COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

MARTIN VIERA,

 Appellant,

v.

THE STATE OF TEXAS,

 Appellee. 

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No. 08-10-00332-CR

Appeal from

384th District Court

of El Paso County, Texas

(TC # 20090D02432)

O P I N I O N

Martin Viera appeals his conviction of sexual assault (Count I), enhanced by a prior 

felony conviction. A jury found Appellant guilty of Count I and the trial court assessed 

punishment. The court found the enhancement allegation true and assessed punishment at 

imprisonment for fifty years. For the reasons that follow, we affirm.

FACTUAL SUMMARY

A grand jury returned a two-count indictment against Appellant. Count I alleged that 

Appellant sexually assaulted his sister, Irma Enriquez, without her consent. Count II alleged that 

Appellant engaged in prohibited sexual conduct with his sister. The case was tried before a jury.

Forty-four year old Irma Enriquez grew up in El Paso, Texas with her younger sister and 

her younger brother, Appellant. On March 17, 2009, Enriquez went to lunch with her cousin,

Christine Rosales. After lunch, Enriquez picked up Appellant and they went to the Ale House 

where they were joined by Enriquez’s best friend, Irma Ontiveros, and Rosales. They drank at 

the Ale House for approximately an hour and a half before going to Muggs. Enriquez recalled 

that they drank beer and shots of liquor but she did not know how much she had drunk. She 
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described herself as “very intoxicated.” Enriquez did not know what time they left. Despite 

being intoxicated, Enriquez drove home with Appellant and she recalled falling asleep on her 

couch after watching television. The next thing she remembered is waking up in her bed with 

Appellant on top of her. She specifically testified that his penis was inside her vagina and he 

was moving. Enriquez did not resist or fight because she was in shock. After a short period of 

time, Appellant rolled off of her and fell asleep. Enriquez quietly “creeped off” of her bed so as 

not to awaken Appellant. She went into her bathroom to get her robe because she was naked. 

She grabbed her phone and went outside to call 911. She told the operator that her brother had 

just raped her. The police and an ambulance arrived a few minutes later. Enriquez recalled that 

one of her neighbors waited with her. On cross-examination, Enriquez testified that she did not 

know how she got from the couch to her bedroom, how her clothes were removed, or who 

removed them. 

Sometime after midnight on March 18, 2009, Enriquez’s neighbor, Krystal Anne Molina, 

was driving home when she saw a woman dressed in a bathrobe walking towards the street. 

Molina continued down the street and pulled into her driveway which was about four houses 

down. The woman followed Molina to her house. When Molina got out of her car, she saw that 

the woman was talking on a cell phone and crying hysterically. Molina heard her say, “My 

brother. My brother. He’s still in the house. My brother.” Molina put her arm around the 

woman and asked if she was okay. The woman put all of her weight on Molina and just kept 

saying, “My brother.” Molina could smell alcohol on the woman’s breath. By that time, the 

police and an ambulance had arrived. 

The ambulance was dispatched at 1:37 a.m. and arrived a few minutes later. Marco Isaac 

Hernandez, an EMT, made contact with Enriquez at the scene. He described her as hysterical 
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and agitated. Hernandez recalled that Enriquez had a slight odor of alcohol on her breath but she 

was alert and oriented. The ambulance transported Enriquez to the hospital and arrived there at 

2:59 a.m. 

The sexual assault examination of Enriquez began at 7:18 a.m. Courtney Perez, R.N., an 

emergency room nurse, assisted Dr. Roberto Ochoa during the exam. Dr. Ochoa did not observe 

any external or internal injuries during the exam but he testified that the absence of physical 

trauma did not mean that a sexual assault had not occurred. Dr. Ochoa found non-motile sperm 

in the vagina indicating that intercourse had occurred at least three hours before the exam. 

The Texas Department of Public Safety Laboratory performed DNA testing on the 

interior vaginal swabs collected during the sexual assault examination. Nicholas Ronquillo, a 

forensic scientist, separated the sperm cells from the non-sperm cells in the sample. The DNA 

from the sperm cells found on the vaginal swabs is consistent with Appellant’s DNA. The 

probability of selecting an unrelated person at random who could be the source of the DNA 

profile is approximately 1 in 1.431 quintillion for Caucasians, 1 in 264.7 quintillion for Blacks, 

and one in 1.976 quintillion for Hispanics. Thus, Ronquillo testified that Appellant, to a 

reasonable degree of scientific certainty, is the source of the sperm cell fraction of the vaginal 

swab. 

