No. 05-05-00829-CR.
Opinion issued January 29, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.
On appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-52875-LU.
Before Justices MORRIS, LANG, and LANG-MIERS.
ELIZABETH LANG-MIERS, Justice.
A Dallas county jury convicted appellant Juan Ramon Arguelles of aggravated sexual assault of G.M., his thirteen-year-old niece, and sentenced him to thirteen years' confinement. On appeal, appellant argues that the evidence is factually insufficient to support the conviction because the trial testimony is inconsistent and contradictory and establishes that G.M. falsely accused him of sexually assaulting her. He also argues that the trial court erred by admitting therapist Jennifer Perla's testimony that G.M. told Perla that family members were pressuring her and her mother to drop the charges. We affirm.
FACTS
Around 8:00 p.m. on June 23, 2003, paramedic Sonny Gilcrease responded to an emergency call that a person was unconscious. When he arrived, G.M. was in a "hyperventilation stage. . . . She was breathing real fast and hard." Once he calmed her down, she told him that "her uncle made her put her mouth on her [sic] thing and she motioned, like, out by a garage or something." When Gilcrease first saw her, she was very upset, distraught, and nervous, and she was afraid her uncle was going to come back. From the way she was acting, Gilcrease thought the assault must have occurred in the last thirty minutes to an hour. Officer Larry Ashley also responded to the call and testified that G.M. told him that: [H]er uncle had forced her to have oral sex with [him]. She was very distraught. It happened in the bedroom. She went into very good detail about the ejaculation going over the sheets, having to clean it up with the sheets and then washing the sheets. She also said it wasn't the first time. That was one of my questions to her. She said, no, it wasn't. I asked about if it happened anywhere else. She said, "Yes, outside by the garage." I asked more details about that, when and where — or when and what time that took place, and she just kept going back to the bedroom deal. That was the most recent one. G.M. testified that appellant put his penis in her mouth behind appellant's mother's house. G.M. and her brothers were staying with their aunt Alicia, G.M.'s mother's sister, and appellant at the time. G.M. was standing between the house and the garage with her cousin, Rafael, another boy named Raphael, and appellant. She and her cousin Rafael left to go look at the chickens. Appellant followed them and grabbed G.M.'s arm, telling her cousin that G.M. had to leave early because her aunt was looking for her. Appellant turned G.M. around and kissed her and put his hand on her breast. Rafael saw appellant touch her and told him to let her go and pushed him. Appellant said, "Okay, fine" and that he was going to take G.M. inside. Rafael left. After Rafael left, appellant pulled her behind the garage and was holding her arm tightly. Her arm was hurting a lot and "felt heavy." He was saying, "Come here. Come here." He pushed her to her knees, put his hand on her head, and placed his penis in her mouth. She bit him, got up, and was going inside when he told her that "he was going to tell [her] family that he didn't do nothing to [her], that [she] made that up and that [she] was back there with [her] cousin having sex or something." She did not tell anyone about the incident when she got inside the house because she did not want him to tell her family that she was having sex with her cousin. They eventually returned to her aunt and appellant's house where she spent the night. She was afraid that appellant would assault her again. Because she was scared, she never fell asleep and removed the door knob from the door of the bedroom in which she was staying. Two or three days later, G.M. told her friend Karla about the incident because she "couldn't stay calmed down, and so [Karla] asked [her] what was wrong." After she told Karla, they told Karla's mom, Bianey. G.M. did not give details to Bianey. Another day passed and Bianey told G.M.'s mother because G.M. was too scared. After Bianey told G.M.'s mother, Bianey left, and G.M. and her mother talked about the incident. G.M. fainted, and her family members called the police. G.M. testified without objection that several family members tried to get G.M.'s mother to drop the charges, including her cousin Rafael, aunt Alicia, aunt Clarisa, and her grandmother. G.M.'s mother testified without objection that G.M.'s cousin Rafael called them days or weeks after the incident crying on the phone to please drop the charges because appellant's family was "beating him up at the moment." Rafael also testified without objection that he called G.M. and asked her to drop the charges because appellant's uncle threatened