                                     COURT OF APPEALS
                                  EIGHTH DISTRICT OF TEXAS
                                       EL PASO, TEXAS

                                                   '
    LEONARDO MENDOZA,                                               No. 08-11-00053-CR
                                                   '
                         Appellant,                                     Appeal from
                                                   '
    v.                                                               109th District Court
                                                   '
    THE STATE OF TEXAS,                                          of Andrews County, Texas
                                                   '
                         Appellee.                 '                     (TC # 5748)


                                            OPINION


         Leonardo Mendoza appeals his conviction of aggravated sexual assault, enhanced by a

prior felony conviction. After finding Appellant guilty of the charged offense, the jury found the

enhancement paragraph true and assessed his punishment at life imprisonment and a fine of

$10,000.1 We affirm.

                                      FACTUAL SUMMARY

         In December of 2007, Amanda Gonzalez was eighteen years of age and in her senior year

of high school in Andrews, Texas. Amanda had little free time as she was vice president of the

student council, president of the band, and she also served as the head athletic trainer for the high

school’s sports programs, including football, baseball, and basketball.             Amanda spent the

evening of December 11, 2007 at her house studying with her friends Atarah Payton and Taylor

Williams. At around midnight, Atarah’s mother called to remind her she was supposed to be

home at midnight, so Atarah and Taylor left. Amanda forgot to lock the door after her friends


1
  The same jury found Appellant guilty of aggravated sexual assault in cause number 5747. We affirmed
Appellant’s conviction in Leonardo Mendoza v. State, No. 08-11-00052-CR (Tex.App.--El Paso Feb. 8, 2012).
left. She took a shower and went to bed. Something caused Amanda to wake up during the

night and when she looked toward her bedroom door, she saw a man she did not recognize

standing in her room. The man, later identified as Appellant, put his hand over her mouth and

threatened to kill her family and rape her 10-year-old sister if she screamed or alerted her family

to his presence. He also told her that someone else was in the house with him. Amanda believed

Appellant and she did not fight him when he inserted his penis in her mouth. Whenever Amanda

tried to pull away, Appellant physically forced her to continue while repeating his threats to kill

her family. Appellant stopped after a while but he removed Amanda’s pajamas and sexually

assaulted her by forcible penetration both anally and vaginally. When Appellant stopped, he told

Amanda that he had not raped her, they had just made love. He made Amanda put on a T-shirt

and shorts and he began asking her for money. She gave him $100 she kept in her jewelry box

but he wanted more, so Amanda told Appellant that she thought her parents kept money in the

kitchen canisters. Appellant made her lead him to the kitchen and he looked in the canisters.

When he did not find any money, he made her walk back down the hallway and ordered her to

take a shower. Amanda initially went into the bathroom but she continued on to her parents’

adjoining bedroom and quietly told them to call the police because someone was in the house.

Amanda then went into her sister’s bedroom and escorted her to her parents’ bedroom so she

would be safe. Amanda then returned to the bathroom and turned on the water but she did not

get in the shower because she knew it would wash away evidence that could identify her

assailant. The police arrived only one to two minutes later but Appellant had already fled the

scene. Amanda gave a statement to police and she later underwent a sexual assault examination

in Midland.




                                               -2-
        Cori Armstead is the director of emergency services at Midland Memorial Hospital and

the sexual assault nurse examiner coordinator for Midland County. Armstead performed a

sexual assault examination on Amanda Gonzalez on December 12, 2007.                    Part of the

examination included taking a medical history from Amanda. Amanda told her that she had

stayed up late the previous evening doing schoolwork and that a man entered her bedroom and

put his hand over her mouth. The man told her not to scream or he would kill her and her family.

The man touched Amanda’s chest and pulled her pants off. He forced her to the floor and tried

to “put it in” but she kept her legs tight and closed. The assailant then asked her to “give him

head” but she told him she did not know how to do that. Amanda told Armstead that the man

“put his thing in [her] mouth” and then he pushed her over and tried to put it in again but it “went

in [her] butt.” The man finished and told her to take a shower and he repeated his threats to kill

her family and rape her sister if she screamed or told anyone. Amanda ran for the bathroom and

turned on the shower. She stuck her head under the water and put on a robe so the man would

think she had taken a shower. When she walked out of the bathroom, he took off. Amanda told

Armstead that the man had penetrated her mouth, female sexual organ, and anus. During the

physical exam, Armstead examined Amanda from head to toe. She found that the back of

Amanda’s head was tender and Amanda related that the assailant had pulled her hair. Armstead

also found multiple petechial linear bruises on the lower front part of her neck caused by a

pinching or pulling of the skin. Amanda also had bruising to the middle of her back consistent

with her having been pressed against something. Amanda had two bruises on her lower right

shin.   During the genital exam, Armstead found scratches to the labia minora with active

bleeding. She also found tearing of the hymen at the 11:00, 12:00, and 9:00 positions and a

complete transsection at 3:00.     Additionally, Armstead found an obvious tear of the fossa



                                               -3-
navicularis, which is the bottom of the vaginal opening. Fresh blood was coming from the tears.

