Opinion issued April 14, 2016.
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-14-00886-CR ——————————— ANA MARIA GONZALEZ-ANGULO, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 248th District Court Harris County, Texas Trial Court Case No. 1389543
MEMORANDUM OPINION
A jury convicted appellant, Ana Maria Gonzalez-Angulo, of aggravated
assault of a person with whom she was in a dating relationship1 and assessed
punishment at 10 years’ confinement and a $10,000 fine. In four issues on appeal,
1 TEX. PENAL CODE ANN. § 22.02(a)(1), (b)(1), § 71.0021(b) (West 2011). appellant contends that (1) there was legally insufficient evidence that appellant
poisoned the victim with ethylene glycol, as alleged in the indictment; (2) there
was legally insufficient evidence that appellant and the complainant were in a
“dating relationship”; (3) the trial court erred in denying appellant’s motion for
new trial based on newly discovered evidence; and (4) the trial court erred by
allowing a State’s witness to identify appellant’s voice in a recorded telephone call
based on two prior anonymous telephone conferences. We affirm.
BACKGROUND
Events Before the Poisoning
Appellant and the complainant, George Blumenschein, were both
oncologists at MD Anderson Cancer Center, and the two doctors often collaborated
on cancer research. In 2004, appellant consulted with Blumenschein about the care
of a patient, but did not otherwise interact with Blumenschein until 2008, when she
invited a group of physicians, including Blumenschein, to a cancer conference in
Colombia, where she was born. During one trip to Colombia, appellant and
Blumenschein toured a coffee plantation where they learned that the best way to
experience the flavor of coffee was to drink it black, which Blumenschein did.
Blumenschein started dating Evette Toney in 1987, but she soon moved to
Boston to continue her education. When Evette returned to Houston in 2003, she
and Blumenschein resumed their relationship. In 2007, Blumenschein and Evette
2 moved in together. Evette wanted to get married, but Blumenschein did not, so, in
2009, she bought her own house and moved out. In late 2009 or early 2010,
Blumenschein asked Evette to move back in with him, and she did.
In late 2010, Blumenschein and appellant began collaborating on a potential
clinical trial to target a cancer cell that involved both lung cancer, his specialty,
and breast cancer, her specialty. Blumenschein wanted to learn how to write
grants, and appellant volunteered to teach him. In December 2010, appellant wrote
Blumenschein an email in which she said, “Love to work with you on these grants.
. . P.S. I’ve seen how you . . . seem to really like children. I think you’d be a great
dad. You should have kids.” Around the same time, appellant told Blumenschein
that she was getting a divorce. Appellant knew that Blumenschein was in a
relationship with Evette.
In the summer of 2011, while still living with Evette, Blumenschein began
an intimate relationship with appellant. Blumenschein testified that appellant
initiated the relationship by sitting on his knee while they were looking at the same
computer at work. She then began leaning on his shoulders and kissing him on the
neck. Whenever Blumenschein protested and told appellant she was touching him
too much, she said that “this is how we are in Colombia.”
Nevertheless, in September 2011, while on a business trip, appellant
performed oral sex on Blumenschein. Both parties referred to this development in
3 their relationship as “just sex,” and that their relationship was based more on work.
However, Blumenschein testified that appellant offered to “have a kid with you . . .
I could move to Europe for a year and I could come back and you could be the
uncle.” Blumenschein declined, but the two continued their sexual relationship
and were intimately involved “maybe once a month.” The two only had oral sex,
never sexual intercourse, which disappointed appellant because Blumenschein
apparently did not consider oral sex to be real or romantic sex.
When Blumenschein’s supervisor, Bonnie Glisson, questioned him about his
“unseemly” relationship with appellant, Blumenschein denied having an affair with
appellant. Appellant, however, did tell one of her friends, Dr. Jennifer Litton,
about the affair. Appellant bought Blumenschein expensive gifts, and she often
matched their luggage, jewelry, and cars. She named him in her will and as one of
her executors. Another co-worker, Beverly Peeples, thought appellant was
“infatuated” with Blumenschein and had a crush on him.
In December 2011, appellant was angry and questioned Blumenschein about
her suspicion that he was adopting a child. Blumenschein, however, was not
adopting a child, but was acting as a reference for a friend who was adopting.
Blumenschein wondered how appellant knew about the adoption because the
references were supposed to be confidential. Appellant’s explanation was that a
friend who was also adopting had seen Blumenschein’s name on a list.
4 In May 2012, Evette and Blumenschein discussed starting a family. Evette
soon became pregnant with twins and was placed on bedrest. While on bedrest,
but with no doctor’s excuse, Evette allowed her sister to drive her
GlaxoSmithKline company car. Her sister then had an accident. Blumenschein
shared with appellant Evette’s concerns about violating GlaxoSmithKline’s
prohibition against non-employees driving company cars, and appellant
volunteered to write Evette a fraudulent doctor’s excuse. Evette gave the note
written by appellant to GlaxoSmithKline, even though appellant was not her
treating physician. Appellant, however, did not know about Evette’s pregnancy
when she wrote the “sick” note.
Evette miscarried the twins in September 2012, and shortly thereafter
Blumenschein finally told appellant about Evette’s pregnancy and miscarriage.
Appellant’s friend, Dr. Litton, noticed that appellant seemed agitated and
emotional around the same time. Litton was concerned about appellant and
recommended that she seek counseling.
At Thanksgiving 2012, Blumenschein and Evette went to his parents’ house,
and when they returned they found an anonymous letter addressed to Evette, which
said, “He’s interfering in my working life. She’s interfering in your personal life.
We should meet to discuss this . . . because things will become more complicated
with Ana’s impending pregnancy.” The letter then suggesting meeting at
5 Starbuck’s to talk. The letter misspelled appellant’s name as “Anna” and Evette’s
name as “Yvette.” Evette asked Blumenschein if he and appellant were having an
affair, but Blumenschein denied it. He then called appellant to ask her about the
anonymous note.
