

 
 

                                                                                                                             
 
 
 
 
NUMBER 13-10-00273-CR
 
COURT OF APPEALS
 
THIRTEENTH DISTRICT
OF TEXAS
 
CORPUS CHRISTI -
EDINBURG 

                                                                                                                     

 
SAMUEL AGUILAR,                                                            
    Appellant,
 
v.
 
THE STATE OF TEXAS,                         
                            Appellee.
                                                                                                                     
  
 
On appeal from the 130th
District Court 
of Matagorda County,
Texas.
                                                                                                                     

 
MEMORANDUM OPINION
 
Before Chief Justice
Valdez and Justices Rodriguez and Garza  
Memorandum Opinion by
Justice Rodriguez
                                                                                                                        
A jury found appellant Samuel Aguilar
guilty of the murder of James Sutton and assessed life in prison and a
$10,000.00 fine.  See Tex. Penal
Code Ann. ' 19.02 (West 2003).  By four
issues, Aguilar contends that:  (1)-(3) the trial court abused its discretion
in admitting certain evidence; and (4) the evidence is insufficient to
establish that he committed murder.  We affirm.
I.  Background[1]
 
It is undisputed that Sutton, a
seventy-year-old man with whom Aguilar was acquainted, was found dead in his
home on May 27, 2009.  According to Chief Medical Examiner Steven Pustilnik,
M.D., Sutton was bludgeoned to death on Memorial Day, May 25, 2009.
Patrol Officer Scott Sherrill, who was
first on the scene at Sutton's residence on Wednesday, May 27, testified that
there were large amounts of blood throughout the house, including blood spatter
across the dining room walls and ceiling, blood on the kitchen floor where they
found shoe prints, and blood droplets which he described as small pools of
blood indicative of gravitational drops—blood
dripping off something.  Officer Sherrill testified that there was blood
spatter and tissue throughout the kitchen and hallway area.  The investigating
officers found more blood in the breezeway and in the garage.  In addition,
Texas Ranger Kip Westmoreland, who worked with the Bay City Police Department
on this case, testified that a closer view of the bloodstains in the dining
room revealed cast-off bloodstains from blood that was cast off of the weapon
used to inflict the blow.  According to Ranger Westmoreland, this occurred as
the weapon was on its back swing preparing for another blow.  Ranger
Westmoreland also agreed that in addition to the bloody footprints in the
kitchen, there were bloody footprints in the bathroom, and there appeared to be
blood in the bathroom sink area where someone washed up, blood on the door
leading to the garage, a bloody footprint on the back doorstep, blood on the
garage door, and a bloody footprint inside the garage.
Tommy Lytle, a crime scene investigator
with the Bay City Police Department who was the lead detective on this case,
testified that during the course of the investigation, Aguilar's name was
brought to his attention.  Ranger Westmoreland also testified that he learned early
in his investigation Aguilar had mowed Sutton's lawn and was in and out of
Sutton's house frequently.  Detective Lytle and Ranger Westmoreland also became
aware that Aguilar's brother, Benny Aguilar, lived a short distance from
Sutton's residence.  With Benny's consent, they searched his residence.  They
noticed a bloodstain on the front door.  Officers found a purple mountain bike
behind Benny's house.  It was later determined that the bike belonged to
Aguilar and that it had a bloodstain on the left handbrake of the handlebar. 
They also discovered a wet T-shirt inside a tightly tied plastic bag in a
carport trash can outside Benny's residence.  Both Detective Lytle and Ranger
Westmoreland testified that the T-shirt appeared to have bloodstains on it. 
The stains were later confirmed to be blood.  The distinctive logo on the
bloodstained T-shirt was the same logo seen on a shirt Aguilar had been wearing
on Memorial Day at approximately 5:00 p.m. at the E-Z Pawn Shop when surveillance
cameras there captured him on video.
Detective Lytle testified that after
obtaining a search warrant for the travel trailer where Aguilar lived, they
found a pair of wet blue and white tennis shoes under the dining table.  The
shoes had "reddish color stains around the sole area" that the
officers believed to be blood.  They also found a pair of baggie blue jean
shorts in the bathroom.  The shorts were in a five-gallon bucket filled with a
clear liquid.
According to Detective Lytle and Ranger
Westmoreland, Aguilar was not located until 2:00 a.m. on the Thursday following
Sutton's murder when he was found hiding in the grass under a tree in a field
near the apartment of his friend, Debra Trevino.  A search of Trevino's
apartment produced, among other things, a baseball cap belonging to Aguilar. 
The cap appeared to have a bloodstain on it.
After Aguilar was taken into custody,
investigating officers, including Detective Lytle and Ranger Westmoreland,
interviewed Aguilar five times over the next several days.  Both investigators
testified that Aguilar first claimed that he had not committed the offense and
that he had not been in or around Sutton's residence on Memorial Day.  However,
after being confronted with a witness who placed him there on that day, Aguilar
admitted he may have gone to that residence to use the phone.  And after being
told that his bloody T-shirt had been found, Aguilar appeared "[a] little
bewildered" and told the officers that he wanted to have some time to
think about it, that he did not want to incriminate himself any more than he
already had, and that he wanted to be taken back to the detention facility. 
The next evening, Aguilar admitted he had walked into Sutton's house on
Memorial Day, and upon entering the house, he tripped over Sutton's body. 
Because it was dark inside, Aguilar lit a match,[2]
saw Sutton lying on the floor, and tried to wake him.  Aguilar informed
Detective Lytle that he then turned on a light switch, and because Sutton did
not respond and Aguilar had a bad "reputation" with the police, he
fled out the front door.  Aguilar told the officers that he exited the same way
he had entered and that he had not gone anywhere else in the house.
Ranger Westmoreland testified that
Aguilar denied having any knowledge of the baseball cap during the initial
interviews.  Later, Aguilar admitted that the baseball cap belonged to him but
that he found it and had no idea how the blood got on it.  Aguilar also told
Detective Lytle and Ranger Westmoreland that he knew he had blood on his shirt,
tried to wash it, and threw it away because he could not remove the blood. 
