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Lozano v. State

Court of Appeals of Texas, Third District, Austin
May 21, 2008
No. 04-07-00389-CR (Tex. App. May. 21, 2008)

Opinion

No. 04-07-00389-CR

Delivered and Filed: May 21, 2008. DO NOT PUBLISH.

Appeal from the 144th Judicial District Court, Bexar County, Texas, Trial Court No. 2005-CR-1158, Honorable Pat Priest, Judge Presiding. AFFIRMED.

Sitting: CATHERINE STONE, Justice, KAREN ANGELINI, Justice, STEVEN C. HILBIG, Justice.


MEMORANDUM OPINION


John Lozano was found guilty of two counts of indecency with a child by contact and was assessed an eleven-year prison sentence by a jury. Lozano appeals his conviction contending the outcry testimony by the victim's mother, which the trial court admitted into evidence, did not meet the requirements of the statutory hearsay exception. We affirm.

Factual and Procedural Background

Lozano started dating Virginia P. in 1993. In 1997, Virginia bought a new home and moved into it with her daughter, A.P., and Lozano. Virginia and Lozano divided the responsibility for A.P.'s care because Virginia worked shifts from 6:00 a.m. until 2:00 p.m. and Lozano worked from 3:00 p.m. until midnight each day. A.P. testified that during the summer before sixth grade, she often waited up for Lozano to come home before going to bed. A.P. testified that the first occurrence of sexual contact occurred one night that summer. A.P. was on the couch in the den when Lozano came home from work after midnight. He sat next to her, and they talked. He then started touching her stomach with his hands. Eventually Lozano fondled her breasts with his hands and mouth and he also touched her genitals. A.P. testified that Lozano continued this type of abuse, touching her breasts and genitals, multiple times over the next four years. Although A.P. has blocked much of the memory of the incidences, she believes that the touchings were infrequent. A.P. also recalled any time she was sick and stayed home from school, Lozano would tell her to get in his bed and would touch her breasts and genitals. A.P. eventually decided not to stay home when she was sick. A.P. further testified that when she first menstruated and stained her sheets, she was embarrassed to tell her mother. Instead, A.P. asked Lozano to help her clean the sheets. Lozano expressed that he was happy A.P. could confide in him because they had such a close and comfortable relationship. Lozano explained they had not done anything wrong because he never put his penis in her. In 2002, Lozano moved out of the house. Two months later, A.P. made an outcry, reporting the abuse for the first time. The outcry occurred when Virginia talked to A.P. about reconciling with Lozano. A.P. told her mother that if Lozano moved back into the home A.P. would leave and live with her biological father. After a silence, Virginia asked A.P. if Lozano had done "the nasties" to her. A.P. said yes and after a longer silence explained that Lozano said it would have been wrong if he had placed his penis in her. Two weeks later, Virginia contacted police. A.P. never related any other details about the sexual abuse to her mother. Outcry Testimony Lozano contends the outcry statement should have been excluded from evidence because it was inadmissible hearsay not subject to the outcry exception in article 38.072 of the Texas Code of Criminal Procedure. The State contends Lozano waived the right to appeal this error because Lozano did not object when Virginia's testimony was introduced at trial. We disagree. To preserve error for appellate review, a party must make a specific and timely objection and obtain an adverse ruling on that objection. See Tex. R. App. P. 33.1; Tex. R. Evid. 103(a)(1). Although a party must object each time inadmissible evidence is offered, if the judge has ruled in a hearing outside the presence of the jury, then there is no need to object again in front of the jury. See Tex. R. Evid. 103(a)(1); Geuder v. State, 115 S.W.3d 11, 13-14 (Tex.Crim.App. 2003) (the two exceptions to the general requirement that a party object each time evidence is offered are if the party (1) obtains a running objection, or (2) requests a hearing outside the presence of the jury). In this case, the trial court ruled the outcry testimony was admissible at a pretrial hearing. Therefore, Lozano preserved error and was not required to object when the testimony was admitted at trial. Article 38.072 provides a statutory hearsay exception that permits the State to introduce statements made: (1) by the child against whom the offense was allegedly committed; and (2) to the first person, eighteen years of age or older, to whom the child made a statement about the offense. Tex. Code Crim. Proc. Ann. art. 38.072, § 2 (Vernon 2005). "A trial court has broad discretion in determining the admissibility of outcry statements pursuant to this statute, and the trial court's exercise of that discretion will not be disturbed on appeal unless a clear abuse of discretion is established by the record." Marquez v. State, 165 S.W.3d 741, 746 (Tex.App.