Opinion
Nos. 05-08-00559-CR, 05-08-00560-CR
Opinion Filed January 22, 2009. DO NOT PUBLISH TEX. R. App. P. 47.
On Appeal from the 363rd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F05-72144-W and F05-72145-W.
Before Justices WRIGHT, O'NEILL, and LANG.
OPINION
Alejo Trujillo Estrada appeals the trial court's judgments convicting him of two counts of aggravated sexual assault of two children younger than fourteen years of age. The jury found Estrada guilty and assessed his punishment at twenty years of imprisonment in each case. Estrada raises six issues on appeal arguing: (1) the evidence is factually insufficient to support his conviction because the record shows E.G. falsely accused him of sexually assaulting her; (2) the evidence is factually insufficient to support his conviction because the record shows P.G. falsely accused him of sexually assaulting her; (3) the trial court erred when it admitted the complete video recording of E.G.'s forensic interview; (4) the trial court erred when it admitted into evidence the medical records of E.G.; (5) the delay in obtaining the indictment against him violated his right to due process; and (6) the trial court erred when it denied his motion for a mistrial. We conclude the evidence is legally and factually sufficient to support Estrada's convictions. Also, even if the trial court erred when it admitted the complete video recording of E.G.'s forensic interview and E.G.'s medical records, it was not harmful error. Finally, any delay in indicting Estrada did not violate his right to due process and the trial court did not err when it denied his motion for a mistrial. The trial court's judgments are affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
The following is a summary of the evidence adduced at trial. When E.G. was seven years old and P.G. was six years old, their biological mother, M.P., took them to their grandmother's home in Mexico. M.P. was unable to return to the United States, so Estrada, who was already married, but dating M.P., took E.G., P.G., and their younger sister, A.G., who was approximately two years old, to the United States in his red vehicle. That night, Estrada took the girls to a "shack-house" across from his auto body shop or garage. Estrada's name was displayed on the auto body shop building. E.G. and P.G. were sitting on the back of a truck talking when Estrada told them to remove their clothes. The girls did as they were told. Estrada had no pants on, but was still wearing his shirt. He laid a blue mat on the ground and made E.G. sit on the mat, open up her legs, and put her legs around him. Estrada's penis penetrated E.G.'s vagina and he held her back and moved her up and down, while breathing hard. When he was finished, E.G. saw some "gooey stuff." Estrada wrapped a blue towel around E.G. and put her back on the truck. Then, E.G. saw Estrada do the same thing to P.G. Although E.G. did not see Estrada's penis penetrate P.G.'s vagina, Estrada had placed P.G. in the same position as he had done with E.G. Afterward, E.G. and P.G. cried because they did not understand what had happened and wondered if they had done something wrong to deserve what Estrada had done to them. Afterward, Estrada told the girls "you can't tell your mom, because if you tell your mom, I'm going to die, something bad is going to happen," and "you can't tell anybody because this is not good and we're not going to talk about it to your mom, okay?" One day, while M.P. was still in Mexico, Estrada took the girls to M.P.'s apartment. E.G. heard the bath water being turned on. E.G. and P.G. were in a bedroom unclothed when Estrada called E.G. into the bathroom. E.G. and P.G. began crying. When E.G. went into the bathroom, Estrada was naked in the bathtub. Estrada asked E.G. "if she wanted to do things," but E.G. did not respond. Estrada lifted E.G. into the bathtub and he put her in the same position as when she was on the blue mat. Estrada's penis penetrated E.G.'s vagina and she felt a burning sensation in her vagina. E.G. remembered this second offense lasted longer than the first offense. When he finished, E.G. was in pain and saw "white stuff" that "looked like mucous, like saliva . . . like when you sneeze or something," it was "gooey looking." E.G. got out of the bathtub, went into M.P.'s bedroom, covered herself with a towel that was on the floor, and sat on the floor crying. Then, Estrada called P.G. E.G. saw P.G. leave the room, but she did not go to see what was happening to P.G. When P.G. returned to the bedroom, she looked at E.G. and began crying. The girls cried for a long time. When Estrada returned to the bedroom, he was still unclothed. He carried E.G. to the bed and again, Estrada's penis penetrated E.G.'s vagina. E.G. recalled that it lasted approximately five minutes. When Estrada finished, E.G. got off the bed and sat on the floor. It was P.G.'s turn, but E.G. did not turn around to see what was happening to her sister. However, she could hear P.G. crying. On another occasion, before M.P. returned from Mexico, Estrada took E.G., P.G., and A.G. to the "shack-house" at his auto body shop. Usually, there were workers who lived at the "shack-house," but they were not there. Estrada took the girls to his room in the "shack-house". The room was small, but had a large bed with white sheets and mirrors behind it. There was a "drawer" on the left side of the bed. Also, there was an old typewriter or