      Appellant's Appeals Counsel
            Kristen Jernigan
             Attorney at Lay
              207   S.    Austin     Ave.
        Georgetown,         Texas,      7B626

              District       Attorney
              Rosemary       Lehmberg
        Criminal         Justice      Center
               509    W.    11th     St.
          Austin,         Texas,     78701

  In    The    403rd      Judicial         Court   of
          Travis         County.     Texas
                                    Table   of   Contents
                                                            page
Identity' of        Parties   and   Counsel                        2


Table    of   Contents                                             3


Index    of   Authorities                                          4


Request for Discretionary Review                                   5.


                                                                   5
Statement      of    the   Case


Issues     Presented                                               6


Statement      of    Facts                                         6,7

Summary of the Argument                                            7^9


                                                                   9-11
Argument with        Supporting Authorities
                                                                   11
Frayer   for   Relief

                                                                   11
Appendix
                                                    Index   of   Authorities
   p a_g &
      '5     Texas    Rules          of   Appellate    Procedure,    Rule   2
  '   -'5    Tex.       Code §22.021 (a) (1 )(B) , (a:)(2)(B)
                     Penal
  6,8        Tex.    R.    Evi d. 103,401,403,
                                          404<b),405, B06, 1002
       6    Tex. R. Cou rt Relevancy Rule 404(a), (1),      (b)
      7 - Tex. Code C rim.   Proc. Ann. Art. 36.14, 36.19(Vernon's 2004)
7 ,8 ,1'1- Rodgers v . State, 1B0 S.U. 3d 716(Tax. App-Waco 2005, no pet
  " " B ••' VTCA Penal Code §§37.02, 37.03, 37.04(a)
       0i Tex. Rules Court Hearsay Rules 801 ,803 ,B05,806
      9 c Haley       v.       Dr etke,376        F. 3d 316
      9      U.S.    v.    Jon es,        900    S.W. 2d 392
      9<^Tex.        Prac.       Goode, Wellborn, Shalot llule 201(g),(f), 80
 9 ,1 CD iTex . Cade C rim. Proc. Ann. Art.36.19 (Vernon 2004), 36                            14-36.1 8
  ' 16 *'• Huizar v. State, 12 S.W. 3d 479(Tex. Crim. App. 2000)
    10\^Alamanzar v State, 686 S.W.2d 157,171 (Tex. Crim. App                                  1 985)
   10        Guevara       v     State,         152 S W.
                                                     3d 45, 52-54(Tex.          Grim.   App    2004)
   10        Middleton          f.    State , 125 S.W.3d 450, 453(Tex.          Crim.   App    2003)
                     Request for Discretionary                Review



   TO    THE   HONORABLE   JUSTICE   OF   SAID    COURT:

   I, Jose Godinez Matute, Appellant, by and through himself, pro

se in the entitled and styled cause respectfully requests this

Honorable Court reconsider's the            true facts outlined in this

Petition For Discretionary Review. In doing so, the Court of

Appeals overturns the verdict. Due to the overwhelming lack of

relevant evidence pertaining to the               issues,-that the verdict

is clearly wrong and unjust.          To Rule 2 of the           Texas Rules of

Appellate Procedure, for allowing filing of fewer copies of the

Petition For Discretionary Review to be filed with the Court

of Criminal Appeals. Also to inform the Courts to forward copies

to the Prosecutor on appeal and the State Prosecuting Attorney,

due to   the fact that the Appellant does not have                     access to   a

photo copier.




                            Statement     of     the   Case


   The   Appellant ,•; Jose Godinez Matute was             indicted with aggravated

sexual assualt of a child.          See Tex. Penal Code §22 .021 (a)(1 )(B),(a)

(2)(B). The trial took place on 23 August 2013, 403rd Judicial
District Court.     The State elected to waive Counts II, III,                     IV,

and V of the Indictment. The Court found the Appellant guilty

of One Count of Aggravated Sexual Assault of a Child by penetrating

the child's sexual organ.       The jury was           elected for punishment--

with the option of a minimum of 5 years probation. The jury imposed

the sentence of 30 years in the           Texas Department of Criminal

Justice on August 23,       2013.    The Appeals Attorney,             Kristen Jernigan,

filed for Notice of Appeals. As of November 26,                    2014,    the Court
of Appeals judgement was affirmed.




