Opinion
NUMBER 13-15-00082-CR
12-15-2016
DANIEL BRAMBILA A/K/A DANIEL BRAMBILLA, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 148th District Court of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Perkes and Longoria
Memorandum Opinion by Justice Longoria
Appellant Daniel Brambila appeals his convictions for two counts of aggravated sexual assault of a child (Counts 1 and 2), and one count of indecency with a child (Count 3), in eight issues. See TEX. PENAL CODE ANN. §§ 22.021(a)(1), 21.11 (West, Westlaw through 2015 R.S.). We affirm.
Appellant's surname is spelled differently in various parts of the clerk's record. We use the spelling which appears in the notice of appeal and the indictment.
I. BACKGROUND
A. Allegations of the Complainant
On July 29, 2012, the twelve-year-old complainant attended a family gathering following the funeral of her great grandfather. She later received permission to go swimming with her cousins at the house of appellant's parents. Appellant, the complainant's uncle, drove them to the house, which was where he was also living at the time. After swimming for hours, the complainant and her cousins showered and went to sleep together in one of the upstairs rooms.
We refer to the complaining witness as simply "the complainant" and her minor relatives by their initials in an effort to protect the privacy of all.
Later that night, the power at the house went out. The children went downstairs to find appellant, who moved them to his parents' bedroom and then left the room. Appellant later moved the complainant to his own bed, and she went to sleep again. The complainant testified that she woke up to the feeling of appellant touching her breasts. She told the jury that appellant touched her vagina and penetrated it with "[h]is finger, his penis, and I felt his tongue." She then heard a loud "clapping noise" and appellant "groaned." The complainant denied that appellant touched her buttocks area.
B. Appellant's Statement to the Police
Appellant gave a statement to police after his arrest in which he denied that he assaulted the complainant. He explained that he moved the children to his parents' bedroom after the power went out and told the complainant that she could lay down with him in his room if the bed in his parents' room was too crowded. When she did not join him in the other bedroom, appellant began masturbating in his room. According to appellant, the complainant came into the room to lay down with him immediately after he ejaculated onto the sheets. Appellant told police that the complainant placed his arm around her chest and, as a result, he touched the bottom of her breasts over her clothing before he immediately pulled away. Approximately fifteen minutes later, he returned from the restroom to find that she was no longer there.
C. Testimony of Carol McLaughlin
Carol McLaughlin, a certified pediatric SANE nurse, performed a forensic examination of the complainant the next day. McLaughlin testified without objection that the complainant told her that she remembered feeling appellant "separate my butt cheeks and touch my butt with his hand." The complainant later confirmed in her testimony that her statement to McLaughlin was truthful.
"SANE" stands for Sexual Assault Nurse Examiner.
McLaughlin's physical examination included using Q-tips to swab inside of the complainant's vagina and anus. McLaughlin explained that when she performs an anal swab she will "open the anus and let the sphincter relax, because it will do that when you hold it open, [and] the Q-tip goes inside" approximately half of an inch to an inch. McLaughlin testified that the Q-tip she uses to perform the swab "doesn't touch the outside rim of the anus." McLaughlin took two swabs from each area, one of which was for the police and the other for the hospital.
The hospital's laboratory tested the swabs taken by McLaughlin; the vaginal swab tested positive for prostate specific antigen ("PSA") and the anal swab tested negative. McLaughlin testified that PSA is only found in "semen or the fluid that sperm swim in," and that to be found in a female's vagina "some part of a man had to be there." She explained that PSA could probably be found in the vagina up to a week after sexual activity.
D. Testimony of Robin Castro
Robin Castro, a forensic scientist with the Texas Department of Public Safety, performed forensic tests on the vaginal and anal swabs. Castro testified at trial that both swabs tested negative for semen, and that no DNA was present on the vaginal swab. The anal swab, however, tested positive for DNA. Castro explained that there was a mixture of DNA on the anal swab and appellant could not be excluded as one of the contributors to the mixture. According to Castro, the likelihood that the DNA came from a person other than appellant was "approximately 1 in 60.68 million for Caucasians, 1 in 2.351 billion for blacks, and 1 in 168.0 million for Hispanics."
E. Testimony of Dr. Laura Gahn
Dr. Laura Gahn, the laboratory director of a private DNA testing company, testified for the defense. As relevant here, Dr. Gahn testified that in her opinion the DNA found on the anal swab "is not sufficient to demonstrate sexual activity." Dr. Gahn also questioned the methods by which Castro calculated the probability that the DNA recovered from the complainant's anus came from someone other than appellant. Using a different method of calculation and a different population database, she explained that the likelihood of the DNA coming from another "southwest Hispanic" was 1 in 1,900 and 1 in 660 for "southeast Hispanics." Dr. Gahn admitted during cross-examination by the State that the difference in probabilities between her testimony and Castro's was essentially a difference of opinion.
