Opinion
NO. 09-19-00179-CR
03-17-2021
SAMUEL MICHAEL LOPEZ, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 9th District Court Montgomery County, Texas
Trial Cause No. 18-06-07414-CR
MEMORANDUM OPINION
A grand jury indicted Appellant Samuel Michael Lopez for the aggravated sexual assault of "Kathy," a child younger than 14 years of age, and the indictment included an enhancement allegation for a prior felony conviction., Lopez pleaded not guilty, but a jury found Lopez guilty, and the court assessed punishment at imprisonment for life. In this appeal, Lopez challenges his conviction, raising thirteen issues. We affirm.
We refer to the alleged victim, her family members, and other alleged victims by pseudonyms. See Tex. Const. art. I, § 30(a)(1) (granting crime victims "the right to be treated with fairness and with respect for the victim's dignity and privacy throughout the criminal justice process[]").
Evidence at Trial
Testimony by Kathy
Kathy was seventeen years old at the time of trial, and she testified that she has four younger siblings, including Erin, who is almost two years younger. Lopez was her stepfather and her mother's second husband. When Kathy first met Lopez, she found him upbeat and happy, and she was excited because she had not had a father figure before. Kathy recalled that when she was eleven or twelve, Lopez began touching her a few times a week, while she was sitting on the sofa watching TV with Lopez, he would unbutton her pants and slide his hand inside and touch her genitals and put his fingers inside her. Kathy testified that sometimes he groped her breasts or made her touch his penis or give him oral sex. Kathy also testified that on one occasion, she and Lopez had "real []sex[.]" According to Kathy, after things became "more tense[,]" Lopez became angry toward her and he also used physical discipline on her.
Kathy felt concerned and conflicted, she started asking questions in her science class, and she looked things up on the internet, where she found pornography. She was in seventh grade when she realized the things Lopez did to her were "very bad." Around that time, she got in trouble with her mother for looking at pornography. Kathy eventually told her mother that sometimes Lopez would have sex with her, her mother asked for details, and Kathy just wanted it to stop. Kathy did not know if her mother believed her, and Kathy felt bad, depressed, and worthless. According to Kathy, at one point a CPS worker came to the house and spoke with Kathy, but Kathy did not tell the CPS worker what was happening, and she felt she had to lie to protect her siblings. When Kathy was in the ninth or tenth grade, she started having thoughts about suicide. Her mother asked her to tell her the truth about what happened between Kathy and Lopez, and Kathy told her Mother that it had really happened. Kathy, her mother, and the other children left the house and went to a hotel, and Kathy also spoke to the police, CPS, and someone at a hospital. Kathy recalled that she told a woman at the hospital that Lopez would touch her sexually with his hands, and Kathy told the lady that she and Lopez also had "penis-and-vagina sex." Kathy testified that she was hospitalized for depression and suicidal ideation, but after seeing a therapist and getting medication, she started feeling a lot better. On cross-examination, Kathy agreed that she had read erotic stories on her e-reader and she made anime drawings of a sexual nature.
Testimony by Mother
Kathy's Mother, Maria, testified that she was married to Lopez for six years and that Kathy and Erin were her daughters from a prior marriage. According to Maria, when she first met Lopez, her children seemed happy with him, and the children were happy after they got married. Maria testified that later, Lopez became forceful and demanding with the children, and the children "were not as excited about him[.]" Maria recalled finding Lopez and Kathy on the couch, Kathy had a shocked look, and Maria had an "icky feeling[]" about it.
According to Maria, Kathy became withdrawn and secretive, and at one point, Maria checked Kathy's phone and found pornography, and Kathy got in trouble. One evening in May 2015, Maria and Lopez were talking to Kathy about her bad grades, Kathy initially responded with silence, and after Lopez left the room, Kathy said "I need to tell you something, Mom. Sam's been molesting me, and I want it to stop." Maria was shocked and at first did not believe it. Maria confronted Lopez, and he denied everything. Later in the week, she talked with her church bishop, who told her he needed to report it to CPS, and CPS visited the family sometime in July 2015. Kathy and Erin went to counseling from about September 2015 until February 2016.
In March 2018, one of Lopez's former stepdaughters messaged Maria through Facebook, and what she told Maria in the message left Maria feeling "surprised, scared, [and] mad[]" about the possibility that Lopez could have hurt some people. Maria questioned Lopez, and he "denied everything[.]" Maria questioned Kathy and Erin separately, Kathy told her "the truth[,]" and Erin also agreed that Lopez had touched her inappropriately. Afterwards, they left the home and filed a police report on their way out of town, and the police advised Maria not to have any contact with Lopez and to turn off the children's phones. CPS met with the family the next week, and then forensic interviews were conducted. At one point Maria went back to the house to pick up some things when she thought Lopez would not be there, and she found a suicide note in Lopez's handwriting on the bedside table, which she recognized as State's Exhibit 14. The defense objected to the admission of Exhibit 14 under Rule 403 and as hearsay, and the court sustained the objection and stated, "I don't see relevance to it[,] it's just confusing." The defense requested an instruction to disregard any mention of suicide or suicide notes, which the court overruled. The defense then requested a mistrial, which the court also denied. Later, Lopez moved out of the family home, and Maria and the children moved back to their home. Kathy was hospitalized for about a week, and afterward became more energetic, lively, and "more herself." Erin had reported she has PTSD and anxiety. Maria testified that, in her later communication with Lopez, he blamed her and the children for everything.
Testimony by Erin
Erin, Kathy's younger sister and Maria's youngest daughter, was fifteen years old at the time of trial. She testified that Lopez married her mother when Erin was about seven years old. At some point, Erin recalled that she got a "weird feeling[]" and Lopez would touch her inappropriately and molest her before or after school while they were watching the news. Erin testified that on multiple occasions when she was about ten years old, Lopez grabbed her breasts under her clothes, put his hand in her underwear, and touched her genitals with his hand using a cupping motion. Erin also testified that Lopez had frequent outbursts of anger and would yell or throw things. She testified that she did not tell her mother or Kathy what was going on at first. She later told her mother that Lopez had put his hand in her underwear, and a few days later, her mother and the children left the house and went to a hotel, where Erin later spoke with someone from CPS. Erin also recalled talking with "a doctor lady."
