Garza v. State

Full title: JUAN VICENTE GARZA, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Jan 5, 2006

No. 05-04-01104-CR (Tex. App. Jan. 5, 2006)

Opinion

No. 05-04-01104-CR

Opinion issued January 5, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 292^nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F-0373560-PV. Affirmed.

Before Justices WRIGHT, LANG-MIERS, and MAZZANT.

OPINION

Opinion By Justice MAZZANT.

Juan Vicente Garza appeals his conviction for sexual assault of a child. A jury found him guilty and assessed punishment at twenty years in prison. In four issues, he challenges the factual sufficiency of the evidence, the trial court's ruling regarding the admissibility of evidence, improper jury argument, and the trial court's denial of his motion for an instructed verdict. We affirm the trial court's judgment.

Factual Background

Appellant was convicted of sexually assaulting his daughter, R.G., by penetrating her sexual organ with his finger. R.G., who was twenty years old at the time of trial, testified that appellant began molesting her when she was eleven years old, and continued to do so until she was seventeen. R.G. said that appellant would put his hand down her pants and insert his fingers into her vagina. Although this usually took place at home in the evenings after appellant returned from work, R.G. testified that, on more than one occasion, appellant molested her in the back seat of his van during out-of-town trips. At other times, he would take her out for rides in a pickup truck and ask her to sit on his lap while he slipped his hand underneath her panties and inserted his fingers into her vagina. As R.G. grew older, the abuse began to occur on almost a daily basis. By the time she was fourteen years old, appellant would sneak into R.G.'s bedroom at night after he got home from work, sometimes while her brother was sleeping nearby. When she put a lock on the door to try to keep him out, appellant would use a coat hanger to gain entry. He also forced R.G. to watch pornographic movies with him, and during one of these viewings, appellant made R.G. touch his penis while he inserted his fingers into her vagina and masturbated. He then ejaculated on R.G.'s stomach. Appellant warned R.G. on more than one occasion that if she told anyone what was going on, he would claim she initiated the sexual contact. R.G. did not tell anyone about the abuse until after her seventeenth birthday. She confided first in her boyfriend and then later her mother, who responded by kicking appellant out of the house. But the police were not called because R.G. made her mother promise not to tell anyone. After he left the house, appellant would telephone R.G. to tell her he was sorry for what he had done. Nearly a year-and-a-half after she told her boyfriend about the abuse, R.G. confided in one of her mother's friends, who persuaded R.G. to inform the police. Dallas Police Detective Kimberly Mayfield was assigned to investigate R.G.'s allegations. Detective Mayfield interviewed R.G. and obtained an affidavit from her. Five days later, appellant was arrested. Detective Mayfield testified that she took the following statement from appellant after his arrest:

I, Juan Vicente Garza, accept that the charges made against me are probably correct except that I used my fingers. I admit touching her and I ask for your forgiveness because I remember that when it happened I was asleep and when I woke up she was touching me. But I thought it was my wife so that is when I touched her. For this I am repentant and I will always be repentant and I will never stop asking for forgiveness from her nor my wife and children which I lost my dear family. Once more I ask for your forgiveness and I also ask for forgiveness from her family in general. I am repentant. I am repentant and I am a person that if I had done it I think that probably for me my life would be worthless and that if they didn't forgive me then order my punishment. Forgive me. Forgive me.

. . . . [W]hen I woke up, she was touching me. It was over my clothing on my privates. And it was then that I thought it was my wife and I touched her too over her clothing, but I don't want to mention any more because it hurts me just to think about it.

A number of appellant's friends and relatives testified on his behalf. Much of this testimony portrayed appellant as a loving but strict father and portrayed R.G. as an unruly and willful daughter who deeply resented her father's discipline. Appellant also testified that he never sexually assaulted R.G. He claimed the incident described in his statement to the police was the only instance of inappropriate behavior. He argued that he was kicked out of the house because his wife did not want him to discipline their children. He also maintained R.G. and her mother fabricated the allegations against him because they were upset that he was planning to quit his job and move in with another woman.