F. In Camera Examination of the Complainant and C.P.
Before the complainant testified, appellant's counsel informed the court that he intended to ask her whether she had sexual intercourse with her boyfriend in the week before the alleged assault and whether she was worried at the time that she might be pregnant. Counsel explained that he intended to put on testimony to that effect from other witnesses to serve as an alternative explanation for the PSA found in the complainant's vagina and as a motive for her to fabricate her allegations against appellant.
The trial court conducted an in camera examination of the complainant and her cousin, C.P. See TEX. R. EVID. 412(c) (providing for an in camera examination to determine whether evidence of the past sexual behavior of the complainant in a sexual-assault case is admissible under Rule 412). During the examination, the complainant testified that she did not have sex with anyone in the week before the assault. C.P. testified that the complainant was sexually active during that time and feared that she was pregnant by her boyfriend. The trial court ruled at the end of the hearing that appellant could ask the complainant only whether she had sexual intercourse in the week preceding the alleged assault. Appellant did not object to the limitation.
In her testimony before the jury, the complainant repeated her denial that she was sexually active in the week before the assault. C.P. later testified for the defense that the complainant was sexually active during that time, but did not mention the complainant's alleged fear of pregnancy.
G. Verdict and Sentence
The jury returned a verdict of guilty on all three counts. Appellant elected for the trial court to assess his punishment. Following a separate punishment hearing, the trial court assessed sentences of imprisonment in the Texas Department of Criminal Justice—Institutional Division for twenty five years on Counts 1 and 2 and twenty years on Count 3, to run concurrently. This appeal followed.
II. SUFFICIENCY OF THE EVIDENCE
Appellant argues in his first and second issues that the evidence is legally insufficient to support his conviction for aggravated sexual assault of a child under Count 2.
Appellant's first issue challenges the legal sufficiency of the evidence supporting his conviction and his second issue challenges the factual sufficiency of the evidence. The Texas Court of Criminal Appeals has decided that the Jackson v. Virginia legal sufficiency standard "is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt." Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.). We therefore address appellant's first two issues as a single challenge to the legal sufficiency of the evidence supporting his conviction on Count 2.
A. Standard of Review and Applicable Law
We review whether sufficient evidence supports a conviction by considering all of the evidence introduced at trial in the light most favorable to the verdict and deciding whether any rational trier of fact could have found the State proved all of the essential elements of the offense beyond a reasonable doubt. McKay v. State, 474 S.W.3d 266, 269 (Tex. Crim. App. 2015) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). This standard tasks the factfinder, the jury in this case, with resolving conflicts in the testimony, weighing the evidence, and drawing reasonable inferences from it. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015). Our role on appeal is limited to determining whether the necessary inferences drawn by the jury are reasonable based upon the cumulative force of all the evidence when viewed in the light most favorable to the verdict. Id. If the record supports conflicting inferences, we presume that the jury resolved the conflict in favor of its verdict and defer to that determination. Id. at 448-49.
We measure the sufficiency of the evidence against the essential elements of the offense as they are defined by the hypothetically correct jury charge for the case. Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014). The hypothetically correct jury charge accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict its theories of liability, and adequately describes the particular offense for which the defendant was tried. Id. (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). The hypothetically correct jury charge as authorized by the indictment for Count 2 required the State to prove that appellant: (1) intentionally or knowingly; (2) caused the penetration of the complainant's anus by appellant's sexual organ or his fingers; (3) when the complainant was younger than 14 years of age. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i).
B. Analysis
Appellant argues the evidence is legally insufficient to establish the element of penetration. He reasons the complainant never testified to penetration and there is no evidence to establish that his DNA came from inside of her anus rather than the exterior. The State responds that the complainant's statement to McLaughlin that appellant touched her anus combined with the DNA evidence is legally sufficient evidence of anal penetration.
We agree with the State. While the complainant did not testify to penetration during trial, a child is not required to testify to penetration. See Ozuna v. State, 199 S.W.3d 601, 606 (Tex. App.—Corpus Christi 2006, no pet.). And the complainant's statements to McLaughlin during the forensic examination that she felt appellant "separate my butt cheeks and touch my butt with his hand" were admitted without objection. Appellant is correct that the complainant did not use the term "anus" in her statement, but courts give wide latitude to the descriptions of sexual abuse by children. See Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990) (en banc). The child's description of what occurred need not be precise, and the child is not required to express themselves with the same precision and level of sophistication as an adult. Ozuna, 199 S.W.3d at 606. The jury could reasonably conclude that the complainant's statement to McLaughlin meant that appellant separated her buttocks with his hand and then touched her anus. See Saldana v. State, 287 S.W.3d 43, 60-61 (Tex. App.—Corpus Christi 2008, pet. ref'd) (collecting cases where references "to an act performed 'in the butt'" was considered "sufficient to identify the anus"). And the presence of appellant's DNA from inside of her anus supports a reasonable inference that the touching turned into penetration.
