1 John T. Boyd, Chief Justi ce (Ret .) , Sevent h Court of Appeal s, si tt ing by assi gnm ent. T EX
. G OV ’ T C ODE A NN . §75 .002 (a)(1) (V erno n S upp . 200 4-20 05). NO. 07-04-0278-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL E MARCH 2, 2005

______________________________

ABEL RE YNA, Appellant
v. THE STA

TE OF TEX

AS, Appellee

_________________________________ FROM THE 106 TH DISTRICT COURT OF GARZA COUNTY; NO. 02-2122; HON. CARTER T. SCHILDKNECH T, PRESIDING

_______________________________ Before QUINN and REAVIS, JJ., and BOYD, S.J. 1 Appellant

Abel Reyna appeals from his twoconvict ions for aggravated sexual assault. His appeal is premised on his contentions that 1) the trial court erred in admitting two extraneous offenses during the guilt/innocencephase of the trial, 2) the trial court erred in admit ting the hearsay statements of a victim of an extraneous offense, and 3) the evidence is legally and factually insufficient to sh ow that the offense occ urred in Garza County. We affirm t he judgme nt of the trial cou rt.2 Background On June 12, 2001, appellant and the 18-year-old complain ant were ata party next door to the home of appellant’s girlfriend. At some point, appellant and the complain ant left wit h other friends of the complainant in her car to purchase beer and drive around

. Eventually, the friends were dropped off at other locations, and the complaina ntwas left alone in the car with appellant driving it. She asked him to take her to her friend’s house, buthe did n ot do so. Instead, he made s tops at se veral other places including a motel
r oom registered in his name. At one point, he returned with some cocaine which he tol d the complainant to snort. She became d rowsy, and when she awoke she did not know where she was. Appellant removed her clothes in the car and assaulted her in the front seatwhile threatening both to cut her throat and to anally rape her. After the assault was over, appellant drove the complainant to the apartments where his parents lived, and when he got out, she locked the do ors and drove away. Shortly thereafter, she reported the assault to police. Issue One - Admission of Extraneous Offenses In his firs t issue, a ppellan t contests the admission of evidence that two other women had been sexually assaulted by hi m on separate occasions. We overrule the issue. Maria Garcia testified to a sexual assault by appellant in 1992. Treva Hi ll, a volunteer with the Lubb o ck Rape Crisis Center, also testified to a sex ual assault by appellant on Amanda West in 2001. The State admitted the testimonyas evidence of intent to engage in sexual conduct without consent an d found t hat the d anger of unfair pr ejudice did not substantiallyoutweigh the probative value of the evidence . The jury received a limiting3

instruction informin g them tha t th ey could consider the evidence only for the p urpose of determining the intent of the defendant and whether or not the sexual encounter was consensual. The admission of extraneous offenses is reviewed for abuse of discre tion. Rankin
v. Sta te, 974 S.W.2d 707, 718 (Tex. Crim. App. 1996). Thus, we must uphold the trial court’s decision to admit the evidence as long as itfalls within the zone of reasonable disagree ment. Wheeler v . State, 67 S.W.3d 879, 889(Tex. Cr im. App. 2 002). Under Rule 404(b) of the Rules of Evidence, evi dence of other crimes, wrongs, and acts may be admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. If ad m issible for one of those reasons, the evidence may nonetheless be excluded under R ule 403, “if its probative value i s su bstantiallyoutweighed by the danger of unfair prejudice, confusion of the issues, o r misleading the jury, or by cons idera tions of undue delay, or needless presentation of cumulati ve evide nce.” T EX
. R. E VID
. 403. Next, lack of consent i s an esse nti al elemen t of aggravated sexual assault, which elementthe State mus t prove. T EX
. P EN
. C ODE A NN
. §22.021(a)(1)(A) (Vernon Supp. 2004- 05); Brown v. State, 96 S.W.3d 508, 512 (Tex. Ap p.–Austi n 2002, n o pet.); Garrett v. State, 998 S.W.2d 307, 316 (Tex. App.–Texar kana 199 9, p et. ref’d, untimely filed). When the
accu sed raises a defensive theory of consent, as appellant did here, he nece ssaril y disputes his intent to commit the act with out the co mplainan t’s conse nt. Brown v. State, 96 S.W.3d at

