No. 04-06-00449-CR
Delivered and Filed: October 24, 2007. DO NOT PUBLISH.
Appeal from the 406th Judicial District Court, Webb County, Texas, Trial Court No. 2002-CRS-000646-D4, Honorable Oscar Hale, Jr., Judge Presiding. AFFIRMED.
Sitting: ALMA L. LÓPEZ, Chief Justice, SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice.
SANDEE BRYAN MARION, Justice.
A jury found defendant, Jose Trinidad Garcia, guilty of aggravated sexual assault and indecency with a child, and the trial court assessed punishment at confinement for life and three concurrent ten-year terms, respectively. We affirm.
SUFFICIENCY OF THE EVIDENCE
In his fifth issue, defendant challenges the legal sufficiency of the evidence supporting the conviction. We review the legal sufficiency of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App. 2005). The jury, as trier of fact, is the sole judge of the credibility of the witnesses and the weight to be given to their testimony; therefore, reconciliation of any conflicts in the evidence is within the exclusive province of the jury. Mosley v. State, 983 S.W.2d 249, 254 (Tex.Crim.App. 1998). A jury is also permitted to make reasonable inferences from the evidence. Id. at 254-55. In the predawn hours of August 18, 2002, defendant's wife awoke to discover defendant unzipping his pants next to the bed on which her nine-year-old daughter, "F.P.," was sleeping. Defendant's wife demanded to know what he was doing, and defendant denied any wrongdoing. When defendant left the room, defendant's wife spoke to F.P., who alleged a history of sexual abuse by defendant. Defendant's wife took F.P. to a hospital in Laredo, where a physician discovered scar tissue in the anus consistent with sexual assault. F.P. told a counselor about several episodes of sexual abuse by the defendant, including penetration of her anus and mouth. Following an investigation by law enforcement authorities in Webb County, defendant was indicted for aggravated sexual assault and indecency with a child. At trial, F.P. testified defendant penetrated her on multiple occasions. F.P. also testified that on the night her mother caught the defendant unzipping his pants, defendant had pulled out his penis and attempted to drag her to the end of the bed. The examining pediatrician testified he found scarring in F.P.'s anus consistent with penetration. A psychologist who examined F.P. several times testified he found F.P.'s behavior and recollections to be consistent with her claims of abuse. After a review of the record, we conclude the evidence is legally sufficient to support the jury's verdict. EXTRANEOUS OFFENSES
In his first issue, defendant asserts the trial court erred when it admitted evidence of extraneous offenses without notice to him. We review a trial court's ruling as to the admissibility of extraneous offense evidence under an abuse of discretion standard. Mitchell v. State, 931 S.W.2d 950, 953 (Tex.Crim.App. 1996). Texas Code of Criminal Procedure article 38.37 provides that a defendant who timely requests notice of the State's intent to introduce extraneous offenses of sexual abuse against a child victim, during the State's case-in-chief, is entitled to notice "in the same manner as the state is required to give notice under Rule 404(b)." Tex. Code Crim. Proc. Ann. art. 38.37, § 3 (Vernon 2005). Here, prior to trial, defendant sought notice under Texas Rule of Evidence 404(b), but defendant did not seek notice under article 38.37. In response, the State sent defendant a "Notice of Extraneous Offenses," which stated as follows: "the State of Texas . . . pursuant to TEX. CODE CRIM. PRO ART 38.37, TEX. R. EVID. 404(B), TEX. R. EVID. 609(f) and TEX. CODE CRIM. PRO. ART. 37.07, . . . provides notice that during presentation of the State's case in chief, or during punishment, in the above-captioned and numbered criminal action, the following crimes, wrongs, and/or acts, other than the act alleged in the indictment, may be introduced. . . ." (Emphasis added.) The notice listed charges of marijuana possession with the intent to deliver, violations of a protective order, mischief, trespass, and assault. At trial, F.P. was allowed to testify over Defendant's objection to uncharged incidents of sexual misconduct by defendant. The State did not list these extraneous offenses in its notice. Although the State gave notice of its intent to introduce other extraneous offenses in a document purporting to provide notice under article 38.37, the document did not include the other alleged incidents of sexual misconduct the State introduced at trial. On appeal, the State responds that it was not required to provide notice of its intent to introduce such incidents because defendant did not specifically ask for them. However, in the cases relied upon by the State, defendants sought notice under Rule 404(b) only, no article 38.37 notice was requested, and the State did not purport to provide article 38.37 notice. See Hitt v. State, 53 S.W.3d 697, 705-06 (Tex.App.-Austin 2001, pet. ref'd). Here, although defendant similarly sought notice under only Rule 404(b), the State's "Notice of Extraneous Offenses" purported to give notice of article 38.37 offenses. This court has previously held that where the State provides notice of its intent to introduce other extraneous offenses under article 38.37, but does not list the complained-of extraneous offense in the notice, the trial court errs in admitting the offense. Dominguez v. State, No. 04-04-00902, 2005 WL 3533047, at *1 (Tex.App.-San Antonio Dec. 28, 2005, no pet.) (mem. op., not designated for publication). A defendant is entitled to rely on the State's representations contained within the State's notice document. See McDonald v. State, 179 S.W.3d 571, 577 (Tex.Crim.App. 2005). Therefore, it was error for the trial court here to conclude otherwise. However, this does not end our review. We next must consider whether the trial court's error was harmful. The erroneous admission of extraneous evidence does not constitute constitutional error. See Avila v. State, 18 S.W.3d 736, 741-42 (Tex.App.