Opinion
06-20-00134-CR
10-22-2021
JOSE ALFONSO FRAIRE DELAROSA, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish
Date Submitted: August 6, 2021
On Appeal from the 219th District Court Collin County, Texas Trial Court No. 219-82367-2019
Before Morriss, C.J., Burgess and Stevens, JJ.
MEMORANDUM OPINION
SCOTT E. STEVENS, JUSTICE
A Collin County jury convicted Jose Alfonso Fraire Delarosa of continuous sexual assault of a child. See Tex. Penal Code Ann. § 21.02. Delarosa was sentenced to sixty years' imprisonment. On appeal, Delarosa argues that the trial court (1) erred in denying his motion for mistrial, (2) erred in admitting a State's exhibit that represented a timeline of events described by the complainant, and (3) erred in denying defense counsel the opportunity to cross-examine or impeach the complainant with the contents of a forensic interview. Delarosa also contends that the evidence was insufficient to support the jury's verdict and that the State made an improper argument in closing. For the reasons stated below, we overrule all of Delarosa's points of error and affirm the trial court's judgment.
Originally appealed to the Fifth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See Tex. Gov't Code Ann. § 73.001. We are unaware of any conflict between precedent of the Fifth Court of Appeals and that of this Court on any relevant issue. See Tex. R. App. P. 41.3.
I. Background
Complainant Helena was nineteen years old at trial. She described abusive conduct by Delarosa beginning when she was six years old and lasting for about two years. Helena testified to several acts by Delarosa, all but one of which qualify as sexual assault offenses.
To protect the complainant's privacy, we refer to her by a pseudonym pursuant to Rule 9.10(a)(3) of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 9.10.
The first incident (the nap episode) occurred when Helena was six years old and in the first grade. This event occurred at the family home on Violet Drive in Allen, Texas. Delarosa was babysitting Helena and her younger brother and sister. He told the children it was time to take a nap. The three children and Delarosa then went to lay down. Helena was between a wall and Delarosa, and the other two children were on the other side of Delarosa. Helena said it was unusual for Delarosa to put the children down for a nap; this apparently was the only time he did so. The other two children fell asleep. A short time later, Helena felt one of Delarosa's hands on her stomach, thighs, and shoulders. He tried to unbuckle her pants but could not. Then the other two children woke, and Delarosa ceased his conduct.
There were two beds pushed together, and those were pushed against a wall.
Helena described a second incident (the parent's room event), which occurred sometime after the first incident. On this occasion, Delarosa led Helena to her parents' room. Helena recalled that she was wearing a red skirt. She also remembered that the bed was unmade and that this event occurred during the daylight hours. Delarosa locked the bedroom door and told Helena to watch television with him. Helena recalled the news playing on the television. Delarosa then sat on the couch in the bedroom. He picked Helena up and put her on his lap. Delarosa then pulled down her underwear with his right hand. Helena was scared and "really, really uncomfortable." Delarosa got Helena's underwear down to her knees then "started to touch [her] thighs, [her] inner thighs, and [her] vagina." She described feeling "uncomfortable," as if Delarosa was applying "a lot of pressure" on her vagina. After a few minutes, Delarosa put her down and went to the restroom. A few minutes later, after Helena heard water running, Delarosa emerged and left the bedroom; Helena went to her room. Delarosa then went to her room and gave her his phone, on which Helena watched a Hannah Montana program.
Helena described the touching as applying "a lot of pressure." She said he tried to penetrate her vagina with his finger, but her testimony is not clear as to whether he did penetrate.
Helena said, "It -- hurt. I remember making noises kind of hinting that it hurt, but he didn't stop."
Helena said this was a "treat" for her because she did not have a phone.
A third incident (the upstairs incident) occurred at another home that the family owned in Allen. Helena described a day where her mother (Mother) and grandmother were downstairs or outside the house and Delarosa called Helena upstairs. Once she was in his room, he closed and locked the door. She described the room as "messy" with a mattress on the floor. Delarosa "pulled his pants down" and "took out his penis." She described his penis as "hairy" and "darker than the rest of his skin." Delarosa told his niece in Spanish, "Chuparlo." Helena said that this meant "[s]uck on it." Helena told him "[N]o," but he "said it a couple of times" and "told [her] to get closer." Delarosa, according to Helena, held his penis in his left hand and "with his right one he . . . signal[ed her] to come closer." Although she initially refused, she eventually complied after Delarosa told Helena that her mother would "leave" and "something bad was going to happen to her" if she did not do as he instructed.
