Opinion
Nos. 05-08-00524-CR, 05-08-00525-CR
Opinion Filed February 3, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 7, Dallas County, Texas, Trial Court Cause Nos. F-0372836-Y, F-0372837-Y.
Before Justices WRIGHT, O'NEILL, and LANG.
MEMORANDUM OPINION
Appellant Michale Lee Gonzales was charged with two cases of aggravated sexual assault of a child younger than fourteen. Appellant pleaded not guilty, but a jury convicted him in each case. The trial court sentenced him to life imprisonment in each case to run concurrently. In three issues, he contends (1) the trial court erroneously admitted extraneous offense evidence, (2) the evidence is legally insufficient to sustain his conviction in F-0372837-Y, which alleged appellant's sexual organ penetrated complainant's mouth, and (3) the trial court erred by failing to find him incompetent during the punishment phase. We affirm the trial court's judgment.
Background
Complainant's mother died when she was twelve years old. After her father went to jail, she moved in with appellant, who is her older half-brother, and his family. One day when complainant was crying over her mother's death, appellant offered to take her for a ride and talk about their mothers. Complainant fell asleep during the drive and woke up with her clothes off and appellant's penis inside her. Appellant forced her to engage in sex on several other occasions and also forced her to perform oral sex on him. Complainant left appellant's home six months later and moved in with another brother in Austin. While in Austin, she told her sister generally about the abuse. They returned to Dallas and informed the police. Complainant was interviewed at the Children's Advocacy Center and for the first time shared the extent of her abuse. A doctor at Children's Medical Center performed a sexual assault examination and found complainant's hymen transected in two places, which indicated vaginal penetration. Appellant was charged with two counts of aggravated sexual assault of a child younger than fourteen and later convicted by a jury. The trial court set punishment at life imprisonment, and this appeal followed.Legal Sufficiency
In his second issue, appellant alleges the evidence is legally insufficient to sustain his conviction in F-0372837-Y, which claims appellant's sexual organ penetrated complainant's mouth. Complainant testified at trial appellant made her suck his penis. However, when asked specifically if his penis touched her mouth, she said "No ma'am not that I remember." Based on this statement alone, appellant contends the evidence is legally insufficient. The State responds the record contains other evidence establishing the offense; therefore, the evidence is legally sufficient. In a legal sufficiency review, we examine the evidence in the light most favorable to the judgment and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004). The standard is the same for both direct and circumstantial evidence cases. Burden v. State, 55 S.W.3d 608, 613 (Tex.Crim.App. 2001); Bates v. State, 155 S.W.3d 212, 215 (Tex.App.-Dallas 2004, no pet.). The fact-finder is the exclusive judge of the witnesses' credibility and the weight to be given their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). When first describing the sexual assault, complainant testified "I was sleeping with his son and I woke up by him like rubbing my hair like that. He grabbed me and he took me to the living room, and I don't remember if he raped me first or he made me suck his penis." She also described the piercing he had in his penis, how he made her move her head, and how she later wiped his ejaculation from her face. Although when asked specifically whether appellant's penis touched her mouth, complainant said "not that I remember," she also repeatedly testified that she tried not to think about or remember the incidents. Based on her sensory details, her testimony, and viewing the evidence in the light most favorable to the verdict, the jury could have concluded appellant was guilty. Harvey, 135 S.W.3d at 717 (fact-finder determines weight to be given testimony). Further, the jury heard from other witnesses that complainant admitted to performing oral sex on appellant. Alejandro Torres, a forensic interviewer with the Children's Advocacy Center, conducted an interview with complainant. She testified complainant was forthcoming in providing details of her abuse. She stated complainant described the oral sex incident as feeling "nasty" and explained how she later washed her face. During the interview, complainant also stated appellant's penis made contact with the outside of her mouth. Complainant herself further testified that the interviewer at the advocacy center was the first person she told the whole story to and that she told her the truth. Thus, the jury was free to consider the reliability of Torres's testimony against complainant's alleged failed memory. See, e.g., Knabe v. State, 836 S.W.2d 837, 839 (Tex.App.