Opinion
No. 05-03-01422-CR
Opinion Filed May 26, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court, No. 2, Dallas County, Texas, Trial Court Cause No. F-0271617-RI. Affirmed.
Before Justices O'NEILL, LANG, and LANG-MIERS.
OPINION
Daniel Mateo Alvarez, appellant, appeals the trial court's judgment convicting him of aggravated sexual assault of a child under 14 years of age. The jury found appellant guilty and, after hearing evidence on punishment, assessed his punishment at 40 years of confinement. Appellant brings three issues on appeal: (1) the trial court erred by admitting into evidence the hearsay testimony of a witness who was not a proper outcry witness; (2) the trial court abused its discretion when it refused to allow appellant to offer alleged impeachment testimony at the punishment phase; and (3) the trial court erred when it refused to grant his challenge for cause against a veniremember who stated it was unlikely he would give probation to someone convicted of this type of offense. We decide appellant's issues against him. The trial court's judgment is affirmed. Tex.R.App.P. 43.2(a). I. FACTUAL AND PROCEDURAL BACKGROUND Appellant and his ex-wife had two children together. Appellant's ex-wife lived with their two children, her two additional children, and her boyfriend. Appellant lived with his girlfriend, Samantha Reynolds. Because appellant's ex-wife had to attend an out-of-town funeral, she left their 8 year old daughter, the victim, with appellant for the weekend. During this time, appellant and Reynolds were evicted from their apartment and moved to a motel, taking the victim with them. The victim's mother returned from her trip on Monday night, but was unable to locate her daughter because appellant and Reynolds had moved to the motel. On Wednesday night, Reynolds left the motel and went to a fast food restaurant to get a hamburger for the victim because she was hungry. The victim and appellant were left alone in the motel room. The victim was asleep and appellant was sitting on the bed. The victim woke up because she felt a lot of pain in her private part and appellant was on top of her with his private part touching the "inside" of her private part. Appellant stopped when Reynolds came back approximately 35 to 45 minutes later and he told the victim not to tell anyone what had happened. Reynolds observed that the victim was "really upset," she was crying and screaming, and she did not eat the hamburger. Reynolds asked the victim what was wrong, but she would not tell her. The victim's mother finally located her daughter and she picked her up at the motel that Wednesday night, approximately one hour after Reynolds returned to the motel room. Periodically, during the days following the victim's stay with appellant, the victim complained to her mother that she hurt when she went to the bathroom. Also, the victim's mother noticed some stains on her daughter's underwear when she was doing the laundry. The victim stayed with her aunt for the weekend. On Sunday, the family, including the victim, her aunt, and her mother assembled at the victim's grandmother's house. The victim's aunt commented to the victim's mother and grandmother that the victim was complaining about pain when she went to the bathroom. In response to their questions, the victim told them that appellant had touched her. The victim's mother took her to Jamie Sharpe, a long-time friend. They believed the victim would open up to and feel more comfortable telling Sharpe about the incident. Sharpe spoke with the victim privately and the victim told her about the entire incident. The victim told Sharpe it hurt when she used the bathroom, that "something had happened," and "it hurts [her] private part when [she] pee[s]." Sharpe gave the victim a teddy bear and asked if anyone had touched her. The victim told Sharpe that she had been touched on her private part and indicated on the teddy bear where she had been touched. Sharpe asked the victim who touched her and she replied that it was appellant. The victim also told Sharpe that he had touched her private part on the "inside" with his private part and that "he put it in, and it hurt." Sharpe called the police. The victim was taken to the hospital. The pediatrician questioned the victim who told him that her father had exposed his genitalia and touched her on the genital area. The pediatrician observed that the victim's external genitalia was ulcerated, red, swollen, and there was a discharge or thin puss between her hymen and posterior fourchette, as well as a tear to her genital area. The pediatrician determined that she had an "acute