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Court of Appeals of Texas, Fourth District, San AntonioAug 22, 2007
No. 04-06-00385-CR (Tex. App. Aug. 22, 2007)

No. 04-06-00385-CR

Delivered and Filed: August 22, 2007. DO NOT PUBLISH.

Appeal from the 399th Judicial District Court, Bexar County, Texas Trial Court No. 2004-CR-7560, Honorable Juanita A. Vasquez-Gardner, Judge Presiding. AFFIRMED.

Sitting: ALMA L. LÓPez, Chief Justice, CATHERINE STONE, Justice, PHYLIS J. SPEEDLIN, Justice.


Juan M. Arredondo was charged by indictment with the offense of murder. Following a jury trial, he was found guilty and assessed a punishment of 30 years imprisonment. Arredondo appeals, arguing the evidence is insufficient to support the verdict and that the trial court erred in excluding evidence regarding the victim's sexual habits. We affirm the judgment of the trial court.


About one month before the killing, Arredondo met Clarence Jurrens (CJ), the victim, at San Pedro Park when Arredondo stopped to use the public restroom. CJ approached Arredondo and asked him about his work. Arredondo explained he did handyman work on the side in addition to his work at Advisory Dominion Group. CJ asked Arredondo to come to "his" condo because he needed ceiling fans installed. Arredondo followed CJ to the condo to see the location of the job, but did not go inside on this occasion. Over the next month thirteen calls were exchanged between the two men, half of which were initiated by Arredondo. Arredondo went to the condo on one other occasion before the killing and was inside alone with CJ. On April 13, 2004, the day of the murder, CJ received a call at 9:03 a.m. from Arredondo announcing his arrival. CJ came out and opened the security gate to let him in. Once inside, the two men went upstairs and Arredondo sat down on a red chair in the loft area. Arredondo claims it was at this point that CJ grabbed him by the back of the neck, pushed him over the chair, and raped him. After the assault CJ went to the bathroom and cleaned himself off while Arredondo got dressed. When CJ came back from the bathroom, Arredondo pushed him down the stairs. Arredondo stated he was getting "madder and madder" and started feeling something he had never felt before. Arredondo then tried to leave but CJ grabbed him from behind, causing Arredondo to fall, and said Arredondo "needed another one." Arredondo became scared. He saw a statue on the living room table, grabbed it, and struck CJ with it. He admitted striking CJ multiple times and kicking him. The Medical Examiner's report revealed that CJ had also been manually strangled. After killing CJ, Arredondo put his finger in CJ's blood and wrote "He Repe Me" on the mirror above CJ's body. Arredondo then decided to make it look like a robbery and searched the condo collecting jewelry, a black jacket and bag, a pair of binoculars and a collection of two dollar bills. He then left through the back door and climbed over the fence to his truck. Arredondo put the jewelry in his drawer at home and burned the jacket and bag. He also threw away the underwear and clothes he was wearing. When the police came to Arredondo's house ten days later, he voluntarily showed them the jewelry and the barrel he had used to burn the jacket. He admitted he killed CJ but claimed it was because CJ had sexually assaulted him and was about to do so again. After he gave his statement to the police, Arredondo was placed under arrest for murder. Eventually he was tried, convicted, and sentenced to 30 years imprisonment.

