Opinion
No. 14-04-00528-CR
Memorandum Opinion filed January 31, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 405th District Court, Galveston County, Texas, Trial Court Cause No. 03CR2274. Affirmed.
Panel consists of Justices EDELMAN, SEYMORE, and GUZMAN.
MEMORANDUM OPINION
Appellant, Marcelino Hernandez Monreal, appeals a conviction for aggravated sexual assault of a child. In four issues, appellant contends that the trial court erred by (1) refusing to suppress his videotaped statement, (2) failing to grant his motion for a directed verdict, (3) admitting the videotaped statement of the complainant, and (4) designating the complainant's mother as the outcry witness under Article 38.072 of the Texas Code of Criminal Procedure. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. See TEX. R. APP. P. 47.4.
I. FACTUAL BACKGROUND
Appellant's conviction stems from an incident occurring on or about January 15, 2003, while he and his wife were babysitting a then four-year-old family friend, N.B. At trial, N.B. testified that appellant "touched something and it hurt." She was then shown a diagram of the human form and asked to circle the area where appellant touched her. She circled the area corresponding to the female genitalia. When asked by the prosecutor whether appellant touched her on the inside or outside of the area circled on the diagram, N.B. responded "outside." N.B. also testified that appellant touched her over her shorts, but that he touched her on her skin under her underwear. N.B. complained about the incident immediately after it occurred. First, N.B. told appellant's wife that appellant had touched her, but appellant's wife did nothing. The next morning, while N.B.'s mother was dressing her for school, N.B. told her to be careful when removing her panties because appellant had touched her there. When N.B.'s mother asked her what happened, N.B. stated that appellant had touched her with his finger and that it had hurt, and then showed her mother how appellant had moved her underpants and where he had touched. N.B. also started crying and said that she did not want to go back to appellant's house. An examination of N.B.'s underpants revealed what appeared to be spots of blood. N.B.'s parents took N.B. to the hospital where she was examined by a forensic nurse. N.B. told the nurse that her private parts hurt, that appellant had touched her there a couple of times, and that she told her mother that morning. Although the nurse's genital exam revealed no signs of trauma, the nurse testified that the finding was not necessarily significant because it is possible to have penetration of the female sexual organ that is not traumatic. The nurse contacted the Dickinson Police Department, which began an investigation. A few weeks later, a forensic interviewer from the Children's Assessment Center conducted a taped interview of N.B. in Spanish. During the interview, N.B. again recounted the incident. She stated that appellant had touched her private parts inside and that it had hurt and a little blood came out. She also said that appellant asked her if she wanted him to touch her and whether she liked it, and although she told him no, appellant touched her anyway. N.B. also alluded to other incidents of appellant's touching her. This videotape was played and translated for the jury over appellant's objection. After receiving the tape from the Children's Assessment Center, an officer from the Dickinson Police Department contacted appellant at home and asked him for an interview, either in appellant's home or the police station. Appellant stated that he would be running errands that day in Dickinson and offered to come by the police station to talk to the police. Appellant arrived at the police station in his own vehicle. At the time, appellant was not under indictment or arrest, and he was free to leave the police station or terminate the interview. Appellant's interview was videotaped and lasted for approximately thirty minutes. At the beginning of the videotape, the officer read appellant his Miranda warnings, and asked appellant to "do me a favor and sign here." Appellant signed the waiver of rights, indicating that he understood the warnings and waived the protections. When appellant asked why the statement was being taped, the officer told him that he was taping so that they could go back and look at the statement some time in the future. During the interview, appellant asked the police officer several questions, such as, "what will happen to me?" "do I need a lawyer?" and "am I going to be arrested?" The police officer was noncommittal in response to each question, answering, "I don't know" and "I can't promise anything." When appellant asked, "does this mean I'm going to jail?" the officer answered "no." After the interview, the police officer walked appellant to his car and allowed him to leave. Appellant was indicted for aggravated sexual assault of a child and pled not guilty to the offense. Prior to trial, the court heard appellant's motion to suppress his videotaped statement and specifically found appellant's statement was voluntary. The court entered findings of fact and conclusions of law as follows: (1) appellant came to the police station without police insistence, (2) he was not indicted, under arrest or in custody at the time he made the statement, and (3) officers read all required legal warnings and appellant voluntarily waived his rights prior to giving his statement. Appellant's videotaped statement was admitted into evidence. A jury found appellant guilty of aggravated sexual assault of a child. The trial court conducted the punishment phase, accepted appellant's guilty plea in connection with a previous offense of indecency with a child, and imposed a life sentence on appellant. This appeal ensued.II. ANALYSIS