infection" because he suspected the ulcers were herpetic lesions caused by the herpes virus. A specimen of the infection and a hair that was several inches long found in the victim's genital area were collected for analysis. The pediatrician found that the victim had "resolving herpes lesions." Appellant was arrested and interrogated. After being advised of his Miranda rights, appellant waived them. Appellant wrote the following statement: I was in the motel room on the bed and [the victim] starter [sic] touching me. And I pushs [sic] it away two times. I was drunk at the time and I lose control and I just tried to have sex and I relised [sic] what I'm doing and pushes [sic] it away and I stared [sic] crying and I told her that I am sorry and thats [sic] all it happens — my pennis [sic] have contact with her vagina. But it did not go in and I never intended to penetrate her. A blood sample, buccal swab, and pubic hair clipping were obtained from appellant through a warrant and forwarded to the forensic laboratory for analysis. The pubic hair clippings were excluded as having originated from the same source as the hair found on the victim. The blood sample was positive for antibodies for herpes simplex one, which is commonly associated with oral blisters and lesions. Appellant was indicted for the aggravated sexual assault of a child under the age of fourteen years. After the trial, the jury found him guilty of the charged offense. After hearing evidence on punishment, the jury assessed appellant's punishment at 40 years of confinement. II. PROPER OUTCRY WITNESS In his first issue on appeal, appellant argues the trial court erred by admitting into evidence the hearsay testimony of a witness who was not a proper outcry witness. He contends that based on the victim's testimony, the proper outcry witness was either the victim's mother, who was the first person the victim complained to and to whom she told "most" of what happened, or her grandmother, to whom the victim said she told "everything." The State responds that Sharpe was the only viable outcry witness because the victim first revealed an offense to her. A. Standard of Review A trial judge has broad discretion in determining the proper outcry witness. Sims v. State, 12 S.W.3d 499, 500 (Tex.App.-Dallas 1999, pet. ref'd); see Garcia v. State, 792 S.W.2d 88, 92 (Tex.Crim. App. 1990). An appellate court will not reverse the trial court's decision to admit testimony from an outcry witness if it is within the zone of reasonable disagreement. See Tear v. State, 74 S.W.3d 555, 558 (Tex.App.-Dallas 2002, pet. ref'd), cert. denied 538 U.S. 963, 123 S.Ct. 1753 (2003). B. Applicable Law An out-of-court statement of a child sexual assault victim is hearsay when it is offered for the truth of the matter asserted, unless an exception applies. Dorado v. State, 843 S.W.2d 37, 38 (Tex.Crim.App. 1992). Article 38.072 of the Texas Code of Criminal Procedure creates an exception to the hearsay rule when a statement is made by a child victim under the age of twelve. Tex. Code Crim. Proc. Ann. art. 38.072, §§ 2(a) (Vernon 2005). This exception provides for the admission of hearsay statements, which describe the offense, that are made by the child victim to the first person eighteen years or older. Tex. Code Crim. Proc. Ann. art. 38.072, § 2(a)(2). To qualify as a proper outcry statement, the child must have described the alleged offense in some discernible way and must have more than generally insinuated that sexual abuse occurred. Sims, 12 S.W.3d at 500. More than a general allusion to abuse is required, and the statement must provide sufficient detail to specify the offense alleged. See Garcia, 792 S.W.2d at 90-92; Foreman v. State, 995 S.W.2d 854, 858 (Tex.App.-Austin 1999, pet. ref'd). C. Application of the Law to the Facts Before trial, the State filed a notice of outcry statement stating that it intended to offer testimony through Sharpe. Appellant objected. The trial court held a hearing to determine the admissibility of the outcry testimony and held that Sharpe was the proper outcry witness. The record shows the victim was unable to clearly testify to whom and when she made her first outcry. She testified she told her mother "part of it" in person before telling anyone else. She stated she told her grandmother, aunt, and mother simultaneously for the first time. Also, she stated she told her mother some of it first, but later told her grandmother "the most" of it. Further, she stated she told her mother the day before she told her grandmother, she told her mother and grandmother at the same time, and that she overheard her