Appellant called Christine Rosales and Irma Ontiveros to testify regarding Enriquez’s 

degree of intoxication. Rosales said she was not qualified to guess Enriquez’s degree of 

intoxication but Enriquez was not staggering and her speech was not slurred. She recalled that 

Appellant was obnoxious and tried to force her to drink a Jell-O shot with him. She told the 

police in a statement that Appellant was “highly intoxicated.” Ontiveros testified that Enriquez 

was not intoxicated that evening. 
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The jury found Appellant guilty of Count I but found him not guilty of Count II. 

Appellant did not elect for the jury to assess punishment. During punishment, the State 

introduced into evidence a pen packet establishing that Appellant had been convicted in 2007 of 

aggravated assault with a deadly weapon and sentenced to serve two years in prison. His exwife, Anna Margarita Garcia, testified that she was the complainant in the aggravated assault 

case. During that assault, Appellant beat Garcia and threatened to kill her with a knife. 

Appellant hit her every day of their marriage and she described her daily life as torture. 

Enriquez testified about the impact of the sexual assault on her life. She had become 

depressed and lost her job as a result of the sexual assault. She had tried to commit suicide. The 

offense had also ruined her parents’ lives and had destroyed the entire family. 

Appellant testified at the punishment stage and denied beating Garcia every day. With 

respect to Enriquez, Appellant described their relationship as a normal brother-sister relationship. 

Appellant maintained that he was extremely drunk when they left Muggs and he passed out in 

the car. Enriquez took him into the bedroom and put him in her bed. She got him some water 

and aspirin and told him if he needed to urinate or be sick to use the bathroom. Appellant felt 

sick and the room was spinning so he put one foot on the floor. Appellant passed out again and 

the next time he woke up the police were pulling him out of the bed. He could not explain how 

his sperm got inside of his sister. At the conclusion of the punishment stage, the trial judge 

stated that he found it significant that the offense occurred only four days after Appellant was 

released from prison. The trial court found the enhancement allegation true and assessed 

Appellant’s punishment at imprisonment for a term of fifty years. 

SUFFICIENCY OF THE EVIDENCE
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In Issue One, Appellant challenges the legal and factual sufficiency of the evidence 

supporting his conviction. He argues that the evidence is insufficient to prove that he penetrated 

the complainant’s vagina with his penis and without her consent.

In Brooks v, State, the Court of Criminal Appeals abandoned factual sufficiency review 

in those cases where the burden of proof is beyond a reasonable doubt. Brooks v. State, 323 

S.W.3d 893, 894-95 (Tex.Crim.App. 2010)(finding no meaningful distinction between the legal 

and factual sufficiency standards and no justification for retaining both standards, therefore 

overruling the factual sufficiency review adopted in Clewis v. State, 922 S.W.2d 126, 133 

(Tex.Crim.App. 1996)). The legal sufficiency standard articulated in Jackson v. Virginia, 443 

U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), is the only standard a reviewing court 

applies in determining whether the evidence is sufficient to support a conviction. Brooks, 323 

S.W.3d at 894-95. Therefore, we will review the evidence under the Jackson legal sufficiency 

standard and determine whether the evidence is sufficient to support the challenged elements

beyond a reasonable doubt. See Brooks, 323 S .W.3d 894-95, citing Jackson, 443 U.S. at 319, 99 

S.Ct. at 2789.

