Nos. 05-02-01814-CR, 05-02-01815-CR
Opinion Filed December 5, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 4, Dallas County, Texas, Trial Court Cause Nos. F01-75385-Pksk, F02-71286-Rsk. Affirm.
Before Justices WHITTINGTON, WRIGHT, and BRIDGES.
CAROLYN WRIGHT, Justice.
Jose Campos appeals his convictions for injury to a child and aggravated sexual assault of a child. After a jury found appellant guilty, it assessed punishment at ten years' confinement in the injury to a child case (05-02-01814-CR) and eighty years' confinement in the aggravated sexual assault of a child case (05-02-01815-CR). In nine issues, appellant generally contends: (1) the trial court erred by denying his motion for mistrial; (2) the trial court erred by admitting certain evidence; (3) the jury charge was erroneous; (4) the evidence is factually insufficient to support his convictions; and (5) this Court should abrogate the factual sufficiency standard of review. We overrule appellant's issues and affirm the trial court's judgments.
Background
Ricardo Puente, a first-grade teacher, noticed one of his students, J.C., had three fresh burn marks on his arm. After asking J.C. about his arm, Puente reported the incident to Child Protective Services. The next day, CPS investigator Sara Faradineh talked to J.C. J.C. told Faradineh that a few days earlier he was "in trouble" and appellant, J.C.'s father, heated a knife on the stove and used it to burn J.C's arm. That evening, Faradineh arranged for J.C. and his siblings to be removed from appellant's home. J.C. and his eight-year-old sister, E.C., were placed in a foster home with Rick and Joy Batchelor. According to Joy, both J.C. and E.C. were very anxious and aggressive. A few months after E.C. came to live with the Batchelors, E.C. showed Joy a scratch she had received from the family cat. Because Joy had previously seen E.C. "pulling on the cat's penis," Joy asked E.C. if that is what E.C. had been doing when the cat scratched her. Joy said E.C. became very agitated and screamed at her that she "pulled on the cat's penis like she touched her dad's penis." According to Joy, E.C. continued "screaming at [Joy], and [E.C.] said that her dad had chased her through her home, tore her clothes off, laid on top of her, and put his penis in her." Joy also explained that E.C. exhibited a lot of sexual behavior, including masturbating frequently, touching Joy's five-year-old son inappropriately, and attempting to rub Rick's pelvic area with her leg. E.C. testified at trial via closed-circuit television. E.C. said that appellant told her to go into his bedroom. Appellant followed a short time later, wearing only a towel. When E.C. tried to leave the room, appellant "grabbed [her], put [her] in the bed with the rope, and he was doing the nasty stuff to [her]." E.C. explained that "the nasty stuff" meant that appellant was on top of her without any clothes on and he "touched her in her private parts," on her breast, and on her "butt" with his penis. She also said that appellant "put his penis in my mouth and on the inside and the outside, two times." Finally, E.C. testified that appellant and her mother would take turns taking pictures of her doing "nasty stuff." They broke the camera when "they thought they were going to get in trouble." Appellant admitted that he had burned J.C. with the knife, but claimed it was an accident. According to appellant, he heated the knife so that he could punch extra holes into a tool belt. J.C. came up behind him and appellant accidently burned J.C. on the arm. Appellant denied ever sexually assaulting E.C. and thought the CPS case workers and therapists had convinced E.C. to falsely accuse him. After hearing this and other evidence, the jury convicted appellant of injury to a child and aggravated sexual assault of a child. This appeal followed. Presumption of Innocence
In his first issue, appellant contends the trial court erred by denying his motion for mistrial. According to appellant, certain dialogue between the trial court and the bailiff "destroyed" the presumption of innocence. Specifically, appellant complains of the following: THE COURT: Have a seat up here, please. Wait — Wait just a — Wait just a minute. Alex, tell him to wait.
[Interpreter Rivera translates for defendant to wait.]
THE COURT: Are you going to go over there, or are you going to sit there?
THE BAILIFF: You want me to stand by the door?
THE COURT: I'm just — I'm just wondering if anybody is going to stand over there, or if ya'll are going to stay back here. What's the deal?