Testimony by Shelly
Shelly is Lopez's adult stepdaughter, and she lives out of state. Her mother was married to Lopez when Shelly was in the fourth grade through seventh or eighth grade, but Lopez came back to the house even after Lopez and her mother had broken up. According to Shelly, when her mother first married Lopez, things were good, and Lopez was fun. Later he started "cuddling" with her while she was watching TV. When she was about eleven years old, matters escalated, and several times Lopez lay in bed with her and put his hands down her pants to cup her vagina and touch her breast. Shelly recalled that Lopez showed her how to kiss with her mouth open. According to Shelly, Lopez stopped the abuse when she was a high school freshman and started dating. Shelly told her mother what had happened, but her mother had no reaction.
Shelly recalled that it had been about twenty years since she had any interaction with Lopez, and she became involved in this case after she sent a Facebook message to Lopez's wife, Maria, explaining that Shelly had been abused. Shelly agreed that she had given a statement to a detective. Shelly testified that Dorinda is her cousin.
Testimony of Dorinda
Dorinda testified that she is Shelly's cousin and Lopez is her "ex-uncle[.]" According to Dorinda, when she was about fifteen or sixteen years old, she was staying over at her aunt's house and sleeping on the couch, and she woke up with Lopez squatted down next to the couch. Dorinda testified that Lopez groped her breast and genital area over her clothing and rubbed her vagina. Dorinda recalled this happened three to six times. Dorinda did not tell anyone what happened because it was embarrassing. According to Dorinda, after an investigator contacted her mother, Dorinda gave a statement to a detective.
Dorinda agreed that she had been charged with felony possession of a controlled substance in April 2019, but she had not been promised anything in exchange for testifying. According to Dorinda, she testified "to keep it from happening to anybody else."
Other Testimony
Detective Thomas Gannucci, with the Montgomery County Sheriff's Office, testified that he had worked on sexual assault cases for about eleven years. Gannucci recalled that a case had been reported by Maria in 2018 against the defendant, who was Kathy's stepfather, and that CPS had already been notified about the case. Gannucci watched a recording of a forensic interview of Kathy by Children's Assessment Center (CAC) and based on what he observed, he began an investigation for sexual assault of a child. The Detective testified that according to his investigation the events Kathy alleged occurred "around 2012." Gannucci interviewed several witnesses and reviewed the notes of Kathy's partial exam by a Sexual Assault Nurse Examiner. Gannucci testified that he learned that Lopez had attempted suicide, the Detective identified State's Exhibit 14 as a suicide note, and the defense raised no objection. The Detective agreed he did not interview Kathy or any of the children.
Shemika Peoples, an investigator for CPS, testified that she received a case involving Kathy in March 2018 and met with the family at that time. Peoples recalled that she advised the mother that Kathy, Erin, and another child would need forensic interviews because they had disclosed abuse. According to Peoples, she observed Kathy's forensic interview and did not observe any inconsistencies when comparing the forensic interview to her own interview with Kathy. Kathy was sixteen years old at the time Peoples interviewed Kathy. Peoples found no previous CPS report on this family from 2015 or 2016.
Sharon Record testified that she is a pediatric nurse practitioner with Texas Children's Hospital and the Department of Public Health Pediatrics and a Sexual Assault Nurse Examiner (SANE). She agreed she performed a partial SANE exam on Kathy and Erin, and she identified State's Exhibits 16 and 17 as copies of medical records she created. Sharon testified that when she asked Kathy why she was at the exam, Kathy told her it was because of "sexual stuff[]" her stepfather did. Her report stated that Kathy told her Lopez had touched her breasts, her genitals, and inside her vagina under her clothes with his hand and penis five to ten times between the ages of eleven and fourteen. The record of her exam with Erin states that Erin told her Lopez had abused and molested her, touched her breasts and genitals about twenty times when she was age eight or nine.
Wayne Debair testified that he is a paramedic for the Montgomery County Hospital District. According to Debair, he documents a completed run in a medical report or record after every call. Debair recognized State's Exhibit 15 as the run report or patient care record dated March 21, 2018 for Samuel Lopez. Debair testified that the report listed Debair as in charge of the ambulance, Lopez's diagnosis was an overdose, and Debair administered Narcan. According to Debair, Lopez told him he had taken Baclofen, which is a muscle relaxer, for about eight hours before Debair arrived.
Lisa Holcombe testified that she is a forensic interviewer at the Children's Assessment Center in Houston, and she interviewed Kathy and Erin Holcombe recalled that Kathy was emotional in her interview, provided a lot of graphic details, and made a sexual disclosure. According to Holcombe, Erin was less emotional and also disclosed sexual abuse.
Dr. Lawrence Thompson, a psychologist, testified that he is the Director of Therapy and Psychological Services and oversees all mental health services at the Children's Assessment Center. He specializes in child sexual abuse. Dr. Thompson testified that a disclosure of abuse may be delayed by days or years, and people might delay in disclosing sexual abuse because of shame, fear, guilt, or inappropriate feelings of responsibility. According to Dr. Thompson, children who have experienced sexual abuse sometimes have boundary issues and may act out sexually.
The defense rested without offering any witnesses or evidence.
Cross-Examination During Article 38.37 Hearing
In Appellant's second, third, fourth, fifth, sixth, eleventh, and twelfth issues, Appellant argues that the trial court erred by failing to permit him to cross-examine the witnesses in the article 38.37 hearing. Appellant argues that trial court erred by denying Appellant the right to cross-examine Erin, Shelly, and Dorinda during the article 38.37 hearing. He contends on appeal that because he was not allowed to cross-examine these witnesses during the article 38.37 hearing, he was denied his right to a fair trial under the Sixth Amendment and article I, section 10 of the Texas Constitution. He also argues that the trial court erred by allowing testimony from the SANE nurse about Erin because the court had not permitted him to cross-examine Erin in the article 38.37 hearing. In Appellant's fourth issue, he contends that the trial court erred in admitting State's Exhibits 16 and 17, which contained evidence about Erin, because Erin was an extraneous-offense witness whom the defense was not permitted to cross-examine during the article 38.37 hearing. In Appellant's eleventh issue, he argues that the trial court erred in denying his objection to paragraph six of the jury charge because Appellant had been denied the right to cross-examine witnesses in the article 38.37 hearing. In Appellant's twelfth issue, he argues that the trial court erred in denying his motion for mistrial relating to paragraph six of the jury charge because he had been denied the right to cross-examine witnesses in the article 38.37 hearings. According to Appellant, each of these alleged errors were fundamental and deprived him of a fair trial.