At that point, Delarosa put his penis in Helena's mouth. Helena described Delarosa's actions as follows:
I remember I wasn't close enough. He put his hand on my shoulder to pull me closer, and I remember he put his right-hand on the back of my head and started to go further -- for my head to go further and, like, my mouth with his penis.
. . . .
I was really uncomfortable. I didn't want to do it any longer. It was the first time that, like, I didn't feel, like, abused. I remember just feeling like I didn't want to do it.
Helena heard him breathing heavily, moaning, and grunting. He ejaculated in her mouth. She "remember[ed that] it tasted super salty," that she spat it out, and that Delarosa laughed at her.
Sometime after the upstairs incident, there was a fourth incident (the family room incident) at the family home on Violet Street. This event occurred after Helena's mother had been deported to Mexico. This time Delarosa led Helena to the family room, where couch pillows or cushions were strewn about the floor. Delarosa asked Helena to lay on the cushions. He then took his penis out "[t]hrough his zipper and underwear" and removed Helena's clothes from her waist down. Delarosa rubbed his penis. He then knelt in front of Helena and "started to put it into [her] vagina." Helena said that this "hurt," "was painful," and "felt really uncomfortable." She was scared and thought of her absent mother. She said Delarosa's penis penetrated her vagina "[j]ust a little bit."
This period coincides with Mother's testimony that she had been deported in 2009; she was also deported in 2014. Helena testified that this event occurred in 2009, when she was in the second grade.
Helena did not remember if she wore a skirt or pants that day. Yet, she did testify she wore underwear that Delarosa removed.
Helena said of her mother, "[B]ecause she wasn't there, and I knew he had told me to do things, and if not, like, something would happen, and I knew by that time my mom wasn't there."
The line of testimony was:
Q. [The State] And was he able to put his penis inside of your vagina?
A. [Helena] No.
Q. Was he able to put any portion of his penis inside of your vagina?
A. Just a little bit.We assume this is the testimony to which Delarosa refers when, in his brief, he claims Helena denied any penetration occurred.
The fourth incident did not continue long. After a short time, Delarosa got up, left the room, and went to check on Helena's younger brother. Helena said that she "remember[ed] thinking that it was a lot more painful than the other times he touched [her]." "[T]he following days . . . [her] inner thighs were sore." She testified, "[Delarosa] would grab [her] legs, and he would, like, put pressure towards her iron [sic] thigh," holding her legs open. The "family room" incident was the last time Helena remembered Delarosa abusing her at the Violet Drive house in Allen.
The State followed up by asking, "He would put pressure towards your inner thigh with what?" Helena answered, "His hands."
The abuse stopped only when-while the family was together in Mexico-Helena's younger brother walked into a room and saw Delarosa "sitting in the chair, [Helena] in front of him" and Helena's "pants were all the way down, and [Delarosa's] hand was between her legs." Helena testified Delarosa had been touching her vagina and "biting and sucking [her] nipples."
The children's grandmother was informed after this event. She told the children that she would take care of the matter and that they should not tell anyone. Even so, she took no action other than, apparently, keeping Delarosa away from Helena. Helena never saw Delarosa again until his trial. The record is unclear as to how or when Helena's mother found out about the abuse.
When she was fifteen years old, Helena reported the abuse to law enforcement.
II. The Trial Court Did Not Error in Denying Delarosa's Motion for a Mistrial
In his first point of error, Delarosa argues that the trial court erred in denying his motion for a mistrial. We disagree.
During trial, Mother testified about how she learned of Helena's outcry allegations. When asked about her reaction when she was first made aware, Mother said her immediate reaction was to ask Helena why she had not told her of Delarosa's abuses. The State then asked if Helena "confirm[ed]" that she had made the allegations, and Mother answered, "Yes." Delarosa objected that this answer was hearsay. The trial court sustained the objection. Delarosa asked the trial court to instruct the jury to disregard Mother's last answer, which the trial court did. Delarosa then asked the trial court to declare a mistrial, but the trial court denied that request.
"An appellate court reviews a trial court's ruling on a motion for mistrial and motion for new trial using an abuse-of-discretion standard of review. We view the evidence in the light most favorable to the trial court's ruling and uphold the trial court's ruling if it was within the zone of reasonable disagreement." Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007). "[A] trial court abuses its discretion in denying a motion for new trial only when no reasonable view of the record could support the trial court's ruling." Id.
