
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-96-00189-CR


Jose Fonseca Najera, Appellant

v.


The State of Texas, Appellee





FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT

NO. 0960432, HONORABLE TOM BLACKWELL, JUDGE PRESIDING





A jury found appellant guilty of aggravated sexual assault and indecency with a child.  Tex.
Penal Code Ann. § 22.021 (West 1994 & Supp. 1997) (aggravated sexual assault), § 21.11 (West 1994)
(indecency with child). (1)  The district court assessed punishment for these offenses at imprisonment for life
and for ten years, respectively.  We will affirm the judgment of conviction.

In January 1995, appellant lived in Pflugerville with his wife and three children.  Also living
in appellant's home were two Mexican nationals, sixteen-year-old Maria E. and fifteen-year-old Oscar P. 
On the morning of January 4, sheriff's deputies were called to the Najera residence.  In the yard, they found
Maria's badly bruised body.  At trial, the jury was told only that Maria died on January 4, 1995.  The jury
was not told the circumstances of her death or that the police had been called to investigate this death.
Appellant was arrested on January 6 and gave a written statement to police that day.  This
statement, as edited for admission at the guilt stage, read: "I have only had sex with Maria twice, Oscar was
present both times.  I have known that I was an HIV carrier for seven or eight years.  I am giving this
statement to Detective Knight because I feel very bad and want to make this right."
Oscar P. testified that on January 1, 1995, appellant took Maria and him to the
"apartment," a small outbuilding behind appellant's house containing a mattress and blankets.  Appellant
told Maria to take off her clothes.  She initially refused to do so, but complied after appellant repeated his
command.  Appellant then removed his clothes and engaged in sexual intercourse with Maria as Oscar
watched.  Oscar testified that he saw appellant's penis penetrate Maria's vagina, that appellant was not
wearing a condom, and that the act of intercourse lasted a "long time."  After he finished, appellant asked
Oscar if he wanted to have sex with Maria.  Oscar understood this to be a command, not a question. 
Fearing appellant, Oscar also had sexual intercourse with Maria.
Blood and semen stains were found on the blanket and bedspread in the apartment.  A
microscopic examination of the semen stains disclosed the presence of sperm.  The stains were subjected
to DNA testing, and the results were compared with the results of DNA tests run on Maria's and
appellant's blood.  DNA types found in the blood stains matched those found in Maria's blood.  DNA
types found in the semen stains matched those found in both Maria's and appellant's blood.  Donna
Stanley, the serologist who conducted the DNA tests, testified that semen stains commonly contain body
fluids from the female as well as the male, and that DNA from both persons can be isolated and tested. 
Stanley testified that only one out of two hundred-fifty Hispanic persons has the particular combination of
DNA types found in Maria's blood, and that only one out of ninety-three Hispanics has the combination
of DNA types found in appellant's blood.  Appellant's blood also tested positive for HIV. 
Appellant challenges the legal and factual sufficiency of the evidence with respect to both
offenses for which he was convicted.  In determining the legal sufficiency of the evidence to support a
criminal conviction, the question is whether, after viewing all the evidence in the light most favorable to the
verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable
doubt.  Jackson v. Virginia, 443 U.S. 307 (1979); Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App.
1991); Griffin v. State, 614 S.W.2d 155 (Tex. Crim. App. 1981).  When conducting a factual sufficiency
review, we do not view the evidence in the light most favorable to the verdict.  Instead, we consider all the
evidence equally, including the testimony of defense witnesses and the existence of alternative hypotheses. 
Orona v. State, 836 S.W.2d 319, 321 (Tex. App.--Austin 1992, no pet.).  We will set aside a verdict
for factual insufficiency only if it is so contrary to the overwhelming weight of the evidence as to be clearly
wrong and unjust.  Clewis v. State 922 S.W.2d 126, 129 (Tex. Crim. App. 1996); Stone v. State, 823
S.W.2d 375, 381 (Tex. App.--Austin 1992, pet. ref'd as untimely filed).
The first count of the indictment alleged that appellant contacted and penetrated Maria E.'s
sexual organ with his penis.  Penal Code § 22.021(a)(1)(B)(i), (iii).  The aggravating element was alleged
to be the "intentional[ ] and knowing[ ] use and exhibit [of] a deadly weapon, to wit: his sexual organ and
bodily fluids, that in the manner of its [sic] use and intended use was capable of causing death and serious
bodily injury, in the course of the same criminal episode."  Section 22.021(a)(2)(A)(iv).  Appellant
contends the State failed to prove the deadly weapon allegation because there was no evidence that he
ejaculated when he engaged in sexual intercourse with Maria, that he was HIV positive on January 1, 1995,
or that he knew HIV is capable of causing death or serious bodily injury or intended that result. (2)
Dr. Robert Kaspar, an infectious disease specialist and director of an HIV/AIDS  treatment
center, testified that HIV is transmitted by the exchange of bodily fluids, most commonly during sexual
intercourse.  The virus may be transmitted by a single act of sexual intercourse.  Kaspar further testified that
HIV causes AIDS, a fatal condition for which there is no known cure.  According to statistics current at
the time of appellant's trial in February 1996, ninety-five percent of persons who contract HIV die within
twelve years.  Kaspar answered affirmatively when asked if an HIV positive man's sexual organ and bodily
fluids would be capable of causing death or serious bodily injury to another person if the man had
unprotected sexual intercourse. 
In his written statement, appellant said that he had been HIV positive for seven or eight
years.  Blood testing confirmed appellant's status as HIV positive.  Deputy Paul Knight, one of the
investigating officers, testified that appellant told him on the morning of January 4 that he was suffering from
pneumonia and was HIV positive.  Knight continued, "I asked him if anybody in his house knew . . . .  He
said his wife knew but that they had protected each other, and I took that to mean they used some kind
