Court of Appeals of Texas, Fourth District, San Antonio
the 341st Judicial District Court, Webb County, Texas Trial
Court No. 2014-CRH-001475-D3 Honorable Rebecca Ramirez
Palomo, Judge Presiding
Sitting: Karen Angelini, Justice Rebeca C. Martinez, Justice
Patricia O. Alvarez, Justice.
Patricia O. Alvarez, Justice.
Gerardo Venegas was charged with intoxication assault,
failure to render aid, and aggravated assault causing serious
bodily injury, alleged to have been committed on January 1,
2014, in Webb County, Texas. On May 20, 2016, after several
days of trial, and after the case had been submitted to the
jury, Venegas voluntarily absconded. The trial proceeded in
his absence. The jury found Venegas not guilty of
intoxication assault and guilty of failure to render aid and
aggravated assault causing serious bodily injury. The jury
also made an affirmative finding that Venegas used or
exhibited a deadly weapon, specifically an automobile, during
the commission of the offense or during the immediate flight
23, 2016, the matter was called for punishment. Venegas did
not appear. The trial court made a second affirmative
finding-that Venegas voluntarily absented himself-and the
trial court proceeded to hear punishment evidence. After the
close of testimony, and argument of counsel, the trial court
sentenced Venegas, in absentia, to five-years'
confinement in the Institutional Division of the Texas
Department of Criminal Justice on the failure to render aid,
and to twenty-years' confinement on the aggravated
assault causing serious bodily injury. The trial court signed
an interim judgment on June 8, 2016. Defense counsel's
motion to withdraw was granted by the trial court.
20, 2016, Venegas was arrested on the outstanding warrant.
The following day, with Venegas present, but without an
attorney, the trial court pronounced sentence consistent with
the sentence announced on May 23, 2016, and the interim
judgment signed June 8, 2016. A final judgment was signed on
July 21, 2016.
appeal, Venegas raises four issues: (1) the
computer-generated animation of the accident was unreliable
because it was based on estimates and not actual
measurements; (2) the trial court erred in denying
Venegas's motions for continuance; (3) the evidence was
legally insufficient to support the jury's verdict of
aggravated assault based on Venegas's driving "too
fast;" and (4) the trial court erred in pronouncing
sentence, a critical stage of the trial, without providing
Venegas assistance of counsel. We affirm the trial
and Procedural Background
Pretrial Motion for Continuance
16, 2016, the day before testimony was scheduled to begin,
defense counsel sought a thirty-day extension to allow his
accident reconstruction expert to conduct his own independent
calculations. Defense counsel's argument relied on the
State's accident reconstruction report being provided to
the defense two years and three months after the accident,
but less than sixty-days prior to trial, and a supplemental
report was completed on May 13, the week before trial. The
State countered the supplemental report was simply a visual
aid to assist the jury in understanding the mathematical
calculations and that the State had provided defense counsel
copies of the accident reconstruction video on December 8,
2014, February 5, 2015, and March 16, 2015. The trial court
denied the motion for continuance.
Evidence Presented before the Jury
morning of January 1, 2014, United States Border Patrol Agent
Adan Berlanga, his wife, and Santiago Arando, were driving
northbound on McPherson Street, Webb County, Texas, after
picking up breakfast tacos.
Berlanga testified that he noticed a black Hummer traveling
southbound on McPherson, at a high rate of speed; he
estimated the Hummer was traveling between eighty and
one-hundred miles per hour, in a thirty-five mile per hour
zone. Arando testified that he noticed the Hummer because
"that truck was just going way too fast."
Berlanga further described a silver Chevrolet Aveo stopped at
the red light. The silver car had turned on her signal to
"get back into the lane to go straight." Agent
Berlanga testified that two or three seconds after the light
turned green, the black Hummer slammed into the rear of the
Aveo. "The impact was very loud. . . . The entire back
half of the car from the headrest of the seat to the rear end
of the vehicle was completely gone." He further
testified that the Hummer did not stop after hitting the
Aveo. After Agent Berlanga's wife and Arando "jumped
out" to assist the driver of the Aveo, Agent Berlanga
left the scene, in an attempt to help locate the Hummer for
law enforcement. Arando testified that they tried to
communicate with the "lady in the silver car, " but
"she just stared forward, her eyes were open, she was
just staring." The victim, Rosalinda Ramos, was
conscious, but could not respond to verbal commands.