Appellant volunteered to accompany Evette to Starbucks, but everyone
decided not to go. When Blumenschein showed appellant the anonymous letter
she speculated that “it’s just somebody trying to ruffle our feathers” because they
were jealous of the work they were doing. Because the letter was not overtly
threatening, Blumenschein did not call the police. He did, however, keep the
letter in his black work bag.
When talking to Blumenschein about the anonymous note, appellant
mentioned that earlier that month she had received a call on her direct line at the
hospital, and that the caller said, “You better stop working with him or bad things
are going to [happen].” When Blumenschein asked who the call was from,
appellant said that no return number flashed on the phone as they usually do.
When Blumenschein asked appellant why she did not call the police, appellant
responded that “it’s just somebody trying to mess with my head.” Later, appellant
mentioned a second phone call to her direct line at the hospital, again with no
return number flashing, on which the caller said, “You better leave him alone. You
6 better stop working with him. This is a warning.” Again, appellant said, “Don’t
worry about it.”
On December 17, 2012, Blumenschein received a phone call from a co-
worker, Dr. Chavez MacGregor, which made Blumenschein worry about appellant.
He called appellant to ask about the information he had received from Dr.
MacGregor, and appellant told him that she had been beaten and attacked by a
black woman and man while going to her mailbox. She said that she was stepped
on and kicked in the ribs and stomach, and that they said, “You had better stop
working with him.” Although Blumenschein urged appellant to call the police, she
declined to do so and said her brother was going to handle it. Blumenschein did
not see any injuries. A few weeks later, appellant added to the story and said that
her attackers said, “Oh, and you won’t be having his baby.”
The next day, appellant asked if she could come over and stay with
Blumenschein and Evette, and they said yes. Neither of them saw any evidence of
an attack. Dr. Ana Chavez Macgregor who saw appellant the next day also did not
see any bruises on appellant’s face.
Appellant, Blumenschein, and Evette sat together and began to speculate
about who was behind the anonymous note, phone calls, and attack. Appellant
suggested that it might be Dr. Funda Meric-Bernstam, her friend at the hospital.
Appellant thought Dr. Meric-Bernstam might be jealous of the work she was doing
7 with Blumenschein and said that she was going to investigate her. Appellant also
said that she was going to have two bodyguards flown from Colombia.
Appellant and Blumenschein left the next day for a conference. Because he
was worried about leaving Evette, Blumenschein had Evette’s cousin, Malcom, an
African-American, come stay with her. Upon their return to Houston,
Blumenschein pushed appellant into making a police report about the attack. On
that day, appellant had a bruised eye, though nobody had noticed one the day of or
the day after the alleged attack. Appellant agreed to speak to police, but only if
Blumenschein accompanied her. While they were together, appellant said, “You
don’t know what’s going on in your house. . . . There was a black man staying at
your house last night.” When Blumenschein asked, “How in the hell do you know
that?”, appellant responded, “I had your house watched.” Blumenschein angrily
told appellant to never do that again.
In early 2013, Blumenschein and Evette decided to try again and have a
child. Evette needed to have a medical procedure to improve her ability to carry a
baby to term, so on January 3, Blumenschein drove Evette to the hospital in her car
and left his own car at the house. He then went to work for a while before
returning to the hospital to see Evette. He spent most of the next few days with
Evette at the hospital, but told appellant he had been at home. Appellant became
8 angry, called Blumenschein a liar, and admitted that she knew he had been at The
Women’s Hospital because she had had him watched.
Events Near the Time of the Poisoning
On Saturday, January 26, 2013, Blumenschein returned to Houston from a
conference in San Diego. Neither Evette nor appellant accompanied him on the
trip. On the plane, he sat next to Dr. Mark Gilbert, another oncologist from MD
Anderson. They each had wine from the same bottle and ate the same meal.
Gilbert testified that Blumenschein was acting normally.
After landing in Houston, Blumenschein bought take-out from Niko Niko’s
restaurant, which he shared with Evette. Evette had a glass of wine, which he
shared. The owner of Niko Niko’s testified that no one became sick from eating
their food that day. Blumenschein went to bed around 8:00 that evening. He was
not sick at the time.
The next morning, Blumenschein got up, intending to go to MD Anderson,
but he went to appellant’s house first because she asked him to come by and get
her. Appellant said that she had made breakfast and that she had a special
Colombian coffee she wanted him to try. Blumenschein wanted to get to MD
Anderson to start working, but appellant insisted saying, “I’ve got breakfast. I got
this cheese bread. I got this expensive coffee. Come over. Just come over and get
9 me. Come on. Just do it. It’s a lot easier.” Blumenschein agreed because
“[s]ometimes it’s just easier to say, Fine.”
Once there, Blumenschein had some cheese bread and a couple of sips of
coffee, noticing that “[i]t seemed sweet.” Blumenschein initiated oral sex with
appellant, after which they both shared a shot of vodka from the bottle that he had
given her at Christmas. Then, the two drove together in Blumenschein’s car to
MD Anderson.
Appellant brought a travel mug of the coffee that she had made, which
Blumenschein began to drink once they arrived at the office. Blumenschein
noticed that the coffee was “sickening sweet.” He asked appellant what was up
with the coffee, and she responded that she put Splenda in it. Blumenschein saw
appellant hold the cup to her lips, but he did not know if she drank any or not. She
may have taken a sip, but no more than that. Blumenschein felt it was odd that
appellant put Splenda in the coffee because she knew that he usually took his
black. Blumenschein took a “couple of really big gulps” from the coffee before
declaring, “I just can’t drink this.”
Blumenschein was going to make another cup, when appellant took the
travel mug and said, “I’ll go make the coffee.” Appellant soon returned with the
travel mug, which was now only approximately ¼ full and a second mug that was
“full to the brim.” Appellant put both mugs down and told Blumenschein he
10 needed to finish the travel mug first because “this is expensive.” Blumenschein
took a couple more sips before saying, “I can’t,” and throwing the rest in the
garbage can. Blumenschein began drinking from the second cup, which was
“sweet, but not as cloyingly sweet as the first cup of coffee.” He thought that she
must have cut the second cup of coffee with some of the coffee from the travel
mug for some reason.
