i          i      i                                                                  i       i      i




                                  MEMORANDUM OPINION

                                          No. 04-08-00831-CR

                                          Joaquin ALVAREZ,
                                               Appellant

                                                    v.

                                         The STATE of Texas,
                                               Appellee

                      From the 175th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2007-CR-1705
                             Honorable Mary D. Román, Judge Presiding

Opinion by:       Catherine Stone, Chief Justice

Sitting:          Catherine Stone, Chief Justice
                  Phylis J. Speedlin, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: October 7, 2009

AFFIRMED

           A jury convicted Joaquin Alvarez of three counts of sexual assault and one count of robbery.

The jury found the enhancement paragraph in the indictment true and assessed Alvarez’s punishment

at life imprisonment for each of his offenses. On appeal, Alvarez claims: (1) the evidence is

factually insufficient to support any of his convictions; (2) the trial court improperly limited his

cross-examination of a prosecution witness during the punishment phase of the trial; and (3) his right
                                                                                                       04-08-00831-CR



to a fair trial was violated when the trial judge improperly commented on the weight of the evidence.

We affirm the trial court’s judgment.

                                                   BACKGROUND

         The complainant, E.A., met Alvarez at a bar one night in May 2006.1 E.A. left the bar with

her sister, M.A., and Alvarez, believing the group would go to another bar to continue drinking.

M.A. decided that she wanted to go home for the night, and she had E.A. and Alvarez drop her off

on their way to the bar. After E.A. and Alvarez dropped M.A. off, they procured a bottle of liquor

to drink on their way to the next bar.

         E.A. did not know how to get to the bar and had to rely on Alvarez’s driving directions to get

them to their destination. E.A. followed Alvarez’s directions, which eventually led her and Alvarez

to an old neighborhood. When Alvarez instructed E.A. to follow the road and drive into a nearby

field, E.A. began to panic because she thought Alvarez was looking for a secluded location to “kill

[her].” E.A. decided to run from Alvarez and jumped out of her moving vehicle. E.A. tried to run

back toward the street, but Alvarez caught her before she could escape. When Alvarez caught E.A.,

he pulled off her pants and had sexual intercourse with her against her will.

         E.A. pleaded with Alvarez to stop and told him they could “go to a hotel.” Alvarez agreed

with E.A.’s request to stop and “got up off of [her].” As they began walking back to E.A.’s vehicle,

E.A. ran into some tall grass and hid from Alvarez. E.A. heard Alvarez open her car door and begin

to make a lot of noise. E.A. believed Alvarez was gaining control of her property at this time,

specifically her purse, cell phone, and car stereo.



          1
            … To protect the privacy of the complainant in this case, we identify the complainant and her sister by their
initials only.

                                                           -2-
                                                                                                      04-08-00831-CR



         When she thought Alvarez had stopped looking for her, E.A. came out from hiding and ran

for the street. Alvarez, however, had not given up looking for E.A. and was waiting for her when

she came out of the grass. When Alvarez caught E.A., he made E.A. perform oral sex on him and

again had sexual intercourse with her. He also performed oral sex on E.A. at this time. Upon

completing his sexual acts, Alvarez apologized to E.A. and asked her to refrain from calling the

police. E.A. promised not to call the police, and Alvarez released her. E.A. walked to a nearby gas

station, where a security guard contacted the police.

         Officers found E.A.’s vehicle, her underwear, and an open bottle of liquor where E.A. was

assaulted. However, authorities could not locate E.A.’s purse, cell phone, or car stereo. Officers

took E.A. to the hospital, where she underwent a sexual assault examination. Examiners collected

buccal swabs from E.A. and took photographs of her injuries. Officers were later able to verify that

Alvarez was the donor of the DNA collected from E.A.’s person, and Alvarez was charged with

three counts of sexual assault and one count of robbery. A jury found Alvarez guilty as charged in

the indictment and found the enhancement paragraph in the indictment true. The jury assessed life

sentences for each of the counts in the indictment, and the trial court sentenced Alvarez accordingly.2

This appeal followed.

                                 FACTUAL SUFFICIENCY OF THE EVIDENCE

         Alvarez claims the evidence is factually insufficient to support any of his convictions. When

considering a factual sufficiency challenge, we look at the evidence in a neutral light giving almost

complete deference to the jury’s determinations of credibility. Lancon v. State, 253 S.W.3d 699, 705



         2
           … The trial court ordered Alavarez’s four life sentences to run concurrently to each other, but consecutively
to another life sentence previously imposed upon Alvarez in a companion case.

                                                          -3-
                                                                                       04-08-00831-CR



(Tex. Crim. App. 2008). We reverse only if the evidence supporting the verdict is so weak that the

verdict seems clearly wrong and manifestly unjust or if the evidence supporting the verdict is

outweighed by the great weight and preponderance of the available evidence. Watson v. State, 204

S.W.3d 404, 414-15 (Tex. Crim. App. 2006).