The State argues that any failure to permit cross-examination during the article 38.37 hearing was non-constitutional error that must be disregarded if the reviewing court has fair assurance that it had no more than a slight effect on the jury's verdict. In addition, the State argues that, Appellant was allowed to fully cross-examine the witnesses at trial in front of the jury and because Appellant does not complain about the scope of his cross-examination of the extraneous-offense witnesses in front of the jury, any error in the article 38.37 hearing was rendered harmless. The State also contends that even if the trial court had allowed the Appellant to cross-examine the extraneous-offense witnesses during the 38.37 pretrial hearing, because each extraneous-offense victim testified to all the elements of the extraneous offenses, the trial court properly admitted the testimony.
See Gray v. State, 159 S.W.3d 95, 98 (Tex. Crim. App. 2005).
Just prior to trial, the following exchange occurred:
[Prosecuting Attorney]: Just quickly, Judge, [to] get an idea for what this hearing outside the presence of the jury is going to look like, are you intending on letting the Defense cross-examine these witnesses?
THE COURT: No.
[Prosecuting Attorney]: So[,] it will just be a proffer basically?
THE COURT: Yes.
[Prosecuting Attorney]: To where you hear the testimony from them and make your determination?
THE COURT: Right. It will be short. It won't involve a lot of cross-examination, if any.
[Defense Attorney]: I can't cross-examine?
THE COURT: Not on a 38.37 hearing. It's just a hearing outside --
[Defense Attorney]: But with all due respect, how can you make that determination without cross-examination?
THE COURT: Because I can. That's the way I'm going to handle it.After Erin testified outside the presence of the jury during the article 38.37 hearing, defense counsel objected to not being able to cross-examine her and stated, "this does fall within the confrontation clause." The following exchange occurred:
[Prosecuting Attorney]: I don't think that statute gives you two bites at cross-examination.
THE COURT: No, I don't think it does either.
THE COURT: . . . Is there anything specific proffer-wise you think I should be considering?After Shelly's testimony in the article 38.37 hearing, defense counsel made the objection that his inability to cross-examine Shelly "violates Mr. Lopez's statutory rights under 38.37 as well as the 6th Amendment." After the article 38.37 hearing for Dorinda, defense counsel stated, "I'd like to renew [] my objection as previously stated to the previous witnesses under 38.37." Defense counsel made no proffer concerning what it expected to elicit during cross-examination of Erin, Shelly, or Dorinda. Erin, Shelly, and Dorinda testified at trial, and defense counsel cross-examined all three witnesses in front of the jury.
[Defense Attorney]: Specific proffer-wise? Well, no, Judge. I mean, this is an allegation. And we've already established there is no forensics of any sort. So[,] I proffer there's absolutely nothing to corroborate this.
We agree that a trial court generally has discretion to restrict or limit the cross-examination of a witness, but in some circumstances such restriction may amount to an unconstitutional denial of the right of confrontation. As recently confirmed by the Court of Criminal Appeals, the Confrontation Clause of the Sixth Amendment protects a criminal defendant's right to physically confront those who testify against him. The Confrontation Clause is a procedural guarantee that requires the reliability of testimonial evidence at trial be assessed "by testing in the crucible of cross-examination." The Sixth Amendment right to cross-examine a witness allows a party to attack the general credibility of a witness or to show their possible bias, self-interest, or motives in testifying.
See Fuentes v. State, 673 S.W.2d 207, 209 (Tex. App.—Beaumont 1984, pet. ref'd).
See Haggard v. State, No. PD-0635-19, 2020 Tex. Crim. App. LEXIS 1029, at **9-10 (Tex. Crim. App. Dec. 9, 2020) (citing U.S. Const. amend. VI).
See Crawford v. Washington, 541 U.S. 36, 61 (2004).
Johnson v. State, 490 S.W.3d 895, 909 (Tex. Crim. App. 2016) (citing Hammer v. State, 296 S.W.3d 555, 561 (Tex. Crim. App. 2009)).
In addition, the right to cross-examine witnesses at trial is essential to due process and a fair trial under the Fourteenth Amendment. An accused's right to cross-examine witnesses at trial ensures that convictions will not be based on allegations by unseen and unknown individuals and promotes reliability in criminal trials.
See Hostetter v. State, 527 S.W.2d 544, 547 (Tex. Crim. App. 1975) (citing In re Oliver, 333 U.S. 257, 273-74 (1948)); see also U.S. Const. amend. XIV.
See Lee v. Illinois, 476 U.S. 530, 540 (1986) (describing cross-examination as the "'greatest legal engine ever invented for the discovery of truth'") (quoting California v. Green, 399 U.S. 149, 158 (1970)).
Although generally evidence of extraneous offenses may not be used against the accused in a criminal trial, certain Rules of Evidence make exceptions to this prohibition. For example, "Rule 404(b) sets out an illustrative, not exhaustive, list of exceptions to the prohibition against admitting evidence of extraneous offenses including 'proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.'" Additionally, Article 38.37 of the Texas Code of Criminal Procedure also provides a statutory exception to the general rule, and it outlines a procedure conducted outside of the presence of the jury to allow the trial court to determine whether certain extraneous-offense evidence should be admitted at trial. Section 1(b) of the statute allows for extraneous offense evidence of other offenses committed by the defendant against the child who is the victim of the alleged offense. Section 2(b) of the statute allows for the admission of evidence of extraneous offenses committed by the defendant against individuals other than the victim, and it states:
Daggett v. State, 187 S.W.3d 444, 450-51 (Tex. Crim. App. 2005).
Id. at 451 n.13.
See Tex. Code Crim. Proc. Ann. art. 38.37.
Id. art. 38.37, § 1(b).
Aguillen v. State, 534 S.W.3d 701, 711 (Tex. App.—Texarkana 2017, no pet.).
Notwithstanding Rules 404 and 405, Texas Rules of Evidence, and subject to Section 2-a, evidence that the defendant has committed a separate offense described by Subsection (a)(1) or (2) may be admitted in the trial of an alleged offense described by Subsection (a)(1) or (2) for any bearing the evidence has on relevant matters, including the
character of the defendant and acts performed in conformity with the character of the defendant.Extraneous-offense evidence that is admissible under article 38.37 need not meet the requirements of Texas Rule of Evidence 404. Before such evidence is admitted, the trial court still conducts a balancing test under Rule 403. Article 38.37, Section 2-a requires that, before evidence of prior sexual misconduct is admitted, the trial court conducts a hearing out of the jury's presence to determine that the evidence likely to be admitted will support a jury finding that the defendant committed the separate offense beyond a reasonable doubt. The State is to give the defendant notice of its intent to introduce such evidence, which also allows the defense to prepare to confront such allegations.