Around 11 a.m., Blumenschein began to feel lightheaded, almost
intoxicated. He also noticed that he was slurring his words as he tried to dictate
notes. Appellant said, “Oh, you’re hypoglycemic. You haven’t eaten anything.
Don’t worry about it.” Blumenschein, however, thought he might be having a
stroke so he called Evette. Evette encouraged him to go to a hospital, but he
continued to try to work. A co-worker who saw him thought he appeared
disheveled, tired, and did not “look right.”
Appellant again said, “You know, you’re just hypoglycemic. We’ll go to
my place and get something to eat.” Blumenschein and appellant left MD
Anderson around 5 p.m. because they had a work dinner to attend. Once at
appellant’s house, she laid out a plate of sausage, cheese, and bread. While
attempting to cut the sausage, Blumenschein sliced his thumb.
Appellant called her friend, Dr. Meric-Bernstam, the same doctor she had
once speculated could be responsible for the anonymous letter, to come over and
11 look at Blumenschein’s cut. Dr. Meric-Bernstam was concerned about
Blumenschein’s reactions and she performed a neurologic sobriety test on him.
Based on his responses, she recommended that he go to an emergency room.
Meric-Bernstam remembered Blumenschein complaining about the sweet coffee
appellant had given him, and that appellant seemed irritated that he was making
such a big deal about it.
Blumenschein and appellant had plans to attend a dinner at Feast Restaurant
with Dr. Cathy Eng and Dr. Patrick Hwu to discuss a job opportunity at the
University of Virginia. Blumenschein was supposed to pick up Eng, but he called
and said he was running late, so she drove herself. Dr. Hwu arrived next, and
Blumenschein and appellant arrived together last. At the dinner, Blumenschein
kept dropping his utensils and fumbling with his Blackberry. He bumped his head
on a fireplace mantle when he stood up to go to the restroom. His dinner
companions asked if he had taken narcotics and suggested that he go to the
hospital. He called Evette around 8 p.m. and told her, “I’m constantly dropping my
utensils. I can barely walk.”
After dinner, appellant assured Eng that she would take Blumenschein to a
hospital. Hwu testified that he told appellant to call him if Blumenschein “gave
[her] any trouble” about going to the hospital. Both Eng and Hwu were under the
12 impression that appellant was going to drive Blumenschein to the emergency
room.
Instead, appellant drove Blumenschein back to her house. Blumenschein
asked for his keys, but appellant wouldn’t give them to him. Appellant tried to use
his Blackberry in the bathroom, but he dropped it in the toilet. At 10:15, after
being unable to reach Blumenschein because of his disabled phone, Evette called
appellant. Appellant told Evette, “I have his keys and he’s still sick. He’s very
sick . . . He can barely walk, Evette, so I took away his keys.” Evette said, “Great.
Keep him there. I’m on my way. I’m going to pick him up and take him to the
hospital.” Instead of waiting for Evette, who was on her way, appellant gave
Blumenschein his keys, and he slowly drove himself to MD Anderson; appellant
followed in her own car.
When Evette reached appellant’s house, no one was there. She called
appellant, who said that Blumenschein was driving himself to MD Anderson and
she was following him. Evette asked, “Ana, why would you allow him to drive?
Not only could he kill himself but someone else. Why would you allow this?”
Appellant did not respond.
Once at the hospital, Blumenschein went to his office, not the ER. Evette
wanted him to get to the ER immediately, but appellant said, “I don’t know.”
About 20 minutes later, Blumenschein finally got to the ER. Once there, appellant
13 volunteered to fill out the necessary paperwork, which Evette found odd because
she did not think appellant would have the necessary personal information such as
Blumenschein’s social security number. Evette testified that she was not aware
that she was listed as Blumenschein’s spouse in his medical records.
Events After the Poisoning
At the ER, Blumenschein was not coherent and complaining of double
vision, and Dr. Gilbert was paged to evaluate his cognitive function. Doctors were
initially worried about a stroke, but tests ruled that out. Instead, Dr. Amit Lahoti, a
nephrologist at MD Anderson, discovered a high level of acid in his blood, which
was causing kidney damage. Blumenschein was transferred to intensive care and
placed on dialysis.
At some point, a nurse noticed a white sediment in Blumenschein’s urine
bag. Dr. Lahoti looked at a sample under the microscope and was shocked to see
crystals everywhere, which was a sign of ethylene glycol poisoning. Such crystals
could also cause double vision. When Lahoti went to Blumenschein’s room and
showed appellant a picture of the crystals, she said, “Oh, boy, looks like ethylene
glycol. I’ve seen this quite a bit in my home country.”
When Dr. Meric-Bernstam stopped by on Monday to check on
Blumenschein, appellant told her about the crystals. Meric-Bernstam called her
husband, a doctor, who also speculated that it might be ethylene glycol poisoning.
14 When Meric-Bernstam mentioned that, appellant suggested that Evette might have
done it. Appellant also mentioned to Dr. Glisson, Blumenschein’s supervisor, that
Evette may have done the poisoning. Appellant said that Evette had a motive to
poison Blumenschein because she had miscarried and they were still trying to
conceive. Glisson thought this alleged motive made no sense. Appellant also
admitted to Glisson that she had access to ethylene glycol in her laboratory, but she
never told Glisson about the coffee she had made for appellant, and she denied
having a sexual relationship with him.
Dr. Jennifer Litton spoke to appellant in the hospital on the Monday morning
that Blumenschein was admitted. Appellant told her that Blumenschein was very,
very sick and that they suspected ethylene glycol poisoning. Later that day,
appellant told Litton that Blumenschein was upset about some coffee that she had
given him with Spenda in it and that “she had to remind him that when they got to
work that they were sipping out of the same to-go cup.” Appellant also told Litton
that she had ethylene glycol in her lab, and said, “I’m going to get in so much
trouble for this.” Appellant suggested that Evette was trying to frame her.
