                                                                              PD-1379-14
                                                             COURT OF CRIMINAL APPEALS
                                                                              AUSTIN, TEXAS
                                                          Transmitted 12/22/2014 2:38:00 PM
                                                            Accepted 12/29/2014 2:17:36 PM
                                                                               ABEL ACOSTA
                          NO. PD-1379-14                                               CLERK

         IN THE TEXAS COURT OF CRIMINAL APPEALS

                          AUSTIN, TEXAS


                        SAMUEL AGUILAR

                                                Petitioner,

                                     v.

                      THE STATE OF TEXAS




STATE’S REPLY TO PETITION FOR DISCRETIONARY REVIEW


STEVEN E. REIS                            ROBINSON C. RAMSEY
State Bar No. 16757960                    State Bar No. 16523700
Email: steven.reis@matagorda.tx.us        Email: rramsey@langleybanack.com
Matagorda County Courthouse               LANGLEY & BANACK, INC.
1700 7th Street, Suite 325                Trinity Plaza II, Suite 900
Bay City, Texas 77414                     745 E. Mulberry
Telephone: (979) 244-7657                 San Antonio, Texas 78212
Telecopier: (979) 245-9409                Telephone: (210) 736-6600
                                          Telecopier: (210) 735-6889


               ATTORNEYS FOR THE STATE OF TEXAS

 ______________________________________________




  December 29, 2014
                                   TABLE OF CONTENTS

INDEX OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . iv

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

QUESTIONS PRESENTED FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . v

        QUESTION ONE .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii

                Whether the trial court was within its discretion to
                admit testimony about Aguilar’s assaulting his
                girlfriend during an argument about her sexual
                involvement with the victim.

       QUESTION TWO. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii

                Whether the trial court was within its discretion to
                admit into evidence photographs describing the
                nature of Aguilar’s physical assault on his girlfriend
                during his argument with her about her sexual
                involvement with the victim.

       QUESTION THREE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii

                Whether the evidence, when viewed in the light most
                favorable to the verdict, is legally sufficient to support
                Aguilar’s conviction because that evidence confirms
                that a rational jury could have found him guilty of the
                offense charged.




                                                      i
ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

         I.       The judge rightfully admitted testimony of Aguilar’s
                  assaulting his ex-girlfriend while arguing about her sexual
                  relations with the victim... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

         II.      The trial court rightfully admitted photographs of Aguilar’s
                  assault on his girlfriend, whom he accused of having had sex
                  with the victim... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

         III.     The evidence is legally sufficient to support Aguilar’s
                  conviction... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10




                                                         ii
                                  INDEX OF AUTHORITIES

CASES:

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) . . . . . . . . . . . . 5, 6

Butler v. State, 872 S.W.2d 227 (Tex. Crim. App. 1994) . . . . . . . . . . . . . . . . 1

Heidelberg v. State, 144 S.W.3d 535 (Tex. Crim. App. 2004). . . . . . . . . . . 3

Jackson v. Virginia, 443 U.S. 307 (1979) .. . . . . . . . . . . . . . . . . . . . . . . 5, 6, 8

Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009).. . . . . . . . . . . . . . . 8

Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990). . . . . . . . . 1-3

Shuffield v. State, 189 S.W.3d 782 (Tex. Crim. App. 2006). . . . . . . . . . . 4, 5

Wilson v. State, 71 S.W.3d 346 (Tex. Crim. App. 2002) .. . . . . . . . . . . . . . . 4


STATUTES:

TEX. CODE CRIM. PROC. art. 38.04 (Vernon 1979) . . . . . . . . . . . . . . . . . . . . . 6


RULES:

TEX. R. APP. P. 33.1.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

TEX. R. EVID. 103. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

TEX. R. EVID. 401. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

TEX. R. EVID. 403. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5

TEX. R. EVID. 404. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2




                                                       iii
TO THE COURT OF CRIMINAL APPEALS OF TEXAS:

            STATEMENT REGARDING ORAL ARGUMENT

       The State does not believe that oral argument would materially assist

this Court in reaching its decision. Therefore, the State does not request oral

argument,

                      STATEMENT OF THE CASE

       This is a felony case in which a jury found Appellant Samuel Aguilar

guilty of murder and assessed his punishment at life in prison. 6 RR 35–36,

144.




                                      iv
        QUESTIONS PRESENTED FOR REVIEW

                        QUESTION ONE
                     (Extraneous Offense)

Whether the trial court was within its discretion to admit
testimony about Aguilar’s assaulting his girlfriend during an
argument about her sexual involvement with the victim.