A. Sexual Assault

        A person commits the offense of sexual assault if he intentionally or knowingly causes the

penetration of the anus or sexual organ of another person by any means, without that person’s

consent. TEX . PENAL CODE ANN . § 22.011(a)(1)(A) (Vernon 2003). Sexual assault also occurs

when a person intentionally or knowingly causes the penetration of the mouth of another person by

the sexual organ of the actor, without that person’s consent. Id. at (a)(1)(B). A sexual assault is

“without the consent of the other person if . . . the actor compels the other person to submit or

participate by the use of physical force or violence.” Id. at (b)(1).

        Alvarez claims the evidence is factually insufficient to support his sexual assault convictions

because the State’s evidence fails to show he acted without E.A.’s consent. E.A., however, expressly

testified she never consented to any sexual contact with Alvarez. E.A.’s behavior on the night of the

assaults confirms this point and shows E.A. was afraid of Alvarez. E.A. testified she jumped out of

her moving vehicle and tried to run from Alvarez as soon as she realized Alvarez was taking her to

a desolate location. The record further shows E.A. attempted to run from Alvarez several other times

that night.

        Alvarez argues E.A.’s testimony is unreliable because she was highly intoxicated on the night

in question.3 Alvarez’s argument, however, goes to E.A.’s credibility as a witness and is a matter


        3
         … E.A. described herself as “the drunkest person at the bar.”

                                                        -4-
                                                                                        04-08-00831-CR



for the jury to determine. See Guajardo v. State, 176 S.W.3d 402, 404-05 (Tex. App.—Houston [1st

Dist.] 2004, pet. ref’d) (explaining a complainant’s intoxication goes to his or her credibility as a

witness); see also Stogiera v. State, 191 S.W.3d 194, 196 (Tex. App.—San Antonio 2005, no pet.)

(recognizing the jury evaluates the credibility and demeanor of witnesses and determines the weight

afforded contradicting testimony). The jury apparently believed E.A.’s testimony and we must defer

to this credibility determination by the factfinder. When all of the evidence is viewed in a neutral

light, we cannot say the jury’s findings are clearly wrong or manifestly unjust or that they are against

the great weight and preponderance of the evidence. Alvarez’s first issue is overruled.

A. Robbery

         A person commits the offense of robbery if, in the course of committing a theft, and with

intent to obtain or maintain control of property, he: (1) intentionally, knowingly, or recklessly causes

bodily injury to another; or (2) intentionally or knowingly threatens or places another in fear of

imminent bodily injury or death. TEX . PEN . CODE ANN . § 29.02(a) (Vernon 2003). “In the course

of committing a theft” refers to “conduct that occurs in an attempt to commit, during the

commission, or in immediate flight after the attempt or commission of theft.” Id. § 29.01(1) (Vernon

2003).

         Intent is a fact issue for the jury. Robles v. State, 664 S.W.2d 91, 94 (Tex. Crim. App. 1984).

Intent may be inferred from circumstantial evidence such as acts, words, and the conduct of the

defendant. Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004). A defendant can form the

intent to cause bodily injury at any time during the course of committing theft in the context of a

robbery. Matlock v. State, 20 S.W.3d 57, 63 (Tex. App.—Texarkana 2000, pet. ref’d).




                                                   -5-
                                                                                       04-08-00831-CR



       Alvarez asserts the evidence is factually insufficient to support his robbery conviction

because his assaultive conduct is unrelated to the theft of E.A.’s property. We are unpersuaded by

Alvarez’s contention. We initially note that the intent to obtain or maintain control of property as

delineated in section 29.02, addresses the robber’s state of mind regarding the property and not his

state of mind in the assaultive component of the aggravated robbery. See White v. State, 671 S.W.2d

40, 42 (Tex. Crim. App. 1984). We further note the general rule in robbery cases is that the

connection between the assault and the theft may be inferred when both offenses occur in close

temporal proximity. See Cooper v. State, 67 S.W.3d 221, 224 (Tex. Crim. App. 2002). This

inference will not be negated by evidence of an alternate motive that a rational jury could rationally

disregard. Id. Here, the record shows that during a pause in the ongoing and repeated sexual assaults

of E.A., Alvarez secured control of E.A.’s purse, cell phone, and car stereo. After obtaining control

of E.A.’s property, Alvarez waited for E.A. to come out of hiding and sexually assaulted her several

more times before releasing her and fleeing with her property. We believe these circumstances are

sufficient to support an inference that Alvarez assaulted E.A. in the course of committing theft.

Accordingly, when all of the evidence is viewed in a neutral light, we cannot say the jury’s findings

are clearly wrong or manifestly unjust or that they are against the great weight and preponderance

of the evidence. Alvarez’s second issue is overruled.