computer in the room. Estrada placed A.G. at a desk and she began playing with the typewriter. E.G. and P.G. took a shower together while A.G. remained in the room. When E.G. and P.G. returned from the shower, they were naked with towels. After Estrada took his shower, he returned to the room naked. E.G. was placed on the bed and again, Estrada's penis penetrated her vagina. This time E.G. remembered Estrada sexually assaulting her in more positions, including laying her on his stomach. When he did this, E.G.'s legs hurt because they were placed in a "weird way." E.G. felt pressure in her vagina and saw red down her leg. When he finished, E.G. got up and Estrada told her "to get over here." E.G. stood over Estrada who began licking her vagina. E.G. was so scared she urinated. E.G. went and sat beside A.G. Estrada cleaned up, then grabbed P.G. and put her in the same position that E.G. had been in, while E.G. and A.G. watched. P.G. cried and told Estrada to stop in Spanish, but he did not stop. When Estrada finished with P.G., he put E.G. "out of the room" where Estrada remained with P.G. and A.G. Estrada threatened E.G. with pliers and said if she told what had happened, he was going to kill her. E.G. was frightened and did not respond. After M.P. returned to the United States, the girls lived with her until they were removed from the home by Child Protective Services (CPS). During that time, neither E.G. nor P.G. told M.P. what happened while she was in Mexico. In March 2000, P.G. and A.G. were placed in foster care with L.G. E.G. was placed in a different foster home. Later, in December 2000, E.G. was also placed in L.G.'s home. While the girls were in foster care, they visited M.P. once a week. When the girls returned from their visits with M.P., they would have telephone numbers written on their underwear and little notes saying to call a certain number. On one occasion, CPS found M.P. in the bathroom with P.G. telephoning Estrada. P.G. began asking L.G. to let her call "Alejo." L.G. did not know who "Alejo" was, so she contacted CPS who informed L.G. he was one of M.P.'s boyfriends. While caring for the girls, L.G. observed some unusual behavior. On one occasion, she saw P.G. staring at the ceiling in a daze while masturbating beneath a blanket. On another occasion, L.G.'s sister saw P.G. put a vibrating Mr. Potato Head toy on her vagina. L.G. also observed that P.G. preferred to sit on the lap of L.G.'s brother and father instead of a chair. On one occasion, when P.G. was crying and asking to speak with "Alejo," L.G. told her she would have to talk to L.G. and, at that point, P.G. told L.G. he had been touching her and "put his penis on her vagina." L.G. contacted CPS and took the girls to the Dallas Children's Advocacy Center. However, when the girls saw the "big detective" with a firearm, they panicked and said they did not want to go with or say anything to him. L.G. decided to take them to therapy once a week and she determined that when the girls were ready to talk about the sexual abuse, they would do so. In March 2001, M.P.'s parental rights were terminated. On January 31, 2002, L.G. adopted E.G., P.G., and A.G. From approximately January 2001 through September 2001, the girls attended therapy with Kimberly Kline. The girls did not make an outcry of sexual abuse to Kline. When Kline moved her office, the girls attended therapy with Brenda Shipley until approximately 2004 when Medicaid canceled their benefits. Then, the girls began attending therapy with Norma Power and, eventually, told her about the sexual abuse. In 2005, L.G. surprised E.G. and P.G. in the bathroom and asked "what's going on." The girls looked at each other and L.G. told them it was okay, they could tell her. The girls cried and began telling L.G. about the occasions on which they were sexually assaulted while M.P. was in Mexico. L.G. called the police and the girls' therapist regarding what the girls had told her. She also took them back to the Dallas Children's Advocacy Center where they were interviewed by Yesenia Gonzalez. E.G. and P.G. identified to L.G., their therapist, and Gonzalez, Estrada as the man who sexually abused them. Based on that information, Detective Michael Kemp obtained a photograph of Estrada and prepared two six-photograph arrays. Separately, Kemp showed E.G. and P.G. a different photo array and both girls identified Estrada as their abuser. Kemp obtained a search warrant and found a mat at Estrada's auto body shop, however, no scientific evidence was found on the mat. On August 18, 2005, Estrada was indicted for two counts of aggravated sexual assault of a child younger than fourteen years of age. After the trial in April 2008, the jury found Estrada guilty and assessed his punishment at twenty years of imprisonment in each case.II. FACTUAL SUFFICIENCY
In issues one and two, Estrada argues the evidence is factually insufficient to support his convictions because the record shows E.G. and P.G. falsely accused him of sexually assaulting them. He claims: (1) the great weight and preponderance of the evidence contradicts the jury's verdicts; and (2) the evidence raised a reasonable hypothesis that (a) E.G. and P.G. were sexually assaulted by one of M.P.'s boyfriends, but not Estrada, (b) M.P. coached E.G. and P.G. to testify falsely against Estrada because he testified against M.P. during the trial to terminate her parental rights, and (c) P.G. did not testify Estrada penetrated her sexual organ as alleged in the indictment. The State responds that P.G. and especially E.G. were able to explicitly describe the sexual assaults, what they saw and felt, and the locations where they claimed the sexual assaults occurred. Also, the State argues it presented evidence that rebuts each reason Estrada claims the evidence is factually insufficient.A. Standard of Review