                         QUESTION TWO
                         (Photographs)

Whether the trial court was within its discretion to admit into
evidence photographs describing the nature of Aguilar’s physical
assault on his girlfriend during his argument with her about her
sexual involvement with the victim.

                        QUESTION THREE
                    (Evidentiary Sufficiency)

Whether the evidence, when viewed in the light most favorable to
the verdict, is legally sufficient to support Aguilar’s conviction
because that evidence confirms that a rational jury could have
found him guilty of the offense charged.




                                v
                               ARGUMENT

I.    The judge rightfully admitted testimony of Aguilar’s
      assaulting his ex-girlfriend while arguing about her sexual
      relations with the victim.

      “When a party attempts to adduce evidence of ‘other crimes, wrongs or

acts,’in order to preserve error on appeal, the opponent of that evidence must

object in a timely fashion.” Montgomery v. State, 810 S.W.2d 372, 387 (Tex.

Crim. App. 1990). Aguilar’s failure to do so waived any alleged error in the

admission of this testimony. See Butler v. State, 872 S.W.2d 227, 237 (Tex.

Crim. App. 1994) (“A reasonably specific and timely objection is necessary to

preserve error for appellate review.”).

      Regardless, this testimony was relevant to demonstrate Aguilar’s state

of mind as well as his motive for murdering the victim because it showed that

he was angry over the prospect of his girlfriend’s having had sexual relations

with Sutton. See Montgomery, 810 S.W.2d at 382. Furthermore, this

argument took place only a short time before Sutton was found murdered, and

Aguilar (finally) admitted that he had been in Sutton’s house on the day of the

murder and had seen Sutton’s corpse there.

      Evidence of “other crimes, wrongs, or acts” is admissible if it has

relevance “apart from its tendency ‘to prove the character of a person in order

to show that he acted in conformity therewith.’” Montgomery, 810 S.W.2d at

387 (citing TEX. R. EVID. 404(b)). Therefore, the prosecution “may introduce
such evidence where it logically serves to make ... more probable or less

probable an elemental fact; where it serves to make ... more probable or less

probable an evidentiary fact that inferentially leads to an elemental fact; or

where it serves to make ... more probable or less probable defensive evidence

that undermines an elemental fact.” Id.

      Prime examples of permissible purposes to which extraneous evidence

of crimes, wrongs, or acts may be put include “proof of motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence of mistake or

accident.” Montgomery, 810 S.W.2d at 387 (citing TEX. R. EVID. 404(b)).

“Extraneous offense evidence that logically serves any of these purposes is

relevant beyond its tendency to prove the character of a person to show that

he acted in conformity therewith. It is therefore admissible, subject only to the

trial court’s discretion nevertheless to exclude it if its probative value is

substantially outweighed by the danger of unfair prejudice....” Montgomery,

810 S.W.2d at 387 (citing TEX. R. EVID. 403).

      Rule 403's provision that evidence “may” be excluded if its probative

value is substantially outweighed by the danger of unfair prejudice, “simply

means that trial courts should favor admission in close cases, in keeping with

the presumption of admissibility of relevant evidence.” Montgomery, 810

S.W.2d at 389. After conducting the probative-versus-prejudical balancing

                                       2
test, the trial court “must be given wide latitude to exclude, or, particularly in

view of the presumption of admissibility of relevant evidence, not to exclude

misconduct evidence as he sees fit.” Id. at 390. In this regard, “[s]o long as the

trial court thus operates within the boundaries of its discretion, an appellate

court should not disturb its decision, whatever it may be.” Id.

      In applying this abuse-of-discretion standard, “an appellate court should

not reverse a trial judge whose ruling was within the zone of reasonable

disagreement.” Montgomery, 810 S.W.2d at 391. Here, the trial judge was well

within that zone in determining that the extraneous-offense evidence was

relevant to issues such as motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of credibility. Montgomery, 810 S.W.2d at

387. Therefore, the trial judge’s discretionary decision is not subject to being

second-guessed on appeal.

II.   The trial court was within its discretion to admit photographs
      of Aguilar’s assault on his girlfriend, whom he accused of
      having sex with the victim.

