Nos. 05-09-00854-CR, 05-09-00855-CR
Opinion filed March 7, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 429th Judicial District Court, Collin County, Texas, Trial Court Cause Nos. 219-82732-06 429-80633-09.
Before Justices MORRIS, MOSELEY, and MYERS.
Opinion By Justice MOSELEY.
A jury convicted appellant Francisco De la Garza of four counts of indecency with a child relating to his (then) step-daughters, V.R. and K.R. (two counts each).See Act of May 24, 1973, 63rd Leg., R.S., ch. 399, 1973 Tex. Gen. Laws 883, 918 (amended 2001 2009) (current version at Tex. Penal Code Ann. § 21.11(a)(1), (d) (West Supp. 2010) (second degree felony)). In both cases, appellant was sentenced to two years' confinement on one count, and ten years' confinement, probated for ten years, on the other count. The sentences were to run concurrently. Appellant appeals the judgments. We affirm.
The jury rejected a third indecency count regarding V.R. and sexual assault and aggravated sexual assault counts regarding K.R.
The case relating to V.R. is trial court cause number 219-82732-06, appellate court cause number 05-09-00854-CR. The case relating to K.R. is trial court cause number 429-80633-09, appellate court cause number 05-09-00855-CR.
I. BACKGROUND
Appellant and the complainants' mother, V.R.D., married in 1989. K.R. testified appellant touched her on her breast and genitals with his hand beginning when she was seven years old, in 1990. V.R. testified appellant touched her on her breast and genitals with his hand beginning when she was ten years old, in 1996. The family moved to Collin County in 1996. After a difficult marriage, appellant and V.R.D. divorced in 2001. In 2005, K.R. told her mother about appellant's conduct. V.R.D. told V.R., who then told her about appellant's conduct concerning her. At the time of trial, V.R. was twenty-two years old, and K.R. was twenty-six years old. Appellant denied the allegations. His theory was that V.R.D. had made up the allegations "to get back at him." II. EVIDENTIARY RULINGS
Appellant's first and fourth issues challenge the trial court's exclusion and admission of certain evidence. A.Standard of Review
We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). We reverse only when the judge's decision was so clearly wrong as to lie outside the zone of reasonable disagreement, and we uphold the ruling if it was correct on any theory reasonably supported by the evidence and applicable to the case. See Laney v. State, 117 S.W.3d 854, 857 (Tex. Crim. App. 2003); Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002). This is so even if the trial judge gives the wrong reason for the decision. Laney, 117 S.W.3d at 857. We review the trial court's evidentiary ruling in light of the evidence that was before the trial court at the time the ruling was made. See Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). B.Exclusion of Reputation Evidence as to Character
During direct examination, the defense asked witness Mark Jackson if he was aware of a "community's opinion" of appellant for truthfulness and veracity. The State objected that this was improper character evidence. After unrecorded discussion, counsel took up another line of questioning. The defense then called and examined Deborah Closser. After the defense rested and out of the presence of the jury, defense counsel proffered the testimony of Jackson as to appellant's reputation for truthfulness and veracity in the community of his friends and family and the testimony of Closser as to appellant's reputation for truthfulness and veracity in a community organization. In his first issue, appellant contends the trial court abused its discretion by excluding their testimony that appellant enjoyed a good reputation for truth and veracity. 1.