him. Therapist Jennifer Perla testified over objection that G.M. had told her that family members were pressuring her and her mother to drop the charges. She said they were telling G.M. that appellant would go to jail, that Alicia would have their baby and have no form of support, that appellant would never see his child, and that it would disrupt the whole family. Appellant's mother, Catarina Fatikaty, testified in appellant's defense that on the day of the offense, G.M.'s demeanor appeared normal. G.M. had the opportunity to talk to Fatikaty alone but did not say anything about the offense. Alicia Arguelles, appellant's wife and G.M.'s aunt, also testified that G.M.'s demeanor on the day of the offense was normal and that she even laughed with appellant that evening. Appellant testified that he saw G.M. behind the house in a gated area with Rafael. He became angry and grabbed G.M. by the hand. He told her to "get in" and told Rafael to go home. He denied sexually assaulting G.M. FACTUAL SUFFICIENCY
In his first issue, appellant argues that the evidence is factually insufficient because (1) G.M. did not make an immediate outcry; (2) when paramedic Gilcrease asked her about the sexual assault, she motioned to the backyard of her own residence; (3) she told Officer Ashley that appellant had also assaulted her in a bedroom but testified at trial that she did not tell the officer that appellant had assaulted her in her bedroom and that appellant had assaulted her only one time; (4) G.M.'s mother testified that she told her sister, Clarisa, that she wanted to drop the charges because G.M. lied all the time and was probably lying about the instant offense; (5) appellant's mother and wife did not notice any change in G.M.'s demeanor on the day of the assault; (6) appellant denied committing the offense and testified that he saw G.M. and her cousin Rafael inside a closed gate on the day of the offense; and (7) the State did not offer physical evidence, medical testimony, or confessions establishing that appellant committed this offense. The State contends that G.M. did make an outcry within days of the incident, that the medical expert testified that there is not always DNA evidence in cases involving oral copulation, that G.M.'s motioning to her own backyard and her statement to Officer Ashley that the assault occurred in the bedroom may have resulted from fear and pressure from family members and that a Spanish translator was relaying her statements. And therapist Perla testified that appellant's mother and wife may not have noticed any change in G.M.'s demeanor on the day of the offense because children generally try not to let people know what happened. Perla testified that they feel ashamed, embarrassed, threatened, and unsure of how their family and friends will react to an outcry. Standard of review The court of criminal appeals has recently revised the standard for reviewing claims of factual insufficiency to bring it in line with civil practice. Marshall v. State, No. AP-75,048, 2006 WL 3733198, at *5 (Tex.Crim.App. Dec. 20, 2006) (citing Watson v. State, 204 S.W.3d 404 (Tex.Crim.App. 2006)). Evidence that rationally supports a verdict of guilt beyond a reasonable doubt under the Jackson v. Virginia, 443 U.S. 307 (1979) legally sufficiency standard can still be factually insufficient when the verdict seems clearly wrong or manifestly unjust or against the great weight and preponderance of the evidence. Id . The legal and factual sufficiency standards both require the reviewing court to consider all of the evidence. Id. The difference between the two standards is that the former requires the reviewing court to defer to the jury's credibility and weight determinations while the latter permits the reviewing court to substitute its judgment for the jury's on these questions "albeit to a very limited degree." Id. (quoting Watson, 204 S.W.3d at 416-17); see also Johnson v. State, 23 S.W.3d 1, 9 (Tex.Crim.App. 2000) (holding that factual-sufficiency review requires reviewing court to afford "due deference" to a jury's determinations); Clewis v. State, 922 S.W.2d 126, 135 (Tex.Crim.App. 1996) (holding that factual-sufficiency review requires "deferential standards of review applied" to jury verdicts). A factual-sufficiency review is barely distinguishable from a Jackson v. Virginia legal sufficiency review. Marshall, 2006 WL 3733198, at *5. Elements of the offense A person commits aggravated sexual assault if he causes the penetration of the mouth of a child by the sexual organ of the actor or causes the mouth of a child to contact the sexual organ of another person, including the actor, and the victim is younger than fourteen years of age. Tex. Pen. Code Ann. § 22.021. Analysis The evidence in this case is factually sufficient to support a finding that appellant sexually assaulted