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Venegas v. State

Court of Appeals of Texas, Fourth District, San Antonio

April 25, 2018

Gerardo VENEGAS, Appellant
The STATE of Texas, Appellee

          From 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.

         Appellant 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 therefrom.

         On May 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.

         On July 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.

         On 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 court's judgment.

         Factual and Procedural Background

         A. Pretrial Motion for Continuance

         On May 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.

         B. Guilt-Innocence Phase

         1. Evidence Presented before the Jury

         On the 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.

         a. Accident

         Agent 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."

         Agent 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.

         b. Locating the Black Hummer and the Silver Pontiac Grand Prix

         Based 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.

         Investigator 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 residence.

         While 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.

         According 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."

         c. Collecting Evidence

         The 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.

         Investigator 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' resting points.

         With 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.

         Because 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.

         d. Rosalinda Ramos

         The 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, Carlos.

         Ramos 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.

         During 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.

         2. Jury Deliberations

         On May 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.

         Approximately 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."

         Approximately 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.

         C. Punishment Phase

         On May 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 punishment hearing.

         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.

         The 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.

         On July 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, 2016.

Trial Court: I want to put it on the record and sentence you directly.
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 ...

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