mother telling her grandmother about it before she told her grandmother. The victim stated she told Sharpe about the entire incident after her mother and grandmother. Also, the record shows that the victim did not give a detailed description of the offense until she spoke with Sharpe. The victim told her mother that "it hurt when she went to the restroom." The victim also complained to her aunt that she was feeling pain when she went to the bathroom. When the victim's aunt mentioned this to the victim's mother and grandmother, the grandmother asked the victim if anyone had been touching her. The victim answered yes and that appellant did it. The victim's mother, grandmother, and aunt did not inquire into how or when appellant touched her. Instead, they took the victim to Sharpe because they felt she would be more comfortable discussing the matter with her. We conclude that the trial court did not abuse its discretion when it determined that Sharpe was the proper outcry witness and allowed Sharpe to testify. Although the victim told her mother and grandmother that appellant had touched her before she spoke with Sharpe, her statements, while indicative of abuse, did not reveal a sufficiently detailed description of an offense. Appellant's first issue on appeal is decided against him. III. IMPEACHMENT TESTIMONY DURING HEARING ON PUNISHMENT In his second issue on appeal, appellant argues the trial court abused its discretion when it refused to allow appellant to offer alleged impeachment testimony by Pamela Chavez, his girlfriend's sister, at the punishment phase. The State responds that Chavez's testimony was not proper impeachment testimony and was irrelevant. A. Standard of Review An appellate court reviews a trial court's decision to admit or exclude evidence during the punishment phase for an abuse of discretion. See Mitchell v. State, 931 S.W.2d 950, 953 (Tex.Crim.App. 1996). B. Applicable Law Article 37.07 § 3(a) is one of the guiding principles for the admissibility of evidence at the punishment phase. Sunbury v. State, 88 S.W.3d 229, 233 (Tex.Crim.App. 2002); see Rogers v. State, 991 S.W.2d 263, 265 (Tex.Crim.App. 1999). It permits the State and the defendant to introduce "any matter the court deems relevant to sentencing. . . ." Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Supp. 2004-05); Sunbury, 88 S.W.3d at 233. However, "the language `any matter the court deems relevant to sentencing' does not mean that anything goes." Brooks v. State, 961 S.W.2d 396, 401 (Tex.App.-Houston [1st Dist.] 1997, no pet.). A party who attempts to impeach a witness with a prior inconsistent statement should follow the procedure set forth in Texas Rule of Evidence 613(a). See Tex. R. Evid. 613(a). When that procedure is followed, the witness is reminded of when, to whom, and in what context the allegedly inconsistent statement was made. See Tex. R. Evid. 613(a); Alvarez-Mason v. State, 801 S.W.2d 592, 595 (Tex.App.-Corpus Christi 1990, no pet.). The witness is then afforded the opportunity to admit having made the statement or explain or deny the statement. See Tex. R. Evid. 613(a); Alvarez-Mason, 801 S.W.2d at 595. Texas Rule of Evidence 401 is "helpful" to determine what evidence is "relevant" under Article 37.07 § 3(a) of the Texas Code of Criminal Procedure, but it is not a "perfect fit" in the sentencing context. Mendiola v. State, 21 S.W.3d 282, 285 (Tex.Crim.App. 2000). The determination of whether evidence is relevant during the punishment phase is a function of policy rather than a question of logical relevance. Sunbury, 88 S.W.3d at 233. Determining what is relevant during the punishment phase should be a question of what is helpful to the jury in determining the appropriate sentence in a particular case. Mendiola, 21 S.W.3d at 285; Rogers, 991 S.W.2d at 265. Some of the policy reasons that should be considered when determining whether to admit punishment evidence include: (1) giving complete information for the jury to tailor an appropriate sentence for a defendant; (2) the policy of optional completeness; and (3) whether a defendant admits the truth in sentencing. Erazo v. State, 144 S.W.3d 487, 491 (Tex.Crim.App. 2004); Sunbury, 88 S.W.3d at 233. C. Application of the Law to the Facts During the trial, the victim testified that no one other than appellant had touched her with his hand or other part of his body in a place she did not like. Appellant did not attempt to impeach the victim at the guilt/innocence phase with her alleged prior inconsistent statement to Chavez that her mother's boyfriend had abused her. And the victim did not testify at the punishment