Coria-Gonzalez v. State

Nicodemo Coria-Gonzalez, Appellant v. The State of Texas, Appellee

NO. 03-18-00645-CR

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

January 29, 2020

FROM THE 331ST DISTRICT COURT OF TRAVIS COUNTY

NO. D-1-DC-17-900078, THE HONORABLE WILFORD FLOWERS, JUDGE PRESIDING

MEMORANDUM OPINION

A jury convicted Nicodemo Coria-Gonzalez of the first-degree felony offense of aggravated sexual assault and assessed punishment of life imprisonment. See Tex. Penal Code § 22.021. The district court rendered judgment consistent with the jury's verdict.

In two issues on appeal, Coria-Gonzalez contends that: (1) there was insufficient evidence supporting the jury's finding that he was the perpetrator of the aggravated sexual assault; and (2) the district court erred by denying his motion for mistrial because a limiting instruction was insufficient to cure the State's erroneous introduction of a 911 recording from a different sexual-assault victim. We will affirm the district court's judgment of conviction.

BACKGROUND

A jury convicted Coria-Gonzalez of aggravated sexual assault involving a predawn attack on Izetea Johnson¹ in a secluded area off Ferguson Lane in northeast Austin.

Testimony about attack and investigation

The first three witnesses at trial were police officers and an emergency medical services (EMS) medic, who summarized their actions at the crime scene. The police officers described the area off Ferguson Lane as dark, "pitch black," brushy, and wooded. They found Johnson unclothed and attempting to cover herself. She was crying and shaking as she reported to police that she had been sexually assaulted, that her attacker held a knife to her during the assault, and that he threatened to kill her. A knife police recovered at the scene was admitted into evidence.

The EMS medic testified that on arrival at the scene, she observed Johnson sitting naked on the side of the road with police officers. EMS staff wrapped Johnson with a sheet and assisted her to the ambulance. The medic saw bruising to the right side of Johnson's forehead and scratch marks on the right side of her neck. Johnson was "distraught" but able to tell the medic details about the sexual assault and stated that the attacker "had a knife during that time." The medic stated that Johnson described her attacker as "[a] Hispanic male approximately 5-7."

After the police officers and the medic testified, Johnson shared her recollection of the attack and the events preceding it. She testified that in the hours before the assault, she attended a friend's birthday party at a hotel. When the party was over later that evening, Johnson left to take a bus home, but the bus that she planned to take was not in service because it wasafter 10:00 p.m. While walking, Johnson texted another friend, an Uber driver, for a ride home. Johnson was still walking and texting on her phone when she saw a flash and was "blindsided" from the right, causing her to lose consciousness. Johnson regained consciousness inside a car being driven by a man. He spoke in Spanish, which she pretended not to understand, and threatened to kill her. After the man had been driving for "what felt like forever" to Johnson, the man stopped the car, forced her out of it, and got her to the ground. He assaulted her vaginally and attempted to assault her anally before she escaped from him. Johnson testified that after her "drunk and clumsy" attacker pulled up his pants, she grabbed her phone and ran naked toward some tall grass and bushes, where she hid from him and called 911.

Wrong 911 call played

While Johnson was on the stand, the State offered a recording of her 911 call, which the district court admitted over a defense objection that all three voices on the recording were not identified. The State then mistakenly played the first couple of minutes of a 911 call from a different sexual-assault victim, K.H. After K.H. stated her name on the recording, both parties' counsel approached the bench, and the district court excused the jury. After extensive inquiry into the circumstances of the mistake, the district court found that the State played the wrong 911 recording unintentionally. However, Coria-Gonzalez contended that the prejudice from the excerpt of that recording was incurably prejudicial and moved for a mistrial. The district court denied the mistrial motion, instructed the jury not to consider for any purpose the 911 audio recording "inadvertently played in place of the actual 911 call," and resumed trial.Correct 911 call played