the victim. G.M. testified in detail to the events leading up to and including the assault, some of which her cousin Rafael corroborated. She also told the same story to her friend Karla, paramedic Gilcrease, Officer Ashley, forensic interviewer Alejandra Torres, and therapist Jennifer Perla. Evidence that the complainant initially told a police officer that appellant also assaulted her in the bedroom and then later denied it impacts her credibility. But the jury heard all of the evidence and was in the best position to evaluate G.M.'s credibility. And our factual-sufficiency jurisprudence still requires an appellate court to afford "due deference" to the jury's determinations. Marshall, 2006 WL 3733198, at *5 (citing Johnson, 23 S.W.3d at 9 (holding that factual-sufficiency review requires reviewing court to afford "due deference" to jury's determinations), Watson, 204 S.W.3d at 416-17 (holding that very nature of factual-sufficiency review allows reviewing court to sit as thirteenth juror "albeit to a very limited degree"), and Clewis, 922 S.W.2d at 135). On this record, we cannot conclude that the jury's verdict seems clearly wrong and manifestly unjust or against the great weight and preponderance of the evidence. See Marshall, 2006 WL 3733198, at *5 (citing Watson, 204 S.W.3d at 415). We overrule appellant's first issue. ADMISSION OF THERAPIST'S TESTIMONY
In his second issue, appellant argues that the trial court erred in admitting the testimony of therapist Jennifer Perla "concerning the complainant's hearsay statements regarding what the family members had said that, in turn, the complainant told to the therapist during the counseling sessions." At trial, she testified over objection that G.M. had revealed to her in counseling sessions that family members were pressuring her and her mother to drop the charges. She testified that they told her appellant would have to go to jail, that Alicia would have their baby and no form of support, that appellant would never see his child, and that it would disrupt the whole family. Appellant argues that the testimony did not fall under Rule 803(4) "Statements for Purposes of Medical Diagnosis or Treatment," the hearsay exception under which the trial court admitted it. The State responds, in part, that the statements are not hearsay. Standard of review and law We review the trial court's decision to admit Perla's testimony over appellant's hearsay objection under an abuse of discretion standard. Coffin v. State, 885 S.W.2d 140, 149 (Tex.Crim.App. 1994). Hearsay is a "statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Tex. R. Evid. 801(d). The trial court may admit an out-of-court statement as circumstantial evidence from which an inference may be drawn, and not for the truth of the matter asserted, without violating the hearsay rule. West v. State, 121 S.W.3d 95, 106 (Tex.App.-Fort Worth 2003, pet. ref'd) (citing Gholson v. State, 542 S.W.2d 395, 398 (Tex.Crim.App. 1976)). Analysis The State did not offer Perla's statements to prove that Alicia would not have any form of support or that appellant would never see his child or that a conviction would disrupt the family. The State offered the statements to show how G.M. reacted to perceived pressures. Perla testified that G.M. was depressed and possibly suicidal and that her self-esteem diminished when her family was around. See West, 121 S.W.3d at 105-06 (holding that mother's testimony that a social worker had recommended that she talk to the victim about the assault was not hearsay because the State offered the testimony to show what happened next in the chain of events once the victim had been interviewed on videotape). Further, the court of criminal appeals has held that overruling an objection to evidence will not result in reversal when the trial court received other such evidence without objection, either before or after the complained-of ruling. Leday v. State, 983 S.W.2d 713, 718 (Tex.Crim.App. 1998). This rule applies whether the defendant or State introduced the other evidence. Id. In this case, G.M., G.M.'s mother, and Rafael testified without objection that family members were pressuring G.M. and her mother to drop the charges, essentially the same testimony the jury heard through Perla. As a result, the trial court did not err in admitting the testimony. See Gurka v. State, 82 S.W.3d 416, 422-23 (Tex.App.-Austin 2002, pet. ref'd) (holding that trial court did not abuse its discretion in admitting testimony that was neither new nor offered to prove the substance of the out-of-court statement). We overrule appellant's second issue. CONCLUSION
We conclude that the evidence was factually sufficient to support the verdict and that the trial court did not abuse its discretion in admitting Perla's testimony. We affirm the trial court's judgment. Tex. R. App. P. 43.2(a).