512; Webb v. Sta te, 995 S.W.2d 295, 298 (Tex. App.–Houston [14 th Dist.] 1999, no pet.). Furthermore, evidence of extraneous offenses is admissible to prove the requisite mental st a te if that mental state cannot be inferred from the act itself or if the4

accuse d presentsevidence to rebu t that inf erence. Brown v. State, 96 S.W.3d at 512. Yet, when th e defendant’s intent to commit the offense is at issue and evidence of extraneous offenses is to be used to establish intent, the extraneous offense evidence may come in only if there is a similarity between the charg ed and e xtraneou s offense s. Brown
v. State, 96 S.W.3d at 512; Faison v. St ate , 59 S.W.3d 230, 242 (Tex. App.–Tyler 2001, pet. ref’d). But, a high degree of similari ty is unn ecessary when theissue i s one of i ntent,
as opposed to identity

. Brown v. State, 96 S.W.3d at 512-1 3; Webb v. S tate, 994 S.W.2d at 299. Here, a blood sample from appellant was compared with the vaginal swabs from the complain ant, and the DNA pr ofile was shown to be that of appellant. Further, appellant admitted to having sexual relationswith the complainant, but indicated that it was with her consent. Therefore, the issue o f conse nt was raised, and the State proffered the extraneo us assau lts to ne gate hisallegat ion of co nsent and establi sh his tru e intent. The other two offenses involved girls whowere approximately the same age asthe complainantand who were enticed into a car at night , driven to a loca tion whe re they were raped in the car, and threatened with injury or death during the assau l t. Moreover, the 1992 assault involved appell a nt offering the victim a substance which eventually cau sed her to become sleepy before the assault occurred, muc h like what occurred to the victim at bar. Giv en this, we canno t say that the trial court’s d ecision to admit th e 1992 act fel l outside the zone of reason able dis agreemen t. Next, while it is tru e that the2001 ass ault involved fewer simil arities to the current crime than did the 1992 rape, there were similarities as mentioned above. M o reover, appellant

later stated during his cross-examination by the State that he had been convicted2 Indeed, he averred that each of

the pur port ed assaul ts i nvolve d consensual acti vit y, ev en that resul ti ng in hi s 2001 convi cti on. 5 of sexual assault as a result of the 2001 incident. So too did he testify a bout two other convictions (both for burglary) and his use of control led subs tances. Additionally, he does notcomplain on appeal about the admi ssibili tyof those convictions. Given this, we cannot say that t he admis sion of t he 2001 assault constitute d reversi ble error

. Finally, although the evidence had the potential of being prejudicial if considered for anypurpose selected by the ju rors, the t rial cou rtdid limit their usage of it. See Brown v. State, 96 S.W.3d at 513 (assessing w hether the t rial court provided a limiting instruction when determining the admissib ility of the evidence). Moreover, appellant’s intent was in dispute. 2 Given those circumstances , the tri al court’s decision to overrule his Rule 403 objection also fel l within the zoneof reason able dis agreemen t.

Issue Two - Hearsay Evidence of Extraneous Offense In his second issue, appellant complains a bout the testimony of Treva Hi ll, w ho described appellant’s attack upon Amanda West in 2001. We overrule the issue. Although appellant argues that the admission of the evidence viol ated the confrontation clause of the United S tates C onstitution, nothing was said of that provision attrial. He merely objected on the basis of hearsay. So, the constitutional complaint was not prese rved for re view. Wright v. State, 28 S.W.3d 526, 536(Tex. Cr im. App. 2 000). Ap pellantal so contends the trial court erred in admitting the testimony under the excited utterance exception to the hearsay rule. Once again, we review the trial court’s admission of the ev idence f or abuse of discre tion. Salazar v. State, 38 S.W.3d 141, 153-54 (Tex. Crim . App. 2001). So too do we note that purported hearsay may b e admissible3 At t r i al , ap pe l l an t mad e t he f ol l owi ng ob j ec t i on : “ Yo ur Ho no r , I ob j ec t at