The Texas Court of Criminal Appeals has addressed when motions for new trial should be granted. See Young v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004). In Young, the court held,
An instruction to disregard attempts to cure any harm or prejudice resulting from events that have already occurred. Where the prejudice is curable, an instruction eliminates the need for a mistrial, thereby conserving the resources associated with beginning the trial process anew. Like an instruction to disregard, a mistrial serves a corrective function. However, the class of events that require a mistrial is smaller than that for which a sustained objection or an instruction to disregard will suffice to prevent or correct the harm. A grant of a motion for mistrial should be reserved for those cases in which an objection could not have prevented, and an instruction to disregard could not cure, the prejudice stemming from an event at trial-i.e., where an instruction would not leave the jury in an acceptable state to continue the trial. Therefore, a mistrial conserves the resources that would be expended in completing the trial as well as those required for an appeal should a conviction occur.
A reviewing court "generally presume[s] the jury follows the trial court's instructions in the manner presented." Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998). In Colburn, the appellant complained on appeal that the trial court should have granted a mistrial.Rejecting this point of error, the Texas Court of Criminal Appeals noted that the jury was presumed to have followed the trial court's instruction. But the court also stated,
While deliberating, the jury sent a note asking, "Given a life sentence, is there a possibility of parole in this case?" Colburn, 966 S.W.2d at 519. The trial court's response generally instructed that the jury was not to consider parole in its deliberations. Id.
The presumption is rebuttable, but [Colburn] has pointed to no evidence in rebuttal. [Colburn] did not file a motion for new trial alleging juror misconduct or obtain a hearing to adduce facts not in the record. As such, the only evidence that the jury considered parole is the jury note. Even if the note constitutes evidence [that] the jury discussed parole at a preliminary point, we presume they followed the court's instructions and thereafter did not consider it in reaching their verdict.Id. Thus, the court held that the trial court did not abuse its discretion when it denied Colburn's requested mistrial. Id.
Similarly, Delarosa did not direct the court to any evidence in the record to rebut the presumption that the jury followed the trial court's instruction to disregard Mother's testimony. Delarosa did file a motion for a new trial, but only alleged that "[t]he judgments and sentences rendered against the Defendant . . . [were] contrary to the law and evidence." Delarosa's briefing also fails to direct us to any testimony or other trial evidence rebutting the presumption.
Delarosa cites Jenkins v. State, 493 S.W.3d 583 (Tex. Crim. App. 2016). There, it was discovered during trial that one juror had contacted an old high school friend in New York about Jenkins's murder trial. Id. at 609. Relying on the trial court's finding of no evidence that the juror had prior knowledge of the case or had "communicate[d] any outside knowledge to other jurors," the Texas Court of Criminal Appeals found no abuse of discretion in the trial court's denial of a mistrial. Id. at 613.
We, therefore, overrule this point of error.
III. Complaint About Timeline Waived
In his second point of error, Delarosa argues that the trial court erred by admitting State's Exhibit 10, a one-page timeline of events summarizing Helena's allegations. We find that this argument was not preserved for our review.
State's Exhibit 10 was a timeline that stated (1) the dates of birth for Helena and Delarosa; (2) Helena's age and grade level at times of the described abuse; (3) when each of the events occurred; (4) when Helena's brother discovered Delarosa with Helena's pants down; and (5) Helena's report of the allegations to law enforcement. Delarosa objected to Exhibit 10, stating,
Judge, I don't have any objection to this for demonstrative purposes. I don't see how it can be used for anything more than that.
This is a timeline, according to the complaining witness, of what took place and when it took place. It's not entirely consistent with what's in the other discovery that we provided, so I'm going to object to this, if they want to use it for record purposes.
Following Delarosa's objection, the trial court held a side bar discussion about the exhibit. After the discussion, the trial court admitted Exhibit 10 into evidence.
Shortly after Exhibit 10 was admitted into evidence, the State presented the exhibit to Helena and had her acknowledge that the events listed on the timeline were accurate. Helena then testified to all the events listed in the timeline. Delarosa raised no objections to Helena's testimony about the events listed in the timeline.
"The admission of the same evidence from another source, without objection, waives previously stated objections." Moore v. State, 999 S.W.2d 385, 402 (Tex. Crim. App. 1999). Delarosa waived his complaint by not objecting to Helena's testimony establishing the same facts summarized in the timeline document. As a result, this point of error is overruled.