A. Challenge to Legal Sufficiency of Evidence In his second issue, appellant contends the trial court erred in failing to grant his motion for directed verdict, arguing that the State failed to prove "penetration" of the female sexual organ. See TEX. PENAL CODE ANN. § 22.021 (Vernon 2003) (defining the essential elements of aggravated sexual assault). We review a complaint that the trial court erred in denying a motion for instructed verdict as a challenge to the legal sufficiency of the evidence. Williams v. State, 937 S.W.2d 479, 482 (Tex.Crim.App. 1996). In reviewing the legal sufficiency of the evidence, we evaluate the evidence in the light most favorable to the verdict to "determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt." King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). We do not re-weigh the evidence to substitute our judgment for that of the jury. Id. We will not engage in a second evaluation of the weight and credibility of the evidence, but only ensure that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex.Crim.App. 1993). Penetration may be proved circumstantially, and there is no requirement that the victim be able to testify that penetration occurred. Villalon v. State, 791 S.W.2d 130, 133-34 (Tex.Crim.App. 1990) (citing Nilsson v. State, 477 S.W.2d 592, 595-96 (Tex.Crim.App. 1972)). Moreover, penetration of the vaginal canal is not required to prove "penetration" under the Texas Penal Code. Vernon v. State, 841 S.W.2d 407, 409-10 (Tex.Crim.App. 1992). Rather, "female sexual organ" encompasses the entire female genitalia, including the vagina and vulva, and "penetration" is defined as touching beneath the fold of the external genitalia. See id.; Karnes v. State, 873 S.W.2d 92, 96 (Tex.App.-Dallas 1994, no pet.); Everage v. State, 848 S.W.2d 357, 358 (Tex.App.-Austin 1993, no pet.); Aylor v. State, 727 S.W.2d 727, 729 (Tex.App.-Austin 1987, pet. ref'd). Here, there was no medical evidence of vaginal penetration or trauma, and N.B. testified that appellant did not touch her "inside." However, a nurse testified that it was possible for penetration of the female sexual organ to occur without any signs of trauma. Further, N.B.'s mother, as the outcry witness, testified that N.B. told her appellant had touched "her parts." She further explained that N.B. showed her how appellant had moved N.B.'s panties and, using his finger, had touched N.B.'s "vagina, her parts." N.B.'s mother said that N.B. was "scared and shaking" when she told her, and said that she "didn't want to go back there [to appellant's house] anymore." N.B.'s mother also testified that N.B.'s vaginal area appeared red. Outcry testimony alone can be sufficient to sustain a conviction for aggravated sexual assault. Rodriguez v. State, 819 S.W.2d 871, 873-74 (Tex.Crim.App. 1991); Kimberlin v. State, 877 S.W.2d 828, 831-32 (Tex.App.-Fort Worth 1994, pet. ref'd). Here, in addition to the outcry testimony, the State introduced evidence that the panties N.B. wore during and after the incident had spots in the crotch area that tested positive for blood. The State also introduced a videotaped interview with N.B. On the videotape, N.B. said that appellant touched her with his finger inside her "pancito," or private parts, and that "a little blood came out." N.B. also testified at trial. She said that appellant touched her skin under her underwear, and demonstrated where appellant touched her by drawing a circle around the genital area of a diagram of a girl. N.B. also testified that appellant touched her "over" her shorts and that he did not touch her "inside." Appellant contends that we should disregard N.B.'s testimony because it was "confused and contradictory." However, N.B. was five years old when she testified, and child victims are not expected "to testify with the same clarity and ability as is expected of mature and capable adults." Villalon, 791 S.W.2d at 134. As the exclusive judge of the credibility of witnesses, the jury was free to accept or reject all or any part of N.B.'s testimony. See Muniz, 851 S.W.2d at 246; Tear, 74 S.W.3d at 561. Viewing the outcry testimony, N.B.'s trial testimony, the videotaped interview, and the physical evidence in the light most favorable to the verdict, a rational jury could have concluded beyond a reasonable doubt that appellant penetrated N.B.'s sexual organ with his finger. Accordingly, we find the evidence legally sufficient to sustain the conviction for aggravated sexual assault. Appellant's second issue is overruled.B. Admission of Appellant's Videotaped Statement