According to Ranger Westmoreland, Aguilar told the officers "that the
blood got on his shirt from when he wiped his hands on his shirt after he got
blood on his hands from touching Jim Sutton."  Ranger Westmoreland testified
that Aguilar's explanation was inconsistent with the patterns of blood on the
shirt.  According to Ranger Westmoreland, after Aguilar's T-shirt was sprayed
with luminal, a blood-revealing reagent that reacts with iron in the blood, the
luminal reacted with the blood on the front of Aguilar's shirt, revealing
primary stains that appeared to be blood-spatter stains and not stains from a
wipe or a smear.  Ranger Westmoreland also testified that, after the back of
the shirt was sprayed with luminal, the blood pattern appeared "to be
consistent with [Aguilar] wearing that shirt and striking blows to Jim Sutton
and then cast-off stains onto the back of the shirt from the object that he was
being struck with."
Detective Lytle testified that as
Aguilar was given "bits of evidence, that's how he concocted his
story."  Detective Lytle agreed that as he fed Aguilar information, his
story would change slightly, every step of the way:  "[h]e seemed to not
remember until he found out that there was some evidence pointing in his
direction."  On cross-examination, Detective Lytle agreed that no one had
told him that Aguilar had had any type of physical or verbal altercation with
Sutton.
Fayth Davis, a forensic scientist with
the Texas Department of Public Safety (DPS) crime lab in Houston, Texas,
testified that laboratory tests confirmed that "the shoe impressions
lifted from [Sutton's] linoleum are consistent in size, shape, and tread
design" with Aguilar's shoes.  Davis testified that it was her opinion "those
shoes on the floor [Aguilar's shoes] could have made the impressions on the
linoleum or any other shoe that looks just like those."  On
cross-examination, Davis stated that she was not able to say how the apparent
blood got on the shoe or that it was definitely Aguilar's shoes that made the
imprints.
Jennifer Watson, a forensic scientist
and technical leader in the DNA Department of the DPS crime lab in Houston who
was part of a crime scene investigation team for this case, confirmed that the
DNA analysis of the blood at Sutton's house matched the blood on Aguilar's
T-shirt and baseball cap, as well as the brake handle of the bike and a
bloodstain on his brother Benny's front door.  The DNA profile from the stain
on Aguilar's shoe was also consistent with Sutton's DNA profile.  In addition,
Watson explained that based on her analysis of a partial DNA profile from
inside the right sneaker, if the shoes were found in Aguilar's residence, it is
consistent with her results that Aguilar has worn these shoes.  Finally, of the
twenty-four spots tested on the shirt, twenty-two spots found all over the back
and the front of the shirt were positive for apparent blood, and from the DNA
analysis of that blood, she could not exclude Sutton.
Finally, Robbie Martinez, Aguilar's ex-girlfriend,
testified that, during the middle of the week prior to Memorial Day 2009,
Aguilar accused her of having oral sex with Sutton for money.[3] 
When she denied it, Aguilar, who was "very angry," told her that she
had better not go to Sutton's house without him.  And after threatening to cut
her up "[f]rom one end to the other," Aguilar grabbed Martinez's hair
and cut some of it with a knife.  According to Martinez, a few days later,
while she and Aguilar were arguing about many things, including those things
that prompted the threat earlier in the week, Aguilar stomped her—kicked
her in the back—while she was lying on the
floor.  Martinez testified that after she was kicked, she went to the hospital
for treatment.
II. 
Discussion
A.  Admission of Evidence
By three issues, Aguilar contends the
trial court abused its discretion when it admitted the following evidence:  (1)
testimony of prior assaults by Aguilar on Martinez; (2) photographs showing
bruises to Martinez's body allegedly caused by Aguilar; and (3) testimony
provided by Melissa Gonzales, a pawnbroker, that Aguilar told her he would be
going to prison.
1.  Unadjudicated Prior Assaults
In his first issue, Aguilar complains
that the trial court erred in allowing Martinez to testify that Aguilar cut her
hair and kicked her in the back.  Aguilar claims that this testimony was
prejudicial and unnecessary to connect him to Sutton's murder.
During the State's direct examination,
Martinez testified to the accuracy of State's Exhibits 171 through 174, which
included a photograph of her cut hair and three photographs of the bruises on
her back.  Martinez also agreed that she was in the hospital around Memorial
Day.  Following this testimony, the State asked Martinez, "Was that one of
the times when your relationship [with Aguilar] was kind of off?" 
Martinez responded, "Yes."  When the State began to ask another
question regarding Martinez and Aguilar, defense counsel asked for a conference
outside the presence of the jury.
At the bench conference, defense counsel
objected to the anticipated testimony on the basis that it was prejudicial
because it involved a number of unadjudicated offenses, one of which had
nothing to do with Sutton.  The State responded that the evidence it sought to
elicit regarding events that occurred within the week prior to the incident
went to Aguilar's state of mind and his motivation for why he may have wanted
to kill Sutton.  The trial court overruled Aguilar's objection.
Without further objection, Martinez
testified that Aguilar threatened her, cut her hair, and kicked her after they
argued about her activities with other men, including Sutton.  After Martinez
provided this testimony, Aguilar requested a limiting instruction.  In open
court, the trial court instructed the jury that the evidence was admitted only
for the purpose of showing Aguilar's motive, if any.  The trial court provided
a similar instruction in its jury charge.
a.  Preservation of Error
            The State argues on appeal that Aguilar did
not preserve this issue.  However, we conclude that counsel's objection to the
admissibility of Aguilar's prior unadjudicated offenses made at the bench
conference—a hearing outside the presence of the jury—satisfied
Texas Rule of Evidence 103(a).  See Tex.
R. Evid. 103(a) ("[W]hen the court hears objections to offered
evidence out of the presence of the jury and rules that such evidence be
admitted, such objections shall be deemed to apply to such evidence when it is
admitted before the jury without the necessity of repeating those
objections."); Haley v. State, 173 S.W.3d 510, 517 (Tex. Crim. App.
2005) (providing that the following two exceptions apply to the requirement of
subsequent objections set out in appellate rule 33.1:  (1) counsel may obtain a
running objection; or (2) counsel may request a hearing outside the presence of
the jury); see also Tex. R. App.
P. 33.1(a).  Therefore, no other objection was necessary, and we conclude
Aguilar preserved this issue for appeal.
 