                                          £T
                                                  Issues 'Presented

"Issue One:             The trial court committed egregious                               error by          failing

 to sua sponte included a instruction on the                                        burden of proof as

 to    extraneous             offenses       in       the    guilt-innocence             phase    of       the    trial.

"Issue       Two:       The    trial    court          committed egregiuos                error       by    failing

 to    sua       sponte include             an    instruction          on    the    burden       of    proof          as

 to    extraneous             offenses       in the          punishment phase             of the       trial.

• Issue      Three:       The    State       did       not    prove''beyond         a reason          of    doubt

 clear       and convincing,                "Legal Sufficiency of the                      Evidence",             to

 show that the Appellant                         "intentionally or                knowingly"          commit

 aggravated sexual assault of a child,                                     Tex. Penal Code §22.021 (a)(1 )

 (B)(i),(a)(2)(B).

•Issue       Four:       The    court       erred       in    not    allowing       the    Appellant             to

 present          the    video       tape    of the          interrogation          between Detective

 Bonilla          and the       Appellant.             Which    if viewed by             the jurors could

 have     affected            a different outcome                   of the       case,    Tex.    R.       Evid.

 103, 401, 403, 404(b), 405, 806, 1002; Tex- R. Court Relevancy

 Rule 404(a), CD,(b!)i

                                        Statement             of    the    Facts
                                                                                                                           £
       Ms.       Joanna       Ramirez       is    the mother          to    B.A.,    the    alleged victim.

 On 04/21/2012,                Ms.    Ramirez endangered her 11 year old child by

 not providing the proper parental supervision,                                           to allow her child to

 enter       a    black       vehicle       with       an    unknown       male    driver.       Which       calls

 into question on Ms.                   Ramirez's             parental skills to                provide a safe

 environment for her                   child.          The    victim       was    reported       approximately

 6:4B pm.          Approximately             an hour          later,       the victim was walking

 back to the             apartment,          2205 Muroc St.                #104,    Austin,       Texas.          The

 victim          took    the    officer          to    the    scene    where       the    sexual       assualt


 had    taken place.             The officer took into evidence                            an    open empty

 condom wrapper that was                         found at the scene of the                      apparent crime.
      During       the investigation,             Ms.    Ramirez    gave   an    unknown phone

number,,(405-537-3339), that appeared on her call history for

her    cell       phone.       The   victim was        taken to    a Sexual      Assault      Forensic

nurse       for    a    SAFE    examination.       The    victim    stated      that   she    had


sex with another Suspect,                      (Javier).

      The    unknown number was                registered to       the   Appellant,         the   victim

talk to a suspect Antonio through Facebook and thrtt&qh the                                       Appellant's

cell phone.             At the Center for Child Protection,                     on 4/24/2012,

the    victim          stated    that    she    also    knows   another    person      as    "Carlos

Pinto",       (known as Concepcian Martinez Pinto). The victim confirmed

that    she       had    sex    with    Antonio.

 Detactive Kelly and Detective Watts went to the victims school,/

(Burnet Middle School), where one of the victims school friend

stated on 4/25/2012,                   the   victim told her that she had two boyfriends,

Antonio       and       Pinto.

      The Grand Jury originally presented this indictment,                                   in the

County of Travis,                and    State of Texas,         Five Counts of Sexual..Assault

of a child younger than 17 years of age.                            Four of the Five indictment

counts       were       dropped.

                                       Summary of the       Arguments

      The    trial court did             egregiously       err by    not instructing the

jury on the burden of proof as to extraneous offenses: Tex.                                         Code

Crim.       Proc.       Ann.    Art.    36.14 and 36.19,          (Vernon's      2004),      governs

the    Court's duty to give instruction to the jury which also includes

the correct laws applicable to the                         case,    and a standard review

if    this    is       breached.