Dr. Kristin Price testified that Dr. Lahoti told her about Blumenschein’s
acidosis, a kidney failure symptom, so she sent an ethylene glycol test to Methodist
Hospital across the street because MD Anderson was not set up to perform such a
test. The test came back negative, which did not surprise Dr. Price because
15 ethylene glycol has a half-life of only 3 to 9 hours. The test did, however, contain
a metabolite for ethylene glycol called calcium oxalate crystals, which would have
been produced by a body breaking down ethylene glycol.
Ethylene glycol is a colorless, odorless substance with a sweet taste. It is
found in antifreeze and is also commonly found in laboratories at MD Anderson.
Dr. Lahoti was confident in his diagnosis of ethylene glycol poisoning. Dr.
Kenneth McMartin, a toxicology professor at Louisiana State University and
expert on ethylene glycol toxicity, agreed with the diagnosis and that
Blumenschein’s symptoms were consistent with his having ingested ethylene
glycol sometime Sunday morning.
Once doctors identified ethylene glycol poisoning as the cause of
Blumenshein’s injury, Dr. Price began to investigate for a possible source. As part
of her investigation, Price spoke to appellant. Appellant told Price that when
working with appellant on Sunday she noticed that he was slurring. She thought
that something was wrong, so she suggested that they go to her place so that he
could take a nap. Appellant did not mention that Blumenschein had been at her
house earlier that morning or that she had given him coffee. Nor did she mention
that, upon returning to her house that afternoon, appellant cut his hand and that she
had Dr. Meric-Bernstam come over to look at the cut. Appellant did, however,
16 claim that Evette did not like her or the fact that she and Blumenschein spent so
much time together.
On several other occasions, appellant sought Price out and gave her more
information about the case. She once told Price that she loved Blumenschein like a
brother, and that they almost became involved, but she stopped it. A month or so
later, she told Price that Blumenschein had actually been to her house the morning
that he got sick and that they had shared vodka. Appellant again did not mention
the coffee. On another occasion, appellant sought out Price and told her that
Evette’s cousin from Louisiana had beaten her. This time, she described her
assailants as two men, and claimed that she had hired a private investigator to
figure it out. She told Price that she did not tell police what she had discovered
because her private investigator was from Colombia and she did not want to get
him involved. Appellant also mentioned to Price that she was worried that
Blumenschein had a possible conflict of interest with GlaxoSmithKline, Evette’s
employer, because Blumenschein had a research grant from that company.
Whenever appellant would approach Price with more information, Price would
suggest that she talk to the authorities who were now investigating the case.
While Blumenschein was still in the hospital, appellant sent Blumenschein a
very angry text because she had ethylene glycol in her lab. She also said, “I’m
going to be a suspect in this.” Appellant also accused Evette of being responsible
17 for her alleged assault. On another day, appellant was visiting Blumenschein in his
hospital room when he indicated that he needed his computer bag to pay some
bills. Appellant volunteered to go get the bag, but when she returned, the
anonymous letter to Evette, which Blumenschein had left in the bag, was missing.
Blumenschein had told appellant before that the letter was in his computer bag.
Blumenschein had begun to be very suspicious of appellant, but he did not
confront her because he felt very vulnerable while in the hospital and he was
worried about Evette.
While Blumenschein was still in the hospital, appellant told Evette that she
wanted Blumenschein to accompany her to Italy so that she could take care of him.
Appellant said, “I have shared hotel rooms with him several times and I want to
travel with him and take care of him.” As a result of this conversation, Evette
again asked Blumenschein whether he and appellant were having an affair. This
time, Blumenschein admitted the affair. Evette also confronted appellant who said,
“That was just sex, Evette. . . .So he used you and he used me.”
On February 22, when Blumenschein was discharged, appellant offered to
have him come stay at her house to recover so that she could give him IV fluids.
Blumenschein refused and said he was going home with Evette, who by now knew
about the affair; appellant said Evette could come too. Blumenschein and Evette
declined, and Blumenschein went home with Evette to convalesce.
18 In March or April, appellant went out to dinner with Dr. Gilbert while they
were at a conference in San Francisco. They discussed Blumenschein’s poisoning
at dinner, and appellant suggested that Evette might be the poisoner.
In March, Blumenschein was scheduled to attend a conference in Italy.
Appellant offered to come with him and provide him with IV fluids, but he
refused. Instead, he planned to take Evette. Appellant confronted Blumenschein
and told him that she had looked at his United Airlines account, and that she knew
that he was taking Evette. Blumenschein had to change the password on his
United Airlines account.
Also in March, Blumenschein had several strange emails from appellant
regarding previous emails that Blumenschein had never sent. The IT department at
MD Anderson concluded that someone was tampering with Blumenschein’s email
account. Appellant had told several co-workers that she and Blumenschein shared
email passwords. In fact, she logged into Blumenschein’s email on one occasion
so that she could pull up a picture of Evette to show Dr. Macgregor.
Because he was now suspicious of appellant, Blumenschein and Evette
purchased a recording device, which he used to record several telephone calls with
appellant. In one of the recorded telephone calls, appellant mentions that she had
found an anonymous note on her front porch. She suggested that it had been there
awhile because it had been exposed to the sprinkler system. Appellant said the note
19 said, “You finally left him alone, good.” Blumenschein encouraged her to give the
note to the police, and appellant finally admitted that the note was not real and she
had made it up.
In April, an issue arose related to Evette’s employment with
GlaxoSmithKline. On April 3, someone dropped off an anonymous letter to
Michelle Covard, MD Anderson’s conflict-of-interest chair, suggesting that
Blumenschein’s grant from GlaxoSmithKline might present a conflict because
Evette worked for the same company. The letter mentioned that appellant was
aware of the conflict, and also misspelled her name in the same manner as the
earlier anonymous note left at appellant’s home did. Appellant denied sending the
letter, but surveillance video showed her near the conflict-of-interest office around
the time it was believed that the letter was delivered.
