No. 05-09-01283-CR
Opinion Filed April 6, 2011. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 15th Judicial District Court, Grayson County, Texas, Trial Court Cause No. 052550-15.
Before Justices FITZGERALD, LANG-MIERS, and FILLMORE.
Opinion By Justice FILLMORE.
A jury convicted Cid Solano Artecona, Jr. of two counts of aggravated sexual assault of a child and assessed punishment of life imprisonment and a $10,000 fine for each offense. In three points of error, Artecona asserts the trial court erred by denying his motion for mistrial, admitting into evidence the records of the sexual assault nurse examiner (SANE), and denying his motion for directed verdict as to one of the offenses. We modify the trial court's judgments and affirm as modified.
Artecona was indicted on three counts of aggravated sexual assault of a child, but the trial court granted Artecona's motion for directed verdict as to one of the counts.
Background
A.J. testified that Artecona is her half-brother. In December 2003, when A.J. was twelve years old and Artecona was thirty-six years old, A.J. woke up and found Artecona on her bed. The two started talking and "got on the subject of [them] having sex." A.J. asked Artecona "what brought this on," and he responded that he had been grilling outside her window and saw her changing clothes. Artecona said he wanted to be the one "that took [A.J.'s] virginity" and that he "didn't want some dude coming around and taking it and just leaving [her and] not caring about her." According to A.J., she told Artecona that she was not ready to have sex and wanted to wait until she was thirteen or fourteen years old. Artecona then rolled on top of A.J. A.J. testified she told Artecona, "no" and tried to push him off her. Artecona held both of A.J.'s hands above her head, unbuttoned his pants, and tried to insert his penis into A.J.'s vagina. A.J. testified there was "some" penetration of her vagina by Artecona's penis. A.J. described it as "excruciatingly painful." A.J. testified that a couple of days later, she came home from school because she was sick. She and Artecona were talking and eventually went into his bedroom. Artecona indicated he wanted to have sex with A.J. again. A.J. told Artecona that it hurt the first time, she was scared, and she did not want to have sex. Artecona kept "begging and asking." A.J. testified that she said, "no" and tried to squeeze legs together, but Artecona inserted his penis into her vagina. A.J. testified that the following day, she and Artecona were trying to have sex when her mother came home. A.J. told her mother that Artecona was trying to have sex with her. A.J.'s mother confirmed that A.J. told her that Artecona was trying to have sex with her. However, Artecona emphatically denied the allegation, so A.J.'s mother did not do anything. A.J. then told the secretary at her school that Artecona was trying to have sex with her. A.J. stated that she wanted to have sex with Artecona. She also testified that she took one shower with Artecona. At trial, A.J. initially denied that any oral sex was involved, but then testified that Artecona pulled her vaginal lips apart and blew air into her vagina. The air pushed out and made a noise. A.J.'s mother confirmed that A.J. told her at a later date that Artecona blew into her vagina and air came out. John Kirk, an investigator-supervisor with Child Protective Services, testified he interviewed A.J. at her school. A.J. told Kirk that she had been having sex with Artecona for several months. When Kirk asked A.J. what she meant by "sex," she said they would take their clothes off. She would then get on top of Artecona or he would get on top of her. Artecona would place his private part in her and they would move around. A.J. indicated that sometimes "stuff" would come out that was like water, but was not water. Sometimes the "stuff" would come out inside A.J. and sometimes outside of her. She used a towel to clean herself. A.J. indicated she would sometimes say she was sick so that she could stay home and have sex with Artecona. A.J. also told Kirk that she took showers with Artecona. A.J. told Kirk that Artecona said he wanted to teach her to have sex the right way. A.J. also said that Artecona told her that if she was seventeen, he would admit that he was having sex with her. However, because she was only twelve, he would not admit it. Kirk testified that A.J. said she liked having sex and wanted to do it again. Carolyn Riddling testified she was a SANE and examined A.J. She talked to A.J. in order to obtain a medical history. Over Artecona's hearsay objection, the trial court admitted