      The Court in Rodgers v. State, 180 S.W. 3d 716 (Tex. App-Waco,

2005 no pet.),             decided that a trial judge must instruct the jury

as to the burden of proof at the guilt-innocence phase of a trial

regardless of whether the instruction was requested by the defendant.




                                                            7
In this case,             adopting the            position set forth above,                      the      trial

courA erred in                failing to         give the sua sponte instruction on

Mirden     of    proof         as   to   give     the    sua    sponte       instruction             on   burden

of   proof      as   to       extraneous         matters.       The       State    submitted          extraneous

evidence        that      affected         the    course       on    the    outcome       of    official


proceeding,          VTCA.          Penal Code §§37.02,                  §§37.03,       §§37.04(a),          which

resulted in erraneous ruling,                           Tex.    Rules of Court,                Rules of Evidence

103.    The     Appellant did suffer egregious harm due                                   to    the       extraneous

evidence against him,                    requiring an aquittal or a new tQal as

to   guilt-innocence                 phase.

     The   State       had      admitted         that    the    trial       court       did    erred       during
                          I

the punishment by not instructing the jury,                                       sua sponte on             the

burden     of    proof for            extraneous         offenses.          The    State       had    noted

that the        Appellant was              facing up       to       99    years,       with the minimum

of 5 years probation,                    which was        eliminated when the                   wittness's

testified on           hear-say from the victim with no                                creditable          evidence

from    tine    State.         It is      the    court's       responsibility             to    give       instructions

to the jury, under IHex.                    Rules Court,             Hearsay Rules 801,803,                     B05,

and B06.        PiUeo ilh"cJ.udiilng the correct laws applicable to                                   the case

and the standard of review if the duty is breached.                                             At punishment,

the court had a duty to                     instruct the jury that the State had

the burden of proof without reason                              of doubt          on    the    extraneous

accusations from the                     State and the victim,                whether or             not the

instructions were                   requested.      The    trial court breached these standards

which      affected           the    introduction         of    extraneous             matters       in   the

punishment. The punishment egreiously harmed the Appellant,                                                     requiring

a sentence reduction or a reversal for a new punishment hearing.

Unless extraneous issues restults in an aquittal or a new trial.

The victim impeached her own testimony with conflicting statements,

about ha,yj.ng.multiole                   sexual    history          with    multiple          perpetrator's
which calls into question on the Appellants Actual 'innocence

addressed in Haley v.                      Dretke,       376 F.       3d    316.       If?her statements

were t-true        than    the       other       perpetrator's             would       have    also      been    indicted

The    evidence          the    State          submitted did          not    show any relevancy" to

the offense charged.                      In    U.S.    V. Jdries, 900 S.W.                  2d 392,(the Court

of Appeals Sixth Circuit).                         The       trial judge entered a judgement

of    an    acquittal,          on    the       grounds       that    there       had       been   no    pro^f

by evidence.             Tex.    Prac.          Goode,       Wellborn,       and Shalot,             Rule 201(g),

(f),80.

                          Arguments with                Supporting          Authorities

      Because       it is       Appellant's             view that a trial                   court's      duty    to

properly instruct the                      jury on the             law is the          same at the         guilt/

innocence phase of the trial and the punishment phase of the

trial.       It is       also    the       Appellant's             view that       the       State lacked

the    proper evidence                to       prove    to    the jury,          without a reason               of

doubt,       that the          Appellant did not execute                         the    offense,         but that

there       was    evidence          to    prove       that    the multiple             perpetrator's            had

committed          the    offense.


      Since       Appellant's             complaint with             the    trial court's               charge

is     Art.       36.14 error,             the standard of review                      is    set out in Tex.

Code       Crim.    Proc.       Ann.       Art.    36.19(Vernon             2004).

      Art.    36.19       states:          "Whenever          it    appears       by    the    record      in    any

criminal          action       upon       appeal       that    any    requirement of Articles

36.14,       36.15,       36.16,          36.17,       and 36.18 has been disregarded;                           the

judgement shall                not    be       reversed       unless       the    error       appearing         from

the    record was          calculated to                injure the          rights          of the      defendant,

or unless it appears from the                            record that the                defendant has not

had    a fair       or    impartial trial.