Tex. Code Crim. Proc. Ann. art. 38.37 § 2(b).
See Garcia v. State, 201 S.W.3d 695, 702 (Tex. Crim. App. 2006) ("Article 38.37 lists the specific offenses for which evidence of extraneous offenses or acts are admissible without having to meet the requirements of Rule 404[.]"); Bezerra v. State, 485 S.W.3d 133, 141 (Tex. App.—Amarillo 2016, pet. ref'd) (explaining that article 38.37 removes the Rule 404 bar to the admission of propensity evidence).
See Tex. Code of Crim. Proc. Ann. art. 38.37 § 2(b) (permitting admission of propensity evidence "[n]otwithstanding Rules 404 and 405, Texas Rules of Evidence," but not excluding application of Rule 403).
Id. art. 38.37 § 2-a; Belcher v. State, 474 S.W.3d 840, 847 (Tex. App.—Tyler 2015, no pet.).
Id. art. 38.37 § 3.
Article 38.37 is an evidentiary statute, and we review a trial court's decision to admit evidence of extraneous offenses under an abuse-of-discretion standard. While "hearings are ordinarily adversarial," the trial court retains discretion to limit the scope of the questioning allowed at an article 38.37 hearing. When reviewing a challenge to the constitutionality of article 38.37, this Court has previously noted in two unpublished opinions that the statute is constitutional and that it does not lessen the State's burden of proof as to the charged offense, and it maintains additional procedural safeguards such as the defense counsel having the ability to cross-examine the witnesses at the hearing. As explained by our sister courts, procedural safeguards apply to an article 38.37 hearing to protect the defendant's right to a fair trial and "[d]efense counsel has the right to challenge any witness's testimony by cross-examination" during an article 38.37 hearing. That said, the trial court continues to have wide latitude and discretion to limit the scope of cross-examination during the hearing.
See Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011) (citing Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005); Distefano v. State, 532 S.W.3d 25, 37 (Tex. App.—Houston [14th Dist.] 2016, pet. ref'd) (citing Hitt v. State, 53 S.W.3d 697, 705 (Tex. App.—Austin 2001, pet. ref'd)).
LaPointe v. State, 225 S.W.3d 513, 518-20 (Tex. Crim. App. 2007) (explaining that an in camera proceeding contemplated by Texas Rule of Evidence 412 is an adversarial hearing at which the parties are present, and the attorneys are permitted to question witnesses).
See Robisheaux v. State, 483 S.W.3d 205, 224 (Tex. App.—Austin 2016, pet. ref'd) (citing Hammer, 296 S.W.3d at 561; Allen v. State, 700 S.W.2d 924, 930-31 (Tex. Crim. App. 1985)).
Howell v. State, No. 09-16-00441-CR, 2018 Tex. App. LEXIS 5190, at *8 (Tex. App.—Beaumont July 11, 2018, no pet.) (mem. op., not designated for publication); Holcomb v. State, No. 09-16-00198-CR, 2018 Tex. App. LEXIS 865, at *6 (Tex. App.—Beaumont Jan. 31, 2018, pet. ref'd) (mem. op., not designated for publication) (citing Buxton v. State, 526 S.W.3d 666, 688 (Tex. App.—Houston [1st Dist.] 2017, pet. ref'd)).
Harris v. State, 475 S.W.3d 395, 402 (Tex. App.—Houston [14th Dist.] 2015, pet. ref'd); see also Caston v. State, 549 S.W.3d 601, 610 (Tex. App.—Houston [1st Dist.] 2017, no pet.) ("At the [article 38.37] hearing, defense counsel has the right to cross-examine any witness."); Robisheaux, 483 S.W.3d at 213 (explaining that a defendant "'has the right to challenge any witness's testimony by cross-examination'" at an article 38.37 hearing); Martin v. State, 176 S.W.3d 887, 901 (Tex. App.—Fort Worth 2005, no pet.) (the right to cross-examine a witness in an article 38.37 hearing preserved the fairness of the tribunal); Brantley v. State, 48 S.W.3d 318, 330 (Tex. App.—Waco 2001, pet. ref'd) (cross-examination during an article 38.37 hearing preserves a defendant's right to fairness).
See Johnson, 490 S.W.3d at 909-10 (explaining that trial courts have wide latitude to limit the scope and extent of cross-examination at trial, so long as those limits do not infringe on the Sixth Amendment confrontation right); see also Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986) ("It does not follow, of course, that the Confrontation Clause of the Sixth Amendment prevents a trial judge from imposing any limits on defense counsel's inquiry into the potential bias of a prosecution witness. On the contrary, trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant. And as we observed earlier this Term, 'the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.' Delaware v. Fensterer, 474 U. S. 15, 20 (1985) (per curiam) (emphasis in original).").
We note that in this case, when explaining the procedure for the 38.37 hearing the trial judge notified the parties that the hearing "will be short. It won't involve a lot of cross-examination, if any." And, although the trial judge also stated that he agreed with the prosecutor that the statute does not give "two bites at cross-examination[,]" after the prosecution put on the first witness during the hearing, the trial court asked the defendant if he had a specific proffer that the trial court should consider:
THE COURT: . . . Is there anything specific proffer-wise you think I should be considering?Even though the trial court invited the defense to make a proffer, Appellant did not make a proffer of what questions he wanted to ask, nor did he argue to the trial court that the probative value of the evidence was greatly outweighed by prejudice, nor did he explain that he wanted to cross-examine the witnesses to challenge the credibility, bias, or motive of the witnesses. By failing to make a proffer and making only a reference to no "corroboration," Appellant failed to preserve error as to the 38.37 hearing. But even if he had preserved his objection, we cannot say he was denied the right to confront the witnesses under the Sixth Amendment because he was given a full and fair right to cross-examine the witnesses at trial. Therefore, we overrule Appellant's complaints under the Confrontation Clause.
[Defense Attorney]: Specific proffer-wise? Well, no, Judge. I mean, this is an allegation. And we've already established there is no forensics of any sort. So[,] I proffer there's absolutely nothing to corroborate this.