In his first issue, appellant contends that the trial court erred in refusing to suppress his videotaped statement, claiming that his statement was not voluntary because the officer "dodged a direct truthful answer" to appellant's questions, and appellant became emotional and/or physically ill during the interview. We review the trial court's ruling on a motion to suppress evidence under an abuse-of-discretion standard. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996). If supported by the record, a trial court's ruling on a motion to suppress will not be overturned. Hill v. State, 902 S.W.2d 57, 59 (Tex.App.-Houston [1st Dist.] 1995, pet. ref'd). At a suppression hearing, the trial judge is the sole finder of facts. Arnold v. State, 873 S.W.2d 27, 34 (Tex.Crim.App. 1993); Hill, 902 S.W.2d at 59. The trial judge is free to believe or disbelieve any or all of the evidence presented. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App. 1990). We give almost total deference to the trial court's determination of historical facts that the record supports, especially when the trial court's findings turn on evaluating a witness's credibility and demeanor. State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App. 2000); Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). We give the same amount of deference to the trial court's ruling on mixed questions of law and fact if the question is resolved by evaluating credibility and demeanor. Ross, 32 S.W.3d at 856. Here, the trial court found that appellant's statement was voluntary. Voluntariness is decided by considering the totality of the circumstances under which the statement was obtained. Creager v. State, 952 S.W.2d 852, 855 (Tex.Crim.App. 1997); King v. State, 831 S.W.2d 891, 894 (Tex.App.-Houston [14th Dist.] 1992, no pet.). "The ultimate question is whether the suspect's will was overborne." Creager, 952 S.W.2d at 856. The trial court did not abuse its discretion in determining that appellant's statement was voluntary. Appellant came to the police station of his own accord; he was not under arrest or indictment at the time. He was also free to leave or terminate the interview whenever he wished. See, e.g., Ramirez v. State, 116 S.W.3d 55, 58 (Tex.App.-Houston [14th Dist.] 1998, pet. ref'd) (fact that appellant came to the police station on his own and was free to leave supported finding of voluntariness). Appellant asked the officer a series of questions, to which the officer responded with either the truth ("I can't promise anything"), or with a noncommittal answer ("I don't know"). The officer's answers to appellant's questions were not objectionable. See, e.g., Creager, 952 S.W.2d at 856 (noting that even "trickery or deception does not make a statement involuntary unless the method was calculated to produce an untruthful confession or was offensive to due process"). The interview lasted approximately thirty minutes, during which appellant was neither mistreated nor denied basic necessities. When appellant complained of feeling a little chest pain, the officer asked him whether he was all right and whether he needed any attention, and appellant did not indicate that he did. Considering the circumstances of the interview, including the demeanor of both the appellant and the questioning police officer, the trial court's conclusion that the statement was voluntary is not an abuse of discretion. We accordingly overrule appellant's first issue.C. Admission of Complainant's Videotaped Statement
In his third issue, Appellant complains that the trial court erred by admitting the videotaped interview of N.B. made at the Children's Assessment Center. Appellant complains that there was no finding that N.B. was "unavailable" to support admission of the videotape pursuant to article 36.071 of the Texas Code of Criminal Procedure. Appellant also complains that the tape was too broad to be admitted as a prior consistent statement. Trial court rulings on the admission of evidence are reviewed for an abuse of discretion. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000). Under this standard, we are limited to determining whether the record supports the trial court's ruling. Coffin v. State, 885 S.W.2d 140, 149 (Tex.Crim.App. 1994). We may reverse only when "the trial judge's decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree." Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App. 2003) (quoting Cantu v. State, 842 S.W.2d 667, 682 (Tex.Crim.App. 1992)). In addition, where the trial court fails to expressly state the basis for its evidentiary ruling, we must uphold the ruling if it is reasonably supported by the record and is correct under any theory of the law applicable to the case. Ross, 32 S.W.3d at 855-56. The admission of the videotape in this case was not governed by article 38.071 of the Texas Code of Criminal Procedure because N.B. testified in court prior to the videotape's admission. See TEX. CODE CRIM. PROC. ANN. art. 38.071 (Vernon 2005). Where a child victim is available to testify at trial, the statute does not apply. See Jensen v. State, 66 S.W.3d 528, 534 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd) (statute did not apply where complainant "testified in court following the viewing of the videotape"). Under the plain language of the statute, it applies only to proceedings in which the court determines that a child would be "unavailable to testify." TEX. CODE CRIM. PROC. ANN. art. 38.071 § 1. The trial court instead admitted the videotape as a prior consistent statement of N.B. after N.B. had been impeached on cross-examination. The admission of prior consistent statements is governed by Texas Rule of Evidence 801(e)(1)(B), which provides that prior witness statements are admissible where the statement is "consistent with the declarant's testimony and is offered to rebut an express or implied charge of recent fabrication or improper influence or motive." TEX. R. EVID. 801(e)(1)(B); see also Graves v. State, ___ S.W.3d ___, No. 01-03-00142-CR, 2004 WL 2306698, at *3 (Tex.App.