Standard of Review

Under the Jackson standard, a reviewing court must consider all evidence in the light 

most favorable to the verdict and in doing so determine whether a rational justification exists for 

the jury’s finding of guilt beyond a reasonable doubt. Brooks, 323 S.W.3d at 894-95, citing 

Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. As the trier of fact, the jury is the sole judge as to the 

weight and credibility of witness testimony, and therefore, on appeal we must give deference to 

the jury’s determinations. Brooks, 323 S.W.3d at 894-95. If the record contains conflicting 

inferences, we must presume the jury resolved such facts in favor of the verdict and defer to that 
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resolution. Id. On appeal, we serve only to ensure the jury reached a rational verdict, and we 

may not reevaluate the weight and credibility of the evidence produced at trial and in so doing 

substitute our judgment for that of the fact finder. King v. State, 29 S.W.3d 556, 562 

(Tex.Crim.App. 2000). In our review, we consider both direct and circumstantial evidence and 

all reasonable inferences that may be drawn from the evidence. Hooper v. State, 214 S.W.3d 9, 

13 (Tex.Crim.App. 2007). The standard of review as to the sufficiency of the evidence is the 

same for both direct and circumstantial evidence cases. Id.; Arzaga v. State, 86 S.W.3d 767, 777 

(Tex.App.--El Paso 2002, no pet.). Each fact need not point directly and independently to the 

guilt of the accused, so long as the cumulative force of all the evidence, when coupled with 

reasonable inferences to be drawn from that evidence, is sufficient to support the conviction. Id. 

Elements of Sexual Assault and Relevant Law

A person commits sexual assault if he intentionally or knowingly causes the penetration 

of another person’s sexual organ by any means without that person’s consent. TEX.PENAL 

CODE ANN. § 22.011(a)(1)(A)(West 2011). Count I of the indictment alleged that Appellant 

penetrated Enriquez’s sexual organ with his sexual organ without her consent. The Penal Code 

sets forth several circumstances in which a sexual assault is without the complainant’s consent. 

See TEX.PENAL CODE ANN. § 22.011(b)(1)-(11). In this case, Paragraphs A and B of Count I

alleged lack of consent under Subsections (b)(3) and (b)(5) respectively. Under subsection 

(b)(3), a sexual assault is without the other person’s consent if “the other person has not 

consented and the actor knows the other person is unconscious or physically unable to resist.” 

TEX.PENAL CODE ANN. § 22.011(b)(3). Under subsection (b)(5), a sexual assault is without 

the other person’s consent if “the other person has not consented and the actor knows the other 

person is unaware that the sexual assault is occurring.” TEX.PENAL CODE ANN. § 
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22.011(b)(5)(West 2011). The uncorroborated testimony of the victim alone is sufficient to 

support a conviction for sexual assault, as long as the victim tells someone other than the 

defendant within a year of the offense. TEX.CODE CRIM.PROC.ANN. Art. 38.07(a)(West 

Supp. 2012); Quincy v. State, 304 S.W.3d 489, 497 (Tex.App.--Amarillo 2009, no pet.). 

The Evidence

Enriquez testified that she was “very intoxicated” when she arrived at her house and the 

last thing she remembered was falling asleep or passing out on her couch. She woke up in her 

bed and found Appellant on top of her with his penis inside of her vagina. Enriquez testified that 

she would never have sex with her brother. This testimony, if believed by the jury, is sufficient 

to permit a jury to rationally find beyond a reasonable doubt all of the elements of sexual assault 

in that it proved Appellant penetrated Enriquez’s sexual organ with his penis, she did not consent 

to the penetration, and she was unconscious or asleep when the penetration occurred, and 

therefore, she was either unconscious and unable to resist or unaware that it was occurring. See

TEX.PENAL CODE ANN. § 22.011(a)(1), (b)(3), (b)(5); Corbo v. State, No. 14-08-00201-CR, 

2009 WL 5551376, at *5-6 (Tex.App.--Houston [14th Dist.] Sept. 24, 2009, no pet.)(mem. 

op.)(not designated for publication)(victim’s testimony that defendant drugged her, she was 

unconscious when he had sex with her, and she would not have had sex with him was sufficient 

under Article 38.07(a) to support defendant’s conviction and showed lack of consent under 

Section 22.011(b)(3) or (b)(5)). We overrule Issue One.
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EXCULPATORY EVIDENCE

In Issue Two, Appellant contends that the trial court erred by denying leave to depose 

persons of knowledge and by not compelling the State to produce exculpatory or mitigating 

evidence. The State first responds that the issue is multifarious and should not be reviewed.