In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the jury's verdict of guilt was rationally justified. See Lancon v. State, 253 S.W.3d 699, 705 (Tex.Crim.App. 2008); Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App. 2007), cert. denied 128 S.Ct. 282 (2007); Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). Evidence that is legally sufficient to support a verdict of guilt may still be factually insufficient when the verdict seems clearly wrong or manifestly unjust, or it is against the great weight and preponderance of the evidence. See Berry v. State, 233 S.W.3d 847, 854 (Tex.Crim.App. 2007); Rollerson v. State, 227 S.W.3d 718, 724 (Tex.Crim.App. 2007); Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006), cert. denied 128 S.Ct. 87 (2007); Watson, 204 S.W.3d at 417. When conducting a factual sufficiency review, an appellate court considers all of the evidence, both direct and circumstantial, whether properly or improperly admitted. See Berry, 233 S.W.3d at 854; Marshall, 210 S.W.3d at 625; see also King v. State, 29 S.W.3d 556, 565 (Tex.Crim.App. 2000); Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App. 1999); Obigbo v. State, 6 S.W.3d 299, 304 (Tex.App.-Dallas 1999, no pet.); Morales v. State, 95 S.W.3d 561, 563 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd). Also, an appellate court gives due deference to the findings of the fact-finder, but the appellate court may substitute its judgment for the jury's credibility and weight determinations to a very limited degree. See Roberts, 220 S.W.3d at 524; Marshall, 210 S.W.3d at 625; Watson, 204 S.W.3d at 416-17; see also Johnson v. State, 23 S.W.3d 1, 9 (Tex.Crim.App. 2000) (factual sufficiency review requires reviewing court to afford "due deference" to jury's determinations); Clewis v. State, 922 S.W.2d 126, 135 (Tex.Crim.App. 1996) (factual sufficiency review requires "deferential standards of review applied" to jury verdicts). However, the existence of contrary evidence is not enough to support a finding of factual insufficiency. See Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001); Lee v. State, 186 S.W.3d 649, 655 (Tex.App.-Dallas 2006, pet. ref'd). An appellate court cannot declare a conflict in the evidence justifies a new trial simply because it disagrees with the jury's resolution of that conflict. See Watson, 204 S.W.3d at 417. An appellate court must give deference to a jury's decision regarding what weight to give contradictory testimonial evidence because the decision is most likely based on an evaluation of credibility and demeanor, which the jury is in a better position to judge. Lancon, 253 S.W.3d at 706. Reversal for factual insufficiency occurs only when: (1) the evidence supporting the verdict is so weak the verdict seems clearly wrong and manifestly unjust; or (2) there is some objective basis in the record that shows the great weight and preponderance of the evidence contradict the jury's verdict. See Berry, 233 S.W.3d at 854; Roberts, 220 S.W.3d at 524; Watson, 204 S.W.3d at 417; see also Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim.App. 2002); Johnson, 23 S.W.3d at 11; Clewis, 922 S.W.2d at 129. A clearly wrong and unjust verdict occurs when the jury's finding is manifestly unjust, shocks the conscience, or clearly demonstrates bias. Berry, 233 S.W.3d at 854.B. Applicable Law
A person commits the offense of aggravated sexual assault if he intentionally or knowingly causes the penetration of the anus or sexual organ of a child by any means and the child was younger than fourteen years of age. See Tex. Pen. Code Ann. §§ 22.021(a)(1)(B)(i), (2)(B) (Vernon Supp. 2008); Lee, 186 S.W.3d at 655. The testimony of a child victim alone is sufficient to support a conviction for aggravated sexual assault of a child. See Tex. Code Crim. Proc. Ann. art. 38.07(a) (Vernon 2005); Tear v. State, 74 S.W.3d 555, 560 (Tex.App.-Dallas 2002, pet. ref'd).C. Application fo the Law to the Facts
First, Estrada claims the great weight and preponderance of the evidence contradicts the jury's verdicts. Viewing the evidence in a neutral light, the record shows E.G., who was sixteen years old at the time of trial, testified Estrada penetrated her vagina with his penis four times when she was seven years old. E.G. provided explicit details about the sexual assaults and the locations where the assaults occurred. P.G., who was fifteen years old at the time of trial, testified Estrada made her do sexual things while her clothes were off. She stated she had to touch his private area with her hands, mouth, and her private area, and this happened more than once. Both E.G. and P.G. identified Estrada as the man who sexually assaulted them. A child victim's testimony alone is sufficient to support a conviction for aggravated sexual assault. See Tex. Code Crim. Proc. Ann. art. 38.07; Tear, 74 S.W.3d at 560. Estrada claims the following contrary evidence established the evidence is factually insufficient to support his convictions: (1) Estrada's ex-wife, son, and daughter testified they