Herrera v. State

Full title: JOSE LUIS HERRERA, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Tenth District, Waco

Date published: Nov 2, 2005

No. 10-05-00026-CR (Tex. App. Nov. 2, 2005)

Opinion

No. 10-05-00026-CR

Opinion delivered and filed November 2, 2005. DO NOT PUBLISH.

Appeal from the 362nd District Court, Denton County, Texas, Trial Court No. F-2004-0475-D. Affirmed.

Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.

MEMORANDUM OPINION

FELIPE REYNA, Justice.

A jury convicted Jose Luis Herrera of two counts of aggravated sexual assault of a child and assessed his punishment at twenty-five years' imprisonment for both counts. Herrera contends in four issues that the court erred by: (1) admitting the testimony of the outcry witness designated by the State because she was not the first adult to whom the complainant made statements about the offenses; (2) admitting the written statement he gave to a polygraph examiner who interviewed him for Child Protective Services because the examiner did not read him his Miranda warnings and because the probative value of the statement was substantially outweighed by the danger of unfair prejudice; (3) failing to charge the jury on the lesser-included offenses of indecency with a child, sexual assault, and assault; and (4) ordering that his sentences run consecutively. We will affirm.

Outcry Testimony

Herrera contends in his first issue that the court abused its discretion by admitting the outcry testimony of Beki Burchett because she was not the first adult to whom the complainant made a statement about the offense. In particular, Herrera notes that the complainant's mother and several school employees had heard about the allegations before Burchett did. Article 38.072 of the Code of Criminal Procedure describes the proper outcry witness as "the first person, 18 years of age or older, other than the defendant, to whom the child made a statement about the offense." TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2(a)(2) (Vernon 2005). The statute has been construed to refer to the first adult "to whom the child makes a statement that in some discernible manner describes the alleged offense. [This] statement must be more than words which give a general allusion that something in the area of child abuse was going on." Hanson v. State, 2005 WL 2787618 at *2 (Tex.App.-Waco Oct. 26, 2005, no pet. h.) (quoting Garcia v. State, 792 S.W.2d 88, 91 (Tex.Crim.App. 1990)). "The proper outcry witness is the adult to whom the complainant first tells `how, when, and where' he was assaulted." Hanson, 2005 WL 2787618 at *3 (citing Sims v. State, 12 S.W.3d 499, 500 (Tex.App.-Dallas 1999, pet. ref'd); Reed v. State, 974 S.W.2d 838, 841-42 (Tex.App.-San Antonio 1998, pet. ref'd)). "`[A] trial court has broad discretion in determining' the proper outcry witness." Id., 2005 WL 2787618 at *2 (quoting Garcia, 792 S.W.2d at 92); accord Elder v. State, 132 S.W.3d 20, 26 (Tex.App.-Fort Worth 2004, pet. ref'd). Burchett and the complainant both testified that the complainant S.G. told her mother that Herrera had "touched her." The complainant's mother did not believe S.G. at first and did not testify at trial. The complainant's mother told several school employees what S.G. had told her. Burchett interviewed S.G. at school, and S.G. gave her the details of what Herrera had done to her. There is nothing in the record to suggest that S.G. told her mother any details about "how, when, and where" Herrera assaulted her. See Hanson, 2005 WL 2787618 at *3; Sims, 12 S.W.3d at 500; Reed, 974 S.W.2d at 841-42. The school employees whom S.G.'s mother told about the allegations cannot be outcry witnesses because there is no evidence that S.G. herself told them anything about the offenses. See TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2(a)(2) (defining proper outcry witness as first adult "to whom the child made a statement about the offense") (emphasis added). Thus, we cannot say that the trial court abused its discretion in determining that Burchett was the proper outcry witness. See Hanson, 2005 WL 2787618 at **2-3; Smith v. State, 131 S.W.3d 928, 931 (Tex.App.-Eastland 2004, pet. ref'd); Castelan v. State, 54 S.W.3d 469, 475-76 (Tex.App.-Corpus Christi 2001, no pet.); Sims, 12 S.W.3d at 500. Accordingly, we overrule Herrera's first issue.

Written Statement

Herrera contends in his second issue that the court abused its discretion by admitting the written statement he gave to a polygraph examiner who interviewed him for Child Protective Services because the examiner did not read him his Miranda warnings and because the probative value of the statement was substantially outweighed by the danger of unfair prejudice. Herrera concedes that he was not in custody when the examination took place and that the polygraph examiner was not a law-enforcement officer. The question of whether he should have been given his Miranda warnings is governed by the recent decision of the Court of Criminal Appeals in Wilkerson v. State. 2005 WL 2443151 (Oct. 5, 2005). There the Court of Criminal Appeals stated:

We hold that only when a CPS investigator (or other non-law enforcement state agent) is acting in tandem with police to investigate and gather evidence for a criminal prosecution are [ Miranda] warnings required. Here there was no evidence that the CPS worker was acting in tandem with police officers when she interviewed appellant. Thus, the trial court did not abuse its discretion in admitting appellant's statements.