of contraceptive or something that would prevent the transmitting of the disease."  Oscar testified that he
saw appellant's penis penetrate Maria's vagina and that appellant was not wearing a condom.  He said the
act of intercourse lasted a "long time."  Sperm was found in the semen stains, and these stains were linked
to appellant and Maria by the DNA tests. 
From the evidence summarized above, the jury could rationally conclude beyond a
reasonable doubt that appellant was HIV positive on January 1, 1995, that he knew he was HIV positive,
that he knew HIV was a fatal disease transmissible by sexual intercourse, and that he knew how to prevent
the transmission of HIV by the use of condoms.  The jury could also rationally conclude beyond a
reasonable doubt that appellant sexually assaulted Maria on January 1, that he did not wear a condom, that
he ejaculated, and that his bodily fluids were commingled with hers.  Considering appellant's actions in light
of his knowledge, the jury could rationally conclude beyond a reasonable doubt that he intentionally or
knowingly used his penis and bodily fluids in a manner capable of causing death to Maria by infecting her
with HIV.  Point of error four is overruled.
Appellant does not refer us to any exculpatory evidence with regard to the deadly weapon
issue.  He merely notes that Oscar did not testify that he saw appellant ejaculate and that Stanley testified
that the age of the semen stains could not be determined.  We believe the jury's conclusion that appellant
used his penis and bodily fluids as a deadly weapon is not contrary to the great weight and preponderance
of the evidence.  Point of error three is overruled.
The third count of the indictment alleged that appellant intentionally and knowingly exposed
his anus and genitals to Oscar P. with the intent to arouse and gratify appellant's sexual desire.  Penal Code
§ 21.11(a)(2).  Appellant contends the State failed to prove the requisite intent to arouse or gratify his
sexual desire.  Appellant offers virtually no argument in support of this contention, noting merely that Oscar
did not testify that he "actually touched Appellant's penis to determine its rigidity" and that there was no
evidence he "actually was sexually gratified by his actions."  The State was not required to prove that
appellant was sexually gratified, but only that he acted with the intent to arouse or gratify himself sexually. 
Applying the appropriate standards of review, we believe the evidence is both legally and factually sufficient
to prove such intent and to otherwise sustain appellant's conviction for indecency with a child.  Points of
error five and six are overruled.
In point of error two, appellant complains about remarks made by the prosecutor during
her opening statement and closing argument.  In concluding her opening statement, the prosecutor told the
jury, "You will hear this testimony in this trial in kind of a vacuum.  There are things that you're not going
to be allowed to hear because --."  Appellant objected that it was "wholly improper . . . to make such
comments on opening statement or during any part of the trial."  The objection was overruled and the
prosecutor continued, "You're not going to hear everything that you want to hear, but I'll submit to you that
the evidence you will hear will prove the state's case to you beyond a reasonable doubt, indeed beyond
all doubt."  The  prosecutor returned to this theme during her closing argument, saying, "And I also want
to apologize because this case has been presented to you in somewhat of a vacuum.  Please understand
we presented to you everything that we believe we can."
It is improper for a prosecutor to suggest to the jury that there is inadmissible evidence that,
if revealed, would show other improper acts by the defendant or otherwise justify a finding of guilt.  Stearn
v. State, 487 S.W.2d 734, 736 (Tex. Crim. App. 1972).  Appellant urges that this was precisely what the
prosecutor attempted to do in this cause.  Appellant voiced no objection to the prosecutor's closing
argument, however, waiving any error there.  Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App.
1996).  Appellant's objection that the prosecutor's opening statement was "wholly improper" was not
sufficiently specific to preserve for review the contention he now makes.  Tex. R. App. P. 33.1(a)(1)(A);
and see former Tex. R. App. P. 52(a).  Point of error two is overruled.
Finally, appellant contends the district court erred by permitting mention of an extraneous
offense.  This occurred during the testimony of Deputy Knight, who was asked to describe the procedures
he followed when he arrested appellant on January 6.  Knight answered, "Well, I invited Mr. Najera to step
outside and talk to me at his house.  I told him that he was under arrest, I told him he was under arrest for
causing the death . . . I told him what he was under arrest for."  Outside the jury's hearing, appellant
objected, "It's improper insertion of an extraneous offense.  He's not on trial for the murder.  It's purely
prejudicial, and that's not at all probative."  The court overruled the objection, ruling that "[i]t's part of the
background" and "clearly admissible."  No further mention was made of the reason for appellant's arrest.
Appellant argues that in light of the evidence that Maria died on January 4, the jury almost
certainly completed Knight's interrupted statement by inferring that appellant was arrested for causing
Maria's death.  We will assume that this is true.  We also note that the fact of Maria's death was admitted
without objection and that her death was never described at trial as a homicide.
Appellant confessed to having sexual intercourse with Maria in Oscar's presence.  Oscar
corroborated this confession through his own testimony.  The confession was also corroborated by the
analysis of the blood and semen stains found at the crime scene.  Given the nature and volume of the
evidence of appellant's guilt, and in light of the further fact that the jury knew that Maria was dead, we are
satisfied beyond a reasonable doubt that telling the jury the reason for appellant's arrest, if error, did not
contribute to his conviction or otherwise affect his substantial rights.  Tex. R. App. P. 44.2(b); see also
Harris v. State, 790 S.W.2d 568, 587 (Tex. Crim. App. 1989) (applying former Tex. R. App. P.
81(b)(2)).  Point of error one is overruled.
The judgment of conviction is affirmed.