Mays v. State, 285 S.W.3d 884, 891 (Tex. Crim. App. 2009) (where appellant failed to make a proper offer of proof, he did not preserve error on his complaint about the exclusion of evidence at trial); Keller v. State, 604 S.W.3d 214, 226-27 (Tex. App.—Dallas 2020, pet. ref'd) (because a child victim's testimony alone is sufficient to support a conviction for aggravated sexual assault of a child, trial court did not err by allowing uncorroborated child witness's testimony in an article 38.37 hearing) (citing Tex. Code Crim. Proc. art. 38.07).
See Pennsylvania v. Ritchie, 480 U.S. 39, 52-53 (1987) ("the right to confrontation is a trial right[]") (citing Green, 399 U.S. at 157 ; Barber v. Page, 390 U.S. 719, 725 (1968)); cf. Vanmeter v. State, 165 S.W.3d 68, 74 (Tex. App.—Dallas 2005, pet. ref'd) (concluding that the Sixth Amendment right of confrontation is a trial right and does not apply in a pretrial suppression hearing).
Appellant did not complain at trial that he was not allowed to challenge the credibility, bias, or motive of the witnesses during the article 38.37 hearing. Rather, the sole argument defense counsel made at the hearing was that there was "no corroboration." The trial court correctly overruled that argument. Lopez does not argue on appeal that the trial court erred in admitting the testimony of Erin, Shelly, and Dorinda because their testimony was not corroborated. We conclude that Lopez failed to preserve error as to the 38.37 hearing.
Keller, 604 S.W.3d at 226-27.
Bekendam v. State, 441 S.W.3d 295, 300 (Tex. Crim. App. 2014) (error on appeal must comport with the objection made at trial).
Id.
Furthermore, even if the defendant's "corroboration" statement had preserved the alleged error on appeal, and even if the trial court had erred in not allowing the defense attorney to cross-examine the witnesses at the 38.37 hearing, after conducting a harm analysis we find that the alleged error was harmless. In the context of an alleged due process error made during trial, the harm analysis is determined based on the remaining evidence in the case. When conducting such harm analysis in the context of trial, we consider the Van Arsdall factors which include (1) the importance of the witness's testimony in the prosecution's case, (2) whether the testimony was cumulative, (3) the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, and (4) the extent of cross-examination otherwise permitted, and (5) the overall strength of the prosecution's case. "Ultimately [] any circumstance apparent in the record that logically informs the harm issue should be considered." To uphold the trial court, we must be convinced beyond a reasonable doubt that the admission of the testimony would probably not have had a significant impact on the mind of an average juror and that there is not a reasonable possibility that the error "moved the jury from a state of non-persuasion to one of persuasion" on a particular issue.
Tex. R. App. P. 44.2(a); see also Ex parte Fierro, 934 S.W.2d 370, 372 (Tex. Crim. App. 1996) (en banc) (explaining that constitutional error that is not structural is subject to a harmless error analysis).
See Haggard, 2020 Tex. Crim. App. LEXIS 1029, at *17.
See id. at *18 (citing Van Arsdall, 475 U.S. at 684).
Id. at *18 (citing Snowden v. State, 353 S.W.3d 815, 822 (Tex. Crim. App. 2011)).
See Davis v. State, 203 S.W.3d 845, 852-53 (Tex. Crim. App. 2006) (quoting Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000)).
A complainant's uncorroborated testimony is sufficient to prove sexual assault or aggravated sexual assault of a child where the victim was younger than seventeen at the time of the offense. Therefore, as to the first Van Arsdall factor, the testimony of Erin, Shelly, and Dorinda was not vitally important because Kathy's testimony alone would be sufficient to prove the crime charged. As to the second Van Arsdall factor, we cannot say based on the record, that the testimony of Erin, Shelly, and Dorinda was cumulative because they testified about extraneous, uncharged incidents.
See id.
See id. art. 38.37 (permitting evidence of extraneous acts or offenses for any relevant purpose, including the defendant's character and propensity to act in conformity therewith).
As to the third Van Arsdall factor, the record evidence reflects that there was other corroboration of Erin's testimony. The SANE records for Erin indicated that Erin had reported that Lopez had abused and molested her, and he had touched her breasts and genitals about twenty times when Erin was age eight or nine. Erin's testimony was also corroborated in part by Kathy, who testified that Erin told her Lopez had grabbed her bottom. In addition, Maria also provided corroboration when she testified that Erin told her Lopez touched Erin inappropriately.
With respect to the fourth Van Arsdall factor, the extent of cross-examination otherwise permitted during trial, we note that the record reflects that Erin, Shelly, and Dorinda testified at trial, defense counsel cross-examined all three witnesses at trial, and Appellant has made no complaints about the scope of his cross-examination at trial.
In the fifth and final Van Arsdall factor, we examine the strength of the State's case against Lopez. Kathy testified that she was eleven or twelve years old when Lopez groped her, penetrated her, and made her engage in sex with him. The defense cross-examined Kathy, Erin, Shelly, and Dorinda at trial. Lopez did not argue at trial or in his appellate brief that the testimony by any of the witnesses was not credible at trial nor does he contend that the witnesses had some motive to fabricate evidence against Lopez. In closing argument, the defense argued only that the CPS had cleared Lopez of the allegations against him and that CPS's response created reasonable doubt. Appellant does not contend that Kathy's testimony was not credible, nor does he argue that the evidence against him was not legally or factually sufficient.
After examining the record before us, we conclude that the alleged error, if any, in not permitting the defendant to cross-examine the witnesses during the article 38.37 hearing is harmless beyond a reasonable doubt. The record does not suggest there is a reasonable possibility that the admission of testimony by Erin, Shelly, and Dorinda "moved the jury from a state of non-persuasion to one of persuasion[.]"
See Haggard, 2020 Tex. Crim. App. LEXIS 1029, at *17.
See Davis, 203 S.W.3d at 852-53 (quoting Wesbrook, 29 S.W.3d at 119).
As to Appellant's third and fourth issues challenging the testimony by the SANE about Erin and the admission of State's Exhibits 16 and 17, we note that these exhibits were admitted through the SANE's testimony. During direct examination of the SANE, but prior to introduction of the Exhibits, the defense objected as follows:
Exhibits 16 and 17 were the Children's Assessment Center evaluation reports for Kathy and Erin respectively.
