Opinion
05-22-00314-CR
07-31-2023
ROBERTO TORRES, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from the 397th Judicial District Court Grayson County, Texas Trial Court Cause No. 072709
Before Justices Molberg, Reichek, and Breedlove
MEMORANDUM OPINION
KEN MOLBERG, JUSTICE
Roberto Torres was charged by indictment with indecency with a child by sexual contact. After he pleaded not guilty and waived a jury, the trial court found "the proof rises to the level of beyond a reasonable doubt of the lesser-included charge of attempt to commit indecency with a child by sexual contact," convicted Torres of that lesser-included offense, and sentenced him to four years' confinement in Texas Department of Criminal Justice's Institutional Division. On appeal, Torres argues the trial court erred in allowing a SANE nurse and a forensic interviewer from the local children's advocacy center to testify about certain out-of-court statements made to them by the alleged victim, when those two witnesses were not disclosed as outcry witnesses and were not the first person to whom the alleged victim made an outcry. See Tex. Code Crim Proc. § 38.072. For the reasons discussed below, we affirm the judgment as modified in this memorandum opinion. See Tex. R. App. P. 47.4.
See Tex. Penal Code §§ 15.01 (criminal attempt), 21.11 (indecency with a child). An indictment for a consummated offense puts a defendant on notice that he or she is also charged with an attempt to commit the offense charged. See Hill v. State, 521 S.W.2d 253, 255 (Tex. Crim. App. 1975) (stating this in a case involving an indictment for burglary and a conviction for attempted burglary).
A SANE nurse is a sexual assault nurse examiner.
Information Under Seal
Before considering Torres's sole issue, we must address a preliminary matter, as the record before us is sealed, in part. This presents a dilemma because the evidence and trial court's rulings that are the subject of Torres's appeal are included in the sealed record and because our opinions are a matter of public record, even when designated as memorandum opinions pursuant to rule of appellate procedure 47.4. While we cannot decide this appeal without mentioning some key facts, as much as possible, we have avoided specific details, made some references deliberately vague to avoid disclosure of sensitive details, and made every effort to preserve the confidentiality of the sealed information. See, e.g., In re S.L., No. 05- 21-00874-CV, 2022 WL 896874, at *1 (Tex. App.-Dallas March 28, 2022, pet. denied) (mem. op.) (per curiam) (addressing similar dilemma).
See Tex. Gov't Code § 552.022(a)(12) ("final opinions, including concurring and dissenting opinions, and orders issued in the adjudication of cases" are "public information").
Issue and Analysis
In his sole issue on appeal, Torres argues the trial court erred in allowing witnesses to testify about hearsay statements made to these witnesses by the alleged victim when such witnesses were not disclosed as "outcry witnesses" and were not the first "outcry witness" of the alleged victim. In a parenthetical to his sole issue on appeal, Torres specifically cites to pages thirty-two to thirty-four of the clerk's record and to pages 9-24, 60-72, 96-108, and State's Exhibit 1 in volume two of the reporter's record, which together refer to the article 38.072 notice; the entirety of the trial testimony from the alleged victim, the SANE nurse and the forensic interviewer; and State's Exhibit 1, the SANE nurse's chart from the child advocacy center. Except for the article 38.072 notice, all of the cited information is included in the sealed portion of the record.
See Tex. Code Crim. Proc. art. 38.072, § 2(b). The article 38.072 notice is included in the clerk's record. In that notice, the State notified Torres of various hearsay statements by the alleged victim and identified only one witness-the alleged victim's mother-through whom it intended to offer evidence of those statements. The mother testified about those statements at trial, without objection by Torres.
We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard and reverse a trial court's evidentiary ruling only if it is outside the "zone of reasonable disagreement." Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh'g); see Tear v. State, 74 S.W.3d 555, 558 (Tex. App.-Dallas 2002, pet. ref'd) (same). The trial court is given considerable latitude regarding its evidentiary rulings. Fowler v. State, 544 S.W.3d 844, 848 (Tex. Crim. App. 2018). We also review a trial court's outcry-witness determination for abuse of discretion. Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990); Rodgers v. State, 442 S.W.3d 547, 552 (Tex. App.-Dallas 2014, pet. ref'd).
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted in the statement. Tex. R. Evid. 801(d); Bahena v. State, 634 S.W.3d 923, 927 (Tex. Crim. App. 2021). Hearsay is inadmissible unless made admissible by statute or rule. Tex. R. Evid. 802; Bahena, 634 S.W.3d at 927. Article 38.072 of the code of criminal procedure provides a hearsay exception, in certain proceedings,for out-of-court statements that (1) describe the alleged offense, (2) are made by the child against whom the charged offense was allegedly committed, and (3) are made to the first person, eighteen years of age or older, other than the defendant, to whom the child made a statement about the offense. Tex. Code Crim. Proc. art. 38.072, § 2(a); see Bays v. State, 396 S.W.3d 580, 581 & n.1, 585 (Tex. Crim. App. 2013).
The statute applies to a proceeding in the prosecution of an offense under certain provisions of the Texas Penal Code, if committed "against a child younger than 14 years of age or a person with a disability." Tex. Code Crim. Proc. art. 38.072, § 1.
At trial, Torres's counsel objected, on hearsay grounds, to the admission of State's Exhibit 1 and to certain questions to the SANE nurse and forensic interviewer about the alleged victim's out-of-court statements to them about Torres's conduct. When Torres made hearsay objections to the admission of State's Exhibit 1 and to a certain question to the SANE nurse about the alleged victim's out-of-court statements, the trial court overruled the objections. But when Torres objected to a similar question to the forensic interviewer, the trial court allowed the State to ask additional questions as the court considered Torres's pending hearsay objection and ultimately struck the forensic interviewer's testimony "as it relates to an additional outcry."