Id., 2005 WL 2443151 at *1. Because Herrera was not in custody and because the polygraph examiner was not acting in tandem with any law-enforcement officer, no Miranda warnings were required. Id. Nevertheless, Herrera contends that the probative value of his statement is substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403. Herrera suggests that the admission of his written statement is unfairly prejudicial because it was obtained in connection with a polygraph examination, the results of which are inadmissible in Texas. See Ross v. State, 133 S.W.3d 618, 625-26 (Tex.Crim.App. 2004); Wright v. State, 154 S.W.3d 235, 238 (Tex.App.-Texarkana 2005, pet. ref'd). However, statements made before, during, and after a polygraph examination may be admissible if all references to the polygraph examination (and its results) are redacted from the testimony or statements offered in evidence. See Wright, 154 S.W.3d at 239; Marcum v. State, 983 S.W.2d 762, 765-66 (Tex.App.-Houston [14th Dist.] 1998, no pet.); Hoppes v. State, 725 S.W.2d 532, 535-37 (Tex.App.-Houston [1st Dist.] 1987, no pet.). Here, the trial court properly restricted the polygraph examiner's testimony so that no mention of the polygraph examination or its results was made to the jury. Thus, we cannot say that the court abused its discretion by overruling Herrera's objection that probative value of the evidence was substantially outweighed by the danger of unfair prejudice. Accordingly, we overrule Herrera's second issue.

Lesser-Included Offenses

Herrera contends in his third issue that the court erred by failing to charge the jury on the lesser-included offenses of indecency with a child, sexual assault, and assault. "[T]o be considered a lesser-included offense, the lesser offense must be included within the proof necessary to establish the offense charged." Campbell v. State, 149 S.W.3d 149, 152 (Tex.Crim.App. 2004); see also TEX. CODE CRIM. PROC. ANN. art. 37.09(1) (Vernon 1981). Thus when considering whether a lesser-included offense should have been included in the charge, we analyze: (1) the elements of the offense charged; (2) the elements of the proposed lesser-included offense; and (3) the proof offered at trial. Campbell, 149 S.W.3d at 153. The two counts of the indictment allege that Herrera committed aggravated sexual assault of a child by: (1) causing S.G.'s vagina to contact his penis in December 2001; and (2)(A) causing his finger to penetrate S.G.'s vagina in September 2003; or (B) causing S.G.'s vagina to contact his penis in September 2003. Burchett, the outcry witness, testified that S.G. told her that Herrera had "touch[ed] her with his hands on her breasts, her butt, her vagina, that he had penetrated her with his fingers. He tried to put his penis inside her vagina." Presumably because of this testimony, Herrera requested that the jury be charged on the lesser-included offenses of indecency with a child, sexual assault, or assault because "evidence was presented of touching [S.G.'s] butt [and] breasts." However, an offense is a lesser-included offense only if it is "included within the proof necessary to establish the offense charged." Campbell, 149 S.W.3d at 152; see also TEX. CODE CRIM. PROC. ANN. art. 37.09(1). Here, the indictment alleges offenses in which Herrera engaged in contact and penetration of S.G.'s vagina. The indictment makes no allegations with respect to her anus or breasts. Thus, any offenses shown by the evidence regarding contact with S.G.'s anus or breasts are not included within the proof required to establish the offenses charged. See Martinez v. State, 599 S.W.2d 622, 624 (Tex.Crim.App. [Panel Op.] 1980) (indecency by contact with victim's anus not lesser-included offense of sexual abuse by contact with victim's mouth); see also Campbell, 149 S.W.3d at 155-56 (possession of less than 1 gram of a controlled substance in a truck is not a lesser-included offense of possession with intent to deliver between 4 and 200 grams of a controlled substance found in a car). Accordingly, we overrule Herrera's third issue.

Consecutive Sentences

Herrera contends in his fourth issue that the court abused its discretion by ordering that his sentences run concurrently because the court relied on the written statement he gave to the polygraph examiner and the outcry witness's testimony in making this determination. However, we have already determined that the court did not abuse its discretion by admitting this evidence. Thus, the court did not abuse its discretion by considering this evidence when deciding whether Herrera's sentences should run concurrently or consecutively.¹ Accordingly, we overrule Herrera's fourth issue. We affirm the judgment.