Appellant contends that drawing such an inference from the DNA evidence is not reasonable because (1) the anal swab could have picked up his DNA from the exterior of her anus; (2) Castro never explained why her method of calculating the probability of the DNA test falsely identifying appellant was reliable; and (3) Dr. Gahn testified that the probability that the DNA belonged to someone else was much greater than Castro testified. We are not persuaded by these arguments because each essentially asks us to reweigh the strength of the evidence. It was the sole responsibility of the jury to weigh witness's testimony, and we may not disturb the jury's evident decision to credit the testimony of McLaughlin and Castro. See Murray, 457 S.W.3d at 448.
We overrule appellant's first and second issues.
III. JURY CHARGE ERRORS
Appellant argues in his third and eighth issues that he suffered egregious harm as a result of errors in the jury charge.
A. Applicable Law
When analyzing a jury-charge issue, we first decide whether error exists in the charge. Phillips v. State, 463 S.W.3d 59, 64 (Tex. Crim. App. 2015). If we find error, we then perform a harm analysis. Id. Preservation of error does not become an issue until the second step of the analysis, where it determines the degree of harm necessary to warrant reversal. Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013). If appellant objected to the error, we will reverse if he suffered "some harm." Id. If appellant did not preserve error, we will reverse only if the error resulted in "egregious harm." Id.
B. Relevant Portions of the Jury Charge
As relevant to appellant's issues, the abstract paragraph provides:
A person acts intentionally, or with intent, with respect to the nature of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.
The application paragraphs for Count 1 and 2 provide:
Now if you find from the evidence beyond a reasonable doubt that DANIEL BRAMBILA, defendant, on or about July 29, 2012, in Nueces County, Texas, did then and there intentionally or knowingly cause the penetration of the sexual organ of [complainant], a child, by the defendant's sexual organ or the defendant's finger(s); and that [complainant] was then younger than 14 years of age, then you will find the Defendant guilty of Count 1: Aggravated Sexual Assault of a Child, as charged in the indictment.
Now if you find from the evidence beyond a reasonable doubt that DANIEL BRAMBILA, defendant, on or about July 29, 2012, in Nueces County, Texas, did then and there intentionally or knowingly cause the penetration of the anus of [complainant], a child, by the defendant's finger (s), or that the Defendant intentionally and knowingly caused the anus of [complainant] to be contacted or penetrated by the Defendant's sexual organ; and that [complainant] was then younger than 14 years of age, then you will find the
Defendant guilty of Count 2: Aggravated Sexual Assault of a Child, as charged in the indictment.
C. Analysis of Issue Three
Appellant asserts in his third issue that there were two errors in the jury charge. First, the application paragraphs for Counts 1 and 2 failed to properly limit the language on the culpable mental state to the appropriate conduct element. Second, the definition of the mental state of "intentionally" in the abstract portion of the charge omitted the part of the definition regarding intending the result of conduct.
1. Limiting the Mental State Language
Appellant argues that the offense of aggravated sexual assault of a child includes multiple "conduct elements" and therefore it was error for the jury charge to "not seek to differentiate between the elements involving the result of the conduct and those involving the nature of the conduct." The State responds that no such limitation was required because although the offense of aggravated sexual assault of a child contains multiple conduct elements, it does not mean that the offense "involve[s] separate acts to which the respective mental states each apply, but rather a single act of penetration or contact which is difficult to characterize" using a single conduct element.
We agree with the State. There are three "conduct elements" which may be involved in an offense: (1) the nature of the conduct; (2) the result of the conduct; and (3) the circumstances surrounding the conduct. Price v. State, 457 S.W.3d 437, 441 (Tex. Crim. App. 2015) (citing TEX. PENAL CODE. ANN. § 6.03 (West, Westlaw through 2015 R.S.)). "Any offense may contain any one or more of these conduct elements which alone or in combination form the overall behavior which the Legislature has intended to criminalize." Cook v. State, 884 S.W.2d 485, 487 (Tex. Crim. App. 1994) (en banc) (internal quotation marks omitted). The language in the jury charge regarding the culpable mental state must be tailored to the correct conduct element of the offense. Price, 457 S.W.3d at 441. Appellant appears to argue that when there are multiple conduct elements, the language in the jury charge regarding the culpable mental states must be separately tailored to each individual conduct element. He has presented no authority to support this assertion, and we can find none. We reject appellant's first argument.
2. Definition of "Intentionally"
Appellant's second argument is that it was error to omit from the abstract paragraph the portion of the statutory definition of "intentionally" regarding intending the result of the defendant's conduct. See TEX. PENAL CODE ANN. § 6.03(a). Assuming that submitting this incomplete definition in the abstract section was error, we conclude that appellant did not suffer harm from it.
