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IVAN GALVAN RODRIGUEZ

THE STATE OF TEXAS

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Before Chief Justice Seerden and Justices Dorsey and Yañez

Opinion

Appellant, Ivan Galvan Rodriguez, was indicted for capital murder. The jury found him not guilty of both capital murder and murder, but found him guilty of the lesser-included offense of aggravated sexual assault, assessing his punishment at nine years in prison. By two issues appellant complains that the trial court abused its discretion in denying his motion for new trial because the evidence is legally insufficient to support his conviction, and he asserts that the trial court erred in entering judgment because legally the evidence fails to prove the elements of aggravated sexual assault. We affirm.

The State's evidence showed that on October 2, 1996, the victim, Maria Isabel Zamora, left home to pick up appellant. She was wearing shorts, along with a shirt and vest. The next day her body was found in an open field near Mission, Texas, nude from the waist up, with her shorts unzipped and partially pulled down. A surgical type knife was found next to the body. An investigator testified that due to a deep indentation in the ground and the amount of dirt on the body the body was probably pressed or forced down on the ground.

After her body was found a deputy sheriff discovered appellant driving the victim's Chevy Blazer. He was taken into custody and gave a written confession to Florentino Garza, a lieutenant with the Hidalgo County Sheriff's Office. Garza testified that prior to taking his statement he advised appellant of his Miranda rights, that he agreed to waive his rights, that he never requested an attorney and did not ask to terminate the interview. Garza testified that neither threats nor coercion were directed toward appellant during any of the questioning, nor did he make any promises to appellant in exchange for his statement. Garza's testimony was that appellant understood his rights and that he knowingly and voluntarily gave the statement. As appellant gave Garza the statement, Garza wrote it down word for word, giving appellant the opportunity to read it when he had finished. Garza explained to him that he could make alterations to the statement. The statement declared, in relevant part:

Yesterday Isabel [the deceased] called me at my house. . . . She said she would pick me up around 8:30 p.m. We went cruising in Edinburg in her green Blazer. . . . We then headed towards Mission cruising. . . . She kept telling me that she wanted to park somewhere and f---. . . . She . . . started kissing me. She took off her blouse. She wanted me to f--- her. We went outside the Blazer. We started talking outside. She lowered her shorts. She then unbutton my pants. She then bend [sic] down and we had sex. We finish [sic] having sex. . . . Isabel started threatening me to get together with her or she would hurt my girlfriend. I got mad and I stab [sic] her with a piece of knife that I had gotten at a friends house. Its a rod with a knife at the point. I had the knife in my pants pocket. I must have stabbed her about six times. I got back in the Blazer and I took off . . . . I left her there on the ground. . . .

Laboratory analysis of a semen stain on Zamora's shorts identified a semen-specific protein called P30, which is found only in semen. DNA was extracted from this specimen; however, the quantity of the DNA was insufficient to make a comparison.

Dr. Ruben Santos performed the autopsy and found twenty-seven punctures or wounds to Zamora's body, which he said were made by a surgical scalpel. Some of these punctures severed the jugular system in her neck. She also had bruises on her body and a black eye. She had a defensive puncture wound to her right palm. He testified that the wound is "defensive" because people usually use the hands to protect themselves against aggression from a weapon. He said that she could have been in a struggle because the wounds were not fatal except for those to the neck. He took oral, rectal, and vaginal swabs from the body but found no spermatozoa when examining these swabs.

Appellant testified that he knew Zamora for about one and one-half months before her death. He had dated her five or six times, and had consensual sex with her a few times. He said that on October 2, 1996 Zamora stopped by his house and lent him her Blazer. He did not see her again after that. His testimony was that his written statement was coerced. He said that Garza told him that "if I didn't say it was me, if I didn't write my initials, my name, the statement, that to be sure that it was going to put some more charges against me." He testified that Garza did not read him his rights, did not let him read the statement, and promised to help him if he signed the statement. He signed the statement because Garza told him that "they had proof of everything that I had done it." He denied killing or stabbing Zamora.