-San Antonio 2005, pet. ref'd) (citing Garcia v. State, 792 S.W.2d 88, 92 (Tex.Crim.App. 1990)). To be admissible under this statute, the child's statement to the witness must describe the alleged offense in some discernible manner and "must be more than words which give a general allusion that something in the area of child abuse was going on." Garcia, 792 S.W.2d at 91. Lozano argues A.P.'s outcry statement was too vague to meet the requirement that it describe the alleged offense in a discernible manner. Id. A.P.'s outcry statement to her mother included: (1) an affirmative answer that Lozano had done the "nasties"; and (2) a statement that Lozano had said it would be wrong to have used his penis. The State argues that this information is sufficient to describe the charged offense because A.P. and Virginia's understanding of the term "nasties" was that there was sexual abuse, while A.P.'s additional statement meant there had been no sexual intercourse. Because Lozano was charged with indecency with a child, i.e. sexually indecent touching ("nasties"), but not sexual intercourse, A.P.'s outcry sufficiently describes the alleged offense. In any event, because we conclude that the error, if any, in admitting the outcry statement was harmless, we do not decide whether the trial court abused its discretion in admitting the outcry testimony. The erroneous admission of outcry evidence is non-constitutional in nature; therefore, we apply the harm analysis set forth in Rule 44.2(b), requiring reversal only if the error affects the substantial rights of the defendant. See Duncan v. State, 95 S.W.3d 669, 672 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd); see also Tex. R. App. P. 44.2(b). A defendant's substantial rights are not affected by the erroneous admission of evidence, if after examining the record as a whole, there is fair assurance that the error did not disrupt the jury's evaluation of the evidence. Motilla v. State, 78 S.W.3d 352, 355 (Tex.Crim.App. 2002). A court conducting a harm analysis should examine the record as a whole and consider "any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, [and] the character of the alleged error and how it might be considered in connection with other evidence in the case." Id. The court also should consider the State's reliance on the erroneously admitted evidence and its effect on defensive theories. See Morales v. State, 32 S.W.3d 862, 867 (Tex.Crim.App. 2000). The erroneous admission of evidence is harmful if it is the sole source of evidence for any element of an alleged crime. See Klein v. State, 191 S.W.3d 766, 785 (Tex.App.-Fort Worth, 2006, pet. granted). In his arguments to the jury, Lozano relied heavily on the vagueness of the outcry to undermine A.P.'s credibility and he now argues that the sole purpose of the outcry was to bolster A.P.'s credibility. A.P.'s testimony was the primary source of evidence to support the conviction. In the context of all the evidence presented at trial, the outcry statement's general corroboration that abuse occurred adds little to the evidence supporting Lozano's conviction. The State did not rely on A.P.'s outcry to prove any part of the offense; instead, the State focused on A.P.'s own in-court testimony about specific instances and a general pattern of abuse. The State never argued A.P.'s testimony was reliable because of the outcry. Nor did the State use the outcry testimony to show that A.P.'s story had remained consistent. Therefore, having examined the record as a whole, we have a fair assurance that the error, if any, in admitting the outcry testimony did not disrupt the jury's evaluation of the evidence. See Motilla, 78 S.W.3d at 355.

Conclusion

The trial court's judgment is affirmed.


Summaries of

Lozano v. State

Court of Appeals of Texas, Third District, Austin
May 21, 2008
No. 04-07-00389-CR (Tex. App. May. 21, 2008)
Case details for

Lozano v. State

Case Details

Full title:John LOZANO, Appellant v. The STATE of Texas, Appellee

Court:Court of Appeals of Texas, Third District, Austin

Date published: May 21, 2008

Citations

No. 04-07-00389-CR (Tex. App. May. 21, 2008)