b.  Applicable Law
Under Texas Rule of Evidence 404(b),
evidence of other crimes, wrongs, or acts is not admissible "to prove the
character of a person in order to show action in conformity therewith" but
may "be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident."  Tex. R.
Evid. 404(b).  The proponent of uncharged misconduct evidence, the State
in this case, must be able to explain the logical and legal rationales that
support its admission on a basis other than "bad character" or
propensity.  De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App.
2009) (citing Tex. R. Evid. 404(b)). 
For example, the proponent may persuade the trial court that the other crime,
wrong, or act has relevance apart from character conformity because it tends to
establish some evidentiary fact, such as motive, leading inferentially to an
elemental fact, such as identity.  See Powell v. State, 63 S.W.3d 435,
438 (Tex. Crim. App. 2001) (citing Montgomery v. State, 810 S.W.2d 372,
387-88 (Tex. Crim .App. 1991) (en banc) (op. on reh'g)).
Although relevant, however, the evidence
may still "be excluded if 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.  According to the Texas Court of Criminal Appeals, the rule
403 balancing test includes the following factors:
(1)       how
compellingly the extraneous offense evidence serves to make a fact of consequence
more or less probable—a factor which is
related to the strength of the evidence presented by the proponent to show the
defendant in fact committed the extraneous offense;
 
