Manzano v. State

Full title: IVAN JOSE MANZANO, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Tenth District, Waco

Date published: Feb 15, 2006

No. 10-04-00323-CR (Tex. App. Feb. 15, 2006)

Opinion

No. 10-04-00323-CR

Opinion delivered and filed February 15, 2006. DO NOT PUBLISH.

Appeal from the 54th District Court, McLennan County, Texas, Trial Court No. 2003-876-C. Affirmed.

Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA (Chief Justice Gray concurs only in the judgment and without a separate opinion.)

OPINION

BILL VANCE, Justice.

Ivan Manzano was charged in a two-count indictment with felony offenses of aggravated sexual assault against a single victim. He pled not-guilty, but a jury convicted him on both counts and assessed ten years in prison for each. The trial judge ordered that the sentences run consecutively, and Manzano appealed.

The Issues

In four issues, he asserts error in the admission of statements by the victim to a doctor, error in failing to grant a mistrial after the State invited the jury to speculate about the contents of a videotape that had been excluded from the evidence, and two issues concerning the "stacking" of the sentences. Finding no error, we will affirm the judgment.

The Facts Briefly

Manzano lived next door to the victim's grandmother, and the two families were friends. Manzano's daughter would babysit for the victim's mother, and sometimes those children would stay with him. The victim's aunt overheard a conversation between her daughter and the victim, then age 6, in which the victim said, "Ivan does sex." The aunt told the victim's mother, who confronted the victim. As a result, Manzano was charged. The victim testified about the physical acts, and a doctor who conducted a medical exam testified that the victim told her, "Ivan did s-e-x." Further recitation of the evidence, at either the guilt-innocence stage or the punishment stage, is not relevant to our decision.

Evidentiary Rule 803(4) and Child Testimony

Manzano's third issue contests the trial court's ruling that the statements made by the victim to the doctor were admissible. The admissibility of evidence lies within the discretion of the trial judge. E.g., Ellis v. State, 99 S.W.3d 783, 788 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd). We must uphold the trial court's ruling if it was within the zone of reasonable disagreement. Id. Acknowledging that statements made for the purpose of assisting in a medical diagnosis are admissible, Manzano says that the statements made in this case should not have been admitted because they did not achieve the reasons for admitting such statements under Rule 803(4) of the Rules of Evidence. TEX. R. EVID. 803(4). Decisions under the rule, he says, do not recognize that a lack of maturity causes children to fail to associate providing accurate information with the role the medical provider is occupying, i.e., gathering information to make a diagnosis. He also says that exams such as the one conducted here are more for the purpose of investigation than providing treatment.¹ He stresses the language in Rule 803(4) limiting admissibility to statements made "insofar as reasonably pertinent to diagnosis or treatment." Id. Here, he contends, there was nothing to diagnose or treat. The victim was not complaining of pain or discomfort and manifested no outward problems. The doctor was the last person she saw in the investigative process — after the police and an advocacy counselor. Thus, he says the doctor's testimony provided nothing more than an "aura of authority" for the victim's testimony. The State says that courts in Texas have routinely admitted such statements because "treatment of child abuse must begin with removing the child from the abusive setting." Although nothing in this record suggests that the exam in question was conducted to remove the child from an abusive setting, we find no distinction in the cases that would remove statements by a child from the effect of Rule 803(4). Beheler v. State, 3 S.W.3d 182, 189 (Tex.App.-Fort Worth 1999, pet. ref'd) (reviewing court must look to the record to see if it supports a conclusion that the young child understood why she needed to be honest when speaking to the caregiver); Molina v. State, 971 S.W.2d 676, 683-84 (Tex.App.-Houston [14th Dist.] 1998, pet. ref'd) (evidence of the complainant's understanding of the need to tell the truth). Statements are admitted using Rule 803(4) when the witness satisfies the Legislature's definition of a physician or health care provider as defined in the medical malpractice statute. See Gregory v. State, 56 S.W.3d 164, 183 (Tex.App.-Houston [14th Dist.] 2001, pet. dism'd) (registered nurse permitted to testify about statements made and symptoms of child abuse victim) ("Texas courts have allowed non-physicians to testify under the medical diagnosis and treatment exception to hearsay."); Torres v. State, 807 S.W.2d 884, 886-87 (Tex.App.-Corpus Christi 1991, pet. ref'd) (emergency room nurse testified under Rule 803(4) about victim's answers to questions asked during collection of samples for "rape kit"); Fleming v. State, 819 S.W.2d 237, 247 (Tex.App.-Austin 1991, pet. ref'd) (physician and mental health therapist testified about victim's statements). Although the trial judge made no specific inquiry to determine whether the child appreciated the need to be truthful, the record is sufficient to support this conclusion. Molina, 971 S.W.2d at 684 (citing Fleming, 819 S.W.2d at 247). Further, whether the statements at issue were "reasonably pertinent to the diagnosis or treatment" of the victim was a question for the trial judge to answer prior to admitting the evidence. TEX. R. EVID. 803(4). Finding that his determination was within the "zone of reasonable disagreement," we overrule the issue. Ellis, 99 S.W.3d at 788.