      Aguilar has waived his complaint about the admission of the

photographs of the physical injuries he inflicted on his ex-girlfriend because

his objection at trial (that the photographs depicted an unadjudicated offense)

does not match his complaint on appeal (that the photographs were unfairly

prejudicial). Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004)

                                        3
(citing TEX. R. APP. P. 33.1(a)(1)(A) and TEX. R. EVID. 103(a)(1)) (“[I]t is well

settled that the legal basis of a complaint raised on appeal cannot vary from

that raised at trial.”); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App.

2002) (holding that to preserve a complaint for appellate review “the point of

error on appeal must comport with the objection made at trial”).

      Regardless, the photographs were not unfairly prejudicial, but instead

were relevant to demonstrate the nature of the injuries Aguilar inflicted, which

in turn was relevant to show his state of mind and motive for murdering the

victim. TEX. R. EVID. 401.

      Aguilar complains that the photographs were not necessary because the

jury had already heard testimony describing the injuries. But “[t]he fact that

the jury had also heard testimony regarding the injuries depicted does not

necessarily reduce the relevance of the visual depiction.” Shuffield v. State,

189 S.W.3d 782, 787 (Tex. Crim. App. 2006). Texas Rule of Evidence 401

defines relevant evidence as “evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence.” Id. at

786–87 (citing TEX. R. EVID. 401). It is self-evident that seeing what

something looks like is more informative that hearing what it looks like.

Therefore, the trial court was within its discretion in admitting the

                                       4
photographs, which provided a more accurate description of the injuries that

Aguilar had inflicted. See Shuffield, 189 S.W.3d at 386 ( “The admissibility

of a photograph is within the sound discretion of the trial judge.”).

      Rule 403 “allows for the exclusion of otherwise relevant evidence when

its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by considerations

of undue delay, or needless presentation of cumulative evidence.” TEX. R.

EVID. 403. However, this rule “favors the admission of relevant evidence and

carries a presumption that relevant evidence will be more probative than

prejudicial.” Shuffield, 189 S.W.3d at 787.

III. The evidence is legally sufficient to support Aguilar’s
     conviction.

      In a legal-sufficiency review, courts examine the evidence in the light

most favorable to the verdict to determine whether “any rational fact finder

could have found guilt beyond a reasonable doubt.” Jackson v. Virginia, 443

U.S. 307, 319 (1979) (emphasis in original); see also Brooks v. State, 323

S.W.3d 893, 895 (Tex. Crim. App. 2010) (“[T]he Jackson v. Virginia

legal-sufficiency standard is the only standard that a reviewing court should

apply in determining whether the evidence is sufficient to support each

element of a criminal offense that the State is required to prove beyond a


                                       5
reasonable doubt.”).

      The Jackson legal-sufficiency standard requires reviewing courts to

resolve any evidentiary inconsistencies in favor of the judgment, keeping in

mind that the factfinder is the exclusive judge of the facts, the credibility of the

witnesses, and the weight to give their testimony. See TEX. CODE CRIM. PROC.

art. 38.04 (Vernon 1979) (“The jury, in all cases, is the exclusive judge of the

facts proved, and of the weight to be given to the testimony …”); Brooks, 323

S.W.3d at 899 (“Viewing the evidence ‘in the light most favorable to the

verdict’ under a legal-sufficiency standard means that the reviewing court is

required to defer to the jury’s credibility and weight determinations because

the jury is the sole judge of the witnesses’ credibility and the weight to be

given their testimony.”). Aguilar’s highlighting the testimony he likes while

glossing over the evidence that goes against him contravenes these principles.

Some of the evidence he did not like included the following facts, which

connected him to the crime:

      •     He threatened that “before I go to court, before I go down,
            somebody’s going down with me” and that he “was going to
            do something bad before he went into prison” and that it
            would be so shocking that it would make front-page news.
            5 RR 21–23, 45, 51–52, 57–60. 5 RR 21–23.

      •     He knew Sutton and was at Sutton’s house frequently. 3 RR
            142, 145.


                                         6
•   The bloodstains on Aguilar’s T-shirt, shoe, baseball cap, and
    bike matched Sutton’s blood. 3 RR 239–40, 249–50,
    259–60; 4 RR 46, 143, 146, 176, 205–06, 207–08, 229–31,
    239–43.

•   His bike and T-shirt were found at the house of his brother
    Benny, who lived “within spitting distance” of Sutton. 3 RR
    239–40, 249–50; 4 RR 46, 143, 146.

•   A bloodstain on his brother Benny’s front door matched
    Sutton’s blood. 3 RR 239.

