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finding admission of videotaped statements harmless where information on recording was cumulative of other admitted evidence
Summary of this case from Hawkins v. StateOpinion
No. 10-09-00389-CR
Opinion delivered and filed August 18, 2010. DO NOT PUBLISH.
Appealed from the 272nd District Court, Brazos County, Texas, Trial Court No. 09-00126-CRF-272. Affirmed.
Before Chief Justice GRAY, Justice REYNA, and Justice DAVIS.
MEMORANDUM OPINION
Jose Jesus Sanchez appeals from his conviction for the offense of aggravated sexual assault of a child, which was enhanced pursuant to Penal Code Section 22.021(a)(2)(A) (ii iii). TEX. PEN. CODE ANN. § 22.021 (Vernon 2003). Sanchez raises seven complaints on appeal: (1) that the trial court erred by granting a challenge for cause by the State; (2) jury charge error; (3) error in the admission of evidence because it constituted impermissible hearsay; (4) error in the admission of evidence because it constituted improper opinion evidence; (5) the evidence was factually insufficient for the jury to have found that there was penetration; (6) the evidence was factually insufficient for the jury to have found the enhancement allegations; and (7) ineffective assistance of counsel. Because we find no reversible error, we affirm the judgment of the trial court.
Challenge for Cause
Sanchez complains that the trial court erred by granting a challenge for cause by the State because a juror could not read and write the English language. One juror had circled a response on her juror card regarding juror qualifications regarding being able to read or write the English language. The potential juror was questioned by the State and defense regarding her understanding of English, whereby she indicated that she did understand English as spoken to her, did not speak it very well, did not understand the meaning of the word "consent," could only read English "a little," and that writing English was her greatest weakness between understanding, reading, or writing English.Standard of Review
"A challenge for cause is an objection made to a particular juror, alleging some fact which renders the juror incapable or unfit to serve on the jury." TEX. CODE CRIM. PROC. ANN. art. 35.16(a) (Vernon 2006). One of the grounds upon which a party may challenge a prospective juror for cause is that "the juror cannot read or write." Id. art. 35.16(a)(11). "[A] limited ability to read and write will not meet the literacy requirement for qualification as a juror." Goodwin v. State, 799 S.W.2d 719, 736 (Tex. Crim. App. 1990). Instead, the requirement contemplates that the prospective juror "can express his ideas in writing." Id. ( quoting Hernandez v. State, 506 S.W.2d 884, 887 (Tex. Crim. App. 1974)). When reviewing a trial court's decision to grant or deny a challenge for cause, we look at the entire record to determine if there is sufficient evidence to support the court's ruling. Feldman v. State, 71 S.W.3d 738, 744 (Tex. Crim. App. 2002). We give great deference to the trial court's decision on a challenge for cause because the trial judge is in the best position to evaluate the prospective juror's demeanor and responses. Saldano v. State, 232 S.W.3d 77, 91 (Tex. Crim. App. 2007), cert. denied, 128 S. Ct. 1446, 170 L. Ed. 2d 278 (2008). Particular deference is given when the potential juror's answers are vacillating, unclear, or contradictory. Feldman, 71 S.W.3d at 744. The trial court's ruling on a challenge for cause will not be reversed absent a clear abuse of discretion. Saldano, 232 S.W.3d at 91. Based on the questioning of the juror as well as the trial court's statement that his bailiff had to speak to that juror in Spanish, we do not find that the trial court's decision was an abuse of discretion. We overrule issue one.Jury Charge
Sanchez complains that the trial court erred in the application paragraph as submitted to the jury regarding the enhancement allegations. It is undisputed that Sanchez did not object to the charge. Because there was no objection made to the charge by Sanchez, we must first determine whether the charge as submitted to the jury was erroneous and if so, we must then analyze this complaint utilizing the standard of Almanza v. State. Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008) ( citing Olivas v. State, 202 S.W.3d 137, 143-44 (Tex. Crim. App. 2006), citing Almanza, 686 S.W.2d 157 (Tex. Crim. App. 1985)). Under Almanza, unobjected-to jury charge error will not result in reversal of a conviction in the absence of "egregious harm." Almanza, 686 S.W.2d at 171. In examining the record for egregious harm, we consider the entire jury charge, the state of the evidence, the final arguments of the parties, and any other relevant information revealed by the record of the trial as a whole. Olivas v. State, 202 S.W.3d at 144. Jury charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007); Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim. App. 2006).Relevant Statutes
Section 22.021(f) provides that the minimum term of imprisonment for a conviction for aggravated sexual assault is increased to twenty-five years if the victim is younger than fourteen years of age and the defendant committed the offense as described in section 22.021(a)(2)(A). TEX. PEN. CODE ANN. § 22.021(f) (Vernon 2003). section 22.021(a)(2)(A) (ii iii) provides in relevant part that the defendant must have:(ii) by acts or words places the victim in fear that death, serious bodily injury, or kidnapping will be imminently inflicted on any person; [or]
(iii) by acts or words occurring in the presence of the victim threatens to cause the death, serious bodily injury, or kidnapping of any person.TEX. PEN. CODE ANN. § 22.021(a)(2)(A) (Vernon 2003).