On April 18, Michael Rosenblum, a member of the MD Anderson Conflict
of Interest Committee, received an anonymous email very similar to the letter
delivered to Michelle Covard, including appellant’s misspelled name. As a result
of the email, Rosenblum spoke with appellant, who indicated that she had tried
several times to discuss the issue with Blumenschein and that “she was unable to
effect any outcome.” In discussing the letter and email, Rosenblum found out that
the previous month, appellant had asked Covard, hypothetically, whether an MDA
faculty member could work on an industry-sponsored trial if his spouse also
20 worked for that company. Appellant also told Rosenblum that Evette filled out
some documents upon Blumenschein’s admission to the hospital indicating that
she was his spouse.
On January 29, an anonymous letter similar to those sent to the conflict of
interest committee was sent to GlaxoSmithKline, and was eventually forwarded to
Mike DeSilva, a GlaxoSmithKline investigator, who began an investigation in
April. The anonymous letter mentioned the purported conflict of interest alleging
that Evette was Blumenschein’s spouse, but also mentioned that Evette’s sister had
been in an accident in Evette’s company car, and that Evette “used Dr.
Blumenschain’s [sic] research partner’s letterhead (Dr. Gonzales) to fabricate a
letter that confirmed a hospital visit at MD Anderson that did not happen[,]”
because appellant was out of town on that day.
On March 8, while the GlaxoSmithKline investigation was pending, the
company received an anonymous call on its ethic and compliance hotline asking
why the investigation was taking so long and asking for a copy of the company’s
conflict of interest policy. On April 30, the caller again sought a status update
from the hotline, and was told to call DeSilva, which she did. DeSilva spoke to the
woman for about 10 minutes, but he asked her to call back the next day because he
was in the car with his son at the time. As scheduled, the woman called back the
21 next day and DeSilva spoke to her for about 30 minutes. DeSilva described the
caller as a female with a Hispanic accent.
The woman was willing to continue communicating with DeSilva, but
wanted to do so anonymously. She stated that she worked with Blumenschein at
MD Anderson and it was important to her that he not be made aware of her
allegations. She and DeSilva decided to refer to the anonymous caller as “Doctor”
and set up an email through which he could contact her. The caller emailed
DeSilva, identifying herself as “your doctor contact at MD Anderson” and
informed him that she would be leaving the hospital to take another job, but
suggested that he contact “Anna Gonzales” at her MD Anderson email. The email
again misspelled appellant’s and Blumenschein’s names. The caller several times
urged DeSilva to call appellant saying, “Gonzalez will help you out. We are from
[neighboring] countries and we were raised the same way. She will do the right
thing.” DeSilva emailed appellant a list of questions, but she never responded.
DeSilva’s investigation concluded that there was no conflict of interest
based on Evette’s relationship with Blumenschein, but Evette was nonetheless
fired because she admitted turning in the fake sick note. She told DeSilva that she
did not write the doctor’s note, but she did turn it in.
22 As a result of the poisoning, Blumenschein’s kidneys function only at about
40% efficiency. He must maintain a vegetarian diet, cannot drink alcohol, and
becomes easily fatigued. His life expectancy is also shortened.
On May 29, 2013, Macario Sosa, a detective for the University of Texas
Police, arrested appellant as she was leaving work for the day. Appellant again
blamed Evette, but when Sosa said, “You can’t beat science,” appellant appeared
defeated and responded, “Yes, science is good.”
SUFFICIENCY OF THE EVIDENCE
The indictment in this case alleged as follows:
It is further presented that in Harris County, Texas, Ana Maria Gonzalez-Angulo, hereafter styled the defendant, heretofore on or about January 27th, 2013, did then and there unlawfully, intentionally and knowingly cause serious bodily injury to George Blumenschein, a person with whom the defendant had a dating relationship, hereafter styled the complainant, by poisoning the complainant with a deadly weapon, namely, ethylene glycol.
In issues two and three, appellant contends the State’s evidence was legally
insufficient to show that appellant (1) poisoned Blumenschein, or (2) was in a
dating relationship with Blumenschein. We address legal sufficiency issues first
because, in the event they are meritorious, we would render a judgment of acquittal
rather than reverse and remand. See Benavidez v. State, 323 S.W.3d 179, 181 (Tex.
Crim. App. 2010) (holding appellate courts render judgment of acquittal only when
23 trial court’s ruling amounts to de facto acquittal or appellate court finds evidence
was legally insufficient to support conviction).
Standard of Review
When reviewing the sufficiency of the evidence, we view all of the evidence
in the light most favorable to the verdict to determine whether any rational fact
finder could have found the essential elements of the offense beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011) (holding that
Jackson standard is only standard to use when determining sufficiency of
evidence). The jurors are the exclusive judges of the facts and the weight to be
given to the testimony. Bartlett v. State, 270 S.W.3d 147, 150 (Tex. Crim. App.
2008). In reviewing “all of the evidence,” we consider all evidence that was
properly and improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex.
Crim. App. 2001). A jury, as the sole judge of credibility, may accept one version
of the facts and reject another, and it may reject any part of a witness’s testimony.
See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); see also
Henderson v. State, 29 S.W.3d 616, 623 (Tex. App.—Houston [1st Dist.] 2000,
pet. ref’d) (stating jury can choose to disbelieve witness even when witness’s
testimony is uncontradicted).
24 We afford almost complete deference to the jury’s credibility
determinations. See Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008).
We resolve any inconsistencies in the evidence in favor of the verdict. Curry v.
State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000); see also Clayton v. State, 235
S.W.3d 772, 778 (Tex. Crim. App. 2007) (“When the record supports conflicting
inferences, we presume that the factfinder resolved the conflicts in favor of the
prosecution and therefore defer to that determination.”). “Circumstantial evidence
is as probative as direct evidence in establishing guilt, and circumstantial evidence
alone can be sufficient to establish guilt.” Sorrells v. State, 343 S.W.3d 152, 155
(Tex. Crim. App. 2011) (quoting Clayton, 235 S.W.3d at 778). “Each fact need not
point directly and independently to the guilt of the appellant, as long as the
cumulative force of all the incriminating circumstances is sufficient to support the
conviction.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
Poisoning
Several medical experts, including Dr. Lahoti, Dr. Hail, and Kenneth
McMartin, concluded that Blumenschein was poisoned with ethylene glycol, and
that such poisoning occurred in the morning on the Sunday that Blumenschein fell
ill.