Applicable Law
If a witness's general character for truthfulness has been attacked, rule of evidence 608(a) allows the presentation of evidence of that witness's good character as rehabilitation. Michael v. State, 235 S.W.3d 723, 725-26 (Tex. Crim. App. 2007). As relevant to the issue here, rule of evidence 608 states: (a) Opinion and Reputation Evidence of Character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but . . . (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. Tex. R. Evid. 608(a)(2). Non-specific impeachment through bias, motive, or interest; highlighting testimonial defects; or general credibility or lack of truthfulness is an attack on a witness's character for truthfulness, permitting rehabilitation with "good character for truthfulness" witnesses. Michael, 235 S.W.3d at 725-26. However, specific impeachment by a prior inconsistent statement or by another witness is an attack on the accuracy of the specific testimony, which does not open the door for rehabilitation under rule 608(a). See id.2.Discussion
To support appellant's argument that his general character for truthfulness had been attacked, thus rendering admissible Jackson's and Closser's testimony, appellant relies on four exchanges during the trial. First, on re-direct examination K.R. was asked several questions about how she felt "about the suggestion that you're making this up" and whether she was "making this up." Second, on direct examination the investigating detective testified that after interviewing appellant, he determined appellant and V.R.D. did not get along and that appellant told him "it was all being made up by the mother to get back at him." However, after interviewing appellant, the complainants, and V.R.D., he did not believe that V.R.D. "was the root cause of all this." Third, on cross examination appellant was asked whether V.R.D. was telling the truth about certain conduct during and after their marriage and whether the complainants were testifying falsely regarding certain details of the complained-of behavior. Lastly, the State introduced evidence appellant pleaded guilty and received deferred adjudication probation for a misdemeanor assault of K.R., and the State questioned appellant as to whether he completed an anger management class and if he knew "if anyone else had any issues with your completion of the program[.]" We cannot agree these instances constitute attacks on appellant's general character for truthfulness. See id. at 726. Appellant's first and second instances constitute testimony by other witnesses as to the charges and as to direct or implied attacks concerning that testimony. The third instance constitutes impeachment of appellant's theory of the case by another witness. These are examples of specific impeachment. See id. (specific impeachment by self-contradiction or by another witness constitutes attack on accuracy of specific testimony). The fourth instance constitutes testimony concerning appellant's truthfulness as to a specific event, not an attack on appellant's general credibility. See id. Therefore, we conclude the trial court did not abuse its discretion in excluding Jackson's and Closser's testimony as to appellant's reputation for truthfulness. See Laney, 117 S.W.3d at 857; Willover, 70 S.W.3d at 845. We resolve appellant's first issue against him. C.Admission of Hearsay
The State asked P.D., K.R.'s then-boyfriend (subsequently her husband), when was the first time he heard anything from K.R. about "her being molested." Appellant objected on hearsay grounds. The court overruled the objection "as to the subject matter" and cautioned P.D. not to testify "as to what somebody specifically told you." P.D. was asked not to say "something that she told you, but when did you first learn of it?" P.D. answered by referencing a conversation that occurred in 2004 while both he and K.R. were in college. K.R. was crying and "under stress" and said she "had to tell [him] something." The State then asked, "And without going into what she said specifically, what did you learn?" Appellant again objected on hearsay grounds. The trial court instructed P.D. that he could not testify "as to what she told [him]." However, the trial court overruled appellant's hearsay objection, stating P.D. was testifying that "this is his present-sense impression of the event." P.D. answered the question by saying he "learned something about [K.R.]'s past" that helped his understanding why she would "inexplicably cry" or "be hesitant" during "sexually-related activities" between them. P.D. said K.R. did not tell him any details about anything "[a]t that time." In his fourth issue, appellant contends the trial court abused its discretion by admitting P.D.'s hearsay testimony. 1.
Applicable Law
Hearsay is inadmissible, except as provided by statute or the rules of evidence. Tex. R. Evid. 802; Long v. State, 800 S.W.2d 545, 547 (Tex. Crim. App. 1990). Hearsay is a "statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Tex. R. Evid. 801(d). A "statement" has been defined as including proof of a statement, whether the proof is direct or indirect. Schaffer v. State, 777 S.W.2d 111, 114 (Tex. Crim. App. 1989). Thus an out-of-court statement need not be directly quoted to run afoul of the hearsay rules. See Head v. State, 4 S.W.3d 258, 261 (Tex. Crim. App. 1999). If the content of a statement is presented by implication, such "backdoor hearsay" is subject to the same rules and limitations as the more common form of hearsay. Gilbert v. State, 874 S.W.2d 290, 295 (Tex. App.-Houston [1st Dist.] 1994, pet. ref'd) (citing Schaffer, 777 S.W.2d at 113). As noted previously, we review a trial court's decision to admit evidence under an abuse of discretion standard. Casey, 215 S.W.3d at 879. Thus, we affirm the trial court's decision to overrule a hearsay objection unless there is an "inescapable conclusion" that evidence is being offered to prove the truth of statements made outside the courtroom. See Schaffer, 777 S.W.2d at 114-15. 2.