into evidence Riddling's records of her examination of A.J., including the statements A.J. made to Riddling. Riddling then read A.J.'s statement to the jury: I started having sex with my brother Sid [sic], in December. We would do it sometimes in his room and sometimes in my room, we would take showers together. I would pull my clothes off and he would pull his clothes off. We would lay down on the bed and would stick his private part in my private part (vagina). He would suck on my breast. He would put his mouth on my private part. He would have stuff come out of his private part, sometimes it would go on the bed, sometimes it would go on my stomach and sometimes he would squirt it inside me. I have a towel at home in a plastic bag that he cleaned up with when we got through. Sometimes I would play sick at school just to go home to have sex with my brother. When momma was gone I would call her and find out where she was and we would hurry up and have sex before she got home. We would take showers together. He said if I was 17 years old that he would admit that he was having sex with me but since [I] was only 12 that he wouldn't. He never made me do anything that I didn't want to do. Riddling testified she then put A.J. into the knee-chest position and air came out of A.J.'s vaginal canal. A.J. laughed and said it sounded that way when Artecona blew air into her. Riddling found a tear in A.J.'s hymen that indicated A.J.'s vagina had been penetrated. The jury convicted Artecona of two offenses of aggravated sexual assault of a child. Artecona then brought this appeal. Motion for Mistrial
In his first point of error, Artecona contends the trial court erred by denying his motion for mistrial when A.J.'s mother disclosed Artecona had previously been incarcerated. A.J.'s mother testified A.J. and Artecona's girlfriend did not like each other. When asked why, A.J.'s mother responded, "Other than the fact that he had just gotten out of prison." Artecona's counsel objected the answer was not responsive to the question and requested a mistrial. The trial court instructed the jury to disregard the statement. We review a trial court's decision to deny a mistrial for an abuse of discretion. Coble v. State, 330 S.W.3d 253, 292 (Tex. Crim. App. 2010). We view the evidence in the light most favorable to the trial court's ruling, considering only those arguments made in the trial court. Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). We must affirm the trial court's ruling if it is within the zone of reasonable disagreement. Coble, 330 S.W.3d at 292; Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). "Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required." Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004); see also Ocon, 284 S.W.3d at 884-85 (mistrial is extreme remedy and should be granted "`only when residual prejudice remains' after less drastic alternatives are explored" (quoting Barnett v. State, 161 S.W.3d 128, 134 (Tex. Crim. App. 2005)). Whether a witness's improper reference to an extraneous offense warrants a mistrial depends on the particular facts of the case. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). A mistrial is required only when the improper question or evidence is clearly prejudicial to the defendant and is of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors. Young v. State, 283 S.W.3d 854, 878 (Tex. Crim. App. 2009) (per curiam), cert. denied, 130 S. Ct. 1015 (2009). An instruction to disregard will ordinarily cure error associated with a witness's improper reference to an extraneous offense committed by the defendant or to the defendant's prior incarceration. Id. at 878; Tennard v. State, 802 S.W.2d 678, 685 (Tex. Crim. App. 1990) (per curiam) (limiting instruction given promptly after witness referred to defendant's prior imprisonment cured any error). We presume the jury followed the trial court's instruction to disregard testimony in the absence of evidence that it did not. Ladd, 3 S.W.3d at 567 (citing Gardner v. State, 730 S.W.2d 675, 696 (Tex. Crim. App. 1987); State v. Boyd, 202 S.W.3d 393, 402 (Tex. App.