Opinion
No. 05-10-00139-CR
Opinion issued April 26, 2011. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 265th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F09-71527-MR.
Before Justices MORRIS, BRIDGES, and FRANCIS.
OPINION
Antonio Ramirez appeals his conviction for continuous sexual abuse of a child younger than fourteen years of age. After the jury found him guilty, the trial court sentenced him to twenty-five years in prison. In four points of error, appellant claims the trial court erred by designating the forensic interviewer as the outcry witness, by allowing certain testimony, and by denying appellant's motion to quash the indictment. We affirm. Ten-year-old Y.G. lives with her mother, father, and baby brother. Appellant is the boyfriend of Y.G.'s paternal aunt. Y.G. testified appellant put his "middle part" in her "middle part" when she was seven or eight years old and that it happened about five times. Using a drawing, Y.G. showed that her "middle part" was her vaginal area and his "middle part" was his penis. On other occasions, appellant kissed Y.G. with his tongue, licked her vaginal area, kissed her neck and cheek, sucked her breasts, tried to put his penis "in her butt," and put his penis "in her butt." Y.G. eventually told a friend at school whose mother called Y.G.'s mother. When Y.G.'s mother asked her daughter about the abuse, Y.G. told her some of what happened. Y.G.'s mother called police who interviewed Y.G. at school. Later, Y.G. spoke at length with Yessenia "Jessie" Gonzalez, a forensic interviewer, about the abuse. In his first point of error, appellant claims the trial court erred by designating Gonzalez as the outcry witness. Appellant contends Y.G. told Officer Paul Deborst about appellant's penis contacting her vagina and therefore he was the proper outcry witness with respect to that allegation. Nevertheless, appellant concedes Gonzalez was the proper outcry witness for the remaining allegations. We review a trial court's ruling on the designation of an outcry witness under an abuse of discretion standard. See Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990); Sims v. State, 12 S.W.3d 499, 500 (Tex. App.-Dallas 1999, pet. ref'd). We do not disturb the trial court's ruling unless a clear abuse of discretion is established by the record. Garcia, 792 S.W.2d at 92. Article 38.072 of the Texas Code of Criminal Procedure allows admission of certain hearsay testimony in the prosecution of offenses committed against children younger than fourteen years of age. Tex. Code Crim. Proc. Ann. art. 38.072 (West 2005). The statute applies only to statements made by the child against whom the offense was allegedly committed and to the first person, eighteen years of age or older, to whom the child made a statement about the offense. Id. The court of criminal appeals has construed this to mean the first adult "to whom the child makes a statement that in some discernible manner describes the alleged offense. [This] statement must be more than words which give a general allusion that something in the area of child abuse was going on." Garcia, 792 S.W.2d at 91; see Sims, 12 S.W.3d at 499. The trial court held a hearing outside the presence of the jury, and both Officer Deborst and Gonzalez testified. In March 2009, Officer Deborst responded to a call and drove to Y.G.'s elementary school. Y.G. told the officer appellant put his penis in her vagina. Y.G. indicated it was "an ongoing thing" but she did not discuss other acts with Officer Deborst. According to the officer, he got enough information for an initial report but could not recall many details about his conversation with Y.G. Gonzalez spoke with Y.G. on March 10, 2009. During that meeting, Y.G. was initially uncomfortable speaking about the specific incidents of abuse appellant performed on her so she wrote her responses to Gonzalez's questions. She indicated appellant put his penis inside her vagina in February 2009. As she became more comfortable with Gonzalez, she talked about the incident in more detail. Appellant pulled down her underwear. He first stuck his finger inside her vagina, then licked her vagina, and finally put his penis in her vagina. He asked if he could put his mouth on her chest and, although she said no, he raised her shirt and did it anyway. She described another incident in December 2008 when she was wearing shorts and playing with appellant's cell phone. He put his hand or his finger insider her underwear. After sending her to the hallway to "see if anybody was coming," he did it again. She discussed several other instances in which she and appellant were fully clothed and he touched and rubbed her vagina with his hands and his erect penis touched her clothed bottom. Appellant was charged with the offense of continuous sexual abuse. A person commits an offense if during a period of thirty or more days, he commits two or more acts of sexual abuse and the victim is a child younger than fourteen years of age. Tex. Penal Code Ann. § 21.02(b) (West Supp. 2010). The record shows Gonzalez was the first person to whom Y.G. described, in a discernable manner, two or more acts of sexual abuse over a period of 30 or more days. In contrast, Y.G.'s statement to Officer Deborst was more general, did not go to more than one act, and did not address a particular time frame. The officer testified he got only enough information for the initial report and could not remember details of the conversation. Under these circumstances, we cannot conclude the trial court erred in determining Gonzalez was the proper outcry witness. See Sims, 12 S.W.3d at 500 (in indecency with child prosecution, trial court could have reasonably concluded counselor was proper outcry witness and child's statement to mother that defendant "had touched her private parts" was nothing more than "general allusion that something in area of sexual abuse was occurring and not a clear description of the offense"); Smith v. State, 131 S.W.3d 928, 931 (Tex. App.