  
 		Jimmy Carroll, Chief Justice
Before Chief Justice Carroll, Justices Jones and Kidd
Affirmed
Filed:   November 13, 1997
Publish
1.   Amendments to section 22.021 since the commission of the offense are irrelevant to this appeal.
2.   Anything that in the manner of its use or intended use can be a deadly weapon.  Tex. Penal Code
Ann. § 1.07(a)(17)(B) (West 1994).  This includes parts of the body.  See Powell v. State, 939 S.W.2d
713, 717 (Tex. App.--El Paso 1997, no pet.) (feet); Cooper v. State, 773 S.W.2d 749, 750 (Tex.
App.--Corpus Christi 1989, no pet.) (hands).  Appellant does not deny that the sexual organ and bodily
fluids of a man who is HIV positive are together capable of being used as a deadly weapon.


ll submit to you that
the evidence you will hear will prove the state's case to you beyond a reasonable doubt, indeed beyond
all doubt."  The  prosecutor returned to this theme during her closing argument, saying, "And I also want
to apologize because this case has been presented to you in somewhat of a vacuum.  Please understand
we presented to you everything that we believe we can."
It is improper for a prosecutor to suggest to the jury that there is inadmissible evidence that,
if revealed, would show other improper acts by the defendant or otherwise justify a finding of guilt.  Stearn
v. State, 487 S.W.2d 734, 736 (Tex. Crim. App. 1972).  Appellant urges that this was precisely what the
prosecutor attempted to do in this cause.  Appellant voiced no objection to the prosecutor's closing
argument, however, waiving any error there.  Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App.
1996).  Appellant's objection that the prosecutor's opening statement was "wholly improper" was not
sufficiently specific to preserve for review the contention he now makes.  Tex. R. App. P. 33.1(a)(1)(A);
and see former Tex. R. App. P. 52(a).  Point of error two is overruled.
Finally, appellant contends the district court erred by permitting mention of an extraneous
offense.  This occurred during the testimony of Deputy Knight, who was asked to describe the procedures
he followed when he arrested appellant on January 6.  Knight answered, "Well, I invited Mr. Najera to step
outside and talk to me at his house.  I told him that he was under arrest, I told him he was under arrest for
causing the death . . . I told him what he was under arrest for."  Outside the jury's hearing, appellant
objected, "It's improper insertion of an extraneous offense.  He's not on trial for the murder.  It's purely
prejudicial, and that's not at all probative."  The court overruled the objection, ruling that "[i]t's part of the
background" and "clearly admissible."  No further mention was made of the reason for appellant's arrest.
Appellant argues that in light of the evidence that Maria died on January 4, the jury almost
certainly completed Knight's interrupted statement by inferring that appellant was arrested for causing
Maria's death.  We will assume that this is true.  We also note that the fact of Maria's death was admitted
without objection and that her death was never described at trial as a homicide.
Appellant confessed to having sexual intercourse with Maria in Oscar's presence.  Oscar
corroborated this confession through his own testimony.  The confession was also corroborated by the
analysis of the blood and semen stains found at the crime scene.  Given the nature and volume of the
evidence of appellant's guilt, and in light of the further fact that the jury knew that Maria was dead, we are
satisfied beyond a reasonable doubt that telling the jury the reason for appellant's arrest, if error, did not
contribute to his conviction or otherwise affect his substantial rights.  