•   Aguilar initially lied about having been at Sutton’s house on
    the day of the murder, and did not admit this until he had
    been confronted with incriminating evidence. 3 RR 262,
    264.

•   Upon being confronted with this incriminating evidence,
    Aguilar altered his story “every step of the way” in an
    attempt to conform with each new evidentiary increment,
    and continued to make changes in his story to dovetail with
    each additional bit of information the investigating offers
    fed him. 4 RR 102, 114.

•   His story about having tripped over Sutton’s body in the
    dark was suspect because one of the window blinds was
    open and there was a streetlight right outside. 4 RR 10–11,
    13.

•   After allegedly discovering Sutton’s body, Aguilar fled the
    house and did not tell anyone about what he had found. 4
    RR 10–11.

•   Aguilar claimed that the only part of the house he had been
    in was the livingroom area, but there was blood all over
    other parts of the house, including bloody footprints that
    matched the size and configuration of his shoes. 4 RR 15–16




                              7
      •     He had no explanation for how the blood had gotten on his
            baseball cap. 4 RR 8.

      •     He claimed that the blood on his shirt came from having
            wiped his hands after touching Sutton to try to get him to
            respond, but the blood on Aguilar’s shirt was in spatters, not
            smears. 4 RR 59.

      •     The configuration and position of the blood on Aguilar’s
            shirt was not consistent with his story, but was consistent
            with his having struck Sutton and cast off blood onto the
            back of the shirt from the object he used to beat Sutton. 4
            RR 61.

      •     About a week before Sutton’s murder Aguilar had accused
            his girlfriend of having had oral sex with Sutton for money
            and had become angry and physically violent with her. 4 RR
            178, 182, 184–85.

      A legal-sufficiency analysis requires courts to view all of the evidence in

the light most favorable to the verdict to determine whether a rational trier of

fact could have found all of the essential elements of the crime beyond a

reasonable doubt. Jackson, 443 U.S. at 319; Laster v. State, 275 S.W.3d 512,

517 (Tex. Crim. App. 2009). Aguilar tries to rearrange this standard to view

the evidence in a manner he deems most favorable to himself rather than the

verdict by downplaying—or in some cases, outright ignoring—the evidence

against him. But under the legal-sufficiency standard, appellate courts do not

re-evaluate the weight and credibility of the evidence; they only ensure that

the jury reached a rational decision. See Laster, 275 S.W.3d at 517 (“During


                                       8
such a review, an appellate court must not usurp the role of the factfinder.

Appellate courts are ill-equipped to weigh the evidence.”). Therefore, as long

as the jury rationally arrived at its verdict, as it did here, there can be no

reversal for alleged legal insufficiency. Id.

                                  PRAYER

      For these reasons, the State asks this Court to deny the petition for

discretionary review.


                                    Respectfully submitted,

                                    STEVEN E. REIS
                                    State Bar No. 16757960
                                    Email: steven.reis@matagorda.tx.us
                                    Matagorda County Courthouse
                                    1700 7th Street, Room 325
                                    Bay City, Texas 77414
                                    Telephone: (979) 244-7657
                                    Telecopier: (979) 245-9409

                                    /s/RobinsonC. Ramsey
                                    ROBINSON C. RAMSEY
                                    State Bar No. 16523700
                                    Trinity Plaza II, Suite 900
                                    745 E. Mulberry
                                    San Antonio, Texas 78212
                                    Telephone: (210) 736-6600
                                    Telecopier: (210) 735-6889

                                    ATTORNEYS FOR THE STATE OF TEXAS




                                       9
                                  CERTIFICATE OF COMPLIANCE

      In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), the
State certifies that the number of words in the State’s Reply to Petition for
Discretionary Review, including its headings, footnotes, and quotations, is:
1942.

                                                   /s/Robinson C. Ramsey
                                                   ROBINSON C. RAMSEY

                                          CERTIFICATE OF SERVICE

       A true and correct copy of the foregoing document was deposited in an
official depository of the United States Postal Service, properly addressed to:

Samuel Aguilar                                           Lisa McMinn
Coffield Unit - TDC #1631736                             State Prosecuting Attorney
2661 FM 2054                                             Email: information@spa.texas.gov
Tennessee Colony, Texas 75884                            P.O. Box 13046
                                                         Austin, Texas 78711–3046


on 22 December 2014

                                                   /s/Robinson C. Ramsey
                                                   ROBINSON C. RAMSEY
W :\lbclient\07513\00 64\L09298 70.W PD




                                                    10