The jury then heard the correct 911 call, a twelve-and-a-half minute recording. In it, Johnson provides her name, states that she was just raped, and asks the 911 operator to "GPS [her] phone" for the location. Johnson states that her attacker hit her and dragged her inside a car and then drove her somewhere off Cameron Road. She also states that she is hiding in the bushes and that "he's looking for me in the bushes." Johnson described her attacker as a "Mexican guy" with "dark black hair." She also states that he had a knife and a black sportscar. The 911 operator then adds EMS personnel to the call. While crying, Johnson asks the EMS staff member to "please help . . . I'm naked out here." She states that her attacker turned off Cameron Road but that she could not remember the name of the street, "Jefferson or something like that, I don't remember the name of the street." Minutes later, Johnson's voice becomes hushed as she reports that her attacker is looking for her with a flashlight. She whispers, "He tried to kill me." The 911 operator asks if Johnson is near Ferguson Lane, and Johnson confirms that her attacker turned on that street. Toward the end of the recording, police arrive at the scene.

DNA evidence

Johnson testified that after her assault, she was transported to a hospital where she underwent a forensic exam. A sexual assault forensic nurse testified that she took swabs of Johnson's body, including her back. A partial DNA profile obtained from a swab of Johnson's back contained a mixture of DNA of two individuals, at least one of them male.

The forensic scientist who analyzed and interpreted the swab from Johnson's back testified that Coria-Gonzalez could not be excluded as a possible contributor of this DNA profile. She explained that the "cannot-be-excluded" terminology in her DNA analysis was based on atrend away from using other terms, such as "matches": "Forensics is actually moving away from saying matches and saying that it could be an individual. All I can say is that he cannot be excluded." The forensic scientist concluded that obtaining this DNA profile was "1.90 billion times more likely" if the DNA came from Johnson and Coria-Gonzalez than if the DNA had come from Johnson and an unknown individual.

The jury also heard from a police detective who testified that he executed a search warrant on a vehicle—a 1999 black, two-door Acura—that he identified as belonging to Coria-Gonzalez. Photographs of that car were admitted into evidence.

At the conclusion of the guilt-innocence phase of trial, the jury found Coria-Gonzalez guilty of aggravated sexual assault and assessed his punishment at life imprisonment. The district court rendered judgment on the jury's verdict. This appeal followed.

DISCUSSION

Sufficiency of evidence showing identity of perpetrator

In his first issue, Coria-Gonzalez contends that there was insufficient evidence supporting the jury's finding that he was the perpetrator of the aggravated sexual assault against this victim. When reviewing such legal-sufficiency complaints, we consider 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 crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979); Nisbett v. State, 552 S.W.3d 244, 262 (Tex. Crim. App. 2018). The factfinder is the sole judge of the weight and credibility of the evidence. See Zuniga v. State, 551 S.W.3d 729, 733 (Tex. Crim. App. 2018). A factfinder may accept one version of the facts and reject another, and the factfinder may reject any part of a witness's testimony. Febus v. State,542 S.W.3d 568, 572 (Tex. Crim. App. 2018). We defer to the factfinder's resolution of conflicts in the evidence, weighing of the testimony, and drawing of reasonable inferences from basic facts to ultimate facts. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).

We apply the same standard to direct and circumstantial evidence. Id. Circumstantial evidence is as probative as direct evidence in establishing a defendant's guilt, and circumstantial evidence can alone be sufficient to establish guilt. Nisbett, 552 S.W.3d at 262. Each fact need not point directly and independently to the defendant's guilt if the cumulative force of all incriminating circumstances is sufficient to support the conviction. Id.

Further, the identity of a perpetrator may be proven by direct evidence, circumstantial evidence, or inferences. Roberson v. State, 16 S.W.3d 156, 167 (Tex. App.—Austin 2000, pet. ref'd); see also Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim. App. 1986) (setting out types of evidence that may be used to establish identity and noting that although victim misidentified juror as perpetrator, circumstantial evidence pointed to defendant as perpetrator); Shumaker v. State, No. 03-14-00639-CR, 2015 Tex. App. LEXIS 8702, at *5 (Tex. App.—Austin Aug. 20, 2015, no pet.) (mem. op., not designated for publication) (noting that sufficiency of evidence identifying person as perpetrator is determined from cumulative effect of all evidence).

Here, the jury was provided with several types of evidence indicating that Coria-Gonzalez was the perpetrator of Johnson's sexual assault, including DNA evidence and Johnson's recollection of certain details about her attacker and his car. The record reflects that the attacker, described as "drunk and clumsy," sexually assaulted Johnson by...