Nos. 05-09-00738-CR, 05-09-00739-CR
Opinion Filed July 20, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.2
On Appeal from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause Nos. F08-24016-J F08-24018-J.
Before Justices MORRIS, MOSELEY, and LANG.
Opinion By Justice LANG.
In a single proceeding, appellant Hector Mario Gonzalez pleaded not guilty to aggravated sexual assault of a child younger than fourteen years of age and indecency with a child. A jury found appellant guilty of both offenses. Punishment was assessed by the trial court at twenty-eight years' imprisonment and a fine of $3000 in the aggravated sexual assault case and ten years' imprisonment and a fine of $3000 in the case involving indecency with a child. In a single issue on appeal, appellant contends the trial court erred by "excluding evidence of the victim's mental state and threats against her biological father soon after her outcry which evidence would tend to impeach her testimony and result in a different verdict causing harm to the appellant." For the reasons below, we decide appellant's issue against him. The trial court's judgments are affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
I.G., the complainant in both cases involved in this appeal, testified at trial that appellant, who is not her father, was married to her mother at the time of the events at issue. I.G. stated appellant lived with her mother, brother, sister, and her "sometimes" during that time period because there were "a lot of times" when her mother "really didn't want him there." I.G. testified that on one occasion between her kindergarten and second grade years in school, she was sleeping on the floor of the living room of her home in East Dallas and was awakened by appellant touching her chest. I.G. told her mother, who told appellant he "needed to stay away from" I.G. After that incident, I.G. and her family moved to Lubbock without appellant. Several years later, when I.G. was in fifth grade, I.G. and her family moved from Lubbock back to Dallas. Appellant assisted them with that move. I.G. testified that on the drive to Dallas, she awoke in the car when she felt appellant's hand "coming up on" her leg. She pushed his hand away, but did not tell her mother. After the move from Lubbock, appellant lived with I.G.'s family in Garland. I.G. testified that early one morning, while she was sleeping on a couch in the living room, she was awakened when she felt appellant's hand in her pants, touching her vagina "on top of" her underwear. I.G. stated she "pushed his hand away" and "he stopped." On another occasion, when I.G. was twelve or thirteen years old, she went to the store with appellant in his truck. On the way home, appellant pulled over and turned off the truck and the lights. I.G. testified appellant unbuttoned his pants and started "messing with his penis." Appellant grabbed I.G.'s hand and tried to force her to touch him. I.G. stated she "pulled away." According to I.G., appellant "made a weird noise," then grabbed a shirt from the back seat and wiped off "his sperm." Another time, when I.G. was about twelve and was traveling alone with appellant in his car, he asked her, in graphic terms, if she wanted to have sexual intercourse. I.G. told him "no," then got out of his car because they had just arrived home. One afternoon in 2007 or 2008, when I.G. was thirteen, she arrived home from track practice at about 3:00 p.m. and was watching television alone in the living room. I.G. testified appellant sat on the couch next to her, pushed her up against the cushion, pulled down her shorts, and put his tongue on her vagina. I.G. testified she kicked and scratched appellant. When she kicked appellant in his "private area," he fell to the ground and she walked outside and waited for her sister and brother to come home. I.G. stated that when she asked appellant why he was doing these things, he responded, "Because I like it and because you're small and you can't do anything about it." On a subsequent occasion, I.G. testified, she was asleep on the living room couch when she felt appellant's hand in her pants. I.G. testified appellant put his finger in her "butt hole," which hurt. She testified she "tightened up" and made a noise and appellant stopped. I.G. stated that when she was thirteen or fourteen years old, she found a pocketknife in appellant's truck while the two of them were running an errand. While in the truck with appellant, she had a feeling appellant was going to touch her, so she put the open knife up to his neck and told him that if he ever touched her again, she would kill him. I.G. testified appellant did not touch her after that. I.G. stated that several months later, in October or November of 2007, she told her mother that appellant had started "touching" her again after the move from Lubbock. I.G. testified her mother called appellant and told him she "didn't ever want him around" again. I.G. stated that at her request, her mother did not call the police. Later in 2007, appellant helped I.G.'s family move to North Dallas. Subsequently, in December 2007, I.G. arrived home from school to find appellant in the living room. I.G. testified he was there because her mother "was going to talk to him" and "get to the bottom of it." According