IV. Complaint About Limit on Cross-Examination Waived
Delarosa's third point of error claims that the trial court erred when it would not allow Delarosa's counsel to impeach Helena with a report prepared by the forensic interviewer. We find that this argument was also not preserved for our review.
Through cross-examination, Delarosa sought to impeach Helena on the accuracy of when she thought certain events occurred. On the timeline, the incident in Mexico-when her brother walked in to see her with her pants down in front of Delarosa-and the last time Helena saw Delarosa were both indicated as having occurred in 2009. Even so, when Delarosa asked Helena in what year she last saw Delarosa, Helena said that she did not know. Counsel then asked Helena if she remembered saying, in the forensic interview, that she last saw Delarosa in 2008. Helena responded that she did not remember saying that. Delarosa then showed Helena the report generated by the forensic interviewer. The State objected on the grounds that Delarosa was not properly impeaching Helena. The trial court clarified that the report was not a transcription of the interview and then found the report inadmissible.
Delarosa did not place the forensic report in the record for appellate purposes, so we cannot review it. Nor did he make any offer of proof of what the report contained or why it was admissible. "In order to preserve error regarding a trial court's decision to exclude evidence, the complaining party must comply with Rule of Evidence 103 by making an 'offer of proof' which sets forth the substance of the proffered evidence." Mays v. State, 285 S.W.3d 884, 889 (Tex. Crim. App. 2009) (citing Tex. R. Evid. 103(a)(2)). Because Delarosa did not make any offer of proof, this point of error was not preserved for our review. As a result, we overrule Delarosa's third point of error.
In his brief, Delarosa claims that the trial court's exclusion of the report violated Delarosa's Confrontation Clause rights under the United States Constitution. See U.S. Const. amend. VI. But, Delarosa failed to make that argument to the trial court. As a result, this argument is also waived. To preserve a complaint for our review, a party must first present to the trial court a timely request, objection, or motion stating the specific grounds for the desired ruling if not apparent from the context. See Tex. R. App. P. 33.1(a)(1).
V. The Evidence Was Sufficient to Prove the Indicted Offense
In his fourth point of error, Delarosa claims that testimony from Helena and Mother was not specific enough to prove that two or more instances of sexual abuse occurred within a period of thirty or more days, after the statute's effective date of September 1, 2007. After a careful reading of Helena's testimony, we disagree.
"In evaluating legal sufficiency, we review all the evidence in the light most favorable to the trial court's judgment to determine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt." Williamson v. State, 589 S.W.3d 292, 297 (Tex. App.-Texarkana 2019, pet. ref'd) (citing Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.); Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.-Texarkana 2010, pet. ref'd). "We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury 'to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.'" Williamson, 589 S.W.3d at 297 (quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318-19); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007))).
"Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge." Id. at 298 (quoting Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). "The 'hypothetically correct' jury charge is 'one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried.'" Id. (quoting Malik, 953 S.W.2d at 240).
"In our review, we consider 'events occurring before, during and after the commission of the offense and may rely on actions of the defendant which show an understanding and common design to do the prohibited act.'" Id. at 297 (quoting Hooper, 214 S.W.3d at 13 (quoting Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985))). "It is not required that each fact 'point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction.'" Id. (quoting Hooper, 214 S.W.3d at 13). "Circumstantial evidence and direct evidence are equally probative in establishing the guilt of a defendant, and guilt can be established by circumstantial evidence alone." Id. (citing Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13 (citing Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004))). "Further, 'we must consider all of the evidence admitted at trial, even if that evidence was improperly admitted.'" Id. at 297-98 (quoting Fowler v. State, 517 S.W.3d 167, 176 (Tex. App.- Texarkana 2017), rev'd in part by 544 S.W.3d 844 (Tex. Crim. App. 2018) (citing Moff v. State, 131 S.W.3d 485, 489-90 (Tex. Crim. App. 2004))).
The jury, as "the sole judge of the credibility of the witnesses and the weight to be given their testimony . . . may 'believe all of [the] witnesses' testimony, portions of it, or none of it.'" Williamson, 589 S.W.3d at 297 (quoting Thomas v. State, 444 S.W.3d 4, 10 (Tex. Crim. App. 2014). "We give 'almost complete deference to a jury's decision when that decision is based upon an evaluation of credibility.'" Id. (quoting Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008)).