frequently went to the auto body shop where some of the sexual assaults allegedly occurred and they never saw E.G. or P.G.; (2) E.G.'s description of one sexual assault where she stated she "was the one doing all the action this time. [She] was the one pushing onto [Estrada]" defies common sense; (3) E.G. and P.G. did not make an outcry of sexual abuse during their counseling sessions with Kline from January 2001 through September 2001; (4) E.G. denied telling Gonzalez, the forensic interviewer, she and P.G. stayed at Estrada's "shack-house" for "five months" although she so stated in the video of her interview; (5) the State did not offer any medical or scientific evidence of sexual assault; (6) the State did not offer any inculpatory statements by Estrada; and (7) Estrada testified the children never lived in his "shack-house" for five months, as stated in E.G.'s video recorded interview, when he brought them back from Mexico and denied sexually assaulting E.G. and P.G. The evidence Estrada relies on to support his factual sufficiency challenge bears on the credibility of the witnesses. Because the jury is the sole judge of a witness's credibility and the weight to be given the testimony, the jury was permitted to believe or disbelieve the contrary testimony. We conclude the evidence supporting the verdict is not so weak that the verdict seems clearly wrong and manifestly unjust, nor does the great weight and preponderance of the evidence contradict the jury's verdict. Second, Estrada claims the evidence raised a reasonable hypothesis that (a) E.G. and P.G. were sexually assaulted by one of M.P.'s boyfriends, but not Estrada, (b) M.P. coached E.G. and P.G. to testify falsely against Estrada because he testified against M.P. during the trial to terminate her parental rights, and (c) P.G. did not testify Estrada penetrated her sexual organ as alleged in the indictment. As to Estrada's claim that E.G. and P.G. were sexually assaulted by one of M.P.'s boyfriends, but not Estrada, both girls identified Estrada at trial as the man who sexually assaulted them. Kemp testified E.G. and P.G. independently identified Estrada as their abuser in the photograph arrays. Estrada counters by pointing to the testimony of Power, the girls' therapist who testified E.G. and P.G. told her more than one man sexually abused them and they did not remember the identity of their abusers because the men were M.P.'s one-night stands. However, the record shows Power also stated she did not know anything about those men, except for one. She could not recall if the girls told her the name of that man. Also, her notes of those counseling sessions would have been destroyed pursuant to the policy of her employer. This point is resolved by E.G.'s testimony. E.G. testified she told Power her biological mother, M.P., had approximately four men that "came in." E.G. recalled that one man was a plumber and another told her that he was her uncle. However, E.G. stated those men never hurt her and she never told Power that other men hurt her. Next, Estrada claims the girls were coached by M.P. to falsely accuse him of sexual assault because he testified against M.P. in the trial to terminate her parental rights. L.G. testified M.P.'s parental rights were terminated during proceedings in March 2001. The record shows the indictments against Estrada were filed on August 18, 2005, shortly after the girls made their outcry. Their outcry in 2005 was four years after M.P.'s parental rights were terminated in 2001. Also, the record shows the girls saw M.P. on one occasion after her parental rights were terminated. L.G. testified that meeting occurred approximately six months before the trial, which was on April 14-18, 2008. Accordingly, the girls' outcry in which they accused Estrada occurred in 2005, long before the girls saw M.P. in 2008. Finally, Estrada claims P.G. did not testify Estrada penetrated her sexual organ as alleged in the indictment and, at most, P.G.'s testimony shows Estrada is guilty of aggravated sexual assault by contact alone, rather than by penetration. The indictment alleged Estrada:intentionally and knowingly cause[d] the contact and penetration of the female sexual organ of [P.G.], a child, who was not then the spouse of [Estrada], by an object, to-wit: the sexual organ of [Estrada], and, at the time of the offense, the child was younger than 14 years of age[.](Emphasis added). At trial, P.G. stated she could not remember whether Estrada's private area touched her on the outside or inside. However, she stated she was testifying at court because "[she] was raped when [she] was little" by M.P.'s boyfriend, who she later identified as Estrada. E.G. testified she did not see Estrada's penis penetrate P.G.'s vagina. However, E.G. said after each sexual assault, Estrada put P.G. in the same positions he had put E.G. in. On one occasion, E.G. stated she could hear P.G. crying while on the bed in M.P.'s apartment just after Estrada had sexually assaulted E.G. on that bed. On another occasion, E.G. said she heard P.G. crying and telling Estrada to stop in Spanish. Also, L.G. testified P.G. told her Estrada "put his penis on her vagina." Further, L.G. stated P.G. and E.G. told her Estrada raped them in the "shack-house" and penetrated them in the bathroom of M.P.'s apartment. We conclude the evidence is factually sufficient to support Estrada's convictions. Issues one and two are decided against Estrada.