-Houston [1st Dist.] October 14, 2004, pet. stricken) (analyzing objection to videotape of child victim as a prior consistent statement under Rule 801, as opposed to article 38.071, where child testified at trial). The trial court did not err in admitting the videotape as a prior consistent statement under Rule 801(e)(1)(B). Appellant attacked N.B.'s credibility, suggesting that her memory was not good and that she may have been improperly influenced by her mother. On cross-examination, N.B. admitted that she did not remember what happened that day, but that her mother had told her what to "say today" at trial. Under these circumstances, the trial court properly admitted the videotaped statement as a prior consistent statement. See Graves, 2004 WL 2306698, at *3 ("We hold that the videotape is admissible under rule of evidence 801(e)(1)(B) as a prior consistent statement" because the defense challenged the child's credibility); see also Dowthitt, 931 S.W.2d at 264 (upholding admissibility of videotape as prior consistent statement); Wylie v. State, 908 S.W.2d 307, 310 (Tex.App.-San Antonio 1995, pet. ref'd) (holding videotape admissible as prior consistent statement where defense challenged child's credibility). Appellant cannot now complain that the videotape was "too broad" to be a prior consistent statement because his trial objection did not preserve error on this point. To properly preserve an issue for appellate review, there must be a timely objection that specifically states the legal basis for the objection. Rezac v. State, 782 S.W.2d 869, 870 (Tex.Crim.App. 1990). An objection stating one legal basis may not be used to support a different legal theory on appeal. Id. Instead, the trial objection must have drawn the trial court's attention to the particular complaint raised later on appeal. Little v. State, 758 S.W.2d 551, 564 (Tex.Crim.App. 1988). The complaint appellant raises on appeal is fundamentally different from the objections he urged in the trial court. Although appellant lodged various conclusory objections to the admission of the videotape, he never complained that the tape was too broad for the purpose for which it was being admitted, or gave the trial court an opportunity to limit or redact the tape in accordance with its use to rehabilitate N.B.'s credibility. Although some of N.B.'s statements on the videotaped interview were not consistent with her trial testimony, "the trial court need never sort through challenged evidence in order to segregate the admissible from the excludable." Willover v. State, 70 S.W.3d 841, 847 (Tex.Crim.App. 2002). If the evidence offered and challenged contains both admissible and inadmissible evidence, "the trial court may safely admit it all or exclude it all." Id. Because appellant did not specifically object, we hold that appellant has waived any error. We overrule appellant's third issue.D. Designation of Outcry Witness
In his fourth issue, appellant contends that the trial court erred by designating the complainant's mother as an outcry witness because N.B. first complained to appellant's wife that appellant had touched her. Article 38.072 of the Texas Code of Criminal Procedure creates an "outcry exception" to the hearsay rule in prosecutions for sexual offenses committed against a child twelve years of age or younger. TEX. CODE CRIM. PROC. ANN. art. 38.072 (Vernon 2005). Article 38.072 provides that outcry testimony from the first adult (other than the defendant) to whom the child makes statements describing the alleged offense will not be inadmissible because of the hearsay rule if the other requirements of the rule are met. The trial court has broad discretion to determine which of several witnesses is an outcry witness, and we will not disturb its decision absent a clear abuse of discretion. Garcia v. State, 792 S.W.2d 88, 92 (Tex.Crim.App. 1990); Hayden v. State, 928 S.W.2d 229, 231 (Tex.App.-Houston [14th Dist.] 1996, pet. ref'd). An abuse of discretion will not be found unless the trial court's decision is outside the zone of reasonable disagreement. See Weatherred, 15 S.W.3d at 542; Tear, 74 S.W.3d at 558. The trial court held a hearing outside the jury's presence to determine whether N.B.'s mother was the proper outcry witness. See TEX. CODE CRIM. PROC. ANN. art. 38.072 § 2(b)(1)(C) (providing that the trial court must find, in a hearing conducted outside the presence of the jury, the outcry statement is reliable "based on the time, content and circumstances of the statement"). At the hearing, N.B.'s mother testified that while she was dressing N.B. for school, N.B. said to be careful when removing her panties because she might hurt her. N.B.'s mother asked what had happened. N.B. said that area hurt because appellant had touched her. N.B.'s mother noticed that N.B.'s vagina was red and her panties were dirty. She asked N.B. how appellant had touched her. N.B. replied that she had been sitting in appellant's lap when he used his finger to touch her and hurt her. On direct examination, N.B.'s mother testified that N.B. told her she had immediately told appellant's wife that appellant touched her, and appellant's wife responded that they would give him a "pow-pow" (e.g., a swat). On cross-examination, the following exchange occurred:[Defense Attorney]: And she told you that she — that she told her grandmother [appellant's wife] that [appellant] had put his fingers inside of her private parts; is that correct?