Multifarious Issue and Deficient Briefing

A point of error or issue is multifarious if it embraces more than one specific ground of 

error. Mays v. State, 318 S.W.3d 368, 385 (Tex.Crim.App. 2010). By combining independent

grounds together in a single issue, an appellant risks rejection of his arguments on the basis that 

nothing has been presented for review. See Wood v. State, 18 S.W.3d 642, 649 n.6 

(Tex.Crim.App. 2000)(refusing to address multifarious grounds). A complaint that the trial court 

erred by denying a defendant’s request to depose a witness is distinct from a complaint that the 

State failed to disclose exculpatory or mitigating evidence as required by Brady v. Maryland, 373 

U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Thus, Issue Two is multifarious. 

Appellate courts have discretion to address multifarious issues and often do so provided 

that the issues are adequately briefed. While Appellant has briefed the Brady issue, his brief 

does not adequately address the deposition issue. He does not direct us to where in the record he 

sought leave to depose a witness or the trial court ruled on such a request, nor does his brief 

provide any argument or authorities in support of this issue. See TEX.R.APP.P. 38.1(g), (i). As 

an appellate court, it is not our task to comb the record in an effort to verify an appellant’s 

claims. See Alvarado v. State, 912 S.W.2d 199, 210 (Tex.Crim.App. 1995). Likewise, we are 

not obligated to construct and compose an appellant’s issues, facts, and arguments for him. 

Busby v. State, 253 S.W.3d 661, 673 (Tex.Crim.App. 2008). Because Appellant has failed to 

brief the deposition argument, we decline to address it. We will, however, address the Brady
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issue. 

Exculpatory Evidence

Appellant raised the Brady issue in his motion for new trial. He alleged that the State 

failed to disclose a supplemental report by Officer J. Van Valen. Appellant attached to his 

motion for new trial an affidavit by a private investigator who related that he interviewed Van 

Valen after the trial. Van Valen told the investigator that he entered the bedroom and found 

Appellant covered with a bed sheet. It appeared to Van Valen that Appellant was pretending to 

be asleep. Van Valen told the investigator that Appellant was wearing a pair of shorts and a Tshirt. He said that he included this information in a supplemental report. In its response to the 

motion for new trial, the State alleged that Van Valen did not make any supplemental reports. 

The trial court conducted a hearing on the motion for new trial, but Appellant did not offer any 

evidence in support of his Brady claim. The prosecutor stated in open court that she had checked 

the police computer system to make sure that the State’s file was complete and contained every 

supplemental report and witness statement and there were no supplemental reports. The 

prosecutor acknowledged the investigator’s affidavit and stated that Officer Van Valen did not 

create a supplemental report and such a supplemental report did not exist. Appellant did not call 

Officer Van Valen to testify at the new trial hearing and he did not introduce the affidavit into 

evidence. The trial court did not rule on the motion for new trial and it was overruled by 

operation of law.

An appellate court reviews a trial court’s ruling on a motion for mistrial using an abuseof-discretion standard of review. Webb v. State, 232 S.W.3d 109, 112 (Tex.Crim.App. 2007). 

We view the evidence in the light most favorable to the trial court’s ruling and uphold that ruling 

if it was within the zone of reasonable disagreement. Id. We do not substitute our judgment for 
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that of the trial court, but rather we decide whether the trial court’s decision was arbitrary or 

unreasonable. Id. Thus, a trial court abuses its discretion in denying a motion for new trial only 

when no reasonable view of the record could support the trial court’s ruling. Id.

In Brady, the United States Supreme Court concluded that the suppression by the 

prosecution of evidence favorable to a defendant violates due process if the evidence is material 

either to guilt or punishment, without regard to the good or bad faith of the prosecution. Harm v. 

State, 183 S.W.3d 403, 406 (Tex.Crim.App. 2006), citing Brady, 373 U.S. at 87, 83 S.Ct. at 

1196-97. A defendant must satisfy three requirements to establish a Brady violation: (1) the 

State suppressed evidence; (2) the suppressed evidence is favorable to defendant; and (3) the 

suppressed evidence is material. Harm, 183 S.W.3d at 406. There can be no Brady violation 

without suppression of favorable evidence. Id. Brady does not require prosecuting authorities to 

disclose exculpatory information to defendants that the State does not have in its possession and 

that is not known to exist. Id., 183 S.W.3d at 406-07. 