-Dallas 2006, pet. ref'd). In determining whether the trial court erred by denying a motion for mistrial, we consider (1) the severity of the misconduct or the magnitude of the prejudicial effect; (2) the measure adopted to cure the misconduct; and (3) the certainty of conviction or punishment absent misconduct. Archie, 221 S.W.3d at 700. Considering the particular facts of this case, we conclude the trial court did not abuse its discretion by denying Artecona's motion for mistrial. The jury heard a significant amount of evidence about Artecona's sexual contact with A.J., and nothing in the record suggests the jury would have reached a different verdict absent the complained-of statement. Further, the reference to Artecona's prior incarceration was brief, did not contain any substantive facts, was not repeated by the State, and was followed by a prompt instruction to disregard. Although Artecona asserts otherwise, nothing in the record suggests the reference to his prior incarceration was so "highly prejudicial and incurable" that the trial court erred by denying his motion for mistrial. Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003); see also Gardner, 730 S.W.2d at 697 ("The bare fact [that appellant had been to the penitentiary], unembellished, was not so inflammatory as to undermine the efficacy of the trial court's instruction to disregard it."). We overrule Artecona's first point of error. Admission of Riddling's Records
In his second point of error, Artecona complains the trial court erred by admitting Riddling's records over his hearsay objection. Specifically, Artecona argues Riddling's records contain statements made by A.J. to Riddling, but Riddling was not the statutory outcry witness and A.J.'s statements were not made for the purpose of medical diagnosis or treatment. Assuming, without deciding, the trial court erred by admitting A.J.'s statements to Riddling into evidence, we conclude Artecona was not harmed. It is well-established that the improper admission of evidence does not constitute reversible error if the same facts are proved by other properly admitted evidence. Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999); see also Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004) ("An error [if any] in the admission of evidence is cured where the same evidence comes in elsewhere without objection.") (quoting Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003)). A.J.'s statements to Riddling were cumulative of testimony from A.J., A.J's mother, and Kirk that was admitted without objection. Accordingly, any error by the trial court in admitting A.J.'s statements to Riddling was harmless. See Tex. R. App. P. 44.2(b). We overrule Artecona's second point of error. Motion for Directed Verdict
In his third point of error, Artecona asserts the trial court erred by denying his motion for directed verdict as to the allegation Artecona committed aggravated sexual assault by causing A.J.'s sexual organ to contact Artecona's mouth. We review a challenge to the denial of a motion for directed verdict as a challenge to the legal sufficiency of the evidence. Canales v. State, 98 S.W.3d 690, 693 (Tex. Crim. App. 2003); Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). We examine the evidence in the light most favorable to the verdict and determine whether a rational jury could have found the essential elements of the offense beyond a reasonable doubt. Canales, 98 S.W.3d at 693 (citing Jackson v. Virginia, 443 U.S. 307, 318 (1979)); Williams, 937 S.W.2d at 482. The trier of fact is the sole judge of the weight and credibility of the evidence and is responsible for resolving conflicts in the testimony, weighing the evidence, and drawing reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Although A.J. initially denied any oral sex occurred, she also testified that Artecona "pulled my lips apart and would blow inside of my vagina." A.J.'s mother testified that A.J. told her Artecona blew air into her vagina. Riddling also testified that during her examination of A.J., air expelled out of A.J.'s vaginal canal. A.J. laughed and said "that sounds just like the way it did when [Artecona] blew air in me." We conclude a rational jury could have found beyond a reasonable doubt that Artecona caused his mouth to come into contact with A.J.'s sexual organ. We overrule Artecona's third point of error. Modification of Judgments
On each count, the trial court orally sentenced Artecona to life imprisonment and assessed a $10,000 fine. However, the trial court's judgments recite that no fine was assessed. When there is a conflict between the trial court's oral pronouncement and the written judgment, the oral pronouncement controls. Thompson v State, 108 S.W.3d 287, 290 (Tex. Crim. App. 2003). We may modify the trial court's written judgments to correct a clerical error when we have the necessary information before us to do so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd). Accordingly, on our own motion, we modify the trial court's judgment on each count to show Artecona was assessed a $10,000 fine. As modified, we affirm the trial court's judgments.