      Failing to charge on the burden of proof of the State as to

extraneous character evidence is                               subject to          the       same type      of
harm analysis             as    any       other       charge      error    under Art.          36.19;          Huizar

v. State, 12 S.W.                   3d 479 (Tex.            Crim.    App.       2000),       because instructions

on the burden of                proof as to extraneous offense/bad act character

evidence         are     part of the law of                  the    case    under       the    common law,

the    trial       court       is    required          to   give    such    an    instruction             sua       sponte.

In Rodgers v. State 180 S.W.33d 716,                                 722-725 (Tex.             App.-Waco

20D5,       no   pet.),        this court concluded that even without a request

for a specific instruction or an objection the                                          burden of proof

instruction as to extraneous matters is part of the law of                                                      the

case    and       is    necessarly          to    be    included in         the instruction to                      the

jury if such evidence is                         admitted.          This court went on                   to    say

that an          Appellant need not have                     objected at          trial to          raise       the

error on         appeal.        Applying          Huizar         reasoning,       this       Court       opinioned

that the         import of objecting to                      the    absence       of the burden                of

proof instruction extends                         only      to    deciding the          application             standard

for harm analysis.

      The    Texas       Court       of    Criminal         Appeals       Has    thus    far       not    ruled

on    whether          a trial       court       is    required      to    give       such    an    instruction

sua sponte in the guilt/innocence phase of                                       the trial.

      Recently,          the    Texas       Court of Criminal; Appeals                       reiterated             that

Alamanzar v. State,                   6B6       S.W.    2d 157, 171         (Tex.       Crim.       App 19B5),

is    the    standard          under which             charge      error is       analized,          and that

preservation             of error          is    not an      issue    preventing             review,          but

is    only an          issue as       to    the level of            harm analysis to                apply Guevara

v. State, 152 S.W.3d 45,                         52-54 (Tex.         Crim.       App    2004);       Middleton

v. State, 125 S.W.3d 450,                         453 (Tex.         Crim.       App    2003).

      In a case originating from the same trial court,                                             this court

has also recently ruled that the                                 type of error is presented in

the instant case are subject to the Huizar reasoning;                                                Rodgers

v. State 180 S.W. 3d 716 (Tex.                              App-Waco 2005,=no pet.)




                                                            \0
      There    is    a split in      the      intermediate          Appellate        Courts       of Texas

as    to    whether    or   not    Huizar analysis          applies          to    the    guilt/innocence

phase of the trial.               Some court's have declined to require a sua

sponte instruction.               This Court has ruled specifically on                            this

issue in Rodgers v. State, 1B0 § .W .:l 3d 723-724,                                holding that

the trial was not fair and that the case should be acquitted

with records expunded,               or granted a new trial entirely.

                                         Prayer    For   Relief

      The Appellant prays that the Court of                           Appeals acknowledges

the    Mailbox       Rule   and    the    9.2    Rule,   due     to    the insufficient mail

system at       the    Wallace      Unit,       Colorado    City,       Texas.       The    Appellant

also prays          that the      Court of Appeals          grants       this Petition For

Discretionary Review and that they can set aside the jury's verdict,

for it was          so contrary to the overwhelming weight of the                                 evidenpe

that the verdict is clearly wrong                        and unjust.

                                                Appendix

      The   Court of Appeals affirmed the judgement,                               their opiffl^tfl

was    delivered       and filed         on   November     26,      2014.     The    Appellant       has

highlighted how the victim's awn conflicting statements impeached

her own testimony.




                                                               Respectfully submitted
                                                               on     February       23,    2015
                                                               Jose     Godinez          Matute
                                                               TDCJ     #01879418
                                                               Wallace        Unit
                                                               1675     S.    Fm    3525
                                                               Colorado           City,    Texas,    79512




                                                  //
     TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-13-00601-CR




                                Jose Godinez Matute, Appellant




                                  The State of Texas, Appellee



    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
       NO. D-l-DC-12-202260, HONORABLE CLIFFORD BROWN, JUDGE PRESIDING



                            MEMORANDUM                  OPINION


               Jose Godinez Matute was charged with aggravated sexual assault of a child by

penetrating the child's sexual organ. See Tex. Penal Code § 22.021(a)(1)(B), (a)(2)(B). Atthe time

of the alleged offense, Matute was in his twenties, andthe victim, B.A., was eleven years old. After

a trial, the juryfound Matute guilty and assessed hispunishment at 30years' imprisonment. See id.