Because appellant did not object to the charge we may not reverse unless he suffered harm so egregious "that he did not have a fair and impartial trial." Martin v. State, 200 S.W.3d 635, 639-40 (Tex. Crim. App. 2006). We determine whether appellant suffered egregious harm by examining: (1) the entire jury charge; (2) the state of the evidence, including the contested issues and weight of the probative evidence; (3) the arguments of counsel; and (4) any other relevant information revealed by the record as a whole. Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008). A finding of egregious harm requires that the appellant suffered actual rather than theoretical harm. Taylor v. State, 332 S.W.3d 483, 490 (Tex. Crim. App. 2011). "Errors which result in egregious harm are those that affect the very basis of the case, deprive the defendant of a valuable right, vitally affect the defensive theory, or make a case for conviction clearly and significantly more persuasive." Id.
i. Whole Jury Charge
When looking at the whole jury charge we may consider the extent that the application paragraphs cured any error in the abstract section. See Medina v. State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999). The application paragraphs for Count 1 and 2 instructed the jury as follows:
Now if you find from the evidence beyond a reasonable doubt that DANIEL BRAMBILA, defendant, on or about July 29, 2012, in Nueces County, Texas, did then and there intentionally or knowingly cause the penetration of the sexual organ of [complainant], a child, by the defendant's sexual organ or the defendant's finger(s); and that [complainant] was then younger than 14 years of age, then you will find the Defendant guilty of Count 1: Aggravated Sexual Assault of a Child, as charged in the indictment.
Now if you find from the evidence beyond a reasonable doubt that DANIEL BRAMBILA, defendant, on or about July 29, 2012, in Nueces County, Texas, did then and there intentionally or knowingly cause the penetration of the anus of [complainant], a child, by the defendant's finger (s), or that the Defendant intentionally and knowingly caused the anus of [complainant] to be contacted or penetrated by the Defendant's sexual organ; and that [complainant] was then younger than 14 years of age, then you will find the Defendant guilty of Count 2: Aggravated Sexual Assault of a Child, as charged in the indictment.
Even though the definition of "intentionally" in the abstract paragraph omitted the "result of conduct" component of the definition, the application paragraphs correctly instructed the jury that to convict they must conclude appellant knowingly or intentionally caused penetration of the complainant's vagina for Count 1 and contact with or penetration of her anus for Count 2. See Reed v. State, 421 S.W.3d 24, 30 (Tex. App.—Waco 2013, pet. ref'd) (holding that a similar application paragraph correctly instructed the jury and suggested against a finding of egregious harm). The charge was therefore consistent with the statutorily-proscribed conduct. See TEX. PENAL CODE ANN. § 22.021(a)(1). This factor weighs against a finding of egregious harm. See Medina, 7 S.W.3d at 640; see also Reed, 421 S.W.3d at 30.
ii. State of the Evidence
When evaluating the state of the evidence, we consider any contested issues and the weight of the probative evidence. See Warner, 245 S.W.3d at 461. The record contains strong evidence that appellant committed the offenses charged in Count 1 and Count 2. On Count 1, the evidence showed that PSA was found in the complainant's vagina, and she denied being sexually active with anyone in the time before the assault. Appellant further admitted that the complainant lay down in the bed with him and that the stains on the bed, (which the jury saw pictures of), were caused by his semen. The complainant also testified that she felt appellant penetrate her vagina in multiple ways. On Count 2, the DNA evidence and the complainant's statement to McLaughlin is strong evidence that appellant intentionally or knowingly penetrated her anus.
In addition to the strength of the evidence, whether appellant committed the assault with the culpable mental state was not a contested issue at trial. Appellant's defensive theory was that the complainant entirely fabricated the allegations against him. As a result, the parties focused on the complainant's credibility and motive to fabricate her allegations rather than on appellant's mental state. This factor weighs against a finding of egregious harm.
iii. Arguments of Counsel
Our analysis is similar for the arguments of counsel. Counsel for both parties focused their arguments on the complainant's credibility and the significance of the physical evidence. Neither counsel contested whether appellant had the correct culpable mental state. This factor weighs against a finding of egregious harm.
iv. Other Relevant Information
We have reviewed the record as a whole and found no other relevant evidence.
v. Conclusion
Assuming that the incomplete definition was error, after a thorough review of the entire record, we conclude that appellant did not suffer egregious harm from the submission of the incomplete instruction on the mental state of "intentionally." The error did not deprive appellant of a fair and impartial trial because it did not affect the very basis of the case, deprive appellant of a valuable right, vitally affect a defensive theory, or make the case for conviction clearly and significantly more persuasive. We reject appellant's second argument.
We overrule appellant's third issue.
D. Analysis of Issue Eight
In his eighth issue, appellant argues that it was error for the application paragraph for Count 2 to expand upon the language in the indictment and allow the jury to convict him on a theory not alleged there.
