Opinion
02-23-00045-CR
03-14-2024
Martiniano Eliasmartinez, Appellant v. The State of Texas
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from the 372nd District Court Tarrant County, Texas Trial Court No. 1640051D
Before Sudderth, C.J.; Birdwell and Walker, JJ.
MEMORANDUM OPINION
Wade Birdwell Justice
Appellant Martiniano Eliasmartinez was convicted of continuous sexual abuse of a child under fourteen. The jury assessed a punishment of eighty-three years in prison, and the trial court sentenced Martinez accordingly. On appeal, Martinez raises two points of error. First, he claims that the trial court abused its discretion in finding that the victim's outcry testimony was reliable. Second, Martinez claims that the court's charge improperly instructed the jury on "manner and means that were unproven." We overrule Martinez's points of error and affirm.
The indictment and judgment both refer to Appellant as "Eliasmartinez." During the trial, however, Appellant was referred to by various surnames including Elias, Eliasmartinez, Martinez, and Maldonado. For the sake of simplicity, we will refer to Appellant as "Martinez" in this opinion.
I. Background
Joanna, her mother (Mother), stepfather (Stepfather), and Joanna's siblings moved to an apartment on East Sanford Street in Arlington when Joanna was four years old. Stepfather's parents are Martinez and Martinez's wife. They spent six months of the year in Mexico but stayed in the apartment with Joanna and the rest of her family during the remainder of the year. This apartment had two bedrooms. Mother and Stepfather had their own room, and everyone else slept in the other bedroom. Martinez and his wife slept on the lower part of a bunk bed, one of Joanna's brothers slept on the top bunk, and Joanna shared a separate bed in the same room with her other brother.
We use an alias for the child complainant throughout this opinion. See Tex. R. App. P. 9.8 cmt., 9.10(a)(3); McClendon v. State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).
When Joanna was six, Martinez began to sexually abuse her. The abuse began with him touching her vagina with his hands. He would do that when Mother and Stepfather were at work, Joanna's brothers were playing, and Martinez's wife was otherwise occupied. It happened both in Joanna's bed and on the couch in the living room. Martinez told Joanna to "[j]ust keep it quiet" while he molested her. These incidents happened approximately once a week while the family shared that apartment.
After Joanna turned ten, the family moved to a duplex on Fourth Street in Arlington. Neither the sleeping arrangements of the family nor Martinez's abuse changed much. However, in addition to his digital touching of Joanna, Martinez began to position himself behind her and touch his penis to Joanna's vagina. One time Martinez ejaculated on her. Martinez told Joanna not to tell anyone because no one would believe her. He got angry when Joanna tried to tell him no. This abuse continued for the next few years, until Joanna told Mother about it.
Joanna's behavior changed over time. She would stay in her room all day, buried under her blankets. She made "ugly" drawings labelled with the word "hell." Joanna wanted to either hurt herself or "just end it." Mother realized something was wrong and asked Joanna what was going on. At first, Joanna said nothing, but she eventually opened up and asked Mother if anyone had ever touched her. Mother's response was, "No. How about you?" Joanna told her that Martinez had "put his part in her vagina and [would] get her dirty." When Mother asked why she had not said anything before, Joanna answered, "Because I didn't want to destroy the family and I didn't want to break my father's heart."
Mother called the police. Arlington officers arrived at the duplex and, at Mother's request, issued a criminal trespass warning to Martinez. Mother took Joanna to the hospital. Later, Joanna underwent a sexual assault examination. She told the nurse examiner what Martinez had done to her, facts which were generally consistent with what she testified to during the trial-with the additional detail that Martinez had contacted her anus with his penis.
II. Admission of Outcry Statements
In his first point of error, Martinez complains that the trial court should have excluded testimony from Mother describing what Joanna first told her about Martinez's sexual assaults because Joanna's out-of-court statements to Mother were unreliable.