Defense counsel then asked to approach the bench. After a short bench conference, the trial court excused the jury. Defense counsel requested a mistrial claiming the above dialogue left the jury with "the very distinct impression that [appellant] is a violent or dangerous person . . . that he is a man to be feared." The trial court denied appellant's motion for mistrial. After reviewing the record, we cannot conclude that the complained-of dialogue "was comparable to placing a defendant in shackles." To the contrary, the record merely shows that the trial court questioned the bailiff about where he intended to sit as a matter of established courtroom procedure. The trial court did not instruct the bailiff to remain in any particular place. Nor did the trial court instruct the bailiff to accompany appellant to the witness chair. This is not a case where any harm is so inherently prejudicial as to be incapable of correction, and the record must show appellant was harmed. See Garza v. State, 10 S.W.3d 765, 767 (Tex. App.-Corpus Christi 2000, pet. ref'd) (appellant and other prisoners in handcuffs seated in jury box when members of venire in courtroom). Even assuming the complained-of dialogue in some way influenced the jurors, any harm could have been cured by an instruction to the jury if requested. See Lyons v. State, 668 S.W.2d 767, 769 (Tex. App.-Houston [1st Dist.] 1984, pet. ref'd) (prejudice arising from the inadvertent glimpse of defendant in handcuffs by juror could be cured by proper instruction). We overrule appellant's first issue. Notice of Outcry Witness
In his second and third issues, appellant contends the trial court abused its discretion by allowing (1) Faradineh to testify about appellant burning J.C. with a knife; and (2) Batchelor to testify about appellant sexually assaulting E.C. The State filed its article 38.072 notice on September 24, 2002. The proceedings in this case began on October 7, 2002. Thus, the State's notice was filed only thirteen days before the proceedings began and it was error for the trial court to permit Faradineh and Batchelor to testify about what J.C. and E.C. told them. See Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon Supp. 2003) (requiring State to provide defendant, on or before fourteenth day before trial, name of witness and a written summary of statement). Having found the trial court erred by denying appellant's objections to the complained-of testimony, we must next determine whether the error was harmful. The improper admission of hearsay constitutes nonconstitutional error, and it will be considered harmless if, after examining the record as a whole, we are reasonably assured that the error did not influence the jury verdict or had but a slight effect. See Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998); Gabriel v. State, 973 S.W.2d 715, 719 (Tex. App.-Waco 1998, no pet.). When, as here, the same or similar evidence is admitted without objection at another point during the trial, improper admission of the evidence will not constitute reversible error. Josey v. State, 97 S.W.3d 687, 698 (Tex. App.-Texarkana 2002, no pet.); Duncan v. State, 95 S.W.3d 669, 672 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd); Bottenfield v. State, 77 S.W.3d 349, 359-60 (Tex. App.-Fort Worth 2002, pet. ref'd), cert. denied, 123 S.Ct. 2275 (2003); Mosley v. State, 960 S.W.2d 200, 205 (Tex. App.-Corpus Christi 1997, no pet.); Nelson v. State, 893 S.W.2d 699, 703-04 (Tex. App.-El Paso 1995, no pet.); Lankston v. State, 841 S.W.2d 943, 944-46 (Tex. App.-Waco 1992, pet. ref'd). Nancy McNeil, a nurse practitioner at Children's Medical Center, testified that she examined J.C. When McNeil asked J.C. about the burns on his arm, he told her that appellant was mad and told J.C. he was going to burn him. Appellant then heated a knife on a hot skillet and put the knife on J.C.'s arm. As set out above, E.C. testified in detail about appellant's sexual assault of her. Thus, the record contains similar evidence which was admitted at another point in the trial and any error from admitting the complained-of testimony is harmless. See Josey, 97 S.W.3d at 698; Duncan, 95 S.W.3d at 672; Mosley, 960 S.W.2d at 205; Bottenfield, 77 S.W.3d at 359-60; Nelson, 893 S.W.2d at 703-04; Lankston, 841 S.W.2d at 944-46. We overrule appellant's second and third issues. Due to our disposition of appellant's third issue, we need not address appellant's fourth issue contending that the trial court erred by admitting Faradineh's testimony because she was not the proper outcry witness. Tex.R.App.P. 47.1 Reasonable Doubt Instruction