Appellant argues that the jury charge expanded upon the allegation in the indictment for Count 2—that he penetrated her anus with his fingers or sexual organ—by allowing the jury to also convict if it found he contacted her anus with his sexual organ. The State responds that the jury charge did not enlarge the allegations in the indictment because an allegation of anal penetration necessarily involves an allegation of contact. See Aekins v. State, 447 S.W.3d 270, 286 (Tex. Crim. App. 2014) (Keller, P.J., concurring, joined by Price, Keasler, and Hervey, JJ) (observing in context of a double-jeopardy issue that "the act of 'penetration' necessarily includes the act of 'contact.'"). Assuming that the jury charge expanded the indictment, we conclude that the error was harmless.
Appellant did not object to the jury charge, so we may not reverse unless the harm he suffered was so egregious "that he did not have a fair and impartial trial." Martin, 200 S.W.3d at 639-40. In this analysis we consider: (1) the jury charge as a whole; (2) the state of the evidence, including any contested issues and weight of the probative evidence; (3) the arguments of counsel; and (4) any other relevant information revealed by the record as a whole. See Warner, 245 S.W.3d at 461.
1. Whole Jury Charge
The definition of aggravated sexual assault in the abstract paragraph applicable to Count 2 instructed the jury that "[a] person commits the offense of Aggravated Sexual Assault of a Child if the person intentionally or knowingly causes the penetration of the anus by any means, or if the person intentionally or knowingly causes the anus of the child to contact the mouth, anus, or sexual organ of another person, including the actor, and the child is younger than 14 years of age." The later part of this definition—causing the anus of the child to contact the mouth, anus, or sexual organ of another—is a correct statement of the offense codified in penal code section 22.021(a)(1)(B)(iv). See TEX. PENAL CODE ANN. §22.021(a)(1)(B)(iv). But, as applied to this case, the definition compounded the error by reinforcing that the jury could convict if it found appellant contacted her anus even if it did not believe he penetrated it. This factor weighs in favor of a finding of egregious harm.
2. Arguments of Counsel
The State also emphasized the error during its closing argument. The prosecutor told the jury that a conviction on Count 2 required the jury to find only "contact or penetrate, either/or" and argued that "[w]e know one of these things happened" because of the DNA evidence recovered from inside the complainant's anus. While this statement emphasized the error, the remainder of the State's closing argument on Count 2 emphasized the evidence for penetration rather than contact: the prosecutor argued that appellant's DNA was found inside of her anus rather than on the exterior and that it must have been brought there either by his fingers or his sexual organ. Also relevant is that the closing argument of appellant's counsel centered on his defensive theory that the allegations were entirely fabricated. In sum, while the State emphasized the error, the remainder of its arguments and the argument of appellant's counsel ameliorated the harm. This factor weighs marginally in favor of a finding of egregious harm.
3. State of the Evidence
While our analysis of the first two factors reflects that appellant suffered some degree of harm, the state of the evidence mitigates the seriousness of it. Appellant argues that the harm was egregious because the issue of penetration was a contested one. We agree that the issue was contested, but the mere existence of a contested issue does not necessarily give rise to rise to egregious harm. See Olivas v. State, 202 S.W.3d 137, 148 (Tex. Crim. App. 2006) (suggesting that contested evidence may but does not necessarily give rise to a finding of egregious harm). Appellant did not defend himself by arguing that he contacted but did not penetrate her anus, but asserted that nothing sexual occurred in his bed that night at all. Furthermore, the evidence strongly supported that appellant penetrated her anus with his finger and did not use his sexual organ at all: McLaughlin testified the complainant said she felt appellant touch her anus with his finger, and the anal swab tested positive for appellant's DNA but negative for the presence of semen. Based on the above, the state of the evidence weighs strongly against a finding of egregious harm.
4. Other Relevant Information
We have thoroughly reviewed the record and found no other relevant evidence.
5. Conclusion
After a thorough review of the entire record, we conclude that the harm appellant suffered was not so egregious that it deprived him of a fair and impartial trial. The jury charge and the State's closing argument did compound the error to some extent, but the remainder of the State's closing argument emphasized the evidence for penetration rather than contact. The weight of the evidence also supported penetration rather than contact: the anal swab was positive for appellant's DNA but negative for sperm, and the complainant told McLaughlin that he touched her anus with his fingers rather than his sexual organ. Furthermore, appellant's defensive theory was based on a complete denial of any sexual activity instead of denying penetration but admitting to contact. Based on this record, we cannot conclude that appellant was likely convicted on the expanded language in the indictment or that the language confused the jury. We hold that appellant did not suffer egregious harm from the error because it did not affect the very basis of the case, deprive appellant of a valuable right, vitally affect a defensive theory, or make the case for conviction clearly and significantly more persuasive. We overrule appellant's eighth issue.