                           CROSS-EXAMINATION OF STATE ’S WITNESS

       Alvarez complains the trial court improperly limited his cross-examination of a prosecution

witness during the punishment phase of the trial. When an appellant contends his cross-examination

of a witness was unduly limited by the trial court, nothing is preserved for review unless the record

shows by bill of exception or otherwise what questions he wanted to propound and the answers he


                                                 -6-
                                                                                                       04-08-00831-CR



expected. Easterling v. State, 710 S.W.2d 569, 578 (Tex. Crim. App. 1986). Alvarez did not perfect

a bill of exception or proffer proof to show what questions he wanted to propound and the answers

he expected from the prosecution witness. Consequently, Alvarez’s complaint concerning the

limitation of his cross-examination is not preserved for our review. Alvarez’s third issue is

overruled.

                       IMPROPER COMMENT ON THE WEIGHT OF THE EVIDENCE

         Lastly, Alvarez asserts his right to a fair trial was violated when the trial judge improperly

commented on the weight of the evidence. The record shows that at the conclusion of the

punishment phase of the trial, Alvarez introduced his competency evaluation from a companion case

in an effort to persuade the jury to grant him leniency.4 The trial court admitted the evaluation

without any objections, and both sides rested. The following then occurred:

         Defense Counsel:            And may I approach the bench regarding the last witness’s
                                     report?

         The Court:                  You may.

         Defense Counsel:            Do you have it your Honor?

         The Court:                  I do not.

                                                          ***

         The Court:                  I am going to go ahead and have this copied because this is
                                     going to take a long time to review and I can just hand out
                                     copies to all of the jurors. Do you have any problems with
                                     that?

         The State:                  No. That should be fine.



        4
          … Alvarez believed the jury might be more sympathetic to him if it read the evaluation and learned he had three
young children.

                                                           -7-
                                                                                                      04-08-00831-CR




                                                         ***

         Unidentified Juror:        If I may, being that we just came back after a short lunch and
                                    it’s been and hour and a half, if we just take five minutes
                                    average each of reading this it’s going to be another hour
                                    before completion. Would it be allowed for a short recess
                                    break for the Jury to go to the restroom and –

         The Court:                 That would be okay. My only concern is that all of you have
                                    to look at this. Because of the way it was introduced into
                                    evidence.

         Unidentified Juror:        Yes, ma’am.

         The Court:                 I’m trying to get copies for the rest of you. Leave that copy
                                    here, go on a short break and let me see if I can get those
                                    copies for you. And I would suggest to you that you jump to
                                    the conclusion and skim through there because it’s very
                                    straightforward and I know you have to read it; however, you
                                    will also get it when you go back to deliberate. So you can
                                    take another look at it. What is really important is that you
                                    take a look at the conclusion. Go ahead and take a break.
                                    Leave the copy here and we’ll see if we can’t get you copies
                                    as soon as you get back. Thank you.

                                                         ***

         The Court:                 Ladies and gentlemen, I would like to point out to you that on
                                    page 4, towards the bottom of the page, is a paragraph and it
                                    starts out with: Conclusion. And if you will read that. And
                                    when you are ready, put your reading down and we will
                                    proceed. And you will get the entire document shortly.5

The court then read the charge on punishment to the jury and allowed the prosecution and defense

to present closing arguments.




         5
           … The section entitled “Conclusion” provided: “[Alvarez] appears to have the capacity to work with his
attorney in the preparation of his defense. He understands the charge that he is facing as well as the legal proceedings
that he is likely to go through. Therefore, I believe that he is currently competent to stand trial.”

                                                          -8-
                                                                                          04-08-00831-CR



        Article 38.05 of the Texas Code of Criminal Procedure prohibits trial courts from

commenting on the weight of the evidence. TEX . CODE CRIM . PROC. ANN . art. 38.05 (Vernon 1979).

A trial court’s improper comment on the weight of the evidence results in reversible error only when

it is reasonably calculated to benefit the State or prejudice the defendant’s rights. Marks v. State, 617

S.W.2d 250, 252 (Tex. Crim. App. 1981). However, a timely proper objection is necessary to

preserve error concerning a trial court’s comment on the weight of the evidence. Peavey v. State,

248 S.W.3d 455, 470 (Tex. App.—Austin 2008, pet. ref’d).

        Alvarez did not timely object to the trial court’s statement. He therefore failed to preserve

his complaint for our review. See id. However, even if this complaint were preserved, we cannot

say the trial court’s statement, when viewed in context, is an improper comment on the weight of the

evidence. It appears the trial court was merely trying to expedite the process by which the jurors

reviewed Alvarez’s exhibit so that it could proceed to closing arguments on punishment. The trial

court’s statement was thus not calculated to convey the court’s opinion of the case to the jury. See

generally Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001) (stating “[a] trial judge has

broad discretion in maintaining control and expediting the trial.”). Alvarez’s fourth issue is

overruled.

                                             CONCLUSION

        Based on the foregoing, the judgment of the trial court is affirmed.



                                                         Catherine Stone, Chief Justice



DO NOT PUBLISH


                                                   -9-