Discussion
Appellant argues that the State introduced P.D.'s testimony to convey to the jury that K.R. told P.D. that appellant had molested her. But P.D. testified K.R. did not tell him who had molested her. Further, the State argues its purpose in eliciting P.D.'s testimony was not to prove that she had been molested (by appellant or anyone else), but to show the date of her outcry to P.D.-2004, i.e., before she told V.R.D. in 2005. At the time of the trial court's ruling, the jury had heard the testimony from, among others, the complainants, an investigating police officer, and V.R.D. K.R. had testified as to the details of appellant's alleged conduct. She also testified that she told P.D., when they were both in college, that she had been "molested," she was crying and "it took him hours to finally get it out of [her]," and she did not tell him any details. She told her mother about appellant's conduct in late 2005. K.R. testified that her mother believed her and supported her. K.R. testified it was her decision to go to the police, in early 2006. During the testimony of the investigating police officer, the jury heard a tape recording of the officer interviewing appellant, in which appellant denied sexual contact and said the complainants' mother (V.R.D.) made up the allegations for revenge. V.R.D. testified as to the nature of her marriage with appellant, as well as her recollection or lack of recollection of some of the specifics of her daughters' (the complainants') testimony as to appellant's conduct. She testified that K.R. told her about appellant's conduct in 2005. She denied telling her daughters what to say and denied being the "mastermind" of a scheme to get back at appellant. Thus, at the time P.D. testified, K.R. had already testified in detail as to appellant's alleged conduct, and V.R.D.'s role in the allegations was an issue in the case. See Gurka v. State, 82 S.W.3d 416, 421-22 (Tex. App.-Austin 2002, pet. ref'd) (argument that sole intent of offering testimony of sexual abuse complainant's friends was to prove substance of conversations weakened by previous complainant's testimony and relevance to delayed outcry). P.D. did not mention any individual in connection with the molestation. Because the record does not establish the inescapable conclusion that the State's sole purpose in eliciting P.D.'s testimony was to prove that K.R. had told him that she had been molested by appellant, we conclude the trial court did not abuse its discretion in admitting his testimony. See Casey, 215 S.W.3d at 879; Laney, 117 S.W.3d at 857; Willover, 70 S.W.3d at 845. Appellant also argues that P.D.'s testimony in effect bolstered K.R.'s testimony, although he did not object on this ground at trial. Thus, appellant failed to preserve this argument for review. See Tex. R. App. P. 33.1(a); Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995) (preservation of error requires timely, specific objection and ruling). We resolve appellant's fourth issue against him. III. COURTROOM CONDUCT
Before testimony began, the prosecutor remarked that some of appellant's family members were present and requested the trial court to admonish any family members in the courtroom to keep any facial expressions or comments to themselves while her witnesses were testifying. The trial court did so. During K.R.'s direct examination, she addressed the prosecutor and said, "[T]hey're making faces at me." The prosecutor said, " Your Honor, I've been informed by my witness that these people here in the courtroom were making faces at her." Appellant's counsel said that was not something to be discussed in front of the jury. The jury was excused. Appellant's counsel said K.R.'s statement was not true and the prosecutor's statement to the court was prejudicial. The trial court admonished an unidentified courtroom observer from making comments. Appellant's counsel then requested the jury be instructed to disregard the prosecutor's "ex parte outburst." The prosecutor apologized to the court. Eventually, before the jury returned, the trial court denied the request to instruct the jury concerning the statement, saying "the less said about the facial expressions or the comments made, the better." In his fifth issue, appellant complains that the trial court erred by denying his objection to the prosecutor's statement set out above in italics. The trial court has broad discretion in controlling the trial conduct of counsel, parties, and witnesses and may exercise a broad range of remedies in exercising its discretion as to conduct of the trial. See Lusk v. State, 82 S.W.3d 57, 63 (Tex. App.-Amarillo 2002, pet. ref'd). Appellant cites Ashley v. State, 362 S.W.2d 847, 850-51 (Tex. Crim. App. 1962), in which the trial court instructed the jury to disregard an observer's comment made during argument and removed her from the courtroom but refused to grant a mistrial. Ashley shows the broad range of remedies available to the trial court considering the facts of each case. In light of this record, we cannot say the trial court abused its discretion by denying appellant's request to instruct the jury to disregard the prosecutor's statement. See Lusk, 82 S.W.3d at 63. We resolve appellant's fifth issue against him. IV. MOTION FOR MISTRIAL