Armstead collected forensic evidence during the examination, including swabs of different areas

on Amanda’s body. The evidence collected during the sexual assault examination was later

submitted for DNA testing to the Texas Department of Public Safety Crime Laboratory.

       Sgt. Brandi Schulze of the Andrews Police Department was on patrol at approximately

4 a.m. on December 12, 2007 when she and Officer Gerardo Aranda were dispatched to the

Gonzalez home on a burglary in progress. The caller told the dispatcher that the perpetrator

might still be in the home and Schulze and Aranda used caution as they entered and cleared the

premises.   Schulze spoke with Amanda and observed that she was shaking, crying, and

extremely upset. Amanda described the suspect as being 5’5” or 5’6” tall, small build, Hispanic,

with a short haircut and facial stubble. She also told Schulze that Appellant smelled of alcohol

and cigarettes. Based on Amanda’s statements about what had occurred, Schulze gathered

physical evidence, including Amanda’s pajamas and underwear, and booked it into evidence.

Schulze identified photographs taken that evening depicting a partially-opened gift under the

Christmas tree, lids of the kitchen canisters on the kitchen counter, and Amanda’s jewelry box

with all of its drawers opened.

       Sgt. Jay Collingsworth of the Andrews Police Department used Amanda’s description of

the suspect to put together a photo lineup. He showed her the lineup and asked her to point to

the person who had been in her room. She pointed to a photo of Appellant and said she was

“55 percent sure” it was him.      At Collingsworth’s request, Amanda underwent hypnosis

approximately one month after the sexual assault to assist her in recalling more details about the

assault and the assailant. That same day, Amanda provided a description of the assailant to a

forensic artist who created a drawing of the man.



                                              -4-
       In April 2008, Brent Hester, a forensic scientist with the DPS Crime Lab, performed the

DNA analysis on the evidence gathered during the sexual assault examination. He determined

that the DNA profiles were consistent with a mixture of the victim and an unknown male. Hester

entered the unknown DNA profile into CODIS which is the Combined DNA Index System. The

DPS Crime Lab retained the samples and DNA extracts. Hester later obtained a “hit” on CODIS

and he relayed that information to law enforcement. On July 23, 2009, the police obtained a

search warrant for Appellant’s blood. A specimen of Appellant’s blood was submitted for DNA

analysis with the evidence previously submitted to the DPS Crime Laboratory. Brent Hester

compared Appellant’s known DNA profile with the DNA extracted from anal, breast, and neck

swabs. Hester determined that Appellant could not be excluded as a contributor of the DNA

profile obtained from the sperm fraction of the anal swab. His written report reflected that the

probability of selecting an unrelated person at random who could be a contributor to this DNA

profile is approximately 1 in 509.2 billion for Caucasians, 1 in 15.22 trillion for Blacks, and 1 in

347.5 billion for Hispanics. Hester also determined that Appellant could not be excluded as a

contributor to the DNA profile obtained from the neck and breast swabs.

       Appellant testified at trial that he met Amanda at the public library approximately one

month before the night in question and she had given him her phone number. Sometime after

Thanksgiving, he was giving a friend a ride when he saw Amanda outside of her house. After he

dropped off his friend, he went back to Amanda’s house and talked to her for a few minutes.

Appellant saw her at the library a couple of days later and they talked. Appellant called her on

December 11 around 5 p.m. and invited her out to eat. She said that she had other things to do

but she invited him to her house for a little while. Appellant did not go right then but he instead

waited until 1 a.m. He did not knock on the door but instead threw some pebbles at her bedroom



                                               -5-
window. Amanda looked out of her window and then opened the door. They went to her

bedroom and after talking for a while had consensual sex. Afterwards, Amanda became upset

because he had talked her into having unprotected sex and she told Appellant to leave. Appellant

admitted that in 2001 he had been convicted of delivery of a controlled substance, forgery,

burglary of a habitation, and theft over $1,500 in Parker County, Texas. Although Appellant

pled guilty to all four charges, he claimed that he had only committed the burglary offense.