to I.G., appellant and her mother talked about I.G.'s allegations and appellant denied them. I.G. testified that before leaving, appellant told I.G. and her mother to hit him in the head. I.G.'s mother declined, but I.G. hit appellant because she was angry. I.G. testified that after the move to North Dallas, her mother called her school "for them to talk to me about [what had occurred]." Then, I.G. talked to a school counselor and the police about what appellant had done. She stated that in early 2008, she described the incidents in detail to a woman at the Dallas Children's Advocacy Center. On cross-examination, I.G. testified she was treated "at Timberlawn" in January 2008. The State objected to admission of further evidence regarding I.G.'s treatment at Timberlawn. In a hearing outside the presence of the jury, counsel for appellant elicited testimony from I.G. that she voluntarily sought treatment at Timberlawn as a day patient. I.G. stated medication was prescribed for her, but she did not take it. She testified she talked to a doctor at Timberlawn about having unwanted thoughts of slitting the throat of her biological father because he "never really included" her in his family. According to I.G., after she told the doctors at Timberlawn that she had talked to her dad about how she felt, she was discharged. Counsel for appellant asserted that in the medical records pertaining to that treatment (the "Timberlawn records"), a section labeled "Determination of Preliminary Examination" read "I determine that this patient has the symptoms of mental illness and will benefit from hospitalization and admit such as voluntary patient." Counsel for appellant contended the Timberlawn records should be admitted into evidence in light of the "finding of mental illness by the doctor treating [I.G.]" and because "the manner that [I.G.] talks about with [appellant], putting the knife up to his throat, it matches up to the ideations that she has with her biological father." The State argued the Timberlawn records were not relevant because I.G. "does not have any psychosis or any kind of mental health issues other than suicidal thoughts." Further, the State argued that "the issues dealing with [I.G.]'s relationship with her father are not relevant to whether or not [appellant] committed this crime and it does not impugn her testimony in any way." The trial court sustained the State's objection "on both issues." Then, the jury returned to the courtroom. Among the witnesses testifying with regard to investigation of the two cases at issue was Jennifer Goldberg, who testified she had formerly worked as a forensic interviewer at the Dallas Children's Advocacy Center. During that employment, she conducted a forensic interview with I.G. regarding allegations of sexual abuse. According to Goldberg, that interview was "typical." Goldberg stated I.G. cried several times during the interview and "struggled" to talk to Goldberg. Goldberg testified she is trained to look for indicators of "coaching" during interviews. She stated she "didn't have any concerns with [I.G.'s] interview" or "with coaching or that type of thing." I.G.'s mother, C.G., testified she married appellant in 2002, but is now divorced from him. She testified that in December 2007, she arranged a meeting with appellant at her home "so that I.G. could confront him." At that meeting, C.G. "questioned [appellant] about the offense" and "he denied it." C.G. testified that as appellant was leaving, he asked her and I.G. to hit him. I.G. hit appellant. C.G. did not. C.G. testified that subsequent to that meeting, she exchanged correspondence with appellant. Letters from appellant to C.G., handwritten in Spanish, were admitted into evidence. According to C.G., appellant asked her in the letters to forgive him for his "offenses." She testified she never threatened appellant regarding money issues or asked him for money or support of any kind. At that point in the trial, in another hearing outside the presence of the jury, the trial court addressed the admissibility of the testimony of Dr. Jill Bracken, I.G.'s treating physician at Timberlawn, and again addressed the admissibility of the Timberlawn records. During that hearing, Bracken testified I.G.'s "chief complaint was feeling suicidal and feeling homicidal toward her father" because she felt neglected by him. Bracken stated it was her understanding that I.G. was talking about her biological father, who resided in Lubbock. Additionally, Bracken testified that "[i]t had been reported to the intake person at her initial interview that there had been a history of being sexually abused by her father and that this had been reported to police." Bracken testified it was her understanding that the abuser "appeared to be the biological father." She testified she did not compile the intake record or observe the intake process and "did not discuss father or stepfather directly" with I.G. Bracken stated, "These are only my impressions from reading the records, the information that was gathered by other people." Bracken testified the persons interviewed at intake were "the child and her mother" and she did not know which of those two gave the information to the intake staff. Further, Bracken testified she "did not even inquire" about