Blumenschein testified that he was with appellant all day on the Sunday that
he fell ill. Appellant insisted that he come over for breakfast because she had a
25 special Colombian coffee she wanted him to try. When Blumenschein did not
drink coffee before they left for the hospital, appellant put it in a travel mug. At
the office, Blumenschein refused to drink the coffee because it was too sweet.
Appellant explained that she had put Spenda in it although she knew that
Blumenschein took his coffee black. Appellant offered to make him a new cup,
which she did. However, she poured some of the special Colombian coffee in the
new cup, and she insisted that he finish what was left of the original coffee first
because it was expensive.
Blumenschein began showing symptoms of intoxication around 11 a.m.
Intoxication is the initial symptom of ethylene glycol poisoning. By the time that
appellant and Blumenschein went to dinner that night, his symptoms were so bad
that their dinner companions, Drs. Eng and Hwu, insisted that appellant take
Blumenschein to the hospital. Instead, appellant drove him to her home and took
away his keys. However, once Evette called to check on Blumenschein, appellant
immediately gave him his keys back and let him drive himself to the hospital,
though he was in no condition to do so. From this evidence, the jury could have
concluded that the coffee appellant gave Blumenschein was adulterated with
ethylene glycol, which is described by the experts as very sweet tasting. The jury
could have also concluded that the appellant’s action in taking Blumenschein home
26 rather than to the hospital as she promised was a deliberate attempt to delay
treatment.
Appellant points out that Blumenschein told investigators that she drank the
same coffee from the same cup. Blumenschein stated that he was unable to
remember much about that and that he was on pain medication at the time. Litton
also testified that appellant said she “reminded” Blumenschein that they had shared
the cup. At trial, Blumenschein stated that he saw appellant put the mug to her
lips, but he never actually saw her swallow. The jury was entitled to believe or
disbelieve whichever version of the evidence it chose, and this Court is required to
view the evidence in the light most favorable to the verdict. See Jackson, 443 U.S.
at 319.
At the hospital, appellant filled out the paperwork for Blumenschein’s
admission, including information that Evette was his spouse; the same information
that later served as the basis for the GlaxoSmithKline conflict of interest
investigation. Indeed, the anonymous letters and emails involved in the
GlaxoSmithKline investigation appear to have been drafted by the same person,
and that person referenced the false note that appellant wrote for Evette, a fact
known only to Evette, Blumenschein, and appellant. Evette was fired as a result of
the GlaxoSmithKline investigation, and the jury could have reasonably believed
that she would not have initiated an investigation that would have resulted in her
27 own firing. The GlaxoSmithKine documents also appeared to be drafted by the
same person that left the note at Blumenschein and Evette’s house because they
contained the same misspellings. The jury could have reasonably concluded that
appellant initiated the GlaxoSmithKline investigation in an effort to further cause
trouble for Evette, a person that appellant repeatedly named to friends and
colleagues as a probable suspect in the poisoning.
There was also evidence from Litton that, after learning that Blumenschein
and Evette were trying to conceive, appellant “was more tearful and more sad than
she’d ever been.” Litton felt that appellant was unstable and encouraged her to
seek counseling. And, there was evidence that appellant was having Evette
watched. She knew that an African-American man, who turned out to be Evette’s
cousin, was staying with her while Blumenschein was out of town. Appellant also
knew that Blumenschein had been with Evette in the hospital after her surgery,
even though he had not told her about it. From this evidence, the jury could have
concluded that appellant had a motive, i.e., she was angry and sad because
Blumenschein and Evette were continuing with their plans to have a family.
Based on the evidence presented at trial, a rational fact finder could have
found beyond a reasonable doubt that appellant poisoned Blumenschein with
ethylene glycol by putting it in his coffee. See Jackson v. Virginia, 443 U.S. 307,
319, 99 S. Ct. 2781, 2789 (1979).
28 Accordingly, we overrule issue two.
Dating Relationship
Appellant contends that she was not in a “dating relationship” with
Blumenschein. The Penal Code does not contain a definition of “dating
relationship.” Rather, section 22.01(b)(2) of the Penal Code incorporates by
reference section 71.0021(b) of the Family Code. See TEX. PENAL CODE ANN. §
22.01(b)(2). That statutory section provides that “dating relationship” means “a
relationship between individuals who have or have had a continuing relationship of
a romantic or intimate nature.” TEX. FAM. CODE ANN. § 71.0021(b).
Appellant points out that Blumenschein considered the relationship to be “at
least 95% work and only 5% casual sex.” She also points out that Blumenschein
believed that oral sex was casual and meaningless, and appellant herself said that
the physical aspect of their relationship was “just sex.” The record, however,
shows that appellant and Blumenschein began to have sexual relations in 2011, and
continued to do so until he was poisoned in 2013. The two participated in sexual
acts approximately once a month. Appellant and Blumenschein frequently traveled
together and shared a hotel room. Appellant admitted to several people that she
and Blumenschein were having an affair. Even though the affair might not have
been very “romantic,” especially since Blumenschein remained in a relationship
with another woman, the jury nonetheless had legally sufficient evidence to
29 rationally conclude that the relationship was “a continuing relationship of . . . [an]
intimate nature.” See TEX. FAM. CODE ANN. § 71.0021(b).
Accordingly, we overrule issue three.
DENIAL OF MOTION FOR NEW TRIAL
In issue one, appellant contends the trial court erred in denying her motion
for new trial based on newly discovered evidence.