Sufficiency of the Evidence

Arredondo contends that the evidence is legally and factually insufficient to support his conviction. When considering a legal sufficiency challenge, we review all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found all of the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hernandez v. State, 198 S.W.3d 257, 260 (Tex.App.-San Antonio 2006, pet. ref'd). We must affirm the trial court's judgment if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. McDuff v. State, 939 S.W.2d 607, 614 (Tex.Crim.App. 1997). When considering a factual sufficiency challenge, we view all the evidence in a neutral light and set aside the verdict only if: (1) the evidence is so weak the verdict is clearly wrong and manifestly unjust; or (2) the verdict is against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006). The jury evaluates the credibility and demeanor of witnesses and determines the weight afforded contradicting testimony. Stogiera v. State, 191 S.W.3d 194, 196 (Tex.App.-San Antonio 2005, no pet.). Generally, a person is justified in using deadly force against another if the actor reasonably believes that deadly force is necessary to prevent the other's imminent commission of sexual assault and a reasonable person in the actor's situation would not have retreated. Tex. Penal Code Ann. §§ 9.31(a), 9.32(a) (Vernon 2003). The defendant has the burden of production with respect to self-defense. Saxton v. State, 804 S.W.2d 910, 913 (Tex.Crim.App. 1991). Once the issue of self-defense has been raised through evidence offered by the defendant, the State has the burden of persuasion, not production, to disprove self-defense. Id.; Ojeda v. State, 945 S.W.2d 197, 200 (Tex.App.-San Antonio 1997, no pet.). Because self-defense is an issue of fact to be determined by the jury, the jury is free to accept or reject self-defense evidence. Ojeda, 945 S.W.2d at 200. "A jury verdict of guilty is an implicit finding rejecting the defendant's self-defense theory." Saxton, 804 S.W.2d at 914. The indictment alleged that Arredondo knowingly and intentionally killed CJ by striking him with a deadly weapon and that Arredondo, intending to cause serious bodily injury, committed an act clearly dangerous to human life by striking CJ with a deadly weapon. See Tex. Penal Code Ann. § 19.02 (Vernon 2003). Arredondo admitted to police he killed CJ, but claimed that he did so because CJ had sexually assaulted him and was about to do so again. The defense proceeded with a theory of self-defense at trial which focused on Arredondo's physical limitations and past history as proof that (a) he could be, and was, raped by CJ, and (b) he is a nonviolent person incapable of murder. The State presented the testimony of four expert witnesses. Alamo Heights Detective Dennis Kelly testified that San Pedro Park, the place where Arredondo and CJ first met, is known for homosexual activity. The public restrooms in San Pedro Park are located in the center of the park, not near the street, with no parking directly next to them. Kelly explained there are several restaurant and convenience store restrooms in the area that Arredondo could have used and which would have been easier to access. Detective Kelly further testified he found four unopened condoms during his search of Arredondo's work truck. Other evidence established that the truck was owned by Dominion Advisory Group, but assigned to Arredondo for his sole use. Dr. Kimberly Molina, the medical examiner, performed the autopsy and a sexual assault examination on CJ's body. She testified that CJ had sustained blunt force head trauma, was kicked and manually strangled. She could not be sure if the cause of death was the head trauma or strangulation. Dr. Molina also testified that she did not observe any defensive injuries nor did she find anything consistent with semen on CJ's body. Molina explained the absence of defensive injuries was inconsistent with Arredondo's self-defense theory. Garon Foster, a serologist at the Bexar County crime lab, analyzed the sexual assault kit submitted by the medical examiner. Foster testified he did not find any DNA foreign to CJ in the sexual assault kit. The State's final expert witness, Sergeant J.D. Robertson, testified as a blood spatter expert. He explained that the bloodstain pattern and position of the body were not consistent with Arredondo's self-defense claim. Robertson also testified that there was no sign of a struggle in the living room of the condo; nothing was disturbed and there was no evidence of bloodshed there. In addition to the foregoing testimony, the State also presented evidence that the crime scene was inconsistent with the struggle described by Arredondo. There was no sign of a struggle in either the upstairs loft or the living room. No blood or semen was found on the red chair on which Arredondo claims he was raped. Additionally, the statue Arredondo used to strike CJ was located on a table 21 feet from the body. The State further argues that the subsequent theft and escape over a seven-foot wall are also inconsistent with the self-defense theory. The defense presented four expert witnesses at trial. Two of the defense experts were DNA analysts testifying about the evidence obtained from CJ's body. Jody Hrabal, a forensic DNA analyst, explained the process of DNA testing. When performing a DNA test, it is common practice to look at 13 different locations, or loci, on the DNA. At each of the 13 loci there are 2 alleles and, therefore, analysts typically check 26 alleles when attempting to create a DNA profile. Hrabal testified that, while she was unable to obtain a full DNA profile in this case, she found that one allele at one locus was consistent with both CJ and Arredondo. She explained, however, that she could not know who donated the sample because of deficiencies in the DNA profile. Karen Scalise, a forensic DNA consultant, gave testimony regarding the degradation of DNA evidence. If the DNA degenerates, or breaks apart, it may become impossible to obtain