any allegations of abuse during her treatment of I.G. Bracken diagnosed I.G. with "major depression disorder." During the same hearing, I.G. testified she "never mentioned the sexual abuse" during her intake interview at Timberlawn. She stated she did not know where that information in her records came from. The State objected to admitting into evidence Bracken's testimony or the Timberlawn records on the grounds that (1) I.G.'s mental history was irrelevant in this case, (2) Bracken was not qualified to testify as to the intake record because she was not present at intake, (3) it was not clear who gave the answers at the intake interview, and (4) the intake record was hearsay. Appellant argued Bracken's testimony and the Timberlawn records were relevant because "obviously, when [I.G.'s] talking to the doctor and talking about slitting the dad's throat, that correlates with who the abuser is." The trial court stated The child testified that she never gave any sexual abuse history. The only purpose I can see for the introduction of the records would be to impeach the child's allegations that it was stepdad or a prior inconsistent statement. Since she did not make the statement, I don't see how it can be a prior inconsistent statement. It cannot be used to impeach her. She never made the statement. I've already ruled that her mental health is not at issue in this case. So it will not come in and the doctor's testimony is not relevant, even assuming she was the custodian. Appellant objected to the trial court's ruling. Then, the jury returned to the courtroom. Through a translator, appellant testified that when he asked C.G. to forgive him for his "offenses," he was referring to his arguments with her. He testified he did not put his hand on I.G.'s chest, put his hand down her pants, put his finger in her anus, masturbate in front of her, or put his mouth on her vagina. According to appellant, C.G. told him in September 2007 that if he did not give her money, her daughters would accuse him of abuse. He stated I.G. was lying at her mother's direction when she testified against him. Appellant testified he helped C.G. and her children move in late 2007, but he did not visit their home after that or ask I.G. to hit him. Guillermina Vita testified she was a former neighbor of appellant and knew both appellant and C.G. Vita stated she was with appellant in late November 2007 when he received a cell phone call from C.G. Vita testified she heard C.G. tell appellant that if he did not give C.G. money, she was going to call the police. Following the jury's finding of guilt and appellant's sentencing, appellant filed timely motions for new trial and timely notices of appeal in each cause. Appellant's motions for new trial were overruled by the trial court. II. TRIAL COURT'S EXCLUSION OF EVIDENCEA. Standard of Review
We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007); Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App. 2006). A trial court abuses its discretion when its decision is so clearly wrong as to lie outside that zone within which reasonable people might disagree. Walters v. State, 247 S.W.3d 204, 217 (Tex. Crim. App. 2007); McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005). We uphold the trial court's ruling if it is reasonably supported by the record and correct under any theory of law applicable to the case. Ramos v. State, 245 S.W.3d 410, 418 (Tex. Crim. App. 2008); Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002). An appellate court must review the trial court's ruling in light of what was before the court at the time the ruling was made. Willover, 70 S.W.3d at 845 (citing Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000)). B. Applicable Law
"[T]he right of cross-examination by the accused of a testifying State's witness includes the right to impeach the witness with relevant evidence that might reflect bias, interest, prejudice, inconsistent statements, traits of character affecting credibility, or evidence that might go to any impairment or disability affecting the witness's credibility." Virts v. State, 739 S.W.2d 25, 29 (Tex. Crim. App. 1987). "Cross-examination of a testifying State's witness to show that the witness has suffered a recent mental illness or disturbance is proper, provided that such mental illness or disturbance is such that it might tend to reflect upon the witness's credibility." Id. at 30. However, "the mere fact that the State's testifying witness has in the recent past suffered or received treatment for a mental illness or disturbance does not, for this reason alone, cause this kind of evidence to become admissible impeachment evidence." Id. As stated by the Texas Court of Criminal Appeals: If the witness is shown to have been suffering from a recent mental illness, prior to the occurrence of the event in question, and such might be considered a "persistent disabling disturbance of his mental and/or emotional equilibrium, manifested through persistent maladjustment and more or less irrational, even bizarre behavior and speech,". . . then, of course, the trial judge should permit the jury to hear this kind of evidence. Id.; see also Scott v. State, 162 S.W.3d 397, 401-02 (Tex. App.