§§ 22.021(e) (providing that offense is first-degree felony), 12.32 (setting outpunishment range for

first-degree felony). Intwo issues onappeal, Matute challenges thelegal sufficiency oftheevidence

supporting his conviction and asserts that the district court erred by allowing a witness to testify

"regarding an interrogation without requiring the State to present the best evidence of that

interrogation." We will affirm the district court's judgment of conviction.


Legal Sufficiency of the Evidence

               In his first issue on appeal, Matute challenges the legal sufficiency of the evidence

supporting his conviction. As set out above, Matute was charged with aggravated sexual assault of
a child. Under the Penal Code, an individual commits that offense if he "intentionally or knowingly

... causes the penetration of the anus or sexual organ of a child by any means" and "if the victim is

younger than 14 years of age." Tex. Penal Code § 22.021(a)(l)(B)(i), (a)(2)(B).

               Under a legal-sufficiency review, appellate courts view the evidence in the light

most favorable to the verdict and determine whether "any rational trier of fact could have found the

essential elements ofthe crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319

(1979). When performing this review, an appellatecourt must bear in mind that it is the factfinder's

dutyto weigh the evidence, to resolve conflicts in the testimony, and to makereasonable inferences

"from basic facts to ultimate facts." Id. Moreover, appellate courts must "determine whether the

necessary inferences are reasonable based upon the combined and cumulative force of all the

evidence when viewed in the light most favorable to the verdict." Hooper v. State, 214 S.W.3d 9,

16-17 (Tex. Crim. App. 2007). Furthermore, appellate courts presume that conflicting inferences

were resolved in favor of the conviction and defer to that resolution. Clayton v. State, 235 S.W.3d

772, 778 (Tex. Crim. App. 2007).

               During thetrial, B.A., B.A.'s mother, various law-enforcement personnel, andMatute

all testified regarding the alleged offense. Inher testimony, thevictim's mother, J.R., testified that

at the time of the alleged offense, her daughter was eleven years old, was in special-education

classes, and had been diagnosed with various learning disabilities. Regarding the offense, she

explained that she called the police after someone from her neighborhood told her that B.A. had

gotten into "ablack car" with aman. In addition, J.R. related that when she scanned the call history

for her cell phone, she noticed that B.A. had used the phone to call someone, and she stated that she
repeatedly called the number to find out if the person knew where B.A. was and gave the number

to the police. Moreover, she testified that during one ofthe calls, a man answered but that he denied

knowing B.A. Further, J.R. explained that eventually B.A. returned home looking scared and that

the police immediately questioned her about where she had been.

               After J.R. finished her testimony, B.A. was called to the stand. In her testimony, B.A.

often answered questions by stating that she did not know or had forgotten the answer, but she

recalled that she called Matute on the phone,1 asked him to pick her up, and got into his black car.

Further, she explained that there was a child's car seat in the back of the car. In addition, she

testified that after she got in the car, Matute drove to various hotels but that he was unable to check

into one because he did not have any identification. Moreover, she mentioned that Matute was

trying to get a hotel room in order to have sex with her and generally described in terms consistent

with her age that sex involves "private parts" touching and touching on the "inside" of her "private

part." Next, she statedthat she had sex with Matuteoutsideof the car behind some apartments, and

she described the positionsof theirbodies,statedthat it felt "weird" whenhis "privatepart" touched

hers, and recalled that he used a condom during the incident. After describing the alleged offense,

B.A. stated that Matute dropped her off at a corner, that she walked the rest of the way home, that

there werepolice officers presentwhen she returned home, and that she directedone of the officers

to where she had had sex with Matute. Later, B.A. testified that she told the officer that Matute was