t hi s t i me to hearsay . And if it ’s going to b e exc ited utteranc e, wh at is the utteranc e?” 6 when it consi sts of a statement relating to a startling event or condition made while the d ec larantwas und er the stre ss of exc itement caused by the even t or condi tion. T EX
. R. E VID
. 803(2). And, tha t the state ment may b e made ho urs, Zuliani v. State , 97 S.W.3d 589, 596 (Tex. Crim. App. 2003) (2 0 hours), or days, Apolina r v. State , 106 S.W.3d 407, 417-19 (Tex. A pp.–Hous ton [1 stDist.] 20 03), aff’d, No. PD-1057-03, 2005 Tex. Crim. App. 145 (Tex. Crim. App. February 2, 2005) (four days) la ter is no t determin ative. Id. Rather, the critical determination is whether the declarant was domi nated by the emoti ons, exc itement, fear, or pain of the eve nt or cond ition at the time o f the state ment. Salazar v. State, 38 S.W.3d at 154. Here, Treva Hill described the victim as “extremely upset” and that she was reluctant to talk, sat with her

hands in her

lap, would look away, and woul d cry. That these indicia illustra te that West continued to suffer from the emotional impact of the assa ult when talking to Hill is not somet hing outside thezone of r easonabl e disagr

eement. See Salazar
v. State, 38 S.W.3d at154 (holding that regardless of the time that had el apsed between the event and the statement, the testimony showed the child was upset and in pain at the time of the statement, and thus it could not be said that the trial cou rt abused its disc retion). And, to the extent that appellant complains that the statement is simply a narrative of past events as opposed to a spontaneous utterance, appellant did not specifically object on that basis at trial. 3 Moreover, it has been held that a police officer could te stify about the victim’s description of her attacker, her description of the car, her statement that she had been raped, and the details surrounding the rape (much like what occurred between West7

and Hill at bar) if the circumstances surrounding the exchange permitted the trial court to conclude that the statements were non etheless

excited utterance s. Brow n v. State, 96 S.W.3d at 513-14. Issue Three - Venue Appellant

contends in his final issue that the evidence is both l egally and factually insufficient to show that the offense occurred in Garza County. We overrule the issue. Venue must be e stablish ed by a p reponder ance of th e eviden ce, T EX
. C ODE C RIM
. P ROC
. A NN
. art. 13.17 (Vernon 1977), an d the evi dence us ed to sati sfythe burden may be either direct o r circumstantial. Black v. State, 645 S.W.2d 789, 790 (Tex . Crim. Ap p. 1983). Additionally, it is sufficient if it permits the factfinder to reasonably concludethat the offense
was com mitted in the coun ty alleg ed. Sudds v. State, 140 S.W.3d 813, 818 ( Tex

. App.–H ou ston [14 th Dist.] 20 04, no pe t.); Flowers v. State, 133 S.W.3d 85 3, 856 (Tex. App.–Beaumont2004, no pet.). Next, where venue is sough t to be established by
someone i n a moving vehicle, specific points of reference and measurable passages of time constitute circumstantial evidence susceptible to consideration by the fac tfinder. Edwards v. State, 97 S.W.3d 279, 286 (Tex. App.–Houston [14 th Dist.] 20 03, pet. ref ’d). Here, the victim testified that she fell asleep, and when she awoke, they were parked at a lake with a f ield to the right and a diesel truck parked nearby. After the assault, she stated that appellant began to drive back to Lubbo ck, she saw a sign with the words “Garza County” on it, th ey travel ed throug h Post (w hich we judicial ly notice to be located in Garza County), and i t took th em 40-45 minutes to get to Lubbock. Additionally, w hen she was shown photographs of a rest area called Green Tank situated along U.S. Highway 84 and which is nine miles southeast of Post and about 45 minutes from Lubbock, she stated she8

recognized the area and that it was the locale whereat she was assa ulted. A Garza Co unty deputy also testified that Green Tan k was an area he patrolled. This is some evid ence upon which a reasonable factfinder could conclude that the ass a ult occurred in Garza County. Though appellant testified that he and the complainant had sexual relations in Clapp Park in Lubbock County, it was for the jury to resolve the inconsisten t statem ents and determine the credibi lity of th e witnes ses. Sudds v. State, 140 S.W.3d at 818. And, it had ample evid ence upon w hich to conclude, as stated above, that the assault occurred i n Garza County. Thus, the evidence is both legal ly and factually sufficient to support the verdict, assuming of course one can attack th e factual sufficie ncy of thefinding

. See Sudds v. State, 140 S.W.3d at 817-18 (stating that venue d etermi nations cannot be challen ged on th e basis of factual insuffic iency). Accordingly, the judgment of the trial court is affirmed.

Brian Quinn Justice Do not publish.