In his appeal brief, Torres argues the trial court abused its discretion in admitting State's Exhibit 1 and allowing the SANE nurse and forensic interviewer to testify about the alleged victim's out-of-court statements to them about Torres's conduct. He also argues this error affected his substantial rights and asks that we reverse the judgment and remand for a new trial. The State asks that we affirm the judgment because, it argues, (1) Torres's current complaint does not comport with the hearsay objections he made at trial, (2) the SANE nurse's testimony and State's Exhibit 1 were excepted from the hearsay rule, and (3) no error occurred because the trial court struck the forensic examiner's testimony. Ultimately, we agree with the State that we should affirm the trial court's judgment, but our reason for doing so is slightly different than the reasons argued by the State.
As to the State's first argument, for purposes of this appeal, we assume, but do not decide, that Torres's hearsay objection preserved his issue for appellate review. Although Torres did not specifically mention article 38.072 when making his general hearsay objections at trial, one of our sister courts concluded, "[A] general 'hearsay' objection by the defendant can be sufficient to inform the trial court of the defendant's complaint regarding testimony disclosing an outcry statement." Cordero v. State, 444 S.W.3d 812, 818 (Tex. App.-Beaumont 2014, pet. ref'd) (citing Long v. State, 800 S.W.2d 545, 548 (Tex. Crim. App. 1990)). We made a similar observation in Aaron v. State, No. 05-07-00596-CR, 2008 WL 2426667, at *2 (Tex. App.-Dallas June 17, 2008, no pet.) (not designated for publication) when, in a case involving arguments regarding article 38.072, we stated, "[A] general hearsay objection is sufficient to preserve such an issue for appeal."
Even if we also assumed the court erred in allowing the disputed evidence, we conclude the trial court's error, if any, was harmless and did not affect Torres's substantial rights based on this record. As we stated in Aaron, in a similar context:
Because the alleged error is non-constitutional, we apply the harm analysis provided in rule 44.2(b). See Duncan, 95 S.W.3d at 672; see also Tex. R. App. P. 44.2(b). Non-constitutional error must be disregarded unless it affects the substantial rights of the defendant. Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001). 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); Duncan, 95 S.W.3d at 672. A conviction should not be overturned for such error if, after examining the record as a whole, we have a fair assurance that the error did not influence the jury or had but a slight effect. Duncan, 95 S.W.3d at 672 (citing Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998)). Similarly, improper admission of evidence is not reversible error if the same or similar evidence is admitted without objection at another point in the trial. Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App.1998); see also Duncan, 95 S.W.3d at 672 (improper admission of
outcry testimony harmless error because similar testimony admitted through complainant, pediatrician, and medical records).Id., at *3. Here, the record reveals the trial court struck the forensic interviewer's testimony "as it relates to an additional outcry," and the statements by the SANE nurse largely repeated certain testimony from the unobjected-to trial testimony of the alleged victim and her mother regarding Torres's conduct.
See Duncan v. State, 95 S.W.3d 669, 671 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd).
As a result, we conclude the error, if any, by the trial court in allowing the disputed evidence was harmless and did not affect Torres's substantial rights. See id.; see also Mayes v. State, 816 S.W.2d 79, 88 (Tex. Crim. App. 1991) ("[I]nadmissible evidence can be rendered harmless if other evidence at trial is admitted without objection and it proves the same fact that the inadmissible evidence sought to prove.") (quoting Anderson v. State, 717 S.W.2d 622, 628 (Tex. Crim. App. 1986)). We overrule Torres's sole issue.
Modification of Judgment
Although Torres and the State do not raise this issue, we also modify the judgment to reflect the correct statute under which Torres was convicted.
This Court has the power to correct and reform the trial court's judgment to make the record speak the truth when we have the necessary data and information to do so. See Abron v. State, 997 S.W.2d 281, 282 (Tex. App.-Dallas 1998, pet. ref'd), (citing Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993)). A court of appeals may "modify the trial court's judgment and affirm it as modified." Tex.R.App.P. 43.2(b).
Here, while the judgment correctly describes the offense as "Attempt to Commit INDECENCY W/CHILD SEXUAL CONTACT," the judgment cites "21.11(d)" as the statute for the offense. However, the record shows Torres was convicted of attempted indecency with a child by sexual contact, rather than the underlying consummated offense. As a result, the judgment should have listed Texas Penal Code § 15.01, not § 21.11, as the statute for offense. See Tex. Penal Code §§ 15.01 (criminal attempt), 21.11 (indecency with a child); Parfait v. State, 120 S.W.3d 348, 351 (Tex. Crim. App. 2003) (explaining that a person found guilty of an attempted offense is convicted under section 15.01, not the underlying Penal Code provision). Accordingly, we modify the judgment to reflect that Torres was convicted under Texas Penal Code § 15.01(a) by removing the numbers "21.11" after the phrase "Statute for Offense" and replacing those numbers with "15.01(a)." See Sanchez v. State, No. 05-19-01053-CR, 2021 WL 1940455, at *6 (Tex. App.- Dallas May 14, 2021, no pet.) (mem. op., not designated for publication) (making similar modification).
Conclusion
As modified, we affirm the trial court's judgment.
JUDGMENT
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows: by removing the numbers "21.11" after the phrase "Statute for Offense" and replacing those numbers with "15.01(a)." As REFORMED, the judgment is AFFIRMED.