IV. CONFRONTATION CLAUSE AND TEXAS RULE OF EVIDENCE 412
Appellant argues under his fourth and fifth issues that the trial court violated his rights under the Confrontation Clause and Rule of Evidence 412 when it refused to permit him to recall C.P. See U.S. CONST., amend. VI; TEX. R. EVID. 412.
A. Background Facts
Erica Brambila ("Erica"), appellant's ex-wife, testified for the defense. Appellant's counsel examined her regarding what she knew of the relationship between the complainant and her biological father. After counsel elicited testimony that the complainant's father was a drug dealer, appellant's counsel attempted to ask Erica about how the father treated the complainant. In response to the State's relevancy objection, counsel explained that he wanted to show that the complainant's father was "a hot head, very strict with [the complainant]," because it would go to show that the complainant fabricated her allegations out of fear her father would discover she was sexually active with her boyfriend. The trial court refused to allow this line of questioning. Appellant then asked to recall C.P. to testify that the complainant thought she was pregnant by her boyfriend in the week preceding the assault. The trial court denied appellant's request.
B. Confrontation Clause
Appellant argues in his fourth issue that the court's refusal to allow him to recall C.P. violated his rights under the Confrontation Clause. The State argues that appellant waived his Confrontation Clause issue by failing to object.
We agree with the State. To preserve an issue under the Confrontation Clause for appeal, the appellant must object on that ground in the trial court. Paredes v. State, 129 S.W.3d 530, 535 (Tex. Crim. App. 2004) (citing TEX. R. APP. P. 33.1(a)). This issue involves a request to recall a witness, but the same rationale applies. Appellant requested to recall C.P. but did not inform the trial court that his request was based on the Confrontation Clause. We conclude appellant waived his issue by failing to rely on the Confrontation Clause as the basis of his request. See Reyna v. State, 168 S.W.3d 173, 179-80 (Tex. Crim. App. 2005) (holding that the appellant waived his issue under the Confrontation Clause when he did not mention it during his proffer of evidence to the trial court); Paredes, 129 S.W.3d at 535.
We overrule appellant's fourth issue.
C. Rule 412
Appellant argues in his fifth issue that the trial court should have allowed him to recall C.P. because Texas Rule of Evidence 412 allows him to present evidence of a complainant's past sexual behavior if "necessary to rebut or explain scientific or medical evidence offered by the prosecutor." TEX. R. EVID. 412(b)(2)(A). The State responds that appellant waived the issue by failing to invoke Rule 412 when he sought to recall C.P. The State further argues that the issue should be overruled because: (1) appellant did not lay the proper predicate for impeaching the complainant's testimony; (2) appellant is estopped from raising this issue; and (3) any error in the trial court's ruling was harmless.
Assuming that appellant's request to recall C.P. was specific enough to inform the trial court that he was relying on Texas Rule of Evidence 412, we hold that any error in refusing to allow him to do so was harmless. We generally review the erroneous exclusion of evidence offered under the rules of evidence for harm under Texas Rule of Appellate Procedure 44.2(b).Walters v. State, 247 S.W.3d 204, 219 (Tex. Crim. App. 2007). Under this standard, we must disregard the error if it did not affect a substantial right of the defendant. TEX. R. APP. P. 44.2(b). A substantial right is not affected if the appellate court, after reviewing the record as a whole, has a "fair assurance that the error did not influence the jury, or had but a slight effect." Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002) (internal quotation marks omitted). In assessing the impact of the error, we pay particular attention to factors such as the nature of the evidence supporting the verdict, the character of the alleged error and how the jury might consider it in connection with other evidence in the case, whether the State emphasized the error, and whether the evidence supporting the appellant's guilt was overwhelming. Schmutz v. State, 440 S.W.3d 29, 39 (Tex. Crim. App. 2014). We may also consider the jury instructions, the State's theories and any defensive theories, closing arguments, and voir dire, if applicable. Id.
An erroneous evidentiary ruling might rise to the level of a constitutional violation "if it effectively prevents the defendant from presenting his defensive theory." Walters v. State, 247 S.W.3d 204, 221 (Tex. Crim. App. 2007). That situation is not present here because appellant was able to present his defensive theory that the complainant fabricated the allegations to distract from her own sexual activity. As we describe in more detail below, over the course of the trial appellant: (1) questioned the complainant regarding whether she was sexually active in the week immediately before the assault; (2) presented testimony from C.P. that the complainant was sexually active during that time; (3) put on testimony of three witnesses that the complainant is not a truthful person; and (4) directly argued to the jury that she fabricated the allegations to distract from her own sexual activity.