III. ADMISSION OF EVIDENCE
In issues three and four, Estrada claims the trial court erred when it overruled his objection and admitted into evidence the complete video recording of E.G.'s forensic interview and the medical records of E.G. Even if the trial court erred when it admitted the complete video recording of E.G.'s forensic interview and her medical records, Estrada's criminal convictions should not be reversed, unless the error was harmful error.A. Applicable Law — Harmful Error
Texas Rule of Appellate Procedure 44.2(b) provides that an appellate court must disregard a non-constitutional error that does not affect a defendant's substantial rights. Tex. R. App. P. 44.2(b). The improper admission of hearsay evidence is non-constitutional error. See Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998). A criminal conviction should not be overturned for non-constitutional error if the appellate court, after examining the record as a whole, has fair assurance the error did not influence the jury or had but a slight effect. Id.; see also Tex. R. App. P. 44.2(b). When a trial court erroneously overrules an objection to evidence, that ruling will not result in reversal when the same facts are proved by other properly admitted evidence, either before or after the complained-of ruling. See Brooks v. State, 990 S.W.2d 278, 287 (Tex.Crim.App. 1999); Leday v. State, 983 S.W.2d 713, 718 (Tex.Crim.App. 1998); Mumphrey v. State, 155 S.W.3d 651, 659 n. 2 (Tex.App.-Texarkana 2005, pet. ref'd); Matz v. State, 21 S.W.3d 911, 912 (Tex.App.-Fort Worth 2000, pet. ref'd). A trial court's error in admitting a video recording can be disregarded when a child's admissible live testimony corroborates the video recording. See Jensen v. State, 66 S.W.3d 528, 535 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd); Matz, 21 S.W.3d at 912-13. Likewise, a trial court's error in admitting medical evidence is harmless error when similar facts are proved by properly admitted evidence. See Bourque v. State, 156 S.W.3d 675, 676-77 (Tex.App.-Dallas 2005, pet. ref'd) (even if therapist's testimony not admissible as a hearsay exception under Texas Rule of Evidence 803(4), any error was harmless because considerable, substantially-similar evidence presented during trial); see also Duncan v. State, 95 S.W.3d 669, 672 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd) (improper admission of outcry testimony harmless because similar testimony admitted through complainant, pediatrician, and medical records); cf. State v. LaSalle, 135 S.W.3d 94, 98 (Tex.App.-Corpus Christi 2003, no pet.) (admission of objected to statements in medical records harmful error where same facts were not proved by additional properly admitted evidence).B. Admission of Complete Video Recording of ForensicInterview
In issue three, Estrada claims the trial court erred when it overruled his objection and admitted into evidence the complete video recording of E.G.'s forensic interview. Estrada offered a portion of the video recording to impeach E.G. As a result, the State offered the entire video recording for optional completeness and Estrada objected. After reviewing the video recording, the trial court denied Estrada's objection. Only the impeachment portion of the video recording was published to the jury, but the entire video recording was provided to the jury during deliberations. Estrada claims he was harmed because the video recording resulted in the jury's rejection of his defense that the girls had falsely accused him, the prosecutor emphasized the video recording in her closing argument, and the video recording bolstered E.G.'s testimony, which in turn bolstered P.G.'s testimony. The State responds that Estrada was not harmed by the admission of the complete video recording because E.G. and P.G. each testified they were raped by Estrada, E.G. accurately described Estrada's "shack-house", which was corroborated by the photographs admitted by the defense and Kemp's testimony, and the girls had no motive to falsely accuse Estrada in 2005 at M.P.'s coaching because they were removed from M.P.'s custody in 2001. Estrada concedes "[t]he accusations made by [E.G.] and specific details provided by her during the video [recording of her] forensic interview were consistent with her trial testimony." Even if the trial court erred when it admitted the video recording, the error is harmless and could not have affected Estrada's substantial rights because the same facts were proved by E.G.'s properly admitted testimony. See Matz, 21 S.W.3d at 912-13; see also Jensen, 66 S.W.3d at 536. Issue three is decided against Estrada.C. Admission of Medical Records