-Fort Worth 1992, pet. ref'd) (child complainant's outcry statements were sufficient to support conviction despite later repudiating the statements at trial). And finally, the jury heard testimony from Dr. Dawn Johnson, the pediatrician who conducted the sexual assault exam of complainant at Children's Medical Center. She testified complainant told her appellant made her perform oral sex and he ejaculated. She also included this information in complainant's medical records, which the State admitted into evidence. Thus, considering all of the evidence in the light most favorable to the judgment, a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt despite the one sentence in the record appellant relies on. Jackson, 443 U.S. at 319; Lane, 151 S.W.3d at 191-92. Thus, we overrule appellant's second issue.Admission of Extraneous Offense Evidence
In his first issue, appellant asserts the trial court erroneously admitted evidence of an extraneous offense when it permitted complainant to testify that she delayed her outcry because she knew appellant was violent. The State responds the evidence was properly admitted because it showed complainant's state of mind or alternatively, any error was harmless in light of the record as a whole. We review the admission of evidence under an abuse of discretion standard. Casey v. State, 215 S.W.3d 870, 879 (Tex.Crim.App. 2007); Tapps v. State, 257 S.W.3d 438, 447 (Tex.App.-Austin 2008, pet. granted). Evidence that does not have relevance apart from character conformity is inadmissible. Id.; see also Tex. R. Evid. 404(b). Extraneous offense evidence is admissible under rule 404 if it is relevant to a fact of consequence apart from its tendency to show conduct in conformity with character. Tapps, 257 S.W.3d at 447. Assuming without deciding that the evidence was improperly admitted, we conclude any error was harmless. Because appellant does not make a constitutional challenge to the trial court's ruling, the error must have affected substantial rights in order to warrant reversal. See Tex. R. App. P. 44.2(b). A criminal conviction should not be overturned for non-constitutional error if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury or had but slight effect on its verdict. Tapps, 257 S.W.3d at 447. When determining harm, we consider testimony and physical evidence, the nature of the evidence supporting the verdict, and the character of the error and its relationship to other evidence. Schutz v. State, 63 S.W.3d 442, 444 (Tex.Crim.App. 2001). We may also consider the strength of the evidence of guilt. See Anderson v. State, 182 S.W.3d 914, 920 (Tex.Crim.App. 2006). Here, the record is replete with testimony and physical evidence supporting complainant's allegations against appellant. Complainant herself testified that appellant forced her to have sex on numerous occasions and also forced her to perform oral sex. Dr. Johnson found two transections in her hymen, which indicated vaginal penetration. She further testified that it is rare to observe actual damage because the hymen usually heals quickly. Alejandro Torres also testified that complainant described the sexual abuse in detail during an interview. Therefore, the strength of the evidence supports our conclusion that complainant's single statement about appellant being violent did not influence the jury in reaching a guilty verdict. We overrule appellant's first issue.Competency Hearing
In his final issue, appellant argues the trial court abused its discretion by failing to find appellant incompetent during an informal competency inquiry during the punishment phase. The State responds the trial court acted within its discretion in finding appellant competent and refusing to order further examination. A person is incompetent to stand trial if the person does not have: (1) sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding, or (2) a rational as well as factual understanding of the proceedings against him. Tex. Code Crim. Proc. Ann. art. 46B.003(a) (Vernon 2006); Fuller v. State, 253 S.W.3d 220, 228 (Tex.Crim.App. 2008), cert. denied, 2009 WL 56317 (2009). A defendant is presumed competent to stand trial and shall be found competent to stand trial unless proved incompetent by a preponderance of the evidence. Tex. Code Crim. Proc. Ann. art. 46B.003(b) (Vernon 2006). Further, a defendant must also be mentally competent to be sentenced. See Casey v. State, 924 S.W.2d 946, 949 (Tex.Crim.App. 1996); Gray v. State, 257 S.W.3d 825, 827 (Tex.App.