Discussion

In his first issue, appellant claims the evidence is factually insufficient to support the conviction. In a factual sufficiency review, we view all of the evidence in a neutral light and will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App. 2004) (citing Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004)); Goodrich v. State, 156 S.W.3d 141, 146 (Tex.App.-Dallas 2005, pet. ref'd). The question under this standard is whether, considering all of the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga, 144 S.W.3d at 484. Evidence can be factually insufficient if (1) it is too weak to support the finding of guilt beyond a reasonable doubt or (2) contrary evidence exists that is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Zuniga, 144 S.W.3d at 484-85. In examining a factual sufficiency challenge, we defer to the factfinder's determination of the credibility of the evidence. Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003). Appellant claims that the evidence is factually insufficient to support the conviction because R.G.'s testimony is "completely implausible and she has told inconsistent stories." He argues that R.G.'s account of the sexual abuse inflicted by her father "is so implausible as to deny belief." Appellant notes that the Garzas were a family of seven living in a crowded house "smaller than the courtroom," and that opportunities to molest R.G. in the manner she describes would have been extremely limited. He also notes that R.G.'s account of the abuse is contradicted by testimony from appellant's brothers, Samuel Garza and Margarito Garza, who claimed their niece told them on separate occasions that there was no penetration. Furthermore, he claims R.G. had a clear motivation to lie about the abuse because she wanted to avoid her father's strict discipline. It was for the jurors to consider such issues in determining guilt. That they chose not to believe appellant's testimony does not make the verdict manifestly unjust. Viewing all the evidence in a neutral light, we believe the jurors could rationally find beyond a reasonable doubt from the evidence that appellant "intentionally and knowingly cause[d] the penetration of the female sexual organ of [R.G.], a child, who was not then the spouse of the defendant, by an object, to wit: the finger of the defendant." Reaching any other conclusion would require us to substantially intrude upon the jury's role as the sole judge of the weight and credibility of the evidence. See Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000) (evaluation of the sufficiency of the evidence must not substantially intrude upon the jury's role as the sole judge of the weight and credibility of the evidence). Appellant's first issue is overruled. In his second issue, appellant claims the trial court erred when it allowed Detective Mayfield to give an opinion regarding the truthfulness of R.G.'s allegations. The State's redirect examination of Detective Mayfield reads in part as follows:

Q. [PROSECUTOR]: Well, Detective, since we are talking about your opinion and about things — well, in even your experience, I mean, you have been investigating child abuse for two-and-a-half years; is that right?

A. Yes, ma'am.

Q. How many child victims have you interviewed?

A. It is in the hundreds. I mean, I can't even — hundreds.

Q. And that is your job to distinguish between false allegations and truthful allegations; is that right?

A. Yes, ma'am.

Q. That is what you're doing, you're not going to go out and arrest somebody just because somebody says something happened?

A. Absolutely not.

Q. And are there times when you hear from a child and you think something is not right and you investigate further?

A. Yes.

[DEFENSE COUNSEL]: Judge, I'm going to object to that. That has no relevance to this case.

THE COURT: Well, I will allow that question and answer. You be careful how far you go on that.

A. Yes.

Q. [PROSECUTOR]: And what is the worst possible crime that a father can commit on his daughter?

A. It would be — again, I would say sexual assault or murder. I have to think about it in that lines. I have parents that kill their kids, so I think that is pretty horrendous as well.

Q. That would probably be the ultimate one.

A. Right. Right.

Q. Okay. But certainly, this is just about the most devastating after that, wouldn't you agree?

A. I think because this victim still lives that it is the most detrimental in the long-run. The children have to live with the effects of this for the rest of their lives.

Appellant argues that this testimony constitutes an inadmissible "direct opinion on the truthfulness of a child complainant's allegations" under Yount v. State, 872 S.W.2d 706 (Tex.Crim.App. 1993), and Tex. R. Evid. 702. We disagree. We review a trial court's ruling admitting testimony under an abuse of discretion standard, meaning we will uphold the trial court's decision if it is within "the zone of reasonable disagreement." Salazar v. State, 38 S.W.3d 141, 153 (Tex.Crim.App. 2001). An expert witness may not testify directly as to the victim's truthfulness because that does not concern a subject matter on which the testimony of an expert witness could assist the trier of fact. Yount, 872 S.W.2d at 709; Cohn v. State, 849 S.W.2d 817, 819 (Tex.Crim.App. 1993); Wilson v. State, 90 S.W.3d 391, 393 (Tex.App.-Dallas 2002, no pet.). But Detective Mayfield's testimony did not run afoul of this prohibition. Unlike the witness in Yount, she was not asked, and did not offer, an opinion regarding the complainant's credibility. Read in its entirety, the transcript of her redirect testimony shows she was responding to questions regarding the way in which she investigated allegations of sexual assault made by a child and not giving a direct opinion on the complainant's truthfulness. However, assuming for the sake of argument the trial court erred in overruling appellant's objection, the error was harmless. The erroneous admission of improper opinion testimony regarding the truthfulness of a child complainant is non-constitutional error that should be disregarded on appeal unless it affected appellant's substantial rights. Tex.R.App.P. 44.2(b); Wilson, 90 S.W.3d at 393. An error affects a substantial right when the error had a substantial and injurious effect or influence in determining the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). Therefore, we affirm a criminal conviction when, after examining the record as a whole, we are left with a fair assurance the error did not influence the jury or influenced the jury only slightly. Morales v. State, 32 S.W.3d 862, 867 (Tex.Crim.App. 2000); Wilson, 90 S.W.3d at 393. We analyze the whole record to determine if the trial court's error had no or only a slight effect on the jury's decision; thus, we may consider the trial court's instructions to the jury and the parties' closing arguments. Id. at 393. Our analysis includes all the evidence: the nature of the evidence supporting the verdict, and the character of the error and its relationship to other evidence, to determine if the error substantially affected appellant's rights. Id. The fact the prosecution was grounded on the credibility of the complainant is significant, but not conclusive, in determining harm. Schutz v. State, 63 S.W.3d 442, 446 (Tex.Crim.App. 2001). Reviewing the record as a whole, including the nature of the evidence supporting the verdict, the character of the error and its relationship to other evidence, the instructions of the court, and closing argument, we believe the trial court's error either did not influence the jurors or that it influenced them only slightly. To begin with, the jurors in this case were presented with a large amount of evidence which they could have considered in evaluating R.G.'s credibility. Furthermore, after overruling appellant's objection the trial court warned the State to "be careful how far you go on that." The State did not pursue the matter further nor did it refer to the challenged portion of Detective Mayfield's testimony in its closing argument. Third, after the close of the evidence and before the jurors retired for deliberations, the trial court instructed them they were the exclusive judges of a witness's credibility and the weight to be given to their testimony. The State also emphasized during its closing argument that the jurors were the sole judges of R.G.'s credibility. See Wilson, 90 S.W.3d at 394. Therefore, we believe the trial court's error, if any, did not have a substantial and injurious effect or influence in determining the jury's verdict, and it did not affect appellant's substantial rights. Appellant's second issue is overruled. In his third issue, appellant argues that the prosecutor made an improper attack on defense counsel during closing argument at the guilt and innocence phase of the trial. During his closing argument, defense counsel suggested that R.G. and her mother might be using the criminal justice system to exact revenge on appellant for marital infidelities:

. . . I'm presuming that [the prosecutor] is going to stand up here in a few minutes, which she will, and ask you to send a message to the community that people like that don't deserve to be free, you know, these child molesters. Okay? What I'm asking you to send a message is to people that are going to use the courts for their own gain, for their own vengeance. That it is not going to happen in Dallas County.

Because if you don't send that message, if you don't acquit this man and you let them railroad him, then what you better do, you better call your brother, your granddad, your uncle, your next door neighbor and say, Buddy, if you get in a divorce situation and you have got a daughter, you better find you a criminal lawyer because this is what they're going to do to you.

During the State's rebuttal, the prosecutor replied:

I hope you're insulted. I hope you're disgusted that someone that is an officer of the court can come in here and make that argument, go out, your brothers, your cousins, your uncles, if there is a divorce. I mean, how ridiculous, how insulting to any woman, any child, any man. I hope you are insulted and shocked that the defendant would take that position.

Appellant did not object to this argument. To complain of improper jury argument, a defendant must object to the argument and pursue the objection to an adverse ruling. Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996). If the trial court sustains the objection, the defendant must request an instruction to disregard and move for a mistrial. Cook v. State, 858 S.W.2d 467, 473 (Tex.Crim.App. 1993). Because appellant did not object to the prosecutor's argument, he waived his right to raise the issue on appeal.¹ We overrule appellant's third issue. In his fourth issue, appellant claims the trial court erred in denying his motion for an instructed verdict of not guilty because the indictment "alleges a date on which an offense was shown to have been impossible." The indictment charged appellant with committing the offense of sexual assault of a child "on or about the 14^th day of April A.D., 2001." R.G. turned seventeen years of age on April 14, 2001. According to appellant, because R.G. was not a "child," as that term is defined by statute, on the date alleged in the indictment, the indictment alleges a date on which no offense occurred, and his motion for an instructed verdict should have been granted. Tex. Pen. Code Ann. § 22.011(c)(1) (Vernon 2004) ("`Child' means person younger than 17 years of age who is not the spouse of the actor"). Appellant is mistaken. It is well settled that, "when an indictment alleges that an offense occurred `on or about' a particular date, the State is not bound by the date alleged, and may prove any offense of the character alleged, within the period covered by the applicable statute of limitations." Garcia v. State, 981 S.W.2d 683, 685 (Tex.Crim.App. 1998) (citing Sledge v. State, 953 S.W.2d 253, 255-56 (Tex.Crim.App. 1997)). The indictment in this case was filed on October 22, 2003. The statute of limitations for the offense of sexual assault of a child is ten years from the victim's eighteenth birthday. Tex. Code Crim. Proc. Ann. art. 12.01(5)(B) (Vernon 2004). Although she could not recall specific dates or times, R.G. testified that appellant sexually assaulted her on countless occasions before her seventeenth birthday. There is legally sufficient evidence from which a rational trier of fact could have found beyond a reasonable doubt that appellant committed the offense of sexual assault "on or about" April 14, 2001. See Williams v. State, 937 S.W.2d 479, 482 (Tex.Crim.App. 1996) (complaint about a trial court's failure to grant a motion for directed verdict is treated as attack on the legal sufficiency of the evidence). Appellant's fourth issue is overruled. We affirm the trial court's judgment.