(2) 
    the potential the other offense evidence has to impress the jury "in
some irrational but nevertheless indelible way";
 
(3) 
    the time the proponent will need to develop the evidence, during which the
jury will be distracted from consideration of the indicted offense; and
 
(4) 
    the force of the proponent's need for this evidence to prove a fact of
consequence, i.e., does the proponent have other probative evidence
available to him to help establish this fact, and is this fact related to an
issue in dispute.
 
De La Paz,
279 S.W.3d at 348-49.
c.  Standard of Review
"Whether
extraneous offense evidence has relevance apart from character conformity, as
required by Rule 404(b), is a question for the trial court."  So, too, is
a ruling on the balance between probative value and the counter factors set out
in Rule 403, although that balance is always slanted toward admission, not
exclusion, of otherwise relevant evidence.  Thus, a trial court's ruling on the
admissibility of extraneous offenses is reviewed under an abuse-of-discretion
standard.  As long as the trial court's ruling is within the "zone of
reasonable disagreement," there is no abuse of discretion, and the trial
court's ruling will be upheld.  A trial court's ruling is generally within this
zone if the evidence shows that 1) an extraneous transaction is relevant to a
material, non-propensity issue, and 2) the probative value of that evidence is
not substantially outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading of the jury.
 
Id. at 343 (quoting Moses v. State,
105 S.W.3d 622, 627 (Tex. Crim. App. 2003)) (other citations omitted).
d.  Discussion
In this case, it is at least subject to
reasonable disagreement whether the extraneous-offense evidence was admissible
for the non-character-conformity purpose of showing Aguilar's motive.  See
id.  Although Aguilar does not deny that one of the incidents involved an
argument about Martinez's involvement with Sutton, he does argue that the
incident where he allegedly kicked Martinez in the back had nothing to do with
Sutton but rather with her past actions.  However, the evidence of extraneous offenses
which occurred very close in time to the charged offense tends to establish
motive, an evidentiary fact which would lead inferentially to an elemental
fact, such as identity.  See Powell, 63 S.W.3d at 438 (citing Montgomery,
810 S.W.2d at 387-88).  Thus, we conclude that the trial court's ruling was
generally within the zone of reasonable disagreement.  De La Paz, 279
S.W.3d at 348-49.  The trial court, therefore, did not abuse its
discretion in deciding that the extraneous-offense evidence was admissible to
show motive.
We also conclude that the danger of
unfair prejudice did not substantially outweigh the probative value of the
extraneous-offense evidence.  See Tex.
R. Evid. 403; De La Paz, 279 S.W.3d at 348-49.  First, we have
already concluded that the extraneous-offense evidence made an evidentiary fact
more likely.  Furthermore, the evidence that Aguilar committed the extraneous
acts was strong.  And the extraneous offenses occurred close in time to this
offense.  In addition, the amount of time devoted to presentation of the
extraneous-offense evidence was not significant, and the trial court instructed
the jury to use the evidence only to establish motive, if any.  Moreover, this
evidence was not of such a nature as to impair the effectiveness of the
limiting instruction; the events described by Martinez were not likely to
create such a prejudice in the minds of the jury that it would have been unable
to limit its consideration of the evidence to its proper purpose.  Finally,
Aguilar's identity was a contested issue at trial, and the extraneous acts had
high probative value in showing he had a motive.  Therefore, based on this
analysis, we conclude that the trial court's ruling was generally within the
zone of reasonable agreement.  See De La Paz, 279 S.W.3d at 343.  Accordingly,
we overrule Aguilar's first issue.
2.  Photographs
In his second issue, Aguilar challenges
the admission of State's Exhibits 171 through 174.  When the photographs were
offered in the trial court, Aguilar's counsel made the following objection to
State's Exhibit 171:  "Objection, your Honor, to this photograph coming in
based on the fact that this is—this is an unadjudicated
case.  There's been nothing to offer up that Mr. Aguilar cut her hair on this
incident, your Honor."  Aguilar also objected to the introduction of
State's Exhibits 172 through174—photographs that showed
bruising on Martinez's back—but provided no basis for
his objection.  The trial court overruled Aguilar's objections and admitted the
exhibits.  The State claims that Aguilar has not preserved this complaint on
appeal.  We agree.
On appeal, Aguilar argues that the