a complete DNA profile because an analyst may not be able to observe the alleles which existed at each location. The process of degeneration is affected by environmental factors such as light and heat. Scalise indicated it is best to store DNA evidence in a refrigerator, or even a freezer, because failure to do so may cause the DNA to break down more than is necessary. She opined that storing DNA evidence at room temperature, as it was in this case, would hasten the degradation process. Arredondo also presented testimony from his previous doctor, Dr. Robert Lowry. Although Lowry had not examined Arredondo in about four years, he conjectured that prior nerve damage and back surgery had left Arredondo physically limited. He explained that if one were to grab Arredondo by the back of his neck, where the vertebrae were fused, it would cause him pain. He further testified if the attacker twisted his neck to push Arredondo down it would cause him great pain and possibly tingling in his arms. Dr. Lowry's testimony was in contrast to the earlier testimony of Shelly Lugo, Arredondo's boss, who produced work records indicating that Arredondo had performed strenuous manual labor over the two years he worked at Dominion Advisory Group, including heavy lifting. Lee Preston, director of the San Antonio Rape Crisis Center, was the final expert witness called by the defense. Preston testified that only approximately four percent of male-on-male rapes are reported. Preston also indicated Hispanic males in particular may be unlikely to report being raped due to the patriarchal nature of the Hispanic culture. Testimony from Arredondo's co-workers corroborated that he suffered with neck problems and was often in pain. Arredondo's family members, including his wife, daughter and sons, testified that he was physically limited after his surgery. Their testimony also reflected that they had witnessed no violent behavior from Arredondo nor did they have reason to believe he was homosexual. Arredondo contends the State failed to prove beyond a reasonable doubt that he was not acting in self-defense when he killed CJ. Arredondo argues that his physical limitations prove: (1) he could have been overpowered by CJ during the initial alleged sexual assault; and (2) that deadly force was warranted to prevent the second threatened sexual assault because a reasonable person with such physical limitations would not retreat when grabbed by the back of the neck in the manner Arredondo claims he was grabbed. He asserts that CJ approaching him in San Pedro Park and leading him to the condo is evidence that CJ was "grooming" him for an assault. Arredondo further claims that CJ arranged for them to be alone in the condo because CJ's intent was to have sex with him whether he consented or not. We reject Arredondo's contentions that there is legally insufficient evidence to support his conviction. The State put on evidence regarding the absence of defensive injuries on CJ, the location of blood stains, and the absence of Arredondo's DNA in the rape kit performed on CJ. This evidence contradicts Arredondo's account of the event. The physical state of the crime scene, such as the distance of the statue from the body and the absence of signs of struggle, further contradicts Arredondo's claim of self-defense. Dr. Lowry's testimony about Arredondo's physical health and limitations, which the defense relied on heavily, was refuted by testimony from Arredondo's boss, Lugo, who indicated that Arredondo actually engaged in the type of manual labor that Dr. Lowry had said Arredondo could not perform. In other words, Lugo's testimony essentially exposed what appears to be inaccuracy in Lowry's assessment of Arredondo's physical capacities. Ultimately, the jury was the sole judge of the weight to be given to the facts and the credibility of the witnesses and was free to believe or disbelieve the evidence proffered by Arredondo regarding the issue of self-defense. Viewed in the light most favorable to the verdict, the evidence shows that Arredondo killed CJ and stole valuables from the condo where the killing occurred. In light of the absence of any physical evidence tending to prove the killing was in self-defense, we hold that a rational trier of fact could have believed beyond a reasonable doubt that Arredondo murdered CJ as stated in the indictment. Therefore the evidence is legally sufficient to support a verdict of guilty. We overrule Arredondo's first issue. In his second issue, Arredondo challenges the factual sufficiency of the evidence. Arredondo relies on the same points raised with respect to his legal sufficiency challenge, but adds the assertion that the DNA evidence was mishandled and stored improperly, leading to unreliable test results. Arredondo argues that if handled correctly, the results would have shown Arredondo's DNA was present in the rape kit performed on CJ's body. The testimony at trial, however, revealed that the presence of Arredondo's DNA in the rape kit would not be relevant to his claim of self-defense because there would be no way to tell if the cells got there through consensual or non-consensual sex. Indeed, both defense experts conceded that the jury would have to look at other facts to make a determination regarding the occurrence of a rape. In light of the facts that no DNA consistent with Arredondo was found in the sexual assault examination and that the presence of his DNA would not tend to prove his self-defense theory even if it were present, we disagree with Arredondo's claim that the DNA testing was so "hopelessly mishandled" as to warrant reversal of his conviction. Viewing the evidence in a neutral light, the evidence supporting conviction is not so weak as to be clearly wrong or manifestly unjust. Nor can we say that the evidence contrary to the verdict is strong enough to preclude a reasonable fact-finder from finding guilt beyond a reasonable doubt. We hold that the evidence is factually sufficient to support the verdict. We overrule Arredondo's second issue.