Richard Ofshe, Ph.D., a social psychologist, testified as an expert for the defense concerning police-interrogation techniques. His testimony was that police, by threatening people and using coercive interrogation techniques, can get a suspect who is innocent to give a false confession.

On cross-examination Dr. Ofshe admitted that he was not familiar with the procedures at the Hidalgo County Sheriff's Office and that he was not saying that the confession in this case was false. He had no personal knowledge of the interrogation in this case and did not debrief appellant about the interrogation.

By issue one appellant asserts that the trial court abused its discretion by denying his motion for new trial because the evidence is legally insufficient to support his conviction. By his second issue he asserts that the trial court erred in entering judgment because legally the evidence failed to prove beyond a reasonable doubt the elements of aggravated sexual assault. When reviewing the legal sufficiency of the evidence we follow the test set forth in Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999).

Initially, we point out that the evidence showed that a rational jury could find that appellant understood and waived his rights prior to making his written statement and that he knowingly, intelligently, and voluntarily made his written statement.

The charge provided that the jury could find appellant guilty of aggravated sexual assault if it found beyond a reasonable doubt that he

intentionally or knowingly, without the consent of Maria Isabel Zamora, a female, and by the use of physical force or violence directed against Maria Isabel Zamora that compelled submission or participation by Maria Isabel Zamora, cause the penetration of the female sexual organ of Maria Isabel Zamora by inserting his, the Defendant's, sexual organ therein, and that the Defendant, in the course of the same criminal episode, intentionally or knowingly caused Maria Isabel Zamora serious bodily injury by stabbing her with a knife. . . .

Appellant argues that any inference of penetration from all the evidence is merely speculative. We disagree. There is no requirement that the victim be able to testify to penetration; it may be proved by circumstantial evidence or other evidence. Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990); Nilsson v. State, 477 S.W.2d 592, 595-96 (Tex. Crim. App. 1972)⁽¹⁾ (holding that in prosecution for rape, "penetration may be proved by circumstantial evidence"). The jury may infer penetration from the circumstances, without direct proof. Almendaris v. State, 73 S.W. 1055, 1055 (Tex. Crim. App. 1903).

In this case the evidence supporting penetration is that Zamora's body was found nude from the waist up. Her shorts were unzipped and partially pulled down. A semen stain was found on her shorts. Soil on the body and an indentation in the ground showed that she had been forced or pressed to the ground. This evidence corroborates appellant's written confession in which he stated that he had sex with her. Further she had bruises, a black eye, and twenty-seven punctures or wounds to her body, including a defensive wound to the right palm. A surgical knife was found next to the body. Dr. Santos testified that she could have been in a struggle because the wounds were not fatal except for those to the neck. Although appellant stated in his confession that he had stabbed Zamora after they had sex, the jury was free to find that the sexual activity occurred pursuant to a struggle and was, therefore, non-consensual. Viewing the evidence in the light most favorable to the jury's verdict we believe that a rational trier of fact could infer beyond a reasonable doubt that appellant by the use of physical force or violence directed against Maria Isabel Zamora that compelled submission or participation by her, penetrated her female sexual organ with his sexual organ, that she did not consent to this sexual activity, and that he caused her serious bodily injury by stabbing her with a knife. We hold that the evidence is legally sufficient to support the jury's verdict and that the trial court did not abuse its discretion by refusing to grant the motion for new trial. We overrule issues one and two.

We affirm the trial court's judgment.

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J. BONNER DORSEY,

Justice

Do not publish

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 31st day of August, 2000.

1. In Nilsson the court stated, "It would be a monstrous doctrine that villains who had rendered their victims insensible in order to effect their purposes should be freed from punishment because the victim could not swear positively to the act of penetration accomplished upon her during her state of insensibility." Id. at 596.