In issue four, Estrada argues the trial court erred when it admitted into evidence the medical records of E.G. Matthew Cox, M.D., testified that approximately two weeks before trial, he and a nurse practitioner conducted a sexual abuse examination of E.G. During that examination, a history was taken from E.G. The State offered into evidence the "Sexual Evaluation Form," which included the history provided by E.G. Estrada objected on the grounds that the evidence was hearsay and cumulative. The trial court overruled Estrada's objection. The history provided by E.G. stated:When I was young I was raped by my mom's (birth mom's) boyfriend Alejandra [sic] Estrada [something crossed out] in 2nd grade on 4 different occasions but [something crossed out] twice on one day. I was forced to have sex. He forced me to do things to his penis and he put his penis in my vagina (?) hurting after the 2nd or 3rd time[,] something white came out of him like mucous. I did bleed and I peed on him.(the "(?)" in orig.). Estrada claims he was harmed because the State's case relied on the credibility of E.G.'s testimony, he made no inculpatory statements, and there was no physical evidence. As a result, he contends the medical records played a significant and decisive role for the jury in determining E.G.'s credibility. Also, he argues the medical records bolstered E.G.'s credibility and had a "spillover effect" on the case involving P.G. The State responds that E.G. and P.G. testified Estrada raped them, E.G. and P.G. were subjected to cross-examination, and the medical report containing the history provided by E.G. was only seven lines long and was substantially the same as E.G.'s and P.G.'s testimony. Further, the State argues the admission of E.G.'s medical records did not affect the case involving P.G. Estrada concedes "the hearsay statements contained in the medical records concerned specific details of the offense that were also described by [E.G.] during her trial testimony." Even if the trial court erred when it admitted E.G.'s medical records, which included the history provided by E.G., the error is harmless and could not have affected Estrada's substantial rights because the same facts were proved by properly admitted evidence. See Bourque, 156 S.W.3d at 676-77; see also Duncan, 95 S.W.3d at 672. Issue four is decided against Estrada.
V. DELAY IN INDICTMENT AND DUE PROCESS
In issue five, Estrada argues the delay in obtaining the indictment against him violated his right to due process. He argues the record reflects he suffered substantial prejudice because M.P. was unavailable and during the trial, he testified outside the presence of the jury that M.P. wrote him a letter in February 2001 that informed Estrada a man named "Alejandro Javier Avila" sexually assaulted her children. Estrada claims that if he had been indicted sooner, M.P. would have been available to testify. Further he claims M.P.'s absence prevented him from developing his defense that M.P. coached the girls to make the allegations against him in retaliation for testifying against her at the parental termination trial. Estrada contends the delay in indicting him was an intentional device by the State to gain a tactical advantage over him because in 2001, the detective had sufficient evidence to secure an indictment, but chose not to continue his investigation, and the chance that M.P. would be deported increased with the passage of time. The State responds that the police were not required to arrest and charge Estrada until they had probable cause to believe he had committed a crime. The State contends it obtained an indictment after the girls made their outcry in 2005 and as soon as it acquired probable cause.A. Applicable Law
The application of the statute of limitations is the primary assurance against pre-indictment delay and the prejudice that results from the passage of time. See United States v. Marion, 404 U.S. 307, 322 (1971); Ibarra v. State, 11 S.W.3d 189, 193 (Tex.Crim.App. 1999); see also State v. Horner, 936 S.W.2d 668, 671 (Tex.App.-Dallas 1996, pet. ref'd). However, a defendant's rights with respect to events occurring prior to indictment are not fully defined by a statute of limitations. See United States v. Lovasco, 431 U.S. 783, 789 (1977); Marion, 404 U.S. at 325; Ibarra, 11 S.W.3d at 193; see also Horner, 936 S.W.2d at 671. The Due Process Clause has a limited role to play in protecting against oppressive delay. See Lovasco, 431 U.S. at 789; Marion, 404 U.S. at 325; Ibarra, 11 S.W.3d at 193. A defendant is entitled to relief for pre-indictment delay under the Due Process Clause of the Fifth Amendment if he can show the delay caused: (1) substantial prejudice to his right to a fair trial; and (2) the delay was an intentional device by the State to gain a tactical advantage over the defendant. See Marion, 404 U.S. at 322; Ibarra, 11 S.W.3d at 193. Each element is separate and distinct. See United States v. Gulley, 526 F.3d 809, 820 (5th Cir. 2008), cert. denied, 129 S.Ct. 159 (2008). The burden is on the defendant to prove both elements of the test. See id. To establish prejudice, the defendant must show an actual loss of evidence that would have aided the defense and cannot be obtained from other sources. See id.; United States v. Crouch, 84 F.3d 1497, 1515 (5th Cir. 1996) (op. on reh'g) (en banc). The defendant must offer more than mere speculation of lost witnesses, faded memories, or misplaced documents. See Gulley, 526 F.3d at 820; Crouch, 84 F.3d at 1515. Reliance on the possibility of prejudice inherent in any extended delay is not enough. See Horner, 936 S.W.2d at 671; Michaelwicz v. State, 186 S.W.3d 601, 610 (Tex.App.-Austin 2006, pet. ref'd). It is extraordinarily difficult to show prejudice arising from a delay in an indictment that falls within the applicable statute of limitations period. See Moore v. State, 943 S.W.2d 127, 128 (Tex.App.