Application Paragraph
The application paragraph as submitted to the jury provides in relevant part that:[A]nd the defendant did then and there by acts or words threaten to cause or place J.C. in fear that death or serious bodily injury would be imminently inflicted on J.C., and such acts or words occurred in the presence of J.C. . . . . ."Sanchez contends that the application paragraph allows the jury to find that he could have threatened to place the complainant in fear that death or serious bodily injury would be imminently inflicted on her, which is contrary to the statute. Assuming without deciding that the charge was erroneous, we must analyze the harm to determine if Sanchez was egregiously harmed by the error. The abstract portion of the charge contained a definition of the enhancement allegations that tracked the statute precisely. A review of the record in this case demonstrates that the state of the evidence, the argument of the parties, and the other relevant evidence was such that we cannot say that the error affected the very basis of Sanchez's case, deprived Sanchez of a valuable right, or vitally affected a defensive theory. Sanchez's entire strategy, including his argument, was that penetration either could not or did not occur and thus, the enhancement allegations were not relevant because they would not be reached if the jury determined that penetration did not occur. We overrule issue two.
Admission of Evidence
Sanchez complains in his third and fourth issues that the trial court abused its discretion in the admission of portions of a videotape statement of Sanchez. The videotape contained a dialogue between Sanchez and a law enforcement officer that contained statements by the law enforcement officer regarding what the complainant had said had taken place.Hearsay
In issue three, Sanchez complains that the videotaped statement contained impermissible hearsay regarding what the complainant had described. Specifically, Sanchez complains of the following exchanges:(1) Officer: Yeah, why wouldn't she just stop at, "Well, he was trying to pull my legs apart and I peed on myself? Why wouldn't she just stop there? Instead, why would she go on and say that you put your penis in her, and why would she add that extra to it?
And:
(2) Officer: Buddy, I've seen little kids as soon as something happens to them they go run and tell an adult and I've seen kids that keep that deep down inside — until they're forty, fifty years old.
And:
(3) Officer: And you told her you would snap her neck if she told.
Sanchez: No
Officer: If she told
Sanchez: No sir, no
Officer: But why would she add that in there if it didn't happen?
Sanchez: Huh?
Officer: Why would she add that in there if it didn't happen?
And after another person came into the interrogation room:
(4) Officer: And my question to him was you know — why would she give us one story if, if the way that he said it went why wouldn't she say it like that? Why wouldn't she say, well, he took my pants down and he was gonna open my legs but I peed and he stopped. But she went on to say that he got on top of her. We're trying to wonder could that have been his finger, could that have been his penis, but he's saying he never stuck anything in there.
Sanchez: No sir.
Officer: But why would she say that?
Analysis
Regarding the second section about which Sanchez complains, his objection on appeal relating to hearsay does not match his objection to the trial court. Sanchez complains to this Court in part that the statement constituted impermissible hearsay; however, his objection to the trial court was that it constituted an opinion or that it was inadmissible under rule 403. Therefore, that portion of Sanchez's issue is waived as to hearsay. TEX. R. APP. P. 33.1. Assuming without deciding that the statements were improperly admitted, the admission of inadmissible evidence becomes harmless error if other evidence proving the same fact is properly admitted elsewhere or comes in elsewhere without objection. See Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999). We conclude that error, if any, in admitting the statements on the video recording is harmless because the information contained on the recording is cumulative of testimony from the complainant as well as the SANE nurse practitioner regarding the incident in question. See Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004) (stating that "[a]n error [if any] in the admission of evidence is cured where the same evidence comes in elsewhere without objection"). Additionally, any harm was further reduced by a limiting instruction given by the trial court prior to the publication of the videotape and in the jury charge that stated that the law enforcement officer's statements were not offered for the truth of the matter asserted but to understand the context of the answers given by Sanchez. There is nothing in the record to indicate that the jury did not follow these instructions as presented to the jury. Williams v. State, 973 S.W.2d 479, 490 (Tex. Crim. App. 1996) (jury presumed to follow court's instructions as given in the charge). We overrule issue three.Opinion Testimony
Sanchez complains that the trial court abused its discretion by admitting a portion of his videotaped interrogation that contained impermissible opinions as to the law enforcement officer's experience with child victims and the complainant's veracity made by the law enforcement officer who was conducting the interrogation pursuant to rule 701. Specifically, he complains of the following statements:(1) Officer: Buddy, I've seen little kids as soon as something happens to them they go run and tell an adult and I've seen kids that keep that deep down inside — until they're forty, fifty years old.
And:
(2) Officer: But remember when I told you before that is difficult for kids to ah — recall, if I told you to go in there and tell him a story it would be hard for you to go back and get the details about the event because they're kids. It would be hard for an adult but for kids, it's even ah — even more evident whenever that happens because you'll see those you know when, when someone asks them a question they're gonna be like ah — and they'll have to think back or they'll be like, I'm not sure, I don't know you, you'll catch them off guard.
Sanchez: Uh-huh
Officer: That whole time she was interviewed it was never a doubt what she was saying.Sanchez contends that the comments by the law enforcement officer, especially his last statement, contained an opinion as to the complainant's veracity and was improperly admitted. The State contends that the last comment of the officer was not an opinion as to the complainant's veracity, but was stating that the complainant's version of the events had remained consistent. However, Sanchez has provided no authority beyond a recitation of rules 701 and 702 of the Texas Rules of Evidence and a general reference to the standard of review for an abuse of discretion. While Sanchez complains that the statements were erroneous, citations to appropriate authorities are required in order to properly present that argument to this Court. Sanchez has failed to do so. Therefore, we find that this issue is inadequately briefed, and is waived. See TEX. R. APP. P. 38.1(h). We overrule issue four.