Appellant’s motion alleged that, while preparing for trial, her attorney, Billy
Belk, contacted Mary Kara Bucci, another doctor who had previously worked at
MD Anderson, and had asked Bucci whether she too had been in an intimate
relationship with Blumenschein. At the time, Bucci denied any romantic or
intimate involvement with Blumenschein. However, after appellant was convicted,
Bucci contacted Belk and told him that she had not been truthful with him earlier,
and that she had, in fact, had a sexual relationship with Blumenschein before his
relationship with appellant. Appellant filed a motion for new trial based on this
newly discovered information.
In support of her motion, appellant filed an affidavit, in which Bucci averred
that (1) she began an “occasionally romantic or intimate” relationship with
Blumenschein in January 2006, when she began working at MD Anderson; (2) she
spent time with Blumenschein “in a romantic context both at home in Houston as
30 well as when we were out of town on business trips”; (3) she learned about
Blumenschein’s relationship with Evette in 2006, and that it was her impression
that “he was not happy spending time with Evette [] and did not consider her to be
a future marriage partner and did not want to stay in the relationship;” (4) she was
with Blumenschein on one occasion when Evette repeatedly tried to call him, but
Blumenschein “would intentionally ignore her attempts to reach him, and appeared
beleaguered or beaten down by her persistence;” (5) she ended her relationship
with Blumenschein in January 2010 because she “was unwilling to commit to a
public relationship with [Blumenschein] before he had completely broken off his
relationship with Evette”; (6) that after moving to Alaska, she saw Blumenschein
at a conference there, at which time he told her that he was no longer seeing
Evette, and spoke about “his relationship with [appellant] in endearing terms;” and
(7) that she recalled “noticing that [Blumenschein] felt a spark of interest in
[appellant] as far back as 2007.”
In response, the State filed an affidavit by Blumenschein, in which he
acknowledged having a sexual relationship with Bucci beginning in June 2009,
after Evette had moved out of his house, and that the brief relationship had ended
in the fall of 2009, several months before Evette moved back in with him.
Blumenschein explained that he did not recall an instance in which he refused to
take Evette’s calls, but explained that if he did so, “it would not be unusual that I
31 might not take the calls then or not call them back until after my meeting or work
was completed.” Blumenschein remembered seeing Bucci at the July 2012
conference in Alaska, but “did not tell her that my relationship with Evette was
over or anything of that nature.” While he mentioned appellant in regards to work,
he “would not have and did not mention anything about having a personal
relationship [with appellant].” Regarding the “spark of interest” in appellant that
Bucci claimed to have noticed as early as 2007, Blumenschein recalled that he had
spoken to appellant on the phone in 2004 regarding a patient, but he “didn’t meet
her (or first see her) until the fall of 2008.”
In her motion, appellant contended that a new trial should be granted based
on this evidence because it showed that “Blumenschein was very flirtatious and
that he pursued [Bucci] under circumstances extremely similar to the ones he
created with the Defendant,” that Blumenschein was interested in appellant as
early as 2007, and that Blumenschein was unhappy in his relationship with Evette
and that the relationship was over, and he was in a new relationship with appellant.
After considering the motion for new trial based on the affidavits presented
by both sides, the trial court denied appellant’s motion.
Standard of Review and Applicable Law
32 We review a trial court’s denial of a motion for new trial for an abuse of
discretion. 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 the
ruling if it is within the zone of reasonable disagreement. Id. 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. We do not substitute our judgment
for that of the trial court. Id.
In a motion for new trial based on newly discovered evidence, the defendant
must satisfy the following elements: (1) the newly discovered evidence was
unknown or unavailable to the defendant at the time of trial; (2) the defendant’s
failure to discover or obtain the new evidence was not due to the defendant’s lack
of due diligence; (3) the new evidence is admissible and not merely cumulative,
corroborative, collateral, or impeaching; and (4) the new evidence is probably true
and will probably bring about a different result in a new trial. Wallace v. State, 106
S.W.3d 103, 108 (Tex. Crim. App. 2003).
Analysis
The State argues that appellant failed to show elements 3 and 4 of the test set
forth in Wallace. We agree. Relevant evidence is defined as evidence “having any
tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable that it would be without
33 the evidence.” TEX. R. EVID. 401. Here, evidence that Blumenschein was a serial
philanderer who targeted younger, female doctors would have little relevance to
the issue of whether or not he was poisoned by appellant. Indeed, it might provide
more of a motive for appellant, rather than refuting it as argued by appellant.
Similarly, whether Blumenschein had several sexual affairs with co-workers from
MD Anderson was not a contested issue in the case, but was, at best, a collateral
issue.
Furthermore, the evidence in Bucci’s affidavit was, in any respects,
contradicted by Blumenschein’s affidavit. The trial court was entitled to believe
Blumenschein’s affidavit, and disbelieve Bucci’s. Keeter v. State, 74 S.W.3d 31,
38 (Tex. Crim. App. 2002) (holding at motion for new trial, factfinder is free to
believe or disbelieve testimony of any witness); see also Purchase v. State, 84
S.W.3d 696, 700 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (holding same).
Accordingly, we overrule issue one.
ADMISSION OF VOICE IDENTIFICATION EVIDENCE
In her fourth issue on appeal, appellant contends as follows:
The trial court erred by allowing a State’s witness to identify Ana Maria Gonzalez-Angulo’s voice in a surreptitiously recorded telephone call based on two prior anonymous telephone conversations during which the State’s witness never learned the identity of the person with whom he was talking.
34 Background
During its case-in-chief, the State introduced the testimony of Mike DeSilva,
a compliance investigator for GlaxoSmithKline. DeSilva testified that he had
investigated conflict-of-interest complaints about Evette Toney, a
GlaxoSmithKline employee, which were initiated first by an anonymous letter,
then by a call from an unknown caller to the compliance hotline inquiring about
the investigation of the allegations in the anonymous letter. DeSilva testified that
he told the hotline personnel to have the anonymous caller phone him on his cell
phone, which she later did. DeSilva’s first contact with the anonymous caller was
only about 10 minutes long because he was in the car with his son, but the next day
he spoke to the anonymous caller for approximately 30 minutes. He described the
caller as “female with a Hispanic accent.” The woman stated that she worked with
Blumenschein at MD Anderson, and later described herself as “your doctor contact
at MD Anderson.”
