Opinion
No. 11-18-00333-CR
11-05-2020
JUAN MANUEL AGUILAR JR., Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 385th District Court Midland County, Texas
Trial Court Cause No. CR50373
MEMORANDUM OPINION
The jury convicted Juan Manuel Aguilar Jr. of aggravated assault. TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2019). The jury assessed his punishment at confinement for a term of twelve years in the Institutional Division of the Texas Department of Criminal Justice and a fine of $5,000. The trial court sentenced Appellant accordingly. In a single issue, Appellant challenges the legal sufficiency of the evidence to support his conviction. We affirm.
I. Background Facts
In the early morning hours of August 4, 2017, Alvin Johnson, the night auditor at the Suburban Extended Stay Hotel in Midland, Texas, saw Krysti Aguilar Guerrero—Appellant's wife—on a security camera, walking into the hotel laundry room. A few minutes later, Guerrero came running to the office where Johnson was stationed. According to Johnson, Guerrero was "close to hysterics. She was scared, shaking, and crying." Guerrero told Johnson that her husband was trying to kill her. Johnson testified that Guerrero stated that her husband had pointed a gun at her and that she had hit the gun just as he fired it. Appellant's counsel did not object to this testimony. Johnson let Guerrero into the break room to give her a place to be safe. At Guerrero's request, Johnson called the police. Soon after, Appellant approached the front desk where Johnson was stationed and asked Johnson if he had seen Appellant's wife. Johnson replied that he had not, and Appellant returned to his hotel room. The police arrived a short time later.
Officer Austin Poe, of the Midland Police Department, spoke with Guerrero at the hotel on the night of the incident. Officer Poe testified at trial that Guerrero appeared "very distraught, very scared, shaking" and "terrified." He clarified that he could tell the difference between someone who was terrified and someone who was angry. Officer Poe testified that Guerrero informed him that she had been in an argument with Appellant and that Appellant had pointed a gun at her face and stated: "I'm going to f-----g kill you." Officer Poe further testified that Guerrero stated that she hit the gun by throwing her hands up in front of her face and that the gun went off, shooting a round into the ceiling of the hotel room. Appellant's counsel again did not object to any of this testimony. Officer Poe also testified that, based on his training and experience with firearms, it was very unlikely that either Guerrero's hitting of the gun or Appellant's dropping of the gun would cause it to go off and that someone would still have had to pull the trigger to fire the weapon.
Midland police officers searched Appellant's hotel room and discovered two firearms—one revolver and one semiautomatic pistol. The revolver contained a spent shell casing. Officers also observed a bullet hole in the ceiling. On cross-examination, Officer Poe testified that they were unable to recover a bullet from the ceiling and did not conduct a gunpowder residue test. He further testified that he did not search for fingerprints or DNA on the gun or shell casing. He also testified that he did not observe any bruises or scratches on Guerrero's hands or arms that may have come from hitting the firearm. Officers arrested Appellant for aggravated assault with a deadly weapon.
Guerrero testified at trial that she and Appellant got into an argument at the hotel on the night in question after a night of drinking and that it was she who pulled out a firearm and shot it into the air as a warning shot to allow her to get out of the hotel room. She stated that, although she told police officers that "[Appellant] grabbed [her] by the throat and pointed a gun at [her] head and [she] knocked it out of his hand and it discharged," this statement was false. Guerrero testified that she implicated Appellant to the police and Johnson because she "just wanted him out. [She] was angry and hurt." Guerrero also testified that both firearms found in the hotel room belonged to her and that it was the revolver that she had shot into the ceiling.
Guerrero admitted at trial that she had also made several false statements to the State and law enforcement in the months leading up to the trial. In a letter to the district attorney two months after the arrest, she stated that she did not remember what had happened that night. One month later, she stated in an affidavit that she wanted the charges dropped but did not state that she was the one who had fired the gun. About one year after the date of the offense, Guerrero stated in another letter that the gun went off because she dropped it.
II. Analysis
Appellant contends that the evidence is insufficient to support his conviction for aggravated assault with a deadly weapon because Guerrero's testimony exculpated Appellant and because the State offered impeachment evidence, rather than substantive evidence, of the charged offense in the form of Guerrero's prior inconsistent statements. The State asserts that Appellant failed to object to any witness testimony, that the testimony was therefore admitted by waiver as substantive evidence, and that the testimony of Johnson and Officer Poe was also admissible under the excited utterance exception to the rule against hearsay.