        1In her testimony, B.A. referred to the person that assaulted her as Antonio. However, she
also pointed outMatute andidentified him as theperson thatshe knew as Antonio. Forthatreason,
we will refer to Matute when summarizing her testimony.
not the first person that she had sex with and that she had previously had sex with Matute's cousin

Javier four days before the incident at issue.2

               Next, one of the responding officers, Officer Jennifer Szimanski, testified that

J.R. informed her that a man had been calling on the phone for B.A. for over a week. In addition,

Officer Szimanski explained that she questioned B.A. about the incident, and Officer Szimanski

recalled that B.A. was scared and told her that "he came to do sex with me," that Matute picked her

up in a black four-door car, that Matute drove to several hotels but was unable to get a room because

he had no identification, that he took her to a parking lot behind one of the hotels to have sex,

and that Matute wore a condom. Next, Officer Szimanski testified that she asked B.A. if she could

guide her to where the incident occurred, that B.A. directed her to a parking lot, and that there was

a condom wrapper in the parking lot.

                After Officer Szimanski concluded her testimony, the sexual-assault nurse examiner

that examinedB.A.,KathleenGann,testifiedregardingthe eventsthatoccurredafterOfficer Szimanski

droveB.A.to the hospital. In her testimony, Gannrecalled what B.A. told her of the events, including

that "the suspect wanted to have sex," that they had sex, that "he touched her butt," and that he

touched her in her "private part... with his thing. It felt awkwardbecause no one ever touched [her]

like that." In addition,althoughGann explainedthat it was initiallydifficultto get B.A. to talk about

what had happened, she also revealedthat B.A. identified a penis on a male diagramand statedthat




        2 On cross-examination, B.A. admitted that she did not mention having sex with Javier
when she talked to the prosecutors, but she later explained that she did not remember that when
the prosecutors initially questioned her. Inaddition, Matute questioned B.A. regarding whether she
mentioned Javier when she was examined by the sexual-assault nurse examiner.
the suspect touched her "where she peed from and where she pooped from" with his penis and

that the suspect gave her a hickey on her neck. Regarding the exam that she performed, Gann

testified that B.A. had a hickey on her neck, that B.A. had various tears on her genitals, and that B.A.

had a tear on the perineum, which is the area between the vagina and the anus, that was "oozing

blood." Moreover, Gann explained that the injuries that she observed were consistent with B.A.'s

recollection of the events and that the tear to the perineum was recent and consistent with "blunt

trauma to her genital area earlier that afternoon." When questioned about the possibility that the

injuries could have resulted from a previous sexual encounter occurring four days earlier, Gann

related that given that the areas involved heal quickly, particularly at B.A.'s age, it was unlikely

those injuries would still be present.

                In addition to this testimony, various law-enforcement personnel were called to

testify regarding the investigation and regarding testing that was done on the evidence collected.

First, Detective Brent Kelly testified that after obtaining phone records for J.R.'s cell phone, he

learned that the phone number that J.R. called after B.A. went missing was registered to a phone

belonging toMatute. Moreover, Detective Kelly explained that the phone records showed that several

calls were made between Matute's phone and J.R.'s phone in the days leading up to the incident.

In addition, Detective Trent Watts related that Matute had that phone on him when he was

questioned by the police. Further, Detective Peter Bonilla stated that when he was questioning

him, Matute admitted that he owned a black Toyota Corolla, that he knew B.A., and that she got

into his car.

                Regarding testing performed on the evidence, Tyler Belknap stated that he tested

the condom wrapper for latent fingerprints. Before discussing the results of the testing, Belknap

                                                    5
recalled that when he obtained fingerprints from Matute, "there was some sort of injury to all of [his]

fingers" and that injuries "impair the analysis and comparison process." In light ofthis explanation,

he testified that in the first analysis that he performed, "the known fingerprints were incomplete to

the latent print" obtained from the condom wrapper, meaning that "the area needed for comparison

had some sort of injury to it which didn't allow [him] to either exclude or identify the person in

question." Similarly, during his cross-examination, Belknap testified that another individual in his

department obtained a similarly inconclusive result. However, Belknap also explained that when

he later used other known fingerprints for Matute, he "could immediately see that the quality of the

fingerprints were much better and would probably yield a better comparison." In fact, Belknap

explained that in his second round of testing, he was able to identify Matute's right thumb print on

the condom wrapper.