[N.B.'s Mother]: Yes.
[Defense Attorney]: Okay. And so, basically [N.B.] told you the next morning the same thing that she had told her grandmother [appellant's wife] the evening before?
[N.B.'s Mother]: Yes. To the grandmother [appellant's wife], she told in the afternoon when he had done it. But when I came back from work, she was already asleep. So, she told me the next day.Over appellant's objection, the trial court designated N.B.'s mother as the proper outcry witness, finding that N.B. related more detail to N.B.'s mother than appellant's wife. We hold that the trial court did not err in making this determination. The outcry exception applies "only to statements that describe the alleged offense." Tex. Code Crim. Proc. Ann. art. 38.072 § 2(a); see also Chapman v. State, 150 S.W.3d 809, 816 (Tex.App.-Houston [14th Dist.] 2004, pet ref'd). The 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; Hayden, 928 S.W.2d at 231. To be admissible, the statement must describe the offense in some discernible manner. Garcia, 792 S.W.2d at 91; Hayden, 928 S.W.2d at 231. Here, the record is void of specific details of the statements made by N.B. to appellant's wife. See Garcia, 792 S.W.2d at 91 (holding that where the record was void of specific details of statements made to an individual, the individual was not properly designated an outcry witness). Although N.B.'s mother stated that she believed N.B. had told appellant's wife "basically . . . the same thing" that N.B. told her, she did not provide specific details as to the content of N.B.'s statement. N.B.'s mother also testified that N.B. told appellant's wife that appellant "put his fingers inside her private parts." While this statement amounts to an allegation of abuse, it is not clear whether N.B. also described to appellant's wife the time, place, and circumstances surrounding the abuse. See, e.g., Smith v. State, 131 S.W.3d 928, 930-31 (Tex.App.-Eastland 2004, pet. ref'd) (holding a child advocate the proper outcry witness although the victim first told mother that "[appellant] had been performing oral sex on him for about a year"); Castelan v. State, 54 S.W.3d 469, 475-76 (Tex.App.-Corpus Christi 2001, no pet.) (counselor proper outcry witness even though victim had first told grandmother that appellant "put his thing in through the back"); Sims v. State, 12 S.W.3d 499, 500 (Tex.App.-Dallas 1999, pet. ref'd) (holding a counselor the proper outcry witness even though victim first told mother that appellant "had touched her private parts"). The burden is on the defendant to introduce evidence that a prior statement "was more than just a general allusion to abuse." In the Matter of Z.L.B., 102 S.W.3d 120, 123 (Tex. 2003) (per curiam). N.B.'s mother was not present when N.B. told appellant's wife about the abuse, and no testimony was heard at the hearing from appellant's wife or N.B. In the absence of further details as to the content of N.B.'s statement to appellant's wife, the evidence "apparently did not, in context, and in the trial court's view, amount to more than the general allusion heretofore condemned." Garcia, 792 S.W.2d at 91. The trial court's designation of N.B's mother as the outcry witness was not outside the zone of reasonable disagreement, and we will not disturb the ruling on appeal. See Garcia, 792 S.W.2d at 91 (no abuse of discretion when complainant testified that she told her teacher "what happened" before she told the designated outcry witness); In the matter of Z.L.B, 102 S.W.3d at 122-123 (no abuse of discretion when testimony at the hearing revealed that complainant already "had told mommy" before he told the designated outcry witness). Accordingly, appellant's fourth issue is overruled. The judgment of the trial court is affirmed.