After testifying about his conversations with the anonymous caller, DeSilva
was asked to listen to State’s Exhibit 127, one of the phone calls that
Blumenschein had made of his conversations with appellant. After listening to
Exhibit 127, DeSilva testified that the voice on Exhibit 127, previously identified
as appellant’s, was the same voice as that of his anonymous caller.
35 Appellant argues that the in-court voice identification was tainted by an
unduly suggestive pretrial identification.
“[A] pretrial identification procedure may be so suggestive and conducive to
mistaken identification that subsequent use of that identification at trial would deny
the accused due process of law.” Conner v. State, 67 S.W.3d 192, 200 (Tex. Crim.
App. 2001). In determining the admissibility of a pretrial identification, we use a
two-step analysis considering (1) whether the pretrial procedure was impermissibly
suggestive; and (2) if so, whether the suggestive pretrial procedure gave rise to a
very substantial likelihood of irreparable misidentification. Santos v. State, 116
S.W.3d 447, 455 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d); see also Neil
v. Biggers, 409 U.S. 188, 198, 93 S. Ct. 375 (1972). Such an analysis requires us to
examine the totality of the circumstances surrounding the particular case and to
determine the reliability of the identification. Conner, 67 S.W.3d at 200; Barley v.
State, 906 S.W.2d 27, 33 (Tex. Crim. App. 1995). A defendant must prove by clear
and convincing evidence that the pre-trial identification is unreliable. See Santos,
116 S.W.3d at 451. If the indicia of reliability outweigh the influence of an
impermissibly suggestive pretrial identification, then the identification testimony is
admissible. Santos, 116 S.W.3d at 451, 455–56; see Neil, 409 U.S. at 199, 93 S. Ct.
375. Therefore, even if the pretrial procedure is found to be impermissibly
36 suggestive, identification testimony nevertheless is admissible if the totality of the
circumstances shows no substantial likelihood of irreparable misidentification. See
Ibarra v. State, 11 S.W.3d 189, 195 (Tex. Crim. App. 1999); Adams v. State, 397
S.W.3d 760, 764 (Tex. App.—Houston [14th Dist.] 2013, no pet). If the totality of
the circumstances indicates that a substantial likelihood of misidentification exists,
then admission of the identification of the defendant amounts to a denial of due
process. See Neil, 409 U.S. at 198–99, 93 S. Ct. at 375; Adams, 397 S.W.3d at 764.
A voice identification analysis differs somewhat from that of a visual
identification, but the standards used to validate a visual identification are equally
applicable. See Davis v. State, 180 S.W.3d 277, 283 (Tex. App.—Texarkana 2005,
no pet.) (analyzing admissibility of voice identification); see also Williams v. State,
116 S.W.3d 788, 792 (Tex. Crim. App. 2003) (“‘while one’s voice and
handwriting are, of course, means of communication,’ a voice or handwriting
exemplar ‘is an identifying physical characteristic’”) (quoting United States v.
Dionisio, 410 U.S. 1, 6–7, 93 S. Ct. at 764 (1973)).
Appellant contends that “it was impermissibly suggestive to ask DeSilva to
identify Ana Maria Gonzalez’ voice as the anonymous caller by asking him to
listen to a recording of her voice without providing exemplars of other females
voices with Hispanic accents for comparison purposes.” See Davis, 180 S.W.3d at
284 (“the better practice would be to provide several similar voices in the
37 identification procedure”). The State, however, argues that even if the voice
identification was suggestive because appellant’s voice was the only voice used for
comparison, the evidence was nevertheless admissible because the totality of the
circumstances did not indicate and substantial likelihood of misidentification.
In determining whether the is a substantial likelihood of misidentification,
we consider the following five nonexclusive factors against the corrupting effect of
a suggestive identification procedure: (1) the opportunity of the witness to perceive
the accused; (2) the witness’s degree of attention; (3) the accuracy of the witness’s
prior description of the criminal; (4) the level of certainty demonstrated by the
witness at the confrontation; and (5) the length of time between the crime and the
confrontation. See Luna v. State, 268 S.W.3d 594, 605 (Tex. Crim. App. 2008).
Here, DeSilva had a significant amount of time to perceive the voice he
identified as belonging to appellant. He spoke to the person two times on the
telephone, for a total of 40 minutes. The record would support the conclusion that
DeSilva, a trained investigator with 22 years’ experience in law enforcement,
devoted significant attention to the voice on the telephone call. DeSilva was
actively investigating a claim of wrongdoing by a GlaxoSmithKine employee. In
fact, after the first call, DeSilva had the anonymous caller call him back because he
was unable to properly communicate with her while driving with his son in the car.
38 DeSilva’s prior description of the voice he heard as belonging to a Hispanic female
was consistent with his trial testimony identifying appellant. And, after listening to
recordings of telephone calls Blumenschein made of his conversations with
appellant—the same type of communication DeSilva had with the unknown
caller—DeSilva identified the voice on Blumenschein’s recordings—appellant’s—
as the same voice he heard in his 40 minute conversations with the anonymous
caller. He testified that the “pitch sounded the same, the cadence, the accent; it
sounded like the same person I spoke with on the phone on those two occasions.”
The one factor weighing against finding “no substantial likelihood of
misidentification” is that DeSilva did not compare the two voices and identify
appellant as the same voice he had heard on the telephone until over a year after
his conversation with the anonymous caller took place.
However, after considering the totality of the circumstances and all the
relevant factors, we conclude that appellant has not shown by clear and convincing
evidence that the identification procedure was so impermissibly suggestive that it
posed a substantial risk of irreparable misidentification. Accordingly, the trial court
did not err by allowing DeSilva to identify appellant’s voice as the same voice he
heard when talking to the anonymous caller.
We overrule appellant’s fourth issue.
39 CONCLUSION
We affirm the trial court’s judgment.
Sherry Radack Chief Justice
Panel consists of Chief Justice Radack and Justices Massengale and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).