-Austin 1997, pet. ref'd). The second element applies to delays intentionally undertaken by the State for the purpose of gaining some tactical advantage as well as those undertaken for other impermissible, bad-faith purposes. See Crouch, 84 F.3d at 1514; Ibarra, 11 S.W.3d at 193. An intentional delay for the purpose of gaining a tactical advantage includes delay for the purpose of rendering unavailable evidence favorable to the defense or which would tend to undercut the prosecution's case. See Gulley, 526 F.3d at 820; Crouch, 84 F.3d at 1514 n. 23. The Due Process Clause does not invalidate criminal prosecutions simply because a reviewing court believes a prosecutor should have sought an indictment earlier. See Lovasco, 431 U.S. at 790; see also State v. McCoy, 94 S.W.3d 296, 301 (Tex.App.-Corpus Christi 2002, no pet.). Prosecutors are under no duty to file charges before they are satisfied they can prove a suspect's guilt beyond a reasonable doubt. Lovasco, 431 U.S. at 790; see also McCoy, 94 S.W.3d at 301. Investigative delay is fundamentally unlike delay undertaken by the government solely to gain a tactical advantage over the defendant because investigative delay is not so one-sided. Lovasco, 431 U.S. at 795; see Ibarrra, 11 S.W.3d at 194. To prosecute a defendant following investigative delay does not deprive him of due process, even if his defense might have been somewhat prejudiced by the lapse of time. Lovasco, 431 U.S. at 796. There is no requirement that police conduct a continuous investigation in a case to prevent a Fifth Amendment violation. See Ibarra, 11 S.W.3d at 193.B. Application of the Law to the Facts
The record shows the offenses occurred on or about October 31, 1998, and Estrada was indicted on August 18, 2005. At the time of trial, E.G. was sixteen years old and P.G. was fifteen years old. Accordingly, limitations did not bar the prosecution. See Tex. Penal Code Ann. § 12.01 (Vernon Supp. 2008). Estrada made a pretrial motion to dismiss the indictments for violation of his right to due process because of pre-indictment delay. The following occurred at the pretrial hearing with respect to the motion to dismiss for pre-indictment delay: DEFENSE:Yes, Your Honor. We have filed a motion with the Court in each of these files asking that the Court dismiss the indictments for violation of [Estrada's] constitutional right to a speedy trial and also due process, Your Honor, in that these alleged offenses occurred back in-the indictment says 1998. We attached a document to the motion that says that there was an outcry in 2001, but that the police did not file the case until 2005. And I did not represent him over the past several years, but the passage of time has made it almost impossible to defend properly. I've got a court-appointed investigator has looked-we've talked to the prosecutor. Everybody is looking for the [biological] mother of the two complaining witnesses, and we've had no luck. That was [M.P.], and we cannot find her. The prosecutor cannot find her. And so consequently he's-he's handcuffed here, everything what we will try to do, and I think it will come out during trial, has been made very, very difficult because of the passage of time. And for that reason we move for a dismissal.
STATE:
Judge, I would just like to respond.
COURT:
Yes, please.
STATE:
In 2001 there wasn't an actual outcry. They told their foster mother that there was stuff had been going on in the house. The actual outcry didn't happen until 2005 when they were interviewed by DCAC, law enforcement got-you know, and it was filed in 2005. Ever since then the State has been ready-if you remember, the last two times this-actually the last four times this was reset. Two times, of the times, was a Defense reset, and it wasn't [the current defense counsel]. It was a different defense attorney. But it was two times Defense resets and the times before that was the Court was not here, so the State actually hasn't-since I've had the case since `06, the State has never requested a reset.
COURT:
All right. That-your motion is denied.
During the pretrial hearing, Estrada offered no evidence of the prejudice caused by the State's delay. Also, he offered no evidence the delay was an intentional device by the State to gain a tactical advantage over him or was undertaken for some other impermissible, bad-faith purpose.
In his brief, Estrada relies on evidence adduced at trial to support his argument. When determining whether a trial court erred when it ruled on a pretrial motion, an appellate court generally considers only that evidence adduced at the hearing because the trial court's ruling was based on that evidence, rather than additional evidence that may have been introduced later. See Gutierrez v. State, 221 S.W.3d 680, 687 (Tex.Crim.App. 2007) (suppression hearing); O'Hara v. State, 27 S.W.3d 548, 551 (Tex.Crim.App. 2000) (suppression hearing). Estrada does not argue or point us to a place in the record, nor did we find that he renewed his motion to dismiss for pre-indictment delay during the trial. Accordingly, we conclude the trial court did not err when it denied Estrada's motion to dismiss for pre-indictment delay.