photographs were "highly inflammatory and prejudicial" and relies on
case law that sets out factors that a court may consider in determining the
probative value of photographs.  See Davis v. State, 313 S.W.3d 317, 331
(Tex. Crim App. 2010).  This argument does not match the objections made
below.  Therefore, this complaint has not been preserved for our review.  See
Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004) (citing Tex. R. App. P. 33.1(a)(1)(A) & 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.").  We overrule Aguilar's second issue.
3.  Aguilar's Statement that he "was going to prison
for a long time"
By his third issue, Aguilar complains
that the trial court erred in admitting the following testimony offered by
Gonzales after she testified that Aguilar had come into her pawn shop at
approximately 5:00 p.m. on Memorial Day 2009 and sold her a DVD player and a
propane lantern:
Q.        Okay. 
Did he—during the course of
your conversation with him, did he say anything about going to prison?
 
A.        He
said he didn't need the items anymore.  So, he just wanted to sell 'em 'cause
he was going to go away for a long time.
 
Q.        That
he was going to go to prison for a very long time?
 
A.        Uh-huh.
 
Counsel for Aguilar objected to this testimony on the
basis that "the case that [she] would be referring to is an unadjudicated
pending case," and therefore, "this testimony is prejudicial and any
probative value is substantially outweighed."  The trial court overruled
the objection.
On appeal, the State urges that the
testimony is not extraneous-offense evidence because there was no description
of any specific offense.  We agree.
"An extraneous offense is defined
as any act of misconduct, whether resulting in prosecution or not, that is not
shown in the charging papers."  Rankin v. State, 953 S.W.2d 740,
741 (Tex. Crim. App. 1996).  While Gonzales's testimony that Aguilar said
"he was going to go away [to prison] for a long time" arguably
suggests that Aguilar committed an act of misconduct for which he would be
going to prison, we cannot conclude that Gonzales's testimony is evidence of a
specific act of misconduct that is not shown in the charging papers.  See
Rankin, 953 S.W.2d at 741.  Rather, as noted by the trial court when it
overruled Aguilar's objection, the response made by Aguilar appeared to refer
to the instant case and was not related to an earlier offense that had yet to
go to trial.  We, therefore, conclude that the trial court did not abuse its
discretion when it overruled Aguilar's objection and admitted Gonzales's
testimony.  We overrule Aguilar's third issue. 
B.  Sufficiency of the Evidence
By his fourth issue, Aguilar contends
that the evidence submitted at trial was not sufficient to establish that he
committed the murder of Sutton.
1.  Standard of
Review and Applicable Law
            In a 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 Brooks
v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) ("[T]he Jackson
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 reasonable
doubt.").  This standard requires reviewing courts to resolve any
evidentiary inconsistencies in favor of the judgment, keeping in mind that the
fact-finder is the exclusive judge of the facts, the credibility of the witnesses,
and the weight to give their testimony.  Brooks, 323 S.W.3d at 899; see
Tex. Code Crim. Proc. art.
38.04 (West 1979) ("The jury, in all cases, is the exclusive judge of the
facts proved, and of the weight to be given to the testimony
. . . .").  Appellate courts do not re-evaluate the weight
and credibility of the evidence; they only ensure that the jury reached a
rational decision.  Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim.
App. 2009).
Legal sufficiency is measured by the
elements of the offense as defined by a hypothetically correct jury charge.  Villarreal
v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009); Malik v. State,
953 S.W.2d 234, 240 (Tex. Crim. App. 1997).  In this case, Aguilar committed
murder if he intentionally or knowingly caused the death of Sutton.  See Tex. Penal Code Ann. '
19.02(b)(1).
2.  Discussion
            Aguilar contends that the
evidence presented at trial is only sufficient to show he was present at the
scene of the murder and made contact with the body of the deceased.  Aguilar
directs this Court to testimony provided by officers at the scene explaining
that there was nothing found in the home or near Sutton's body that
"pointed to Aguilar" and to his defensive theory that the DNA
evidence which was collected and tested was consistent with Aguilar's admission
of finding and touching the body.  However, the evidence at trial, summarized
in relevant part below, included the following:
$     Aguilar knew Sutton
and was at Sutton's house frequently;
 