Locating the Black Hummer and the Silver Pontiac Grand
on information provided by Agent Berlanga and Air
Interdiction Agent James Wyatt, Investigator Steven Moncivais
and Laredo Police Officer James Boyd located the abandoned
black Hummer, not far from the accident scene. It appeared as
if the Hummer hit the curb and lost a tire; the Hummer was
inoperable and empty. Both officers noted a significant
amount of blood visible in the vehicle on the driver's
side of the interior compartment.
Valerie Mora determined the Hummer was registered to a
female; however, no one answered at the address provided.
Dispatch notified officers that the Hummer was involved in a
traffic stop, shortly before the accident. Although Gerardo
Venegas was identified as the driver during the traffic stop,
he was not at the address he provided at the traffic stop.
Investigator Mora obtained an address purported to be that of
both Venegas and the Hummer's registered owner; the
officer was told there would be a white Mercedes located at
the officers were locating the black Hummer, dispatch
received information that following the accident, the driver
of the black Hummer was picked up by a silver Pontiac Grand
Prix. Air Interdiction Agent Wyatt assisted in locating the
silver Pontiac and directing ground officers to its location.
As officers arrived at the location, as directed by Agent
Wyatt, Investigator Mora arrived at the same location looking
for Venegas. A silver Pontiac Grand Prix and a white Mercedes
were in the driveway. As the officers approached the front
door, Investigator Mora noticed blood on the door handle. The
officers rang the doorbell, and after several minutes,
Venegas exited the house, and identified himself. His nose
and mouth appeared to be swollen and red; and he appeared to
have a busted lip. Venegas was detained, Mirandized,
and escorted to the police station.
to Officer Wesley Paredes, when Venegas arrived at booking,
he was "very belligerent, was very rowdy, he was just
acting up, cursing at the officers, being very disrespectful,
combative." Venegas had a couple of cuts on his hands,
fresh bloodstains on his clothes, a small cut on his mouth,
his nose looked red and swollen, and his eyes were
"glossy red." Officer Paredes further testified
that Venegas had a strong odor of alcohol coming from his
person, from his breath. He told the officer, "I'm
drunk. Let's get this over with, whatever we are going to
do. Let's go. Let's take care of it right now."
jury heard testimony that the Laredo Police Department has a
traffic accident crash team comprised of ten officers that
respond to motor vehicle accidents with severe bodily
injuries or fatalities. Each of the officers has specific
duties including taking photographs, taking measurements,
diagraming the scene, interviewing witnesses, collecting
videos from security cameras, and securing evidence. Several
of the officers testified and offered photographs and
measurements. Investigator Luis Raines, a certified data
crash specialist and accident reconstructionist, testified
regarding the results of the overall investigation.
Raines began by explaining the difference between gouge
marks-the indentions made in the pavement when two objects
collide-and skid marks-the markings on the pavement when
brakes are applied, lock up, and leave an imprint on the
pavement. He further explained how the measurements,
pictures, and videos are used to determine the speed of
vehicles, the departure angles when the vehicles collide, the
position in which the vehicles land, and the vehicles'
respect to this accident, Investigator Raines testified the
evidence showed the Hummer did not leave any skid marks,
which meant Venegas did not apply his brakes prior to impact
with Ramos's vehicle. The officer further described a
"back-distributed impact, equally distributed across the
rear of the vehicle." The Hummer hit the Aveo hard
enough, with enough speed, "that it made the front hood
buckle." Investigator Raines testified that based on
several factors, including a real-time video-recording taken
shortly before impact, he estimated the Hummer was traveling
at sixty-six miles per hour, pre-impact. The damage to the
Aveo was so severe, it was difficult to determine the
vehicle's make and model.
Venegas told officers someone else was driving the vehicle,
the State had to prove Venegas was the individual behind the
wheel of the Hummer at the time of the accident. While
Investigator Raines was determining the cause of the
accident, Investigator Sanchez and Sergeant Claudia Gonzalez
began collecting blood samples from the Hummer and the Grand
Prix. From the Hummer, samples were taken from the steering
wheel, gear shift, and top of the middle console. From the
Grand Prix, samples were taken from the front passenger door
handle, outside door handle, and the inside front passenger
door side panel. At trial, Bexar County Forensics Specialist
Erin Reat testified that Venegas could not be excluded as the
donor from all samples with the exception of the outside door
handle; she explained that was because the laboratory had
been unable to obtain a genetic profile for the sample
obtained from the outside door handle. With regard to the
remaining blood samples, Reat testified that Venegas was one
"in 54.76 quintillion individuals" that would be
expected to provide that genetic profile.