-San Antonio 2000, no pet.); see also McDonald, 179 S.W.3d at 578 (noting that constitutional error is not involved when evidence of uncharged misconduct is admitted without notice). Texas Rule of Appellate Procedure 44.2(b) provides that any error, other than constitutional error, "that does not affect substantial rights must be disregarded." Tex. R. App. P. 44.2(b). Substantial rights are not affected by the erroneous admission of evidence 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. Motilla v. State, 78 S.W.3d 352, 355 (Tex.Crim.App. 2002). Here, defendant objected only to the lack of notice of the extraneous acts. We therefore consider the harm that may have been caused by the lack of notice and the effect the lack of notice had on defendant's ability to mount an adequate defense. See McDonald, 179 S.W.3d at 578. At trial, F.P. testified to several episodes of sexual abuse that happened over a period of years, some of which were charged in the indictment and some of which were not charged. Defendant cross-examined F.P. and attempted to cast doubt on her ability to recall accurately certain events. Defendant also asked F.P. questions intended to demonstrate that she and he enjoyed a healthy relationship. On appeal, defendant has not shown how his defensive strategy would have been different if he had received notice of the complained-of extraneous acts. See Hernandez v. State, 176 S.W.3d 821, 826 (Tex.Crim.App. 2005) (noting defendant did not show how his defense was "injuriously" affected by the State's failure to provide reasonable notice). Because notice under article 38.37 would not have affected defendant's ability to mount an adequate defense, we conclude the trial court's error did not influence the jury or had but a slight effect. EXCLUSION OF WITNESS TESTIMONY
In two issues, defendant complains of the trial court's refusal to allow two witnesses to testify. We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. Burden v. State, 55 S.W.3d 608, 615 (Tex.Crim.App. 2001). A trial court does not abuse its discretion if its "ruling was at least within the zone of reasonable disagreement." Montgomery v. State, 810 S.W.2d 372, 390-93 (Tex.Crim.App. 1991). The proponent of the evidence has the burden to demonstrate the admissibility of the evidence. Theus v. State, 845 S.W.2d 874, 880 (Tex.Crim.App. 1992). In his second issue, defendant asserts the trial court erred by excluding the testimony of Claudia Gonzales, who would have testified that she saw defendant, F.P., and F.P.'s mother bowling together in November 2005. Defendant complains he should have been allowed to introduce Gonzales's testimony to challenge the truthfulness of F.P. and her mother, who testified they did not remember bowling with defendant in November 2005. The trial court excluded the testimony. On appeal, defendant insists Rule 608 favors the admissibility of Gonzales's testimony. We disagree. Rule 608 provides that, subject to some limitations, the credibility of a witness may be attacked by evidence in the form of an opinion or reputation. Gonzales's testimony was neither an opinion nor evidence of reputation. Accordingly, we conclude the trial court did not err in excluding Gonzales's testimony. In defendant's third issue, he complains Francis Soto was not permitted to testify. The trial record demonstrates otherwise. The State objected to the introduction of Soto's testimony and the court allowed defendant to make a bill of exception. Defendant made a bill in which Soto testified (1) she trusted defendant around her own daughter, and (2) F.P.'s mother had left F.P. with defendant on at least one occasion after the allegations of abuse. After Soto testified, defendant rested his case. The court then asked if the State wished to say anything. The State responded that while it still objected to testimony regarding whether F.P. was left in the care of defendant after the allegations of abuse, it no longer opposed Soto's testimony regarding defendant's good character. The State cautioned that it would, however, respond with testimony regarding bad character if Soto testified to defendant's good character. Defense counsel interrupted the State to remind the court he had rested and moved to close. Defendant did not ask to reopen his case for the purpose of introducing Soto's testimony. See Tex. Code Crim. Proc. Ann. art. 36.02 (Vernon 2007) (trial court shall allow a party to introduce testimony at any time before the conclusion of arguments in a cause, if it appears that it is necessary to a due administration of justice). Accordingly, we conclude defendant waived any error. ADMISSION OF EXPERT TESTIMONY
In issue four, defendant complains the court erred in admitting the testimony of Dr. Gregorio Pina, a psychologist who interviewed F.P. Defendant alleges Pina (1) lied under oath regarding whether he was previously excluded from testifying in another case, and (2) offered impermissible testimony on the credibility or truthfulness of F.P. At trial, defendant made no objection that Pina was offering false testimony; therefore, the trial court was not given the opportunity to address the issue and any error was waived. See Tex. R. App. P. 33.1; see also Haliburton v. State, 80 S.W.3d 309, 315 (Tex.App.-Fort Worth 2002, no pet.) (holding a defendant must object to the purportedly false testimony of witnesses to preserve the issue for appellate review). As to whether Pina commented improperly on F.P.'s truthfulness, defendant waived error at trial by failing to object to the testimony of which he now complains on appeal. See Tex. R. App. P. 33.1. CONCLUSION
We overrule defendant's issues on appeal and affirm the trial court's judgment.