A. The Outcry Statute and Standard of Review
Article 38.072 of the Texas Code of Criminal Procedure provides an exception to the rule generally excluding hearsay testimony if (1) the statement at issue describes an offense under Chapter 21 of the Penal Code that a defendant committed against a child younger than fourteen years of age; (2) the statement was made by the child to the first person who was eighteen years old or older, other than the defendant, that the child spoke to about the offense; and (3) the "trial court finds, in a hearing conducted outside the presence of the jury, that the statement is reliable based on the time, content, and circumstances of the statement." Tex. Code Crim. Proc. Ann. art. 38.072, §§ 1(1), 2. Indicia of reliability that a trial court may consider include:
(1) whether the child victim testifies at trial and admits making the out-of-court statement[;] (2) whether the child understands the need to tell the truth and has the ability to observe, recollect, and narrate[;] (3) whether other evidence corroborates the statement[;] (4) whether the child made the statement spontaneously in his own terminology or whether evidence exists of prior prompting or manipulation by adults[;] (5) whether the child's statement is clear and unambiguous and rises to the needed level of certainty[;] (6) whether the statement is consistent with other evidence[;] (7) whether the statement describes an event that a child of the victim's age could not be expected to fabricate[;] (8) whether the child behaves abnormally after the contact[;] (9) whether the child has a motive to fabricate the statement[;] (10) whether the child expects punishment because of reporting the conduct[;] and (11) whether the accused had the opportunity to commit the offense.Gonzales v. State, 477 S.W.3d 475, 479 (Tex. App.-Fort Worth 2015, pet. ref'd). While these indicia are useful in measuring a statement's reliability, the focus of the inquiry must be on the outcry, not the underlying abuse. Broderick v. State, 89 S.W.3d 696, 699 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd).
We review a trial court's ruling on an outcry witness designation for an abuse of discretion. Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990). A trial court's findings will be upheld when they are supported by the evidence, and the trial court has broad discretion in determining such evidence's admissibility. Id. (requiring a clear abuse of discretion to be established by the record before the trial court's outcry witness ruling will be disturbed).
B. The Evidence at the Outcry Hearing
The trial court held a hearing on the admissibility of the outcry statement that Joanna made to Mother. Joanna was about thirteen in March of 2020. Around that time, Mother noticed that Joanna-uncharacteristically-was spending much more time in her room, huddled under a blanket. She also was making "some really ugly drawing," of a series of dark walls with the word "hell" scrawled underneath. Joanna also began to speak of suicide. Though Mother thought it was "just a phase," Joanna was crying and telling Mother that she wanted to end her life. Mother had earlier tried to get Joanna to talk about what was bothering her, but she was unsuccessful.
Later, the two went out for ice cream and Joanna asked Mother if anyone had ever touched her. Mother said no and asked Joanna the same thing. Joanna told her mother she would "get really mad," but eventually informed her that Martinez had touched her. Mother asked what he had been doing. Joanna told her that Martinez would get into her bed at night, would pull down her panties, and touch his penis to her vagina. Joanna also said he made her "dirty." She said this had occurred since she was seven, that it had stopped about a year prior to her conversation with Mother, and that it had happened both at the apartment on East Sanford Street and their home on Fourth Street. Joanna had not told her mother earlier because she did not want to "destroy the family." After this conversation, Mother and Joanna hugged and cried, and Mother had to decide what to do next.
Mother later called the police who advised her to take Joanna to the hospital for an examination. Joanna was kept in the hospital for another week or two because of her suicidal ideations.
Joanna also testified at the outcry hearing. She said that she was around twelve when she told Mother about Joanna's grandfather sexually abusing her. Joanna confirmed that when she told Mother about the abuse, she had been struggling with mental health issues and suicidal thoughts. She remembered Mother asking her what was wrong and telling Mother that she was "getting abused," but she did not remember exactly what she told Mother. Joanna did remember telling her that the abuse started when she was around five or six.
Even though Martinez is Stepfather's father, Joanna referred to Martinez as her grandfather during her testimony.