jury also heard testimony regarding the injuries suffered by
Rosalinda Ramos. Fifty-seven-year-old Ramos, a caregiver at a
twenty-four-hour residential center, was active and healthy
prior to the accident and worked the evening before the
accident from midnight to 8:00 a.m. Her daughter, Carolina,
stayed at a friend's house, and Ramos was on her way to
pick her up at the time of the accident. The last thing Ramos
remembers is stopping at the intersection; the next memory
she has is waking up in the hospital and seeing her son,
suffered a collapsed lung, pneumonia, and pulmonary disease;
nine broken ribs; she also had a tracheotomy to help her
breath. Ramos is paralyzed from the lower abdomen down; her
doctors told her that she will never walk again. Her recovery
is very painful. She spent two months in the hospital and six
months at a rehabilitation center. They had to do a
colostomy; Ramos testified that she is mortified that her
children must change it.
I would tell my son that I wanted to die. That I did not want
to continue living like this. What for? Just giving some
trouble. That I wasn't going to be able to do anything.
And I would say that, why would God have sent me this
(crying) if I was a good person. I wouldn't harm anybody.
Why? Why, I do everything right. I don't harm anyone. I
don't do any wrongful.
the victim's testimony, defense counsel raised a
defensive theory that the victim was impaired by having
either Xanax or Valium in her system. When the defense was
unable to locate the hospital's doctor the following
morning, defense counsel sought a continuance "so that
we can be able to get a doctor." Making a finding, on
the record, that the defense had been in possession of
Ramos's medical records for over a year, the trial court
denied the motion for continuance.
20, 2016, after Ramos testified, Venegas's wife and
brother testified. Prior to the charge being read, Venegas
changed his punishment election; he elected that in the event
the jury found him guilty, that the trial court would assess
punishment. The trial court read the jury charge, the
attorneys made their closing arguments, and the jury was
escorted to the jury room to begin their deliberations. The
trial court subsequently excused the parties for lunch.
seventy-five minutes into jury deliberations, the jury sent
the judge a note requesting to view security videos taken
from the gas station. Venegas was not present in the
courtroom. Defense counsel assured the trial court that
Venegas was told to be back by that time. "Because of
technical limitations [ ] in the jury room, " the trial
court proceeded to show the videos in the courtroom. The
trial court specifically instructed the jury, "You are
not to deliberate in our presence. . . . I don't want you
to communicate to each other regarding deliberations."
seven hours after the jury began deliberations, the jury
returned a verdict of not guilty on the State's charge of
intoxication assault and guilty verdicts against Venegas on
both the failure to stop and render aid and the aggravated
assault causing serious bodily injury. The jury also made an
affirmative finding on Venegas's use of deadly weapon
either during the commission of the offense or during the
immediate flight therefrom. Venegas was still not present in
the courtroom. The jury was released.
23, 2016, the matter was recalled for punishment. Venegas did
not appear. The trial court made an affirmative finding that
Venegas voluntarily absented himself and proceeded with the
State called ten witnesses. Defense counsel called
Venegas's wife. The State and defense counsel made
closing arguments. Defense counsel argued that Venegas did
not wake up the morning of January 1, 2014 and intend to harm
Rosalinda Ramos. His actions were reckless. But he did not
intend to harm anyone. He implored the trial court to look at
Venegas as a whole- to look at his children, his work, his
life, his faith.
trial court assessed punishment at five-years'
confinement in the Institutional Division of the Texas
Department of Criminal Justice on the failure to stop and
render aid charge, and twenty-years' confinement on the
aggravated assault causing serious bodily injury charge. The
trial court sentenced Venegas in absentia. On June 8, 2016,
the trial court signed an interim judgment indicating that
sentence "has not yet been imposed" and "has
not yet commenced" because Venegas has voluntarily
absented himself during the trial.
20, 2016, Venegas was arrested. He was brought before the
trial court on July 21, 2016. The trial court explained to
Venegas it had already sentenced him in absentia on May 23,
Trial Court: I want to put it on the record and sentence you
Okay. I give you-I've given you an opportunity to
provide-to provide your statement to the Court. And I've
considered it together with the testimony that I heard at the
sentencing hearing in your absence. And together with all of
that, despite the fact that you feel that it is your opinion
that 20 years is a lot, Mr. Venegas, the injuries that the
victim suffered are life-are for life.
Venegas: I understand.
Trial Court: Okay.
Venegas: But I-I'm sorry. It was-that's why I wanted
to help her. I mean I'm no good to her in prison.
She's going to need help.
Trial Court: I also want to place on the record that I
granted [trial counsel's] request to withdraw as attorney
of record on June 14th. He was present on ...