During the State's direct examination of the investigating detective, he was asked if appellant's story of "why this was happening" made any sense to him. Appellant objected and requested the trial court to instruct the jury to disregard the question, which the trial court did. After an unrecorded bench conference, appellant's counsel said, "Well, at the appropriate time, we will make our spoken objection, but we would urge a mistrial based on prosecutorial misconduct, Your Honor." Each counsel objected to the other's statement, and the trial court said, "Okay. All right. Let's stop right there, and then we'll take up anything outside the presence of the jury later." The trial then continued without a ruling on appellant's request for a mistrial and without an objection to the trial court's failure to rule. In his third issue, appellant contends the trial court erred by denying his motion for mistrial. Appellant does not refer us to any point later in the record where this matter was taken up or where he re-urged his motion for mistrial. Because the record does not show the trial court ruled on appellant's motion for mistrial, he has failed to preserve this issue for review. See Tex. R. App. P. 33.1(a)(2) (trial court must rule on a request or refuse to rule and party objects); Ramirez v. State, 815 S.W.2d 636, 643 (Tex. Crim. App. 1991) (ruling must be "conclusory," that is, "it must be clear from the record the trial judge in fact overruled the defendant's objection or otherwise error is waived"). We resolve appellant's third issue against him. V. JURY CHARGE
The jury charges included the following instruction: "You are further instructed that the statute of limitations for the offenses of Sexual Assault of a Child, Aggravated Sexual Assault of a Child and Indecency with a Child is ten (10) years from the 18th birthday of the victim." Appellant objected to the use of "victim." The trial court observed the language tracked the statute and overruled the objection. In his second issue, appellant argues the trial court erred by denying his objection to the use of "victim" in the jury charges. A.Applicable Law and Standard of Review
The trial court shall deliver to the jury "a written charge distinctly setting forth the law applicable to the case;. . . ." Tex. Code Crim. Proc. Ann. art. 36.14 (West 2007). A charge sets forth the law applicable to the case by tracking the language of the statute. Casey, 215 S.W.3d at 886-87. The relevant limitations period for the charged offenses was "ten years from the 18th birthday of the victim of the offense[.]" Act of May 24, 1973, 63rd Leg., R.S., ch. 399, 1973 Tex. Gen. Laws 883, 975 (amended 1997, 2007, 2009) (current version at Tex. Code Crim. Proc. Ann. art. 12.01(1) (West Supp. 2010)). Generally, error in the jury charge will not result in reversal unless the error was calculated to injure the rights of the defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial. See Tex. Code Crim. Proc. Ann. art. 36.19 (West 2006). First, we determine if there was error. See Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). Second, we determine if error was harmful as to require reversal. See id. If there was an objection, appellant must show he suffered some harm. See id.; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g). B.Discussion
In Casey, 215 S.W.3d at 885-87, the court of criminal appeals addressed "victim of the offense" following the name of the complainant in the application paragraph. The appellant objected that such use was an impermissible comment on the weight of the evidence. The trial court overruled the objection, and the court of criminal appeals affirmed that decision, stating that the charge "set forth the law applicable to the case by tracking the language of the statute." Id. at 886-87. Appellant distinguishes this case from Casey by saying that because the application paragraph stated the burden of proof, the jury there was required to find the complainant was a "victim" beyond a reasonable doubt, but there was no such protection here. However, the jury charges here quoted the language that defined the statute of limitations but did not apply "victim" to the particular charged offenses or to the complainants personally; "victim" was not used to refer to either complainant. We agree that, had the jury charges more closely identified the complainants as victims of an offense, such would constitute an improper comment on the weight of the evidence. Further, appellant did not object on the same grounds as in Casey and did not explain how or why the use of the statutory language was improper. Appellant merely objected to the use of the word and suggested "child" instead, and the discussion concerned the statute's wording. On this record, we conclude that Casey controls here, and we reject appellant's arguments to the contrary. Because the challenged language tracked the language of the statute, we conclude there is no error in these jury charges. See id. We resolve appellant's second issue against him. VI. CONCLUSION
Having overruled appellant's five issues, we affirm the trial court's judgments.