The crime of continuous sexual abuse of a child requires, among other things, proof that two or more sexual abuse offenses were committed over a span of thirty or more days. See Tex. Penal Code Ann. § 21.02. The statute became effective September 1, 2007. Delarosa argues that the testimony from Helena and Mother is not specific enough to establish that all of the alleged abusive conduct occurred after the statute's effective date. However, we find the record sufficient to prove the State's allegations beyond a reasonable doubt.
The indictment alleged that Delarosa committed aggravated sexual assault of a child upon Helena by causing her female sexual organ to contact Delarosa's sexual organ, and/or by causing the penetration of Helena's sexual organ with Delarosa's finger, and/or by causing Helena's mouth to contact Delarosa's sexual organ. It was alleged that those acts occurred over a period of thirty or more days on or about the period of September 1, 2007, through December 10, 2008. "The State is not bound by the date alleged in the indictment and may prove that an offense was committed before, on, or after [the] date alleged, so long as the date proved is a date anterior to presentment of [the] indictment and the crime's occurrence is not so remote as to be barred by limitation." Scoggan v. State, 799 S.W.2d 679, 680 n.3 (Tex. Crim. App. 1990).
As detailed above, Helena testified to (1) the nap episode in the parents' bedroom (where Delarosa committed aggravated sexual assault of a child by digitally penetrating Helena's sexual organ, (2) the upstairs incident (where Delarosa forced her to perform oral sex on him), and (3) the family room incident (aggravated sexual assault of a child by penile penetration). The evidence showed that Helena was born on September 1, 2001, making her six years old when the statute took effect. Helena testified that the nap episode, the first inappropriate action, occurred when she was six years old. By her testimony, she made it clear that the other events occurred after the nap episode. Helena also testified that this kind of conduct "happened a lot" and "often" and that Delarosa did such acts to her "several times." Thus, Helena's testimony is sufficient to support the conviction. See Tex. Code Crim. Proc. Ann. art. 38.07 (Supp.); Allen v. State, 436 S.W.3d 827, 831 (Tex. App.-Texarkana 2014, pet. ref'd). Based on the evidence, a rational jury could find that the elements of the offense were proved beyond a reasonable doubt. We, therefore, overrule Delarosa's fourth point of error.
VI. State's Closing Argument
In his fifth point of error, Delarosa argues that the State made an improper argument during closing argument by arguing facts that were not admitted in evidence.
After the jury found Delarosa guilty, the trial court heard punishment evidence. During closing argument, the State argued, "The other thing that I would like to point out, Judge, is that pedophiles don't age out. This isn't like a violent offender that can age out later in life. Some of the most prolific pedophiles that we have are grandfathers that are in their sixties and their seventies." Delorosa objected that this argument referenced facts not in evidence. The trial court then said that it would "take judicial notice of what [it had] seen, having tried sixty trials or 70 of these."
See Tex. Code Crim. Proc. Ann. art. 37.07(b) (Supp.).
"[I]t has been uniformly held that when the trial is before the court it will be presumed that [the court] did not consider improper argument." Juarez v. State, 439 S.W.2d 346, 347 (Tex. Crim. App. 1969). Assuming, without deciding, that the State's argument was improper, Delarosa has not rebutted the presumption that the trial court did not disregard the statement. The trial court made no reference to this statement in pronouncing sentence. The trial court stated,
"[P]roper jury argument generally falls within one of four areas: (1) summation of the evidence, (2) reasonable deduction from the evidence, (3) answer to an argument of opposing counsel, and (4) plea for law enforcement." Freeman v. State, 340 S.W.3d 717, 727 (Tex. Crim. App. 2011).
Now, these cases are terrible. They are -- they are hard on -- on the -- on the victim, they're hard on the defendant, they're hard on the witnesses. They are hard on everyone who gets involved, and so there are never any easy answers to any of this, but having listened to the testimony regarding the number of incidences or the number of years, this is not a minimum case.
The trial court then sentenced Delarosa to sixty years' imprisonment.
Delarosa has not rebutted the presumption that the trial court disregarded any improper argument by the State. Nothing in the trial court's comments after the objection indicated that the trial court considered the objected-to argument. We, therefore, overrule Delarosa's fifth point of error.
In his brief, Delarosa cites Thompson v. State, 89 S.W.3d 843, 850 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd), which cited Borjan v. State, 787 S.W.2d 53 (Tex. Crim. App. 1990). Thompson and Borjan both involved jury arguments, not bench trials.
VII. Conclusion
For these reasons, we affirm the trial court's judgment.