Opinion
Nos. 05-05-00575-CR, 05-05-00576-CR, 05-05-00577-CR, 05-05-00578-CR, 05-05-00579-CR [D] No. 05-05-00580-CR
Opinion issued November 3, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F04-35317-NP, F04-35318-NP, F04-35319-NP, F04-35320-NP, F04-35321-NP, F04-35322-NP. Affirmed.
OPINION
Appellant Guadalupe Ramirez appeals six convictions: three for aggravated sexual assault of a child and three for indecency with a child. On his open pleas of guilty, appellant was found guilty of each of the offenses. The trial judge assessed a forty-year sentence in each of the aggravated sexual assault cases and a twenty-year sentence in each of the indecency with a child offenses. In his sole issue on appeal, appellant contends the trial court reversibly erred during the punishment hearing by considering extraneous acts that were not proven beyond a reasonable doubt. Appellant seeks a new punishment hearing. See Tex. Code Crim. Pro. Ann. 44.29(b) (Vernon Supp. 2005). Resolving appellant's issue against him in each case, we affirm each judgment.
Cause nos. 05-05-00577-CR, 05-05-00578-CR, and 05-05-00579-CR.
Cause nos. 05-05-00575-CR, 05-05-00576-CR, and 05-05-00580-CR.
Background
On February 21, 2005, appellant pleaded guilty to each of the six offenses without an agreed recommendation of punishment. In each case, appellant's judicial confession was admitted, without objection, in which he confessed to committing the offense just as it was charged. Appellant also testified at the plea hearing. Without finding appellant guilty, the trial court recessed the proceedings until March 10, 2005, and ordered a presentence investigation report (PSI). When the hearing resumed on March 10, the PSI was presented to the trial court, without objection. The trial court also heard testimony from several witnesses and was presented other documentary evidence. The State called as witnesses the complainant, A.C., who is appellant's stepdaughter, and appellant's biological daughter, O.R. A.C. testified she was thirteen years old and in the eighth grade at the time of trial. She had recently been given a medal for good grades and a good attitude in English class. She has three brothers and one sister. Appellant is her mother's husband. A.C. was about seven or eight years old and in the second grade when her mother moved in with appellant. While A.C. was still in the second grade, appellant began touching her private parts. The sexual contact gradually escalated and appellant touched her with his hand and his penis. When A.C told appellant she did not want him to touch her, he would act sad. This made her feel guilty, so she would comply. Sometimes appellant would say mean things to her. Once, he told her she was stupid and said a "cuss word" in Spanish when he was mad at her. When A.C. was in the fifth grade, her mother was sentenced to prison. Shortly thereafter, appellant began having sexual intercourse with A.C. about once a week. Appellant told A.C. what they were doing was normal-that it was his job as her father to teach her about sex. At first, A.C. did not know what appellant was doing to her was wrong. However, after seeing a television program about sexual abuse when she was ten years old, A.C. realized that appellant was sexually abusing her. A.C. never told her mother or her grandmother about the abuse. Eventually, A.C. told O.R., her stepsister, about the abuse, but only after O.R. told A.C. that she, too, had been sexually abused by appellant. O.R. testified that she was twenty-six years old and the mother of two children. Appellant is her biological father. O.R. had suspicions that sexual abuse was happening to A.C. because it had happened to her. During direct examination, the following occurred:[Prosecutor]: Did you have at some point some suspicions about maybe that something was happening to your step-sister, [A.C.]?[O.R.]: Yes. [Prosecutor]: And, why was that? [O.R.]: Well, it happened to me and
[Defense counsel]: Judge, we would object to unsubstantiated extraneous offenses and the court considering any of that for punishment in this case.[The Court]: Overruled. O.R. testified that she was about eleven years old and in the fifth grade when appellant began molesting her. He told O.R. that it was his job as her father to teach her about sex. However, after he began having sexual intercourse with her, O.R. knew that was wrong. She told a school counselor about the abuse, and CPS came and removed appellant from the home. Charges, however, were never pursued. Because of her experience, O.R. could see similar actions and reactions with A.C. Appellant never allowed A.C. to go anywhere unless he was with her and A.C. was not allowed to talk on the telephone. Appellant would never let O.R. be alone with A.C. However, one night, O.R. spent the night at appellant's home. O.R. told A.C. a story about a little girl who was sexually abused. At the end of the story she told A.C. that she, O.R., was that little girl. A.C. then just "let it out." O.R. reported the abuse anonymously to CPS. Although CPS apparently investigated, no action was taken. About a year or so later, O.R. suspected the abuse was still happening, and after confirming that it was, she arranged to assist A.C. in leaving appellant's home. O.R. picked A.C. up at an elementary school near appellant's home. O.R. described how A.C. was shaking, sweating, scared, and crying when O.R. picked A.C. up at the school. The next day, O.R. took A.C. to the Children's Advocacy Center and, eventually, to the doctor and the police. As a result, these six cases were filed. A.C.'s medical records were also admitted into evidence. The defense presented evidence from a psychologist, Dr. William Flynn. Flynn had interviewed and evaluated appellant and prepared a report for the purpose of mitigation of punishment. Appellant had expressed shame and remorse and had sent a letter to A.C. letting her know he was sorry and essentially confessing to the crimes. Flynn did not see a very large traumatic effect on A.C. Flynn concluded that appellant had a low risk of re-offending and recommended mitigation of appellant's punishment. Appellant testified in his own behalf. He testified he would soon be fifty-eight years old. He was born in Mexico and had come to the United States in 1960. He had learned to speak English well and, when he was fourteen years old, he began working in the landscape business. While he was in jail, appellant had fallen in the shower and injured his scrotum. He was not given medication for the injury. Appellant later got an infection and ultimately had surgery. As a result, he became impotent. Appellant expressed remorse for what he had done and admitted he had "made a mistake." However, appellant also admitted that he had lied to Flynn about not penetrating A.C. Appellant admitted he deserved to go to the penitentiary, but he was hoping for probation.