                In addition to testimony regarding fingerprints, various officials testified regarding

testing done on biological samples taken from B.A. and Matute after the alleged offense. First,

Sapana Prajapati testified that swabs takenof B.A.'s external genitals and analregionas wellas her

shorts and underwear had blood in them. Further, she explained that she tested a swab taken from

B.A.'s neck and determined that Matute could not "be excluded as a contributor to" that sample. In

fact, she stated that "[t]he probability of selecting an unrelated person at random that could be a

contributor to this profile is approximately ... 1 in 27.49 million for Hispanics." Next, Lindsey

Ayers testified that she tested pieces of hair collected from B.A.'s underwear. Specifically, she

stated that the hair appeared to be pubic hair and related that although the test was "a limited

comparison," it was heropinion that the hair recovered from the underwear could have come from
Matute because the hair was "microscopically similar" to pubic hair later retrieved from Matute.

Then, Emma Becker explained that she performed DNA testing on the pubic hair recovered from

B.A.'s underwear and revealed that the first test that she performed did not identify Matute as a

contributor but that more sensitive testing that she performed later and that directly looks for Y

chromosomes revealed that the recovered hair "is consistent with the ... profile of Matute and that

Matute could not be excluded as the contributor of the DNA.


               Finally, after the State rested, Matute elected to testify. In his testimony, Matute

acknowledged that he knew B.A. and that he met her on the day of the alleged assault at a

"washateria" because her boyfriend had asked him to give her a ride to a party. Moreover, he

explained that B.A. kept tryingto get close to him and admittedthat he kissed B.A. on her cheek at

her request, but he insisted that nothing else happened. Further, Matute called B.A. a liar and said

that "[s]he likes to go with different men." On cross-examination, he admitted that at the time of

the offense, he drove a black car that had car seats in the back for his young children.

               Inlightof alloftheevidence summarized above, including thetestimony of B.A. and

Matute, as well as the reasonable inferencesthat the factfinder could have made from that evidence

and given that the standard of review for legal-sufficiency challenges obligates appellate courts to

defer to the factfinder's resolution of conflicts in the testimony and to review the evidence in the

light most favorable to the verdict, see Jackson, 443 U.S. at 319; Clayton, 235 S.W.3d at 778;

Hooper, 214 S.W.3d at 16-17; we conclude that the evidence was legally sufficient to support the

district court's judgment of conviction. Accordingly, we overrule Matute's first issue on appeal.
Best Evidence


                In his second issue on appeal, Matute contends that the district "court erred in allowing

testimonyregardingan interrogationwithout requiringthe State to present the best evidence for that

interrogation." See Tex. R. Evid. 1002. Specifically,Matute refers to portions of the testimony from

Detective Bonilla in which he described his questioning of Matute and insists that the video of the

interrogation should have been admitted instead. Moreover, Matute insists that the district court's

ruling was improper because if the video of the interrogation had been admitted, "the jury could

have seen [Matute] repeatedlydenying that he committed any crime, despite Bonilla's tactics as an

investigator." Matute argues that he was harmed by the district court's ruling for the same reason.

                We review a trial court's ruling on the admission of evidence under an abuse-of-

discretion standard of review. See Davis v. State, 329 S.W.3d 798, 803 (Tex. Crim. App. 2010).

Underthat standard, a trial court's rulingwill onlybe deemedan abuseof discretion if it is so clearly

wrong as to lie outside the zone of reasonable disagreement, Lopez v. State, 86 S.W.3d 228, 230

(Tex. Crim. App. 2002), orisarbitrary orunreasonable, State v. Mechler, 153 S.W.3d 435,439 (Tex.

Crim. App. 2005). Moreover, the trial court's ruling will be upheld provided that the trial court's

decision "is reasonably supported bythe record and is correct under any theory of law applicable to

the case." Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005).