After examining the record as a whole, we agree with the State that the error was harmless. First, as we described above in more detail, the jury heard substantial evidence supporting appellant's guilt. Second, the character of the alleged error was minor and likely played a small role in the jury's deliberations. Appellant argues that the error had a substantial effect because C.P.'s testimony went to the complainant's credibility, but the trial court's decision did not hinder the jury in evaluating her credibility. The jury had substantial physical evidence which it could use to measure the truth of the complainant's allegations, and it also heard extensive testimony that the complainant was not a truthful person. Erica Brambila, for example, testified that the complainant is not a truthful person and that the complainant's "side of the family is known to lie. They lie. They make up stories and get away with it." A.C., one of appellant's cousins, and Gabriella Reyes, a family friend, gave similar testimony regarding the complainant's propensity to lie. Third, the trial court's decision did not greatly affect appellant's defensive theory. Appellant argued throughout the trial that the complainant made up the allegations and presented testimony from C.P. suggesting that the complainant had lied about her own sexual activity at the time. Fourth, the State did not emphasize during its closing argument that the complainant did not believe she was pregnant.
Based on our review of the record as a whole, we conclude that we have a fair assurance that the error, if any, in excluding C.P.'s testimony that the complainant feared she was pregnant was harmless because it did not affect a substantial right of the defendant. See TEX. R. APP. P. 44.2(b). We overrule appellant's fifth issue.
V. TESTIMONY OF DETECTIVE MICHAEL ILSE
Appellant argues in his sixth issue that the trial court was wrong to allow a police officer to testify regarding what he believed occurred in appellant's bedroom the night of the alleged assault.
The State called Detective Ilse, the Corpus Christi Police detective assigned to investigate the complainant's allegations, to testify regarding his investigation. At the end of the State's direct examination, the following exchange occurred:
[State]: So, as a detective, when you take into account the PSA positive findings in [the complainant's] vagina, her statements, the Defendant's statements, the photos[]—Your Honor, may I approach?
[The Court]: Yes.The prosecutor repeated her question, and Detective Ilse answered:
[State]: The photos that were taken of the bedding, the room where the assault occurred, what do you believe happened in that room that night?
[Defense]: Objection, Your Honor. When she says, "What do you believe happened," that means she's asking for speculation and his opinions. He can tell what he found, but as far as the ultimate fact, this calls for his opinions.
[State]: Your Honor, this witness has been qualified as an expert and he is entitled to give an opinion as an expert under Rule 602, I believe. Let me look to make sure.
[Defense]: That is an ultimate fact issue, Your Honor.
[State]: [Texas Rule of Evidence] 701, excuse me. I was off by 100.
[The Court]: I'll allow it. I'll allow it.
[Det. Ilse]: Based on everything that I knew from what the victim said, what Mr. Brambila said, the wet spots on the bed, I didn't believe that he was masturbating prior to the victim coming in. My opinion was that he did, in fact, insert his penis into the victim, that based on the victim saying that she heard slapping when he was done, that would be indicative of someone ejaculating or masturbating following—she's not going to have sperm in her because, I believe, in my opinion, he had pulled out and did it on the bed. Also, to say that she might have put it in, most of the sperm in that area of the wetness was concentrated on a side that he was on and not the corner where she was located, more towards the wall of the bed, and the wetness was more concentrated on the other side. It just didn't make any sense to me that she would take the sperm and put it inside of her. Also, according to Mr. Brambila that—saying that he never took her pants down, she never took her pants down, according to him, well, sperm is not going to permeate, to my knowledge and my training that I have, that sperm is not going to permeate a pair of shorts, a pair of underwear and get inside a vagina. And also, the only way that she is going to have DNA in her anus is that something
would have been put in there, such as a finger or a penis or something like that.
The prosecutor is referring to photos of the stains on appellant's bed that were admitted into evidence and published to the jury.
Appellant argues on appeal that Detective Ilse's answer was not proper lay opinion testimony because it was not rationally based on Detective Ilse's perceptions. See TEX. R. EVID. 701. The State replies that appellant waived this issue and, alternatively, that Detective Ilse's testimony was permissible lay opinion testimony.
Appellant objected in the trial court on the grounds that the prosecutor's question asked Detective Ilse for an opinion on an "ultimate fact." But opinion testimony "is not objectionable just because it embraces an ultimate issue." TEX. R. EVID. 704; see Ex parte Nailor, 149 S.W.3d 125, 134-35 (Tex. Crim. App. 2004). Appellant did not object on the ground that Detective Ilse's testimony was not based on his perceptions under Texas Rule of Evidence 701. See Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009) (observing that an issue which does not comport with the objection made in the trial court is waived). However, to the extent that appellant's objection to "asking for speculation and his opinions" preserved this objection, and assuming that permitting Detective Ilse to answer was error, we hold that any error was harmless. See TEX. R. APP. P. 44.2(b).