phase. During the punishment phase, a forensic interviewer testified that the victim told her appellant had sexually assaulted her 19 times since she was 5 years old. However, appellant stated during the punishment phase that he never sexually assaulted his daughter before. Further he stated that he "put it [in], and that's it," that he stopped because he knew what he was doing was wrong, and explained the injury to the victim's female sex organ, stating the victim told him that "somebody [was] already messing around with her." With respect to the victim's having contracted herpes, appellant stated he did not give it to his daughter and stated that a week before he sexually assaulted her, the victim had complained that she was hurting "down there." Also, during the punishment phase, appellant offered the testimony of Pamela Chavez. The State objected to Chavez's testimony as hearsay, appellant responded that it was to be used for impeachment, and the trial court sustained the objection. A hearing was held outside the presence of the jury regarding Chavez's testimony. Appellant's counsel stated that Chavez would testify "that she had a conversation with [the victim] asking her if she liked this new father and [the victim] said I don't like him. And [Chavez] asked [the victim] why don't you like him, and she said, well, he plays with me in the bathtub. And [Chavez] said, what do you mean? And [the victim] said, she [sic] gets me on the bed and the —." Appellant argued that Chavez's testimony impeached the victim's testimony that she liked her mother's boyfriend and that no one else had touched her. The trial court again sustained the objection. Chavez's testimony was not proper impeachment testimony because the victim was not questioned about the statement during the guilt/innocence phase and did not testify during the punishment phase. As a result, she was not told the contents of the statement, the time, place, and person to whom it was made, and allowed any opportunity to explain or deny the statement. Further, Chavez's testimony was not relevant because evidence that the victim may have been sexually abused by someone else is not helpful to the jury in determining the appropriate sentence for appellant. We conclude that the trial court did not abuse its discretion when it refused to allow appellant to offer Chavez's alleged impeachment testimony at the punishment hearing. Appellant's second issue is decided against him. IV. CHALLENGE FOR CAUSE OF VENIREMEMBER In his third issue on appeal, appellant argues the trial court erred when it refused to grant his challenge for cause against a veniremember who stated it was unlikely he would give probation to someone convicted of this type of offense. Specifically, appellant contends that he was forced to use a peremptory challenge when the trial court denied his challenge for cause forcing him to go to trial with another objectionable juror. The State responds that the trial court did not abuse its discretion because, although the veniremember initially expressed reservations about assessing the minimum sentence, he ultimately stated he could follow the law and would not categorically exclude probation as a punishment option. A. Standard of Review An appellate court reviews a trial court's decision to deny a party's challenge for cause for an abuse of discretion. Swearingen v. State, 101 S.W.3d 89, 98 (Tex.Crim.App. 2003); Curry v. State, 910 S.W.2d 490, 493 (Tex.Crim.App. 1995). An appellate court reviews a trial court's decision in light of the veniremember's voir dire testimony as a whole. Swearingen, 101 S.W.3d at 99; see Patrick v. State, 906 S.W.2d 481, 488 (Tex.Crim.App. 1995). When the record does not contain a clearly objectionable declaration by the veniremember, or the record demonstrates a vacillating or equivocal veniremember, we accord great deference to the trial judge who had the better opportunity to see and hear the person. Swearingen, 101 S.W.3d at 99; Garcia v. State, 887 S.W.2d 846, 854 (Tex.Crim.App. 1994); see Rachal v. State, 917 S.W.2d 799, 814 (Tex.Crim.App. 1996); Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex.Crim.App. 1995). B. Applicable Law A defendant may properly challenge any prospective juror who demonstrates a bias or prejudice against any of the law applicable to the case on which the defendant is entitled to rely. See Tex. Code Crim. Proc. Ann. art. 35.16(c)(2) (Vernon Supp. 2004-05). Jurors must be able to consider the full range of punishment for the crime as defined by the law. Sadler v. State, 977 S.W.2d 140, 142 (Tex.Crim.App. 1998). Jurors "must be able, in a sense, to