-Texarkana 2008, pet. ref'd). On suggestion that the defendant may be incompetent to stand trial or to be sentenced, the trial court shall determine by informal inquiry whether there is some evidence from any source that would support a finding that the defendant may be incompetent. Tex. Code Crim. Proc. Ann. art. 46B.004(c) (Vernon 2006). To prompt the trial court's informal inquiry concerning the defendant's competency, the evidence must raise a "bona fide doubt" in the mind of the trial judge to the defendant's competency. Salahud-Din v. State, 206 S.W.3d 203, 208 (Tex.App.-Corpus Christi 2006, pet. ref'd). Evidence is sufficient to create a bona fide doubt if it indicates "recent severe mental illness, at least moderate retardation, or truly bizarre acts by the defendant." McDaniel v. State, 98 S.W.3d 704, 710 (Tex.Crim.App. 2003). If, after an informal inquiry, the trial court determines evidence exists to support a finding of incompetency, the trial court shall order an examination to determine whether the defendant is incompetent to stand trial or to be sentenced. Tex. Code Crim. Proc. Ann. art. 46B.005(a) (Vernon 2006); Gray, 257 S.W.3d at 827. The question, then, before us is whether the trial court abused its discretion when, in light of the evidence presented at punishment, it did not order a further competency examination. We conclude it did not abuse its discretion. To support appellant's argument that the evidence raised a bona fide doubt regarding his competency for punishment, appellant relies on medical records submitted for the judge's review stating he had been recently diagnosed with schizophrenia, major depression, bipolar disorder, and suicidal tendencies. However, a determination that a person is mentally ill does not automatically mean the person is incompetent to stand trial or to be sentenced. Townsend v. State, 949 S.W.2d 24, 27 (Tex.App.-San Antonio 1997, no pet.) (despite evidence of suicidal tendencies and depression, evidence did not support a finding of incompetency); Lingerfelt v. State, 629 S.W.2d 216, 217 (Tex.App.-Dallas 1982, pet. ref'd) (diagnosis of schizophrenia was no more than speculation that appellant was unable to consult with attorney). The test for competency is whether the accused had sufficient present ability to consult with his attorney with a reasonable degree of rational understanding as well as a factual understanding of the proceedings against him. Tex. Code Crim. Proc. Ann. art. 46B.003. Appellant failed to present any evidence of his inability to consult with his attorney or understand the proceedings against him. See, e.g., Grider v. State, 69 S.W.3d 681, 685 (Tex.App.-Texarkana 2002, no pet.) (evidence of mental impairment alone does not require a special jury be empaneled where no evidence indicates defendant is incapable of consulting with counsel or understanding proceedings). In fact, during punishment, appellant freely and voluntarily pleaded true to prior convictions that increased the minimum punishment from five to fifteen years. He further stated he understood the consequences of pleading true. The trial court reviewed the medical records and stated the following:I want the record to reflect that the Court did go-after the last hearing the Court did go through the medical records supplied to the Court. Based on my observations of Mr. Gonzales in court on our last hearing-And frankly I'm not sure what date that was, but based on my observation and review of those records, I have denied Mr. Merrill's request that I appoint a psychiatrist to examine Mr. Gonzales for competency.
I did not observe anything in the hearing nor did I read anything in the notes that in my opinion gave me sufficient evidence to believe that the exam was necessary.Further, the medical records repeatedly indicate appellant's affect as appropriate, his attitude as cooperative, his thought process as goal directed, and his thought content as congruent. Given the trial court's thorough informal inquiry, the evidence presented during the punishment hearing was not of such character to require any further inquiry into appellant's ability to consult with his attorney or understand the proceedings against him. We conclude the trial court did not abuse its discretion by failing to appoint a psychiatrist or conduct further inquiry into appellant's competency. Thus, we overrule appellant's final issue.