A motion for new trial is not self-proving. Rouse v. State, 300 S.W.3d 754, 762 

(Tex.Crim.App. 2009); Jackson v. State, 139 S.W.3d 7, 20 (Tex.App.--Fort Worth 2004, pet. 

ref’d), citing Lamb v. State, 680 S.W.2d 11, 13 (Tex.Crim.App. 1984). During a hearing on a 

motion for new trial, a trial court may receive evidence by affidavits. TEX.R.APP.P. 21.7; 

Jackson, 139 S.W.3d at 20; Godoy v. State, 122 S.W.3d 315, 319 (Tex.App.--Houston [1st Dist.] 

2003, pet. ref’d). An affidavit attached to the motion is merely “a pleading that authorizes the 

introduction of supporting evidence” and is not evidence itself. Jackson, 139 S.W.3d at 20, 

quoting Stephenson v. State, 494 S.W.2d 900, 909-10 (Tex.Crim.App. 1973). To constitute 

evidence, the affidavit must be introduced as evidence at the hearing on the motion. Rouse, 300 

S.W.3d at 762; Stephenson, 494 S.W.2d at 909-10; Jackson, 139 S.W.3d at 20.
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Appellant did not introduce the investigator’s affidavit into evidence at the new trial 

hearing and he did not introduce any other evidence that would show that the supplemental 

report actually existed. Given the absence of evidence to substantiate the Brady claim, we 

conclude that the trial court did not abuse its discretion by failing to grant the motion for new 

trial. See State v. Herndon, 215 S.W.3d 901, 909 (Tex.Crim.App. 2007)(stating that the trial 

court does not abuse its discretion by granting a new trial if the defendant: (1) articulated a valid 

legal claim in his motion for new trial; (2) produced evidence or pointed to evidence in the trial 

record that substantiated his legal claim; and (3) showed prejudice to his substantial rights under 

the standards in Rule 44.2 of the Texas Rules of Appellate Procedure). We overrule Issue Two. 

INCONSISTENT VERDICTS

AND JURY MISCONDUCT

In his third issue, Appellant complains that the trial court abused its discretion by denying 

his motion for new trial on the grounds of jury misconduct and inconsistent verdicts. 

Jury Misconduct

Appellant alleged jury misconduct in his motion for new trial and attached the affidavit of 

one of the jurors, Ramiro Galvan. Galvan stated that he did not believe Appellant was guilty but 

he was pressured by other jurors to find Appellant guilty; several jurors wondered during 

deliberations why Appellant had not testified; some jurors spoke about their own personal 

experiences; and Galvan felt some jurors were biased because they said during deliberations that 

they were moved by the complainant’s tears. During the new trial hearing, defense counsel did 

not offer the Galvan affidavit into evidence and when he began to discuss it as part of his 

argument, the prosecutor objected to the court considering the affidavit because it was

incompetent evidence under TEX.R.EVID. 606(b). The trial court did not expressly rule on the 

objection but pointed out to counsel that the affidavit did not state that any outside influence was 
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brought to bear upon the jurors. By failing to offer the Galvan affidavit into evidence at the new 

trial hearing, Appellant did not establish his entitlement to a new trial. See Rouse, 300 S.W.3d at 

762; Jackson, 139 S.W.3d at 20. 

Even if Appellant had offered the Galvan affidavit into evidence at the hearing, it would 

have been inadmissible under Rule 606(b). That rule provides that, upon an inquiry into the 

validity of a jury’s verdict, a juror may not testify as to any matter or statement occurring during 

the jury’s deliberations or to the effect of anything on any juror’s mind or emotions or mental 

processes as influencing any juror’s assent to or dissent from the jury’s verdict. TEX.R.EVID. 

606(b). A juror may, however, testify to “whether any outside influence was improperly brought 

to bear upon any juror[.]” TEX.R.EVID. 606(b); see also White v. State, 225 S.W.3d 571, 574-

75 (Tex.Crim.App. 2007). An outside influence is an influence from a source other than the 

jurors. White, 225 S.W.3d at 574. Galvan’s affidavit did not address whether outside influences 

were brought to bear upon any juror. Consequently, the affidavit is inadmissible and does not 

constitute competent evidence. The trial court did not abuse its discretion by failing to grant the 

motion for new trial.