$          Aguilar's bloodstained bike and T-shirt were
found at Benny's house which was located a short distance from Sutton's residence;
 
$     A bloodstain on
Benny's front door matched Sutton's blood;
 
$          Aguilar initially told the officers that he had
not been at Sutton's house on Memorial Day; however, after being confronted with
a witness who placed him there, he admitted he may have gone to the residence
to use the phone;
 
$          After being confronted with additional
evidence, Aguilar altered his story a number of times;
 
$          Sutton was bludgeoned to death;
 
$          After allegedly discovering Sutton's body,
Aguilar fled the house and did not tell anyone about what he had found;
 
$          Aguilar claimed that the only part of the house
he had been in was the living room area, but there was blood all over other
parts of the house, including bloody footprints that were consistent in size,
shape, and tread design with Aguilar's shoes;
 
$          Aguilar claimed that the blood on the front of
his shirt came from having wiped his hands after touching Sutton to try to get
him to respond, but, according to Ranger Westmoreland, the bloodstains on the
front of Aguilar's shirt were more representative of blood spatter stains
than stains from a wipe or a smear;
 
$          The configuration and position of the blood on
the back of Aguilar's shirt was not consistent with Aguilar's story, but was
consistent with him striking Sutton such that the blood from the object used
was cast off onto the back of his shirt;
 
$     Within the week prior to Sutton's murder, Aguilar had
accused his girlfriend of having had oral sex with Sutton for money and had
become angry and physically violent toward her; and
 
$          Aguilar
said that he
was going to go away for a long time, that he was going to go to prison for a
very long time.
 
Considering the entire trial record,
viewing the evidence in the light most favorable to the verdict, and giving
"full
play to the responsibility of the trier of fact fairly to resolve conflicts in
the testimony, to weigh the evidence, and to draw reasonable inferences from
basic facts to ultimate facts," we conclude that a rational
jury could have found beyond a reasonable doubt that Aguilar
committed Sutton's murder.  See Jackson,
443 U.S. at 319; Laster, 275 S.W.3d at 517; see also Tex. Penal Code Ann. '
22.02. 
We overrule Aguilar's fourth issue.
III. 
Conclusion
We affirm the judgment of the trial
court.
                                                                                                             NELDA
V. RODRIGUEZ
                                                                                                             Justice
 
Do not publish.
Tex.
R. App. P.
47.2(b).
 
Delivered and filed
the 
14th day of July,
2011.
                                                                                                                                                            




[1] Because this is a memorandum opinion
and the parties are familiar with the facts, we will not recite them here
except as necessary to advise the parties of the Court's decision and the basic
reasons for it.  See Tex. R. App.
P. 47.4.


[2] Aguilar later changed
his story and said that he used a flashlight.


[3] On cross-examination, Martinez agreed
that Aguilar asked her not to take advantage of Sutton because he cared about
Sutton and did not want to disrespect him.