                When Matute argued during thetrialthatthebest evidence of whatDetective Bonilla

said and observed was the video of the interrogation, the district court explained that it was

unnecessary to admit the video because Detective Bonilla was "here testifying." The court ofcriminal

appeals has confronted a similar issue before. See Burdine v. State, 719 S.W.2d 309 (Tex. Crim.
App. 1986), superseded in part on other grounds by rule change as stated in Barnes v. State,

876 S.W.2d 316, 325-26 (Tex. Crim. App. 1994) (explaining that Rules of Evidence 401, 402, and

403 were modified since holding in Burdine). In Burdine, Burdine argued that "his oral statement

made to police officers should not have been admitted in evidence, because the statement was

offered in the form of the officers' testimony rather than the tape recording made at the time the

statement was given." Id. at 318. Although the court decided that the best-evidence rule in effect

at the time did not apply to electronic recordings, it also commented that even if it did, Burdine's

claim would not be sustained because the issue was "the contents of the conversation on the

recording, and not the recording itself. Since [the police officer] participated in the conversation,

his testimony describing theinterrogation wassufficient forbestevidence purposes." Id. at 318n.5.

               More recently, our sister court of appeals issued an opinion agreeing with the

reasoning in Burdine. See Cox v. State, No. 05-11-00687-CR, 2012 Tex. App. LEXIS 5380 (Tex.

App.—Dallas July 9, 2012, pet. dism'd) (notdesignated for publication). In Cox, Cox argued that

the trial court erred by allowing a witness to testify regarding events that he "observed on the

closed-circuit television monitor when... the best evidence was a video recording ofthe events that

hadbeengenerated by the closed-circuit television monitoring system." Id. at *3-4. However, the

court determined that the witness:



        testified concerning what he observed on the closed-circuit television monitor as it
        occurred.. . . That events observed by [the witness] on the closed-circuit television
        monitor couldhave been copied to a compact disc and preserved does not alter the
        fact that .[the witness] testified concerning what he observed in real time. [The
        witness]'s testimony regarding his observations of the events as they occurred as
        depicted on the closed-circuit television monitor is not testimony regarding, or
        dependent upon, a videotape recording.
Id. at*9-10.


                In addition, federal courts interpreting the federal version of the best-evidence rule

have reached similar results. See Fed. R. Evid. 1002 (requiring original recording "in order to prove

its content unless these rules or a federal statute provides otherwise"); see, e.g., United States v.

Bennett, 363 F.3d 947, 953 (9th Cir. 2004) (concluding that witness's testimony when he did not

observe alleged actions violated best-evidence rule and noting that rule applies when witness seeks to

testify about contents ofrecording, particularly where witness was not privy to events on recording);

United States v. Workinger, 90 F.3d 1409, 1415 (9th Cir. 1996) (explaining that "a tape recording

cannot be said to be the best evidence of a conversation when a party seeks to call a participant in or

observer ofthe conversation to testify to it. In that instance, the best evidence rule has no application

at all"); United States v. Fagan, 821 F.2d 1002, 1009 n.l (5th Cir. 1987) (characterizing as

"completely without merit" best-evidence argument that sheriff should not testify regarding his

recollection of interview because interview was taped and stating that rule was inapplicable

where prosecution was trying to prove contents of conversation rather than contents of recording);

United States v. Gonzales-Benitez, 537 F.2d 1051, 1053-54 (9th Cir. 1976) (noting that argument

that tape recording of conversation should have been introduced instead of allowing participant to

testify was puzzling and misconstrued purpose of best-evidence rule and explaining that although

tape recordingwould have been admissible as evidence of conversation, "testimony by participants

was equally admissible and was sufficient to establish what was said").

                In light of this authority, we cannot conclude that the district court abused its

discretion byoverruling Matute's best-evidence objection during trial orbyallowing Detective Bonilla


                                                   10
to testify without requiring the State to introduce the video of the interrogation. Accordingly, we

overrule Matute's second issue on appeal.


                                        CONCLUSION


               Having overruled Matute's two issues on appeal, we affirm the district court's

judgment of conviction.




                                             David Puryear, Justice

Before Justices Puryear, Pemberton, and Field

Affirmed


Filed: November 26, 2014

Do Not Publish




                                                11
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