Exclusion of Evidence

In his third and fourth issues, Arredondo claims that evidence of CJ's involvement in a gay dating service and testimony from CJ's life partner, Bob Best, was improperly excluded by the trial court. Admission or exclusion of evidence is a matter within the discretion of the trial court. Montgomery v. State, 810 S.W.2d 372, 379 (Tex.Crim.App. 1990). Therefore, a trial court's admission of evidence is reviewed under an abuse of discretion standard. See id. at 379-80. The test for abuse of discretion is not whether this Court agrees with the trial court, but rather whether the trial court acted without reference to any guiding rules or in a manner deemed arbitrary and unreasonable. Id. at 380. There is no abuse of discretion as long as the trial court's ruling is within the "zone of reasonable disagreement." Avila v. State, 18 S.W.3d 736, 739 (Tex.App.-San Antonio 2000, no pet.). Evidence is relevant if it has any tendency to make the existence of a fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Tex. R. Evid. 401. We examine each case on its own facts to determine whether an extraneous transaction is relevant evidence. Santellan v. State, 939 S.W.2d 155, 167 (Tex.Crim.App. 1997). Evidence of extraneous acts is inadmissible if proffered only to prove the character of a person and show action in conformity therewith. Tex. R. Evid. 404(b). However, such evidence may be admissible for other purposes such as proof of motive, intent, preparation, or plan. Id. Specific instances of a person's conduct may also be submitted as evidence when that person's character or character trait is an essential element of a charge, claim, or defense. Tex. R. Evid. 405(b). If the probative value of extraneous act evidence is substantially outweighed by the danger of unfair prejudice, then it may be excluded despite its relevancy. Tex. R. Evid. 403. At trial, Arredondo attempted to admit evidence, via the testimony of Detective Kelly, about cell phone records from CJ's phone. The records indicate several calls occurred between CJ's phone and a gay dating service, Mega-X. The defense argued the evidence was relevant to show CJ was having, or attempting to have, gay relationships through this service. The State objected to its admission and the trial court excluded the evidence. Arredondo also attempted to enter the testimony of Bob Best, CJ's life partner, as evidence. Best's testimony would include his beliefs that CJ was a "devious and clever individual" and that he used his pet-sitting business to have a place for sexual encounters with other men. Best's testimony was also excluded by the trial court. Arredondo argues that the call history from CJ's cell phone, which demonstrated his involvement with a gay dating service at the time of his death, is admissible character evidence under Rule 405(b) and to show intent and motive. See Tex. R. Evid. 404(b); 405(b). He claims this information is essential to his defense because it is evidence that CJ had an active sex life for someone his age and would tend to prove CJ intended to have a sexual relationship with Arredondo against his will. According to Arredondo, it also tends to disprove a motive set forth in the State's opening argument because, as a participant in a dating service, CJ would have no reason to disclose a relationship with Arredondo to Arredondo's wife. We disagree with Arredondo's contentions. Character evidence may be admitted only if a person's character or character trait is an essential element of the charge, claim, or defense. Tex. R. Evid. 405(b). Arredondo argues evidence of CJ's involvement with a dating service is admissible as character evidence because it is demonstrative of a character trait essential to Arredondo's defense. The character trait that is essential to Arredondo's defense, however, is not whether CJ was a sexually active person, but whether CJ was a violent person capable of sexually assaulting another man. The fact that CJ participated in a dating service is irrelevant to this inquiry. Thus, we hold evidence of CJ's participation in a dating service is not admissible as character evidence under Rule 405(b). For the same reason, we conclude it was not improper to rule against its admission for purposes of proving intent and motive. Evidence proving an individual used a dating service in no way tends to prove the individual had the intent or motive to rape someone who would not consent to sexual relations. We overrule Arredondo's third issue. The exclusion of testimony from Bob Best is also challenged by Arredondo. Arredondo argues that his testimony is admissible because it shows CJ planned to lure men to the homes of his clients for sexual activities. See Tex. R. Evid. 404(b). He argues that this evidence is also admissible as evidence to show that CJ's activities with Arredondo prior to his death were not isolated, but were part of a habit. See Tex. R. Evid. 406. Again, we disagree. As stated previously, testimony about CJ's sexual activities with other consenting men does not tend to make it more likely that he had a plan to lure Arredondo to the condo in order to attack and rape him. Nor is this testimony admissible as evidence of habit. In order to be admissible as evidence of habit one must demonstrate "a regular practice of meeting a particular kind of situation with a specific kind of conduct." Dietz v. State, 123 S.W.3d 528, 532 (Tex.App.-San Antonio 2003, pet. ref'd). Evidence that CJ's partner believed him to have sex with other men at his clients' homes does not demonstrate a habitual behavior of raping men in his clients' homes. We therefore hold the trial court did not abuse its discretion in excluding it. We overrule Arredondo's fourth issue.


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