C. Analysis
We conclude that Joanna's outcry to her mother was reliable under the circumstances. Her statement to Mother that Martinez contacted her vagina with his penis was "very clear, specific, and unequivocal." Gonzales, 477 S.W.3d at 479. Contrary to Martinez's claim on appeal, the outcry statement was not contradicted by Joanna during her trial testimony. Though she testified to other acts of sexual abuse committed by Martinez, Joanna made clear that he had contacted her vagina with his penis. Moreover, even if there had been some inconsistency, that would go to the credibility and weight of the evidence, not its reliability and admissibility as an outcry statement. See Buentello v. State, 512 S.W.3d 508, 519 (Tex. App.-Houston [1st Dist.] 2016, pet. ref'd). We also disagree with Martinez's characterization of her outcry statement as having been "prompted" by Mother. Mother may have encouraged Joanna to open up to her about what was bothering her, but she did not lead or prompt Joanna to specifically discuss sexual abuse. See Davidson v. State, 80 S.W.3d 132, 139 (Tex. App.-Texarkana 2002, pet. ref'd) (distinguishing between outcry statement that results from prompting victim to tell "what secret she was keeping" and one where the "substance" of the outcry statement was prompted by the outcry witness).
Martinez also argues that Joanna and Mother had a motive to lie about the abuse. Joanna's stepcousin Jackie testified during the defense's case that Joanna had told her she had actually been raped by another group of men and that Mother told Joanna to falsely accuse Martinez because Mother did not want Martinez and his wife living with them anymore. But this evidence was contested. Joanna testified that when Jackie had visited her in the hospital, she told Jackie what Martinez had done to her. When confronted by defense counsel with a statement from Jackie alleging that she had told Jackie that Mother had advised her to lie about Martinez, Joanna adamantly denied it. Joanna testified that Jackie was lying and that Joanna had never told her any such thing.
Jackie is Stepfather's niece.
This exchange with defense counsel took place outside the jury's presence.
We are not persuaded that Jackie's assertions affect the reliability of the outcry statement. First, we will not find an abuse of discretion in the admission of an outcry statement on the basis of testimony introduced long after the pretrial outcry hearing. See Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003) ("As a general rule, an appellate court reviewing a trial court's ruling on the admission or exclusion of evidence must do so in light of the arguments, information, and evidence that was available to the trial court at the time it ruled."). Second, even if Jackie had testified at the pretrial hearing, we conclude that the trial court could have reasonably disbelieved this disputed evidence and still found the outcry statement to be reliable. See Torres v. State, 424 S.W.3d 245, 258 (Tex. App.-Houston [14th Dist.] 2014, pet. ref'd) (holding trial court did not abuse its discretion in admitting outcry statement where evidence that father coached child was disputed).
We overrule Martinez's first point of error.
IV. Submission of Manner and Means
Martinez argues in his second point of error that the trial court's charge improperly authorized the jury to convict him on the basis of a manner and means that the State failed to prove. Specifically, Martinez takes issue with language authorizing the jury to find that he contacted Joanna's anus with his penis. The State responds that there was sufficient evidence of anal contact to justify its inclusion in the court's charge. We agree with the State.
An indictment may allege different methods of committing the same offense. Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991). These alternative "manners and means" of committing the same offense may be submitted to the jury without violating the right to a unanimous jury verdict. Cardoso v. State, 438 S.W.3d 815, 823 (Tex. App.-San Antonio 2014, no pet.). Accordingly, the State may allege and submit to the jury alternate manners and means as long as there is sufficient evidence to support each one. See Speer v. State, 890 S.W.2d 87, 94 (Tex. App.- Houston [1st Dist.] 1994, pet. ref'd).
Theresa Fugate is a Sexual Assault Nurse Examiner at Cook Children's Medical Center. Fugate has performed approximately 2,500 sexual assault exams during her career. Fugate examined Joanna in May of 2020. She talked to Joanna and obtained a history from her. Joanna told Fugate that Martinez had started touching her genitals with his "hands and his private" beginning when she was about six. Joanna also pointed to her buttock and said that "[h]e would do it here, too." Fugate asked Joanna to distinguish between "where the poop comes out or on the outside." Joanna said the contact took place "where the poop comes out." Joanna herself did not directly testify in court to any penile-anal contact, but-in context-we hold that her answers to Fugate constituted sufficient evidence justifying submission of that particular manner and means to the jury. See Franklin v. State, 606 S.W.2d 818, 822 (Tex. Crim. App. 1978) ("Because the evidence is sufficient to support a finding of guilt under each of the three counts, the trial court did not err in submitting each count to the jury.").
We overrule Martinez's second point of error.
V. Conclusion
Having overruled Martinez's two points of error, we affirm the trial court's judgment.