       During rebuttal, Amanda testified that she had never met or spoken to Appellant prior to

the night he sexually assaulted her and she did not invite him into her home. She could not have

spoken to him on the phone around 5 p.m. on December 11 as he claimed because it was a game

day and she was working as an athletic trainer at the time. Amanda did not have her cell phone

with her because the team rules prohibited her from using her phone while working.

       The jury rejected Appellant’s defense and found him guilty of aggravated sexual assault

as charged in the indictment.

                       DENIAL OF MOTION FOR CONTINUANCE

       In his first issue, Appellant complains that the trial court erred by refusing to grant his

motion for continuance. The granting or denial of a motion for continuance is within the sound

discretion of the trial court. Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex.Crim.App. 1995); see

TEX.CODE CRIM.PROC.ANN. art. 29.03 (West 2006)(criminal action may be continued upon

sufficient cause shown in motion); TEX.CODE CRIM.PROC.ANN. art. 29.06(6)(sufficiency of

a motion for continuance shall be addressed to “sound discretion” of court and “shall not be

granted as a matter of right”). Accordingly, we review the trial court’s ruling on a motion for

continuance for an abuse of discretion. Gallo v. State, 239 S.W.3d 757, 764 (Tex.Crim.App.

2007); Heiselbetz, 906 S.W.2d at 511. To establish an abuse of discretion, there must be a



                                               -6-
showing that the defendant was actually prejudiced by the denial of his motion. Gallo, 239

S.W.3d at 764. When the defendant’s motion for continuance is based on an absent witness, it is

necessary to show (1) that the defendant has exercised diligence to procure the witness’s

attendance, (2) that the witness is not absent by the procurement or consent of the defense, (3)

that the motion is not made for delay, and (4) the facts expected to be proved by the witness.

Harrison v. State, 187 S.W.3d 429, 434 (Tex.Crim.App. 2005); see TEX.CODE

CRIM.PROC.ANN. art. 29.06. It must appear to the trial court that the facts are material. Id.

Mere conclusions and general averments are not sufficient for the court to determine their

materiality, and the motion for continuance must show on its face the materiality of the absent

testimony. Harrison, 187 S.W.3d at 434.

        On September 17, 2010, the trial court entered an order setting the case for trial on

October 25, 2010. On September 28, 2010, Appellant filed a motion for continuance because

defense counsel was set for trial in federal court on the date set for trial. The record does not

reflect that the court ruled on that motion.            On Friday, October 22, 2010, the trial court

conducted a brief pretrial proceeding and informed the parties that trial would begin on Tuesday,

October 26, 2010. Appellant filed a second motion for continuance on October 25 alleging that a

defense witness, Mario Gross, M.D., was attending a seminar in Florida and would not return

until November 3, 2010.          The motion alleged that Dr. Gross’s testimony was material to

Appellant’s defense but it did not set forth the facts expected to be proved by the witness. 2 At

the beginning of trial, defense counsel addressed the motion for continuance and claimed that he

had called Dr. Gross’s office on October 22 after the pretrial proceeding and had learned that he

was out of town and would not be back until November 3. Defense counsel argued that he could


2
  Appellant attached to his motion for new trial a transcription of Dr. Gross’s testimony from the previous trial
which apparently ended with a hung jury.

                                                      -7-
not present a defense without the testimony of the expert witness. The State responded that the

case had been set for several months, there had been multiple pretrial settings, and a subpoena

had not been issued for the witness. The trial court denied the motion and the case proceeded to

trial. Defense counsel re-urged the motion for continuance following the testimony of the sexual

assault nurse examiner, Cori Armstead, and argued that without the expert witness, the defense

could not counter her testimony. The defense raised the motion again prior to Appellant’s

testimony.

       Contrary to the requirements of Article 29.06(2), Appellant’s motion for continuance

does not show the diligence which had been used to procure the witness’s attendance at trial.

Diligence, in this context, is the exercise of timely and persistent efforts to secure the attendance

of witnesses, using the means and agencies provided by law. Tucker v. State, 109 S.W.3d 517,

520 (Tex.App.--Tyler 1999, pet. ref’d), citing Edwards v. State, 148 Tex.Crim. 104, 106, 185

S.W.2d 111, 112 (1945). Article 29.06(2) provides that merely applying for or causing a

subpoena to issue is not sufficient diligence. TEX.CODE CRIM.PROC.ANN. art. 29.06(2).

When a party waits until a day or two before trial to cause a subpoena to be issued for a witness,

the party has failed to exercise the due diligence necessary to support a motion for continuance.

See Peoples v. State, 477 S.W.2d 889, 891 (Tex.Crim.App. 1972)(defense did not apply for

subpoena until two days before trial); Varela v. State, 561 S.W.2d 186, 190 (Tex.Crim.App.