Applicable Law
Evidence of extraneous crimes or bad acts is admissible during the punishment phase to the extent the trial court deems it relevant to sentencing. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Supp. 2005). Punishment evidence includes any matter the court deems relevant to sentencing, including evidence of other crimes or bad acts. See id.; Tracy v. State, 14 S.W.3d 820, 825 (Tex.App.-Dallas 2000, pet. ref'd). The scope of punishment evidence is broad so as to enable a fact finder to assess an appropriate sentence for a particular defendant. See Rogers v. State, 991 S.W.2d 263, 265 (Tex.Crim.App. 1999).When, as here, punishment is assessed by a trial court, the trial court's role is a dual one: it acts as both a gatekeeper and a fact finder. The trial court acts as a gatekeeper in determining the threshold issue of the relevance of extraneous offense evidence. See State v. Medrano, 127 S.W.3d 781, 791 (Tex.Crim.App. 2004). The trial court acts as a fact finder in determining whether the extraneous offense evidence was proved beyond a reasonable doubt, which a fact finder must determine before it can properly consider that evidence in assessing punishment. See Ortega v. State, 126 S.W.3d 618, 622 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd). In order to show reversible error resulting from improperly admitted extraneous offense evidence, an appellant must present the appellate court with a record that affirmatively reflects that the trial court, acting as a fact finder, considered such evidence when assessing appellant's punishment. Otherwise, the appellate court cannot determine whether appellant was harmed by such evidence. See Lockett v. State, 16 S.W.3d 504, 506 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd).
Analysis
Appellant recognizes that evidence of extraneous crimes or bad acts is admissible during punishment. He contends, however, that O.R.'s allegations did not amount to proof beyond a reasonable doubt, pointing out that appellant was never charged with having abused O.R. Appellant argues that it is reasonable to assume that if the CPS investigation had found the allegations to be true, there would be some additional corroborating evidence. Yet, the State presented none. Therefore, argues appellant, O.R.'s bare assertions did not amount to proof beyond a reasonable doubt that appellant had engaged in such extraneous acts.Further, relying on Gipson v. State, 844 S.W.2d 738, 740-41 (Tex.Crim.App. 1992), as authority that there is no longer a presumption a trial court will disregard inadmissible evidence, appellant urges that the extraneous offense allegations were certainly considered by the trial court in assessing appellant's punishment. Appellant points to the State's argument to the trial court that appellant should be punished for what he did to these "two girls" as evidence that he was harmed by the extraneous offense evidence. The State responds that appellant waived his claim by not requesting a ruling on whether the trial court actually considered the extraneous acts in assessing punishment. Alternatively, the State asserts that appellant's claim fails because O.R.'s testimony alone was sufficient for the trial judge to conclude beyond a reasonable doubt that the extraneous sexual assaults occurred. Appellant's suggestion that the evidence was insufficient to allow a fact finder to conclude the offenses against O.R. were proved beyond a reasonable doubt because criminal charges were not filed on the extraneous offenses against O.R. is without merit. Even though no charges were filed, appellant was removed from the home following an investigation by CPS. Furthermore, a complainant's testimony, standing alone, is sufficient evidence to prove the occurrence of a sexual assault. See Garcia v. State, 563 S.W.2d 925, 928 (Tex.Crim.App. [Panel Op.] 1978). No corroborating evidence is required. See Empty v. State, 972 S.W.2d 194, 196-97 (Tex.App.-Dallas 1998), pet. ref'd). Further, during the State's cross-examination of appellant, the following occurred:
[Prosecutor]: This is something that you've done to your daughter and your step-daughter that's going to affect them for the rest of their life, right?[Appellant]: Yes, ma'am.
[Prosecutor]: And, based on that you think you ought to be able to walk out of this door and be on probation?[Appellant]: No, ma'am. [Prosecutor]: No, you deserve to go to the pen, don't you? [Appellant]: Yes, ma'am. (Emphasis added.) Thus, O.R.'s testimony was corroborated both by CPS's action in removing appellant from the home after its investigation and appellant's own testimony that he had molested O.R. as well as A.C. We conclude, therefore, that no error occurred. Moreover, even if the trial court did err, we conclude appellant was not harmed by the error. The record does not affirmatively reflect the trial court found the extraneous offense evidence to be proved beyond a reasonable doubt or that the judge considered it in assessing appellant's punishment, nor may we assume the trial court did. See Lockett, 16 S.W.3d at 506. Moreover, the punishment range for the aggravated sexual assault offenses was five to ninety nine years or life imprisonment and up to a $10,000 fine. See Tex. Pen. Code Ann. §§ 12.32, 22.021 (Vernon 2003 Supp. 2005). The punishment range for the indecency with a child offenses was two to twenty years imprisonment and up to a $10,000 fine. See id. §§ 12.33, 21.11. The twenty-year sentences for the indecency with a child offenses were at the top of the punishment range, but the forty-year sentences for the aggravated sexual assaults were at the lower middle end of the punishment range. And, no fines were assessed. Having reviewed the record, we conclude appellant was not harmed by any error. See Lockett, 16 S.W.3d at 506; see also Tex.R.App.P. 44.2(b). We resolve appellant's sole issue against him. We affirm the trial court's judgments.