-Beaumont 2005, pet. ref'd) (trial court's exclusion of cross-examination of witness to show mental illness for purpose of impeaching witness's credibility was proper, where evidence did not show witness's mental illness affected his perception of events at issue); Rivera v. State, No. 01-06-01114-CR, 2008 WL 1827649, at *4 (Tex. App.-Houston [1st Dist.] Apr. 24, 2008, pet. ref'd) (mem. op., not designated for publication) (trial court properly excluded evidence pertaining to mental state of sexual assault complainant where examination of complainant did not show evidence of mental condition in accordance with prevailing case law or that complainant's condition altered her perception of offense). Texas Rule of Evidence 613(a) permits a party to impeach a witness with a prior inconsistent statement. Tex. R. Evid. 613(a); Lopez v. State, 86 S.W.3d 228, 230 (Tex. Crim. App. 2002). "In order to qualify for admission under Rule 613(a), the court must be persuaded that the statements are indeed inconsistent." Lopez, 86 S.W.3d at 230. C. Application of Law to Facts
Appellant contends the trial court "erred in excluding evidence as to the victim's mental state and threats against her biological father soon after she made the allegations of abuse which was a denial of appellant's right to test the credibility of the victim based on the Texas Rules of Evidence and adversely affected his substantial rights to a fair trial." According to appellant, this case is distinguishable from Scott "in that the medical records sought to be introduced bear directly on the complainant's credibility." Further, appellant argues Although the complainant admitted herself to Timberlawn after she made outcry, that fact is not evidence that her psychological problems did not occur until then. There is no allegation that the evidence is self-serving or unreliable. The evidence is relevant to the complaining witness's credibility. There was no evidence to show how the probative value of this evidence is outweighed by the danger of unfair prejudice. The complainant was at least suffering from major depression disorder, which indicated symptoms of mental illness. The mental health expert, Dr. Bracken, said it was her understanding that the abuser was her biological father, not her stepfather (the appellant). I.G. expressed hostility toward her biological father. She then attributed this feeling to his neglect of her, when this could have been under the insistence and coaching of her mother to proceed with the allegations. Appellant denied all the allegations at trial, conflicting with I.G.'s testimony. Because of this conflict, the issue of the complainant's credibility was of heightened importance, and the Timberlawn records and testimony of Dr. Bracken should have been admissible to impeach the complainant's credibility. Appellant asserts his trial was "seriously flawed" and his substantial rights were affected "because evidence that directly questioned the credibility of the complaining witness was not admitted during guilt-innocence." Therefore, appellant argues, he should be entitled to a new trial. The State responds that the trial court did not abuse its discretion by excluding evidence of the complainant's mental health to impeach her testimony alleging that appellant had sexually abused her. Specifically, the State asserts (1) "[a]ppellant's voir dire examination of I.G. revealed she had not reported to staff at Timberlawn that she was abused by her father," (2) the Timberlawn records "were not sufficiently reliable for admission because the source of the information recorded in the patient's history was unknown," and (3) the trial record does not show that I.G.'s mental condition was "persistent and disabling" or that such condition altered her perception of the offense, thus damaging her credibility. Further, the State argues that any error in excluding the evidence at issue was harmless because such evidence would have added nothing to appellant's defensive theory. 1. Prior Inconsistent Statement
To the extent appellant asserts the Timberlawn records should have been admitted as a prior inconsistent statement of I.G., we cannot agree. The Timberlawn records at issue are not included in the record. The record before us does not show that the Timberlawn records reflect statements made by I.G. The only reference to any purported statement of I.G. was Bracken's testimony that "[i]t had been reported to the intake person at her initial interview that there had been a history of being sexually abused by her father and that this had been reported to police." However, Bracken testified she did not compile the intake record or observe the intake process and "did not discuss father or stepfather directly" with I.G. Further, Bracken testified the persons interviewed at intake were "the child and her mother," and she did not know which of those two gave the information to the intake staff. Therefore, the Timberlawn records were not shown to constitute a prior inconsistent statement of I.G. See Lopez, 86 S.W.3d at 231; see also Ward v. State, No. 11-08-00182-CR, 2010 WL 337139, at *3 (Tex. App.-Eastland Jan. 29, 2010, pet. ref'd) (mem. op., not designated for publication) (where CPS document at issue was primarily recitation of CPS interviewer and witness denied giving interviewer information written in document, there was no evidence of prior inconsistent statement by witness and trial court did not err by denying admission of document into evidence); Kane v. State, No. 04-02-00275-CR, 2003 WL 22902978, at *2 (Tex. App.-San Antonio Dec. 10, 2003, pet. ref'd) (mem. op., not designated for publication) (defendant failed to demonstrate any inconsistency between complainant's prior statement and complainant's testimony where it was defendant's counsel, not complainant, who used the words alleged to be inconsistent). We conclude the trial court did not abuse its discretion to the extent it denied admission of the Timberlawn records into evidence as a prior inconsistent statement of I.G. 2. Mental State of Complainant