The indictment is about [Kathy]. And now we're going into this extraneous. The jury never met [Erin], never heard of her. I don't believe at this point that it's relevant. I also object to the content of both
proposed State's exhibits, the SANE examinations, the history, the narrative is all -- it's all hearsay. It's all based on what they've been told. And in some of these reports, there is no physical examination whatsoever, so it's not even a complete report.The defense renewed its objections when Exhibits 16 and 17 were offered.
Appellant's objections at trial were based on relevance and hearsay and were not based on article 38.37 or the inability to cross-examine Erin at the 38.37 hearing. To preserve a complaint for appellate review, the complaining party must make a timely objection to the trial court that states the grounds with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds are apparent from the context. A complaint is not preserved for appellate review if the trial objection does not comport with the complaint on appeal. We conclude the Appellant has waived this issue.
See Lovill v. State, 319 S.W.3d 687, 691-92 (Tex. Crim. App. 2009); see also Thomas v. State, 505 S.W.3d 916, 924 (Tex. Crim. App. 2016) (noting that, "[i]f a trial objection does not comport with arguments on appeal, error has not been preserved"); Bekendam, 441 S.W.3d at 300 ( stating "We are not hyper-technical in examination of whether error was preserved, but the point of error on appeal must comport with the objection made at trial.");Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); Coffey v. State, 796 S.W.2d 175, 180 (Tex. Crim. App. 1990).
In issues eleven and twelve, Appellant complains about paragraph six of the jury charge, and he contends the trial court erred in denying his request to remove paragraph 6 from the jury charge and in failing to "instead instruct the jury to disregard all extraneous testimonial and/or documentary evidence since Appellant was denied the fundament[al] right of confrontation of witnesses when the court did not allow Appellant to cross-examine extraneous offense witnesses during out of court hearings conducted pursuant [to] Tex. Code Crim. Proc. Article 38.37."
Paragraph six of the jury charge stated as follows:
You are further instructed that if there is any evidence before you in this case regarding the defendant's committing an alleged offense or offenses other than the offense alleged against him in the indictment in this case, you cannot consider such evidence for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other offense or offenses, if any, and may be considered for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant.During the charge conference, before the case was submitted to the jury on the guilt-innocence, defense counsel raised the following objection:
Judge, regarding Paragraph 6, I've lodged objections throughout this trial to 38.37 and its use. I further wish to continue all of those objections, and I do object to Paragraph 6. I do believe that this should be stricken and that the evidence that I've objected to, the jury should be given an order to disregard that or a mistrial should be granted. So I do object to Paragraph 6 in line with all of my other objections.
Notably, during the trial, immediately after Erin testified and before Shelly and Dorinda testified, defense counsel requested a limiting instruction, and the court gave one before or after each witness testified. The defense raised no objections to the limiting instructions the trial court gave the jury, and that limiting instruction was similar in context to paragraph six in the charge and it was consistent with the applicable law.
After Erin testified, the defense requested a limiting instruction, and the trial court instructed the jury as follows:
Ladies and gentlemen, that past witness provided evidence that the defendant may have committed a separate offense than the one alleged in the indictment in this case. You are permitted by law to consider that evidence on any relevant matter, including the character of the defendant and acts performed in conformity with the character of the defendant. And it is offered for that purpose and that purpose only.Before Shelly testified, the defense requested a limiting instruction, and the trial court instructed the jury as follows:
Ladies and gentlemen, this witness will -- we expect that this witness will provide evidence regarding separate offenses that are not included in the actual indictment in this case. This testimony is offered for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant and for those reasons only.Before Dorinda testified, the defense requested a limiting instruction, and the trial court instructed the jury as follows:
Ladies and gentlemen, I believe this witness will provide evidence of extraneous offenses that are not contained in the indictment. They are offered solely for the purpose -- purposes of any bearing that they may have on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant, for those reasons only. You'll receive additional instructions in the Court's charge regarding these type of witnesses.
Appellate review of purported error in a jury charge involves a two-step process. First, we determine whether the jury instruction is erroneous. If there is no error, our analysis ends. But if error occurred, an appellate court must then analyze that error for harm.
Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012) (citing Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994); Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003)).
Id.
Id.
Id.
Texas Code of Criminal Procedure article 36.14 directs a trial court to "deliver to the jury . . . a written charge distinctly setting forth the law applicable to the case[.]" "Because the charge is the instrument by which the jury convicts, [it] must contain an accurate statement of the law and must set out all the essential elements of the offense." In examining the charge for possible error, reviewing courts "must examine the charge as a whole instead of a series of isolated and unrelated statements."
Tex. Code Crim. Proc. Ann. art. 36.14; see also Mendez v. State, 545 S.W.3d 548, 551-52 (Tex. Crim. App. 2018); Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012) (citing Abdnor, 871 S.W.2d at 731).
Dinkins v. State, 894 S.W.2d 330, 339 (Tex. Crim. App. 1995).
Id.
We first consider the entire jury charge. Appellant has not challenged any other portions of the charge but paragraph 6. The charge contains general language regarding reasonable doubt, the presumption of innocence, the prosecution's burden of proof, and the jury's exclusive role as the factfinder, including assessing the credibility of the witnesses and the weight to be given their testimony. The trial court properly instructed the jury on the elements of the offense for which Lopez was charged. Additionally, the challenged portion is a correct statement of the law regarding extraneous offense evidence, and it did not reduce the State's burden of proof. Examining the jury charge as a whole, we find no error. Because we find no error, we need not examine harm.,
See Olivas v. State, 202 S.W.3d 137, 142 (Tex. Crim. App. 2006) (citing Sullivan v. Louisiana, 508 U.S. 275, 281-82 (1993) (jury charge must hold the State to proof beyond a reasonable doubt); Abdnor, 871 S.W.2d at 738 (extraneous offense evidence requires a limiting instruction in the jury charge); see also Tex. Code Crim. Proc. Ann. art. 38.37, § 2-a(1) (extraneous offense evidence may be admitted where the trial court determines after a hearing that the evidence supports a jury finding that the defendant committed the extraneous offense beyond a reasonable doubt).
See Dinkins, 894 S.W.2d at 339-40.
See Kirsch, 357 S.W.3d at 649.
In addition, we note that Lopez specifically requested and received a limiting instruction during the testimony by Erin, Shelly, and Dorinda, and he did not make any objections to the wording of the limiting instructions that the trial court gave during the testimony.
We overrule Appellant's second, third, fourth, fifth, sixth, eleventh, and twelfth issues.