We review a challenge to the sufficiency of the evidence, regardless of whether it is denominated as a legal or factual sufficiency challenge, under the standard set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288-89 (Tex. App.—Eastland 2010, pet. ref'd). Under the Jackson standard, we review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). When conducting a sufficiency review, we consider all of the evidence admitted at trial and defer to the factfinder's role as the sole judge of the witnesses' credibility and the weight their testimony is to be afforded. Winfrey v. State, 393 S.W.3d 763, 767-68 (Tex. Crim. App. 2013); Brooks, 323 S.W.3d at 899; Clayton v. State, 235 S.W.3d 722, 778 (Tex. Crim. App. 2007). This standard accounts for the factfinder's duty to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319; Clayton, 235 S.W.3d at 778.
Under the Texas Penal Code, a person commits the offense of assault if he "intentionally or knowingly threatens another with imminent bodily injury." PENAL § 22.01(a)(2) (West Supp. 2020). The offense becomes aggravated assault if that person "uses or exhibits a deadly weapon during the commission of the assault." Id. § 22.02(a)(2).
Appellant first argues that Guerrero exculpated Appellant by testifying that she fired the weapon and that—because Johnson and Officer Poe testified that they had no personal knowledge of the events that transpired between Appellant and Guerrero—the evidence presented was insufficient to support the conviction. But we must consider all of the evidence in making a sufficiency determination. See Winfrey, 393 S.W.3d at 767-68.
Appellant next argues that the State relied on inadmissible impeachment evidence—Guerrero's prior inconsistent statements—and that, because this evidence was not substantive, it was insufficient to prove each element of the crime beyond a reasonable doubt. Appellant asserts that the State knew Guerrero would testify to exculpate Appellant because of her letters prior to trial but called her as a witness anyway to impeach her with her prior inconsistent statements in order to surreptitiously present to the jury otherwise inadmissible evidence. Appellant also claims the State elicited testimony from Johnson and Officer Poe for the sole purpose of impeaching Guerrero. It is true that the State's knowledge that its own witness will testify unfavorably is a factor the trial court must consider when determining whether the evidence is admissible under Rule 403. See Hughes v. State, 4 S.W.3d 1, 4-5 (Tex. Crim. App. 1999) (citing Barley v. State, 906 S.W.2d 27, 37 n.11 (Tex. Crim App. 1995)); see also TEX. R. EVID. 403.
But the defendant must make a proper objection at trial to preserve the issue for appeal. See Barley, 906 S.W.2d at 37 & n.11. Here, Appellant asserted no objection at all to the complained-of testimony by Johnson and Officer Poe. Thus, Appellant's argument—that the State's actual purpose in impeaching Guerrero was to gain admission of her prior statements—was not preserved for appeal. See id. (holding objection to prior-inconsistent-statement evidence purportedly offered as subterfuge to gain admission of otherwise inadmissible testimony was not made in trial court, so complaint was forfeited on appeal); see also TEX. R. APP. P. 33.1(a)(1).
Inadmissible hearsay that is admitted without objection is to be treated the same as all other evidence for the purposes of a sufficiency review. See Fernandez v. State, 805 S.W.2d 451, 455-56 (Tex. Crim. App. 1991) (holding that a party that fails to object "must be prepared to accept the concept that hearsay could be considered by the trier of fact as probative evidence"); Chambers v. State, 711 S.W.2d 240, 247 (Tex. Crim. App. 1986); see also TEX. R. EVID. 802. In this case, the State elicited testimony from witnesses other than the victim, each of whom testified that, on the night of the offense, a "scared" and "terrified" Guerrero stated to them that Appellant had pointed a gun at her head and told her he was going to kill her. Because Appellant's counsel did not object to the admission of this testimony, the testimony was admitted by waiver as substantive evidence and could have been used by the jury in reaching a verdict and can be used by this court in determining the legal sufficiency of the evidence at trial to support the verdict. See TEX. R. EVID. 802; Fernandez, 805 S.W.2d at 455; Chambers, 711 S.W.2d at 247.
Because we find the statements were admitted by waiver, we do not address the State's argument that the statements were admissible under the excited utterance exception to the rule against hearsay. See TEX. R. EVID. 803(2).
The jury chose to believe the State's witnesses, disbelieve Guerrero's recantation, and find that her initial complaint was reliable. We hold that the evidence was sufficient for a rational jury to have found Appellant guilty beyond a reasonable doubt of aggravated assault with a deadly weapon. We overrule Appellant's sole issue.
III. This Court's Ruling
We affirm the judgment of the trial court.
KEITH STRETCHER
JUSTICE November 5, 2020 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J. Willson, J., not participating.
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, sitting by assignment.