As we set out in greater detail above, there was substantial evidence that appellant committed the charged offenses. See Coble v. State, 330 S.W.3d 253, 286 (Tex. Crim. App. 2010) (holding in a case where expert testimony was improperly admitted that the existence of "ample other evidence" supporting the finding weighed against harm). Moreover, Detective Ilse explicitly relied on the same evidence in reaching his opinion that the jury had seen during the course of the State's case in chief. That the jury had seen the same evidence allowed them to make an independent decision regarding appellant's guilt or innocence. See Hurst v. State, 406 S.W.3d 617, 623-24 (Tex. App.—Eastland 2013, no pet.) (holding that admitting the investigator's opinion regarding the extent of appellant's involvement in the murder was harmless when the jury had the same information the investigator used to reach that opinion); see also Allen v. State, No. 14-12-01086-CR, 2014 WL 3587372, at *5 (Tex. App.—Houston [14th Dist.] July 22, 2014, pet. ref'd) (mem. op., not designated for publication) (holding that permitting opinion testimony that a murder had been committed was harmless in part "because the jury heard all the evidence upon which [the witness] based his lay opinion that a murder had been committed"). Finally, the State did not bring up Detective Ilse's testimony during closing arguments. See Coble, 330 S.W.3d at 287 (holding that improperly-admitted expert testimony was harmless in part because the State "barely mentioned" the expert during closing argument and did not emphasize his opinions). After considering the entire record, we have a fair assurance that any error in allowing Detective Ilse to answer the prosecutor's question was harmless because it had at most a slight effect on the jury's verdict. See TEX. R. APP. P. 44.2(b). We overrule appellant's sixth issue.
Appellant argues in a single sentence of this issue that "[f]inally, the evidence should have been excluded under Texas Rule of Evidence 403 because the probative value of the speculative testimony was far outweighed by the danger of unfair prejudice, confusion of issues and misleading the jury." See TEX. R. EVID. 403. To the extent that appellant intended this is a separate issue, we overrule it. Appellant has waived any Rule 403 objection to Detective Ilse's testimony by failing to object on that ground in the trial court. See Lopez v. State, 470 S.W.3d 146, 152 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (holding that a Rule 403 objection is waived by failure to object on those grounds in the trial court).
VI. MOTION FOR NEW TRIAL
Appellant argues in his seventh issue that the trial court abused its discretion in denying his motion for new trial asserting that one of the jurors slept during certain portions of the defense's case.
A. Standard of Review and Applicable Law
We review a trial court's decision on a motion for new trial for an abuse of discretion. Colyer v. State, 428 S.W.3d 117, 122 (Tex. Crim. App. 2014). "A trial court abuses its discretion by denying a motion for new trial only when its decision is arbitrary or unreasonable—that is, when no reasonable view of the record could support the trial court's ruling." Cueva v. State, 339 S.W.3d 839, 857 (Tex. App.—Corpus Christi 2011, pet. ref'd). We view the evidence in the light most favorable to the trial judge's ruling and presume the judge made all reasonable factual findings against the losing party. Coyler, 428 S.W.3d at 122.
Sleeping during trial is a form of juror misconduct on which the movant has the burden of proof. See Ryser v. State, 453 S.W.3d 17, 38 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd). When analyzing the effect of a sleeping juror, the court "should consider whether the sleeping juror missed large portions of the trial or [whether] the portions missed were particularly critical." Id. (brackets in original) (quoting Menard v. State, 193 S.W.3d 55, 60 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd)).
B. Analysis
Appellant argued in his motion for new trial that one of the jurors committed misconduct by sleeping during Dr. Gahn's testimony, which he asserts was critical to the defense's case. As support, appellant attached an affidavit from his father, Armando Brambila ("Armando"), testifying that he was present in the courtroom during the trial and observed one of the jurors sleeping. Armando gave similar testimony during the hearing on appellant's motion for new trial.
Appellant argues on appeal that the trial court abused its discretion in denying his motion for new trial. The State replies that the trial court did not abuse its discretion because the issue was not preserved. In the alternative, the State argues the evidence shows at most that the juror slept for a few thirty-second periods and there was no showing that the juror missed significant portions of testimony.
Assuming without deciding that error was preserved, we agree with the State that the trial court did not abuse its discretion in denying the motion for new trial. Armando testified that he observed a juror "nodding out" and "trying to stay awake" on several occasions over the course of two days while the defense was presenting its case. Armando saw the juror actually sleeping during Dr. Gahn's testimony, but could not tell for how long because he observed the juror for no longer than a minute. Thus, even if the trial court found Armando's testimony to be entirely credible, the testimony established that the juror actually slept for a few minutes at most. Based on this record, the court did not abuse its discretion in concluding the juror did not miss a large or particularly critical portion of the trial.See Ryser, 453 S.W.3d at 39. We overrule appellant's seventh issue.
The trial court orally concluded:
[T]he juror perhaps might have been sleeping for up to 30 seconds or a few moments, but mainly he was nodding off and just trying to stay awake. In any event, even if he was sleeping during that time, there's no evidence that the sleeping juror missed large portions of the trial or that the portions missed were particularly critical.
VII. CONCLUSION
We affirm the judgment of the trial court.
NORA L. LONGORIA,
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 15th day of December, 2016.