Issue five is decided against Estrada.
VI. DENIAL OF MOTION FOR MISTRIAL
In issue six, Estrada argues the trial court erred when it denied his motion for a mistrial. He claims Detective Kemp commented in his testimony that Estrada "invoked his rights." He contends this was a direct and intentional comment on his exercise of the right to remain silent. Estrada argues the trial court's instruction to disregard was ineffective in light of the highly prejudicial nature of the comment, and it is unlikely the jury would have convicted him absent Kemp's comment because of the weakness of the State's cases. The State responds that any error was cured by the trial court's instruction to disregard Kemp's unsolicited, unresponsive comment that referred to unspecified rights.A. Standard of Review
An appellate court reviews a trial court's decision to deny a mistrial under an abuse of discretion standard. See Wead v. State, 129 S.W.3d 126, 129 (Tex.Crim.App. 2004); see also Dukes v. State, 239 S.W.3d 444, 450 (Tex.App.-Dallas 2007, pet. ref'd). An appellate court must uphold the trial court's ruling if it is within the zone of reasonable disagreement. See Archie v. State, 221 S.W.3d 695, 699 (Tex.Crim.App. 2007) (trial court's denial of mistrial based on State's comment on defendant's failure to testify not abuse of discretion).B. Applicable Law
A mistrial is an extreme remedy for prejudicial events occurring during the trial process. See Archie, 221 S.W.3d at 699 (quoting Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App. 2004)). The appropriate test for determining whether a trial court abused its discretion when it denies a motion for a mistrial is a tailored version of the Mosley test. See Archie, 221 S.W.3d at 700; Hawkins, 135 S.W.3d at 77 (discussing Mosley v. State, 983 S.W.2d 249, 259-60 (Tex.Crim.App. 1998)). The Mosley factors that are considered when determining whether a trial court abused its discretion when it denied a mistrial are: (1) the severity of the misconduct (the magnitude of the prejudicial effect); (2) the measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the trial court); and (3) the certainty of conviction absent the misconduct. See Archie, 239 S.W.3d at 700. A comment on a defendant's post-arrest silence violates the defendant's rights under the Fifth Amendment of the United States Constitution and article I, section 10 of the Texas Constitution. See Perez v. State, 187 S.W.3d 110, 112 (Tex.App.-Waco 2006, no pet). Appellate courts have applied the Mosley factors when constitutional rights are implicated. See Perez, 187 S.W.3d at 112. However, a prompt instruction to disregard will ordinarily cure the prejudicial effect. See Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999). The jury is presumed to follow the trial court's instruction to disregard improperly admitted evidence in the absence of evidence indicating the members of the jury failed to do so. See State v. Boyd, 202 S.W.3d 393, 402 (Tex.App.-Dallas 2006, pet. ref'd). A mistrial is required only when the improper question or evidence is clearly prejudicial to the defendant and is of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors. See Ladd, 3 S.W.3d at 567; see also Perez, 187 S.W.3d at 113. The harm flowing from a comment on a defendant's post-arrest silence can be cured by an effective instruction to disregard. See Perez, 187 S.W.3d at 113.C. Application of the Law to the Facts
During the State's examination of Kemp, the following occurred:STATE:
Detective Kemp, at that point after [Estrada] was arrested, what did you do?
KEMP:
I filed the case with the District Attorney's Office.
STATE:
Okay.
KEMP:
I asked if he wanted to talk with me at that time, but he invoked his rights.
DEFENSE:
Objection, improper reference to pretrial right to remain silent, Judge.
COURT:
Sustained.
DEFENSE:
Ask the jury be instructed to disregard.
COURT:
The jury will disregard.
DEFENSE:
Move for a mistrial.
COURT:
Denied.
The State did not deliberately elicit the improper comment from Kemp. Rather, Kemp's comment was unsolicited. Also, Kemp's comment was vague as it referred to unspecified "rights." Kemp's improper comment was brief and was not repeated. Nor was Kemp's comment mentioned by the State in closing argument. Although the nature of the constitutional right affected by Kemp's improper comment was serious, the prejudicial effect was lessened by the absence of flagrancy and persistency as well as the trial court's instruction to disregard. See Perez, 187 S.W.3d at 112-13. Considering all of the evidence, the certainty of conviction absent the improper comment was great. E.G. and P.G. gave consistent, detailed testimony respecting their sexual assaults. Accordingly, we conclude the trial court did not abuse its discretion when it denied Estrada's motion for mistrial.
Issue six is decided against Estrada.