1978)(defendant did not apply for subpoena for missing witness until the day before trial on

merits began). In this case, the record does not reflect Appellant ever applied for a subpoena.

The trial court could have reasonably concluded that simply telephoning the witness on the

Friday afternoon before testimony is scheduled to begin the following Tuesday is not sufficient

diligence. Accordingly, we find that the trial court did not abuse its discretion by denying



                                                -8-
Appellant’s motion for continuance. See Dewberry v. State, 4 S.W.3d 735, 756 (Tex.Crim.App.

1999)(diligence not shown where defense did not attempt to subpoena witness until after trial

started); Norton v. State, 564 S.W.2d 714, 717 (Tex.Crim.App. [Panel Op.] 1978)(diligence not

shown where defense did not apply for process until two days before trial). Issue One is

overruled.

                           SUFFICIENCY OF THE EVIDENCE

       In his second issue, Appellant challenges the sufficiency of the evidence supporting his

conviction. Although Appellant cites the Court of Criminal Appeals’ decision in Brooks v. State,

323 S.W.3d 893 (Tex.Crim.App. 2010) and acknowledges that the evidence is not reviewable for

factual sufficiency, he nevertheless argues that the evidence is so weak that the jury’s guilty

verdict is clearly wrong and manifestly unjust and it is against the great weight and

preponderance of the evidence. In effect, Appellant is attempting to raise a factual sufficiency

challenge.

       In Brooks, the Court of Criminal Appeals abandoned factual sufficiency review in those

cases where the burden of proof is beyond a reasonable doubt. Brooks, 323 S.W.3d at 894-95

(finding no meaningful distinction between the legal and factual sufficiency standards and no

justification for retaining both standards, therefore overruling the factual sufficiency review

adopted in Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App.1996)). The legal sufficiency

standard articulated in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560

(1979), is the only standard a reviewing court applies in determining whether the evidence is

sufficient to support a conviction. Brooks, 323 S.W.3d at 894-95. Therefore, we will review

Appellant’s factual sufficiency claim under the Jackson legal sufficiency standard and determine




                                             -9-
whether the evidence is sufficient to support the challenged element beyond a reasonable doubt.

See Brooks, 323 S.W.3d 894-95, citing Jackson, 443 U .S. at 319, 99 S.Ct. 2789.

       Under the Jackson standard, a reviewing court must consider all evidence in the light

most favorable to the verdict and in doing so determine whether a rational justification exists for

the jury’s finding of guilt beyond a reasonable doubt. Brooks, 323 S.W.3d at 894-95, citing

Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. As the trier of fact, the jury is the sole judge as to the

weight and credibility of witness testimony, and therefore, on appeal we must give deference to

the jury’s determinations. Brooks, 323 S.W.3d at 894-95. If the record contains conflicting

inferences, we must presume the jury resolved such facts in favor of the verdict and defer to that

resolution. Id. On appeal, we serve only to ensure the jury reached a rational verdict, and we

may not reevaluate the weight and credibility of the evidence produced at trial and in so doing

substitute our judgment for that of the fact finder.         King v. State, 29 S.W.3d 556, 562

(Tex.Crim.App. 2000). This standard applies equally to both direct and circumstantial evidence.

King v. State, 895 S.W.2d 701, 703 (Tex.Crim.App. 1995).

       The only element of aggravated sexual assault challenged by Appellant is whether his

sexual contact with the victim was consensual. An aggravated sexual assault is without the

consent of the other person if the actor compels the other person to submit or participate by

threatening to use force or violence against any person and the other person believes that the

actor has the ability to execute the threat. See TEX.PENAL CODE ANN. §§ 22.011(b)(7),

22.021(c)(West 2011). Appellant argues that the evidence is insufficient because the jury heard

two competing theories and conflicting testimony. This conflict in the evidence does not render

the evidence legally insufficient as it was the jury’s task to weigh all of the evidence and resolve

the credibility of the witnesses, including that of Appellant and the victim. While Appellant



                                                - 10 -
claimed that he engaged in consensual sex with the victim, she testified that it was without her

consent because Appellant threatened to kill her family and sexually assault her ten-year-old

sister if she screamed for help. The evidence showed that Appellant repeated these threats

whenever Amanda tried to pull away or resist. When the evidence is viewed in the light most

favorable to the verdict, it supports a finding that the aggravated sexual assault was committed

without the victim’s consent as alleged in the indictment. We overrule Issue Two and affirm the

judgment of the trial court.



February 8, 2012                     ________________________________________________
                                     ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Antcliff, JJ.

(Do Not Publish)




                                              - 11 -