Inconsistent Verdicts

Appellant also alleged in his motion for new trial that the jury’s verdict that Appellant 

was guilty of sexual assault (Count I) is inconsistent with its determination that Appellant was 

not guilty of incest (Count II). We understand Appellant to argue that the evidence is 

insufficient to support his conviction because the jury acquitted him of Count II, or alternatively, 

the inconsistent verdicts show that there is jury misconduct. Inconsistent verdicts in prosecutions 

based on the same evidence do not require a reversal on the ground of legal insufficiency. Dunn 

v. United States, 284 U.S. 390, 393-94, 52 S.Ct. 189, 191, 76 L.Ed. 356 (1932); Thomas v. State, 
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352 S.W.3d 95, 101 (Tex.App.--Houston [14th Dist.] 2011, pet. ref’d); Jackson v. State, 3 

S.W.3d 58, 61 (Tex.App.--Dallas 1999, no pet.). Inconsistent verdicts do not necessarily imply 

that the jury convicted the defendant on insufficient evidence, but may simply stem from the 

jury’s desire to be lenient or to execute its own brand of executive clemency. Thomas, 352 

S.W.3d at 101; Jackson, 3 S.W.3d at 61. Even where an inconsistent verdict might have been 

the result of compromise or mistake, the verdict should not be upset by appellate speculation or 

inquiry into such matters. Jackson, 3 S.W.3d at 61-62, citing United States v. Powell, 469 U.S. 

57, 64-67, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984). Consequently, we are limited to determining 

whether the evidence is sufficient to support the jury’s guilty verdict, a matter we addressed in 

our review of Appellant’s first issue. The trial court did not abuse its discretion by failing to 

grant Appellant’s motion for new trial on the ground of inconsistent verdicts. Issue Three is

overruled.

EXTRANEOUS OFFENSE EVIDENCE

In Issue Four, Appellant asserts that the trial court erred by admitting extraneous offense 

evidence during the punishment phase because the witness “was hidden from Appellant until the 

time of trial.” Appellant’s ex-wife, Anna Margarita Garcia, testified without objection that 

Appellant beat, sexually assaulted, and threatened to kill her with a knife on June 9, 2006. 

Garcia testified that, on March 13, 2007, Appellant assaulted her and threatened to kill her while 

holding a knife to her throat. This assault resulted in Appellant’s conviction of aggravated 

assault with a deadly weapon. Garcia also testified, without objection, that Appellant hit her 

every day of their thirteen years of marriage and often forced himself on her sexually. 

To preserve a complaint for appellate review, a party must have presented to the trial 

court a timely request, objection, or motion that states the specific grounds for the desired ruling 
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if they are not apparent from the context of the request, objection, or motion. TEX.R.APP.P.

33.1(a)(1); Lovill v. State, 319 S.W.3d 687, 691-92 (Tex.Crim.App. 2009); Moff v. State, 131 

S.W.3d 485, 489 (Tex.Crim.App. 2004). Appellant did not object to Garcia’s testimony at trial 

on the ground that the extraneous offenses were inadmissible during the punishment phase. 

Consequently, the arguments raised on appeal are waived. See Bernal v. State, 74 S.W.3d 76, 78

(Tex.App.--Eastland 2002, pet. ref’d)(defendant did not preserve complaints related to admission 

of extraneous offenses during punishment phase because he failed to object). Issue Four is 

overruled.

CUMULATIVE ERROR

In his final issue, Appellant argues that his conviction should be reversed due to 

cumulative error. We have rejected Appellant’s claims of error raised in Issues One through 

Four. The Court of Criminal Appeals has recognized that a number of errors may be found 

harmful in their cumulative effect, but there is no authority holding that non-errors may in their 

cumulative effect cause error. Chamberlain v. State, 998 S.W.2d 230, 238 (Tex.Crim.App. 

1999). We overrule Issue Five and affirm the judgment of the trial court.

September 19, 2012 ________________________________________________

ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Antcliff, JJ.

(Do Not Publish)