Appellant contends he had the right to impeach the testimony of I.G. with "evidence that might go to any impairment or disability affecting the witness's credibility." According to appellant, the Timberlawn records and the testimony of Bracken should have been admitted into evidence on that basis. However, "the mere fact that the State's testifying witness has in the recent past suffered or received treatment for a mental illness or disturbance does not, for this reason alone, cause this kind of evidence to become admissible impeachment evidence." Virts, 739 S.W.2d at 30; see also Scott, 162 S.W.3d at 401. Rather, cross-examination of a testifying State's witness to show that the witness has suffered a recent mental illness or disturbance is proper when the evidence shows that such mental illness or disturbance "might be considered a `persistent disabling disturbance of his mental and/or emotional equilibrium, manifested through persistent maladjustment and more or less irrational, even bizarre behavior and speech'" or "affected his perception of events." Virts, 739 S.W.2d at 30; Scott, 162 S.W.3d at 401. The record reflects that during a hearing outside the presence of the jury, Bracken testified she diagnosed I.G. with "major depression disorder." However, Bracken did not testify, and the record does not show, that I.G.'s mental condition "might be considered a `persistent disabling disturbance of [her] mental and/or emotional equilibrium'" or that it affected her perception of the events at issue. See Virts, 739 S.W.2d at 30; Scott, 162 S.W.3d at 401; cf. Perry v. State, 236 S.W.3d 859, 867 (Tex. App.-Texarkana 2007, no pet.) (cross-examination regarding witness's "mental impairment or disturbance" was proper where evidence showed diagnosis of paranoid schizophrenia and psychotic disorder, including ongoing experiences of hallucinations). Accordingly, we cannot conclude the trial court abused its discretion by excluding the Timberlawn records and Bracken's testimony as "evidence that might go to any impairment or disability affecting the witness's credibility." 3. Evidence of "Coaching"
To the extent appellant's argument on appeal can be construed to assert that Bracken's testimony was admissible to establish I.G. was coached by her mother to bring allegations of sexual abuse against appellant, the record shows appellant did not assert that theory in the trial court with respect to the admissibility of that testimony. Therefore, appellant's contentions in that regard present nothing for this Court's review. See Martinez v. State, 91 S.W.3d 331, 336 (Tex. Crim. App. 2002) (exclusion of evidence should not be reversed based on theory of admissibility not raised in trial court); see also Willover, 70 S.W.3d at 845 (appellate court must review trial court's ruling in light of what was before trial court at time ruling was made). 4. Harm
Finally, we conclude any error by the trial court in excluding the Timberlawn records and the testimony of Bracken was harmless. Under the applicable test for determining if an error in this case is reversible, any error that does not "affect substantial rights" must be disregarded. Tex. R. App. P. 44.2(b). A substantial right is affected 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). A conviction should not be overturned 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. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). The record shows I.G. testified before the jury that she was treated at Timberlawn in 2008. Further, appellant testified (1) I.G.'s allegations against him were false, (2) I.G.'s accusations occurred after C.G. told appellant that unless he paid money to her, her daughters would accuse him of abuse, and (3) I.G. lied to the jury at her mother's direction. Accordingly, we cannot conclude from the record that exclusion of the evidence at issue had a substantial and injurious effect or influence in determining the jury's verdict. Cf. Garcia v. State, 246 S.W.3d 121, 136 (Tex. App.-San Antonio 2007, pet. ref'd) (defendant was not harmed by trial court's exclusion of evidence where "issues were presented to the jury through other avenues"). Based on the foregoing analysis, we decide against appellant on his issue. III. CONCLUSION
We conclude the trial court did not abuse its discretion by not admitting into evidence the Timberlawn records and Bracken's testimony. Additionally, we conclude any error by the trial court in excluding such evidence was harmless. Appellant's issue is decided against him. The trial court's judgments are affirmed.