-Eastland 2004, pet. ref'd) (in aggravated sexual assault prosecution, trial court could have reasonably concluded counselor was proper outcry witness and that child's statement to mother that defendant "had been performing oral sex on him" did not relay specific details of charged offense and was nothing more than general allusion in area of sexual abuse). We overrule appellant's first point of error. In his second point of error, appellant contends the trial court erred in allowing Gonzalez to relate certain incidents of sexual contact which were not included in the State's summary of the outcry statement. Specifically, appellant claims the summary did not provide proper notice that Gonzalez would testify about appellant exposing himself to Y.G. and asking her to touch him. The State concedes the summary did not include notice of the exposure/touching incident and that it should have been more complete. Nevertheless, the State argues the error was harmless in light of the other evidence in this case. We agree. When reviewing the erroneous admission of evidence, we disregard any error that does not affect substantial rights. See Tex. R. App. P. 44.2(b). A substantial right is affected when the error has a substantial and injurious effect or influence in determining the jury's verdict. Simpson v. State, 119 S.W.3d 262, 266 (Tex. Crim. App. 2003). In assessing the likelihood the jury's decision was adversely affected by the error, we consider everything in the record, including any testimony or physical evidence, the nature of the evidence supporting the verdict, the character of the alleged error, and how it might be considered in connection with other evidence in the case. Haley v. State, 173 S.W.3d 510, 518 (Tex. Crim. App. 2005). We may also consider the jury instructions, the State's theory and any defensive theories, closing arguments, voir dire, and whether the State emphasized the error. Id. at 518-19. Additionally, the presence of overwhelming evidence of guilt plays a determinative role in this analysis. Neal v. State, 256 S.W.3d 264, 285 (Tex. Crim. App. 2008). Here, the complained-of testimony is neither substantial nor injurious when the entire record is considered. Y.G. testified about numerous sexual acts appellant performed on her including digital and penal penetration of her vagina; rubbing her crotch with his hand; licking and kissing her cheek, neck, breasts, and vagina; placing his clothed erect penis against her clothed buttocks, and placing his penis inside her buttocks. After reviewing the record, we conclude Gonzalez's testimony that appellant exposed himself to Y.G. and asked her to touch him was not determinative in the jury's decision to convict appellant. Although the admission of such evidence was erroneous, its admission did not harm appellant. We overrule the second point of error. In his third point of error, appellant contends the trial court erred by overruling his objection to State's exhibit 3, a copy of the report of Y.G.'s physical exam performed by Dr. Cox, a REACH doctor at Children's Medical Center. Appellant claims that because the record was not created for treatment purposes, it was testimonial in nature and he should have been allowed to cross-examine Dr. Cox, the author of the report. Appellant specifically argues he was harmed by the admission of the record because Dr. Cox "was able to testify without illumination that sexual assault was still likely, even without physical evidence." Even assuming the admission of this report was erroneous, we conclude appellant was not harmed because the same or similar evidence was admitted elsewhere without objection. See Shelby v. State, 819 S.W.2d 544, 546 (Tex. Crim. App. 1991) (violation of Confrontation Clause subject to harmless error analysis). Nancy McNeil, a pediatric nurse practitioner at Children's Medical Center, testified in detail about the REACH program and the examinations performed on children who have reported sexual abuse. She testified that "across the United States and even in Europe . . . when children are examined for sexual abuse reasons[,] about 92 to 97% of those exams are normal exams, where the hymen looks normal, the child looks normal for [her] age." She then discussed a study of thirty-eight young pregnant women, only two of whom had hymen showing trauma; the remaining thirty-six had normal hymen with no signs of trauma. McNeil also stated vaginal tissue heals very quickly so "even if there had been trauma it's very difficult to see that trauma past a week or two." For that reason, she would not usually expect to find physical evidence of penetration, such as tearing, ripping, bruising, or scarring, in either the external vaginal structure or in the vagina of an alleged sexual abuse victim. Appellant did not object to any of this testimony. McNeil then testified she was the custodian of records for REACH and had reviewed Dr. Cox's report. When the State offered the report, appellant objected not on hearsay grounds but "that the introduction of this exhibit" would violate appellant's "right to confront witnesses against him." The trial court overruled his objection. McNeil discussed the report which stated Y.G.'s genital exam was normal for her age; McNeil read from the report, "A normal exam does not rule out prior sexual contact." She then added, "That's pretty much a firm statement we make whenever there's a normal exam, that it does not rule out prior sexual contact or sexual abuse. . . ." Appellant did not object to McNeil's personal commentary on Dr. Cox's report. Appellant now argues the "author of the document, through gratuitous statements written on the document, was able to testify without illumination that sexual assault was still likely, even without physical evidence." McNeil's repeated testimony before and after reading Dr. Cox's comment showed that, despite sexual abuse or sexual activity, there is rarely physical evidence of such abuse or activity. Appellant did not object to this testimony nor did he cross-examine McNeil about these statements. In light of this, we cannot conclude appellant was harmed by the admission of Dr. Cox's report. We overrule appellant's third point of error. In his fourth point of error, appellant contends the trial court erred in denying his motion to quash the indictment. Appellant claims the statute governing his offense denied him his right to a unanimous jury verdict. We have previously considered the constitutionality of the statute in question and concluded, contrary to appellant's argument, that section 21.02 of the penal code does not violate the unanimity requirement. Render v. State, 316 S.W.3d 846, 857 (Tex. App.-Dallas 2010, pet. ref'd), cert. denied, 131 S. Ct. 1533 (2011). We also have considered the Supreme Court's analysis in Richardson v. United States, 526 U.S. 813 (1999), cited by appellant in his brief, and concluded it did not support the argument appellant raises. See Render, 316 S.W.3d at 857-58. Appellant presents no new analysis or persuasive argument to convince us to change our conclusion in Render. We overrule his fourth point of error. We affirm the trial court's judgment.