conceive both of a situation in which the minimum penalty would be appropriate and of a situation in which the maximum penalty would be appropriate." Sadler, 977 S.W.2d at 142 (quoting Fuller v. State, 829 S.W.2d 191, 200 (Tex.Crim.App. 1992)). In other words, jurors must be able to keep an open mind with respect to punishment until they hear the evidence in the case being tried. Johnson v. State, 982 S.W.2d 403, 406 (Tex.Crim.App. 1998). Generally, where it is clear from the responses given by a veniremember that he is unable to consider the full range of punishment available for the crime committed, he is deemed biased as a matter of law and a challenge for cause should be granted. Cooks v. State, 844 S.W.2d 697, 709 (Tex.Crim.App. 1992). However, if a veniremember testifies unequivocally that he can follow the law despite personal prejudices, a trial court must deny a challenge for cause. Brown v. State, 913 S.W.2d 577, 580 (Tex.Crim.App. 1996). C. Application of the Law to the Facts During the voir dire examination, the State questioned a veniremember regarding whether he could give probation in this type of case. The veniremember stated, "I don't want to say ever, but it would just be real unlikely." In response to further questioning, the veniremember stated, "Well, we're talking about a felony, convicted, you know, we 12 jurors found him guilty. They just don't deserve probation." The trial court intervened with a hypothetical situation and the veniremember indicated that he could give probation if he thought it was appropriate. The trial court confirmed his answer asking, "You're not categorically saying you won't do it?" and the veniremember responded "No. Like I said, won't [sic] ever say never, but it's just unlikely." Appellant also asked the veniremember the following question, "I believe you spoke up earlier and said that you couldn't consider probation. Are you telling us that unequivocally?" and the veniremember answered, "Yeah. I mean — it's just real unlikely." Appellant challenged the venire member for cause and the trial court denied the challenge. Appellant requested four additional peremptory strikes and the trial denied his request. Later, appellant renewed his request for four additional peremptory strikes, and again the trial court denied his request. Appellant noted he had exhausted his peremptory strikes and, if his request for additional peremptory strikes been granted, he would have struck four other veniremembers, including one that was seated as a juror. The record shows the veniremember was vacillating or equivocal regarding his ability to assess probation in this type of offense. We accord great deference to the trial judge who had the better opportunity to see and hear the veniremember. Swearingen, 101 S.W.3d at 99. We conclude the trial court did not abuse its discretion when it refused to grant this challenge for cause. Appellant's third issue is decided against him. V. CONCLUSION We conclude that the trial court did not abuse its discretion when it determined Sharpe was the proper outcry witness. Also, we conclude the trial court did not abuse its discretion when it refused to allow appellant to offer the alleged impeachment testimony of Chavez at the punishment hearing. Finally, we conclude the trial court did not abuse its discretion when it refused to grant his challenge for cause against the veniremember who stated it was unlikely he would give probation to someone convicted of this type of offense. We decide appellant's issues against him. The trial court's judgment is affirmed. Tex.R.App.P. 43.2(a).
See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966).
The portion of the statement that appears in italics was written by appellant in Spanish and translated into English by the detective during the trial.
Testimony at trial revealed that the victim called her mother's boyfriend "daddy."
The record shows that appellant's counsel's statement stops abruptly as indicted in this opinion.
Appellant asked to put Chavez's testimony on the record as an offer of proof and the trial court stated it would accept the proffer. However, appellant stated he would "put it in later" and did not do so until the charge had been read and the jury had retired to deliberate on punishment. Error may not be predicated on a ruling which excluded evidence unless a substantial right was affected and an offer of proof was made as soon as practicable, but before the court's charge was read to the jury. See Tex. R. Evid. 103(a)(2), (b). Accordingly, we do not consider the portion of appellant's offer of proof made after the charge was read to the jury.