Challenge to State's Opening Argument
In Appellant's first issue, he argues that the court erred by allowing the State to mention in its opening argument that there were other victims, which Appellant argues deprived him of the right to a fair trial under the Sixth Amendment and Article I, section 10 of the Texas Constitution. Prior to the State's opening argument, the trial court stated that based on having read written statements by additional alleged victims, it would allow the State to mention in opening argument that there were additional victims, but it was not to use specific names. The defense objected that such mention would be improper prior to conducting an article 38.37 hearing.
In its opening statement, after having mentioned that Kathy told her mother that Lopez was putting his hands in her pants and having sex with her, the Prosecuting Attorney stated:
. . . Mom goes and talked to a bishop at the church, tells him what's going on. The bishop said, "We kind of need to let CPS know what's going on, and we'll go from there." CPS comes out to the house, talks to [Kathy] and [Erin].The Prosecuting Attorney also told the jury that no one disclosed any abuse to the CPS when CPS first went to the home.
According to Appellant, the mention of Erin "implied an extraneous offense regarding [Erin]" before the trial court had conducted an article 38.37 hearing. However, the defense failed to object during the State's opening argument, when the Prosecutor commented about CPS talking to Kathy and Erin.
To preserve error for appeal, a party must make a timely and specific objection at the earliest opportunity. Failure to make a timely objection at trial generally waives error on appeal. Because the defense failed to object when the Prosecuting Attorney mentioned CPS talking with Erin, Appellant failed to preserve the error for appeal. We overrule Appellant's first issue.
See King v. State, 953 S.W.2d 266, 268 (Tex. Crim. App. 1997); see also Tex. R. App. P. 33.1.
See Lagrone v. State, 942 S.W.2d 602, 618 (Tex. Crim. App. 1997); Badall v. State, 216 S.W.3d 865, 867 (Tex. App.—Beaumont 2007, pet. ref'd).
See Tex. R. App. P. 33.1; Lagrone, 942 S.W.2d at 618.
Evidence of Alleged Attempted Suicide
In issue seven, Appellant argues that the trial court erred by denying the request for a limiting instruction on an alleged attempted suicide by Lopez. In issue eight, Appellant argues that the trial court erred by denying the request for a mistrial in relation to Lopez's alleged attempted suicide. According to Appellant, such errors were fundamental and denied him a fair trial and resulted in an improper jury verdict.
During the trial, the following exchange occurred:
[State's counsel]: Judge, the next line of questions for the officer goes into the defendant's suicide attempt after the time the outcry was made. I wanted to approach about it before I went into in case the Defense had anything they wanted to bring up or if there was anything before I just went straight into it.Detective Gannucci then testified that he collected a suicide note from Lopez's wife, that there was a report that Lopez had attempted suicide, and the Detective recognized State's Exhibit 14, which was not offered into evidence at the time, as the suicide note.
[Defense counsel]: I can't think of an objection. Thanks for the head's up.
Later during the trial, the State offered Exhibit 14, which was described as a suicide note in Lopez's handwriting. Defense counsel objected that the document was more prejudicial than probative. The State argued the note was admissible as a statement by a party opponent and was evidence of guilt. The trial court sustained the defendant's objection and commented that in the note, "[h]e denies guilt in the letter[,] from what I'm reading[]" and that it was not relevant or probative. Defense counsel asked for an instruction to "disregard the idea of suicide notes or suicide[,]" which the trial court denied. Defense counsel then moved for a mistrial, and the court overruled the motion. During deliberations, the jury sent a note requesting to see the suicide note. The court responded "[t]he 'suicide note' is not in evidence."
The record reflects that defense counsel initially had no objection to the testimony given by the officer about Lopez attempting suicide and writing a suicide note. Defense counsel only made an objection later in the trial when the State asked for the note to be admitted into evidence. The defendant did not object to testimony about the alleged suicide at the earliest opportunity. We conclude Appellant failed to preserve this issue for review, and we overrule issue seven.
See Tex. R. App. P. 33.1; King, 953 S.W.2d at 268.
See Badall, 216 S.W.3d at 867.
As to Appellant's objection that the trial court erred in denying his motion for mistrial, we review a denial of a motion for mistrial under an abuse-of-discretion standard of review. A trial court may declare a mistrial when an error occurs that is "'so prejudicial that expenditure of further time and expense would be wasteful and futile.'" To determine whether the trial court abused its discretion in denying a motion for mistrial, we balance the following factors: (1) the severity of the misconduct or prejudice, (2) the measures adopted to cure the misconduct or prejudice, and (3) the certainty of conviction absent the misconduct or prejudice.
See Archie v. State, 340 S.W.3d 734, 738-39 (Tex. Crim. App. 2011) (citing Hawkins v. State, 135 S.W.3d 72, 76-77 (Tex. Crim. App. 2004)).
Hawkins, 135 S.W.3d at 77 (quoting Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)).
See Archie, 340 S.W.3d at 739; Hawkins, 135 S.W.3d at 77.
To preserve error for appeal, a party must make a timely and specific objection at the earliest opportunity. A party must also object each time inadmissible evidence is offered or obtain a running objection. An error in the admission of evidence is cured where the same evidence comes in elsewhere without objection. In this case, Appellant failed to object to testimony about the alleged suicide attempt when it was first offered at trial, and his request for mistrial was untimely and did not preserve error.
See King, 953 S.W.2d at 268.
Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004) (A party must object each time the allegedly inadmissible evidence is offered or obtain a running objection, and an error in the admission of evidence is cured where the same evidence comes in elsewhere without objection.).
Id.
See id.; King, 953 S.W.2d at 268.
Appellant has not explained in his briefing any of the factors relevant to our review of the denial of the motion for mistrial. The Appellant's brief fails to "contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." An appellate argument must also apply the law to the facts, and where a brief fails to do so, the point of error is waived. Appellant has waived this issue due to inadequate briefing, and we overrule Appellant's eighth issue.
See infra at p.31.
See Tex. R. App. P. 38.1(i).
See Bohannan v. State, 546 S.W.3d 166, 179-80 (Tex. Crim. App. 2017); Lawton v. State, 913 S.W.2d 542, 558 (Tex. Crim. App. 1995).
See Wolfe v. State, 509 S.W.3d 325, 343 (Tex. Crim. App. 2017) (explaining that an inadequately briefed point of error presents nothing for review).