In his fifth and sixth issues, appellant contends the trial court erred by improperly instructing the jury. Specifically, appellant contends the trial court's instruction that "[i]t is not required that the prosecution prove guilt beyond all possible doubt; it is required that the prosecution's proof excludes all `reasonable doubt' concerning the defendant's guilt" constituted egregious harm. According to appellant, this instruction violates the holding in Paulson v. State, 28 S.W.2d 570, 573 (Tex.Crim. App. 2000). In that case, the court of criminal appeals stated that "the better practice is to give no definition of reasonable doubt at all to the jury." Id. at 573. However, the complained-of portion of this charge does not define what is meant by reasonable doubt. It merely instructs the jury on the State's burden to prove beyond a reasonable doubt the elements of the crime for which appellant was charged. Thus, we conclude the instruction does not violate Paulson and it is not erroneous. See O'Canas v. State, No. 05-02-01638-CR, slip op. at 11 (Tex. App.-Dallas Nov. 17, 2003, n.p.h.); Ochoa v. State, No. 04-02-00131-CR, 2003 WL 21972717, at *3 (Tex. App.-San Antonio Aug. 20, 2003, no pet.); Torres v. State, 116 S.W.3d 208, 212 (Tex. App.-El Paso 2003, no pet.); Hanks v. State, 104 S.W.3d 695, 701-02 (Tex. App.-El Paso 2003, pet. granted Nov. 11, 2003); Fluellen v. State, 104 S.W.3d 152, 163-64 (Tex. App.-Texarkana 2003, no pet.); Minor v. State, 91 S.W.3d 824, 828-29 (Tex. App.-Fort Worth 2002, pet. ref'd); Vosberg v. State, 80 S.W.3d 320, 324 (Tex. App.-Fort Worth 2002, pet. ref'd); Carriere v. State, 84 S.W.3d 753, 759-60 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd). We overrule appellant's fifth and sixth issues. Factual Sufficiency
In his seventh and eighth issues, appellant contends the evidence is factually insufficient to support his convictions. According to appellant, his "plausible, rational explanation for [J.C.'s] injury" greatly outweighs any proof of guilt and "no rational juror could have believed E.C." We disagree. In a factual sufficiency challenge, we view the evidence in a neutral light and reversal will occur only if the evidence supporting guilt is so obviously weak as to render the conviction clearly wrong and manifestly unjust, or if the evidence, although adequate when taken alone, is so greatly outweighed by the overwhelming weight of contrary evidence as to render the conviction clearly wrong and manifestly unjust. Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim.App. 2002); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). While we have some authority to disregard evidence that supports the verdict, we must be appropriately deferential so as to avoid substituting our judgment for that of the factfinder. Vasquez, 67 S.W.3d at 236; Wesbrook v. State, 29 S.W.3d 103, 112 (Tex.Crim.App. 2000); Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). We should not substantially intrude upon the jury's role as the sole judge of the weight and credibility of witness testimony. Wesbrook, 29 S.W.3d at 112. After reviewing the record under the above standard, we conclude the evidence is factually sufficient to support the jury's determination that appellant caused bodily injury to J.C. Although appellant explained that he accidently burned J.C., McNeil, a former burn nurse, testified that J.C.'s injuries were not consistent with appellant's explanation. According to McNeil, she did not believe appellant accidently burned J.C. because there were three distinct burns and the burns were such that they would have required "more pressure or heat in contact with the body longer than a split second in an accident [like appellant described]." In McNeil's opinion, the burns were consistent with J.C.'s account of his injuries. Here, the jury chose not to believe appellant's version of how J.C. was burned and to believe J.C. The evidence supporting guilt is not so obviously weak as to render the conviction clearly wrong and manifestly unjust, nor is the evidence of guilt so greatly outweighed by the overwhelming weight of contrary evidence as to render the conviction clearly wrong and manifestly unjust. After conducting a neutral review of all the evidence in the present case, we conclude the State presented factually sufficient evidence to show that appellant intentionally caused bodily injury to J.C. by burning him with a heated knife. We overrule appellant's seventh issue. We likewise conclude the evidence is factually sufficient to show appellant sexually assaulted E.C. Although appellant maintains no rational juror could have believed E.C. because portions of her testimony were not credible, we disagree. Again, the jury chose to disbelieve appellant's explanation that he was not the person who sexually assaulted E.C. because he worked during the time that E.C. claimed she had been assaulted. Contrary to appellant's suggestion, a rational jury could have determined that E.C. was mistaken about the time of day or the number of times she was assaulted, but believed E.C. when she testified that appellant sexually assaulted her. We cannot conclude, after examining all the evidence, that proof of appellant's guilt is so obviously weak that it undermines our confidence in the jury's finding of guilt, or that it is greatly outweighed by contrary proof. See Tear v. State, 74 S.W.3d 555, 561 (Tex. App.-Dallas 2002, pet. ref'd), cert. denied, 123 S.Ct. 1753 (2003). We overrule appellant's eighth issue. Factual Sufficiency Standard of Review
In his ninth issue, appellant contends the factual sufficiency standard articulated by the court of criminal appeals should be abrogated because it is more demanding than the standard of review for legal sufficiency challenges. As an intermediate court of appeals we are bound by the decisions of our state's highest criminal court. Purchase v. State, 84 S.W.3d 696, 701 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd). Thus, we are not authorized to address appellant's complaint. We overrule appellant's ninth issue. Accordingly, we affirm the trial court's judgments.