Evidence About the Curling Iron
In Appellant's ninth issue, he argues that the trial court abused its discretion in denying him the ability to cross-examine Kathy about her use of Defense Exhibit 1, a curling iron, "for sexual gratification" and for purposes of motive to fabricate and bias. According to Appellant, he was thereby deprived of his right to a fair trial.
During trial, defense counsel offered Exhibit 1, "a lady's curling iron that [] has a cord removed[]" that defendant argued had been found in Kathy's bedroom. Defense counsel explained to the trial court that he planned to ask Kathy whether the curling iron had been used as a sexual device by her and he argued that the item "shows a motive towards self-pleasuring, along with her propensity for pornography[]" and "how knowledgeable and experienced she is of a sexual nature." The State told the court that if Kathy were asked about the curling iron, she would admit to using it as a sexual device. The court denied the admission of the exhibit, concluding it was not probative and stating that in her testimony, Kathy had already "readily admitted to her access to pornography."
We review a trial court's decision on the admission or exclusion of evidence under an abuse-of-discretion standard, and we will not disturb the court's ruling so long as it was within the zone of reasonable disagreement. In a trial for aggravated sexual assault, evidence of specific instances of a victim's past sexual behavior is generally inadmissible. Rule 412 provides certain exceptions where evidence of specific instances of a victim's sexual behavior may be admissible, including where the evidence relates to the victim's motive or bias. "Motive or bias" means the victim's motive or bias in making allegations against the defendant. Before a court may admit evidence under Rule 412(b)(2)(C), it must find the probative value of the evidence outweighs the danger of unfair prejudice. A party seeking to admit evidence as an exception under Rule 412(b) bears the burden to show that its probative value outweighs any unfair prejudice.
See Sells v. State, 121 S.W.3d 748, 766 (Tex. Crim. App. 2003).
Id. 412(a)(2)(C).
See Hammer, 296 S.W.3d at 566-68.
See Wheeler v. State, 79 S.W.3d 78, 86 (Tex. App.—Beaumont 2002, no pet.).
See Robisheaux, 483 S.W.3d at 224.
The record does not reflect that defense counsel demonstrated to the court how the probative value, if any, of the curling iron would outweigh any unfair prejudice. We conclude the trial court did not abuse its discretion in excluding the evidence because Lopez did not meet his burden to show that a Rule 412 exception applied and that the evidence was more probative than prejudicial. We overrule Appellant's ninth issue.
See Tex. R. Evid. 412; Robisheaux, 483 S.W.3d at 224.
Admission of Business Record
In his tenth issue, Appellant argues the trial court erred in admitting State's Exhibit 15, a patient care record for Lopez, because it contained hearsay. According to Appellant, the admission of Exhibit 15 caused him prejudice and irreparable harm and denied him the right to a fair trial.
At trial, defense counsel objected to the admission of the patient care record for Lopez because it was hearsay. The court overruled the objection. Exhibit 15 was admitted during the testimony of Wayne Debair, a paramedic with the Montgomery County Hospital District, who identified the exhibit as a patient care record for Lopez. Debair testified that he was "in charge" of the ambulance that transported Lopez to a hospital on March 21, 2018. Debair testified that Lopez had overdosed, and he agreed that the record stated that Lopez had reported that he had taken Baclofen, which Debair testified was a muscle relaxer. Debair agreed that the record was made shortly after his contact with Lopez. The exhibit includes an Affidavit for Business Records executed by the custodian of records for Montgomery County Hospital District.
Evidentiary Rule 803 includes exceptions to the hearsay rule. One such exception is a statement made for the purpose of medical diagnosis or treatment. The "business records exception" permits admission of records of a regularly conducted activity made by a person with knowledge at the time of the event and in the course of a regularly conducted business activity. A business record must be accompanied by an affidavit or unsworn declaration of the custodian of records for the business.
Id. 803(4).
Id. 803(6).
Id. 803(6)(D).
Debair testified that he prepares a patient care record after every call and that he prepared Exhibit 15 shortly after he treated Lopez. Exhibit 15 included an affidavit of the custodian of records for the Montgomery County Hospital District. We cannot say that the trial court abused its discretion in overruling the defendant's hearsay objection. The trial court could have reasonably concluded that the State met its burden to show that a hearsay exception applied. Appellant did not object that the exhibit was more prejudicial than probative, and to the extent he makes this argument on appeal, he has waived error. The trial court's decision to admit the exhibit was within the zone of reasonable disagreement, and we overrule Appellant's tenth issue.,
See White v. State, 549 S.W.3d 146, 160 (Tex. Crim. App. 2018) ("[O]nce hearsay is shown, the proponent bears the burden of establishing an exemption or exception to the hearsay rule.") (citations omitted).
See Tex. R. App. P. 33.1.
See Sells, 121 S.W.3d at 766.
In Appellant's brief, he objects to the admission of the patient care report based only on hearsay and not because the report relates to the alleged suicide attempt by Lopez. We note that prior to the admission of the patient care, Maria had already testified about finding a suicide note from Lopez, and Detective Gannucci had already testified about the suicide attempt and suicide note.
Authentication of Evidence
Appellant's thirteenth issue argues that the trial court erred in admitting State's Exhibit 23 (a handwritten timeline of events and allegations) without any authentication as to who created it. At trial, when the State offered Exhibit 23, defense counsel objected as follows:
Your Honor, I'm going to object. I believe this was a demonstrative device. And it is -- it is notes. And as we know, sometimes we look at other people's notes, that's not very reliable or can be confusing and it could be misleading to the jury. So respectfully, I don't believe that this has a probative value. And we object to its entry.The trial court overruled the objection, and the exhibit was admitted.
The record does not reflect that Appellant objected to the admission of Exhibit 23 for lack of authentication, and by his failure to make such an objection to the trial court, he has waived this alleged error on appeal. In addition, Appellant did not object to the use of the exhibit when the State first relied on it during direct examination of Erin. We overrule Appellant's thirteenth issue.
See Tex. R. App. P. 33.1; Wilson, 71 S.W.3d at 349.
Lane, 151 S.W.3d at 193.
Having overruled all of Appellant's issues, we affirm the judgment of the trial court.
AFFIRMED.
/s/_________
LEANNE JOHNSON
Justice Submitted on January 25, 2021
Opinion Delivered March 17, 2021
Do Not Publish Before Golemon, C.J., Kreger and Johnson, JJ.