Evidence Not Admitted — Final Argument

The victim was taken to the Advocacy Center where she was interviewed. A videotape of the interview was made, and the State offered it into evidence at trial. On Manzano's objection, the trial court excluded it. Nevertheless, in final argument the State referred to the videotape:

Let's talk about the interview with Brenda Penland. Why did we call Brenda to come up here and testify again? Because we had to clear it up. She had to tell you she reviewed the video and, yes, [the victim] brought it up first. She brought up Ivan and sex before Brenda asked her about it. And don't you know if that interview would have been impermissively suggestive you would have seen it, because [defense counsel], wild horses couldn't have kept that video out.

Sustaining Manzano's objection, the trial court instructed the jury to disregard the argument but denied a motion for a mistrial.

We have written recently about reviewing the denial of a motion for mistrial. Perez v. State, 2006 WL 133575, at * 1-3 (Tex.App.-Waco January 18, 2006, no pet. h.).

A motion for mistrial is appropriate for "highly prejudicial and incurable errors." We review the denial of a motion for mistrial under an abuse of discretion standard. See Simpson v. State, 119 S.W.3d 262, 272 (Tex.Crim.App. 2003) (quoting Wood v. State, 18 S.W.3d 642, 648 (Tex.Crim.App. 2000)); Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999).

[T]he question of whether a mistrial should have been granted involves most, if not all, of the same considerations that attend a harm analysis. A mistrial is the trial court's remedy for improper conduct that is "so prejudicial that expenditure of further time and expense would be wasteful and futile." In effect, the trial court conducts an appellate function: determining whether improper conduct is so harmful that the case must be redone. Of course, the harm analysis is conducted in light of the trial court's curative instruction. Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required.

Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App. 2004). Thus, the appropriate test for evaluating whether the trial court abused its discretion in overruling a motion for mistrial is a tailored version of the test originally set out in Mosley v. State, 983 S.W.2d 249, 259-60 (Tex.Crim.App. 1998), a harm analysis case. See Hawkins, 135 S.W.3d at 77 ("We therefore agree that the Mosley factors should be used to evaluate whether the trial court abused its discretion in denying a mistrial for improper argument, at least in cases like this one, in which constitutional rights are not implicated."). The Mosley factors that we consider in determining whether the trial court abused its discretion in denying a mistrial are: (1) the severity of the misconduct (the magnitude of the prejudicial effect); (2) measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the judge); and (3) the certainty of conviction absent the misconduct. Mosley, 983 S.W.2d at 259. In final argument, it is improper to refer to evidence that the trial court excluded. Applying the Mosley factors, we first observe that the prosecutor's conduct appears to be a response to counsel's argument about a "forensic interview" and about Penland's testimony when recalled that she had viewed the videotape and verified the sequence of events. The mistake was not repeated, and we do not find that the statement was calculated to inflame the minds of the jury. See Perez, 2006 WL 133575, at *2. In most instances, an instruction to disregard will cure the prejudicial effect. See id. The improper statement about the videotape was followed by an instruction to disregard from the trial court, which Manzano concedes is generally effective and which we presume was complied with by the jury. An instruction to disregard is presumptively inadequate only in the most blatant cases; only offensive or flagrant improper conduct warrants reversal when there has been an instruction to disregard, and, in the case at bar, the improper statement was not so flagrant that the instruction to disregard was ineffective. See id. Finally, considering all the evidence, the certainty of conviction — absent the improper statement — was high, considering the direct testimony of the victim and the medical testimony. See id. Although this is a more difficult decision than in Perez, we cannot say that the trial court abused its discretion in denying the mistrial motion; thus we overrule Manzano's issue and turn to the issues regarding the sentence.

Due Process — Failure to Instruct Jury that Court Might Cumulate

Manzano's first issue asserts that the jury should have been instructed that the court might cumulate the sentences for the two offenses. Although sentences for multiple offenses charged in the same indictment must generally run concurrently, he acknowledges that the legislature has provided several exceptions, including one for sexual assault of a child. TEX. PEN. CODE ANN. § 3.03(a), (b) (Vernon Supp. 2005). Because the trial court has discretion about whether to cumulate and because the jury in this instance inquired about the matter,² Manzano contends that due process requires that the jury be given information to make an informed decision about what sentences to assess. He acknowledges that there are no published decisions addressing this issue, but suggests that such a requirement would be a logical extension of the holding in California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983). The State cites Andrews v. State and Peterson v. State as contrary authority. Andrews v. State, 159 S.W.3d 98, 103 (Tex.Crim.App. 2005) (trial counsel ineffective for failure to object to prosecutor's misstatement of the law regarding whether the appellant's sentences could be stacked, even though he knew that the State had filed a motion to cumulate the sentences); Peterson v. State, No. 01-02-00603-CR, 2003 WL 22681607 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd) (not designated for publication) (rejecting argument that Apprendi v. New Jersey, requires jury to determine whether to cumulate sentences). Although the cases cited by the State do not speak directly to the issue Manzano asserts, we do not agree with his assertion. The Penal Code and Code of Criminal Procedure assign to the trial judge the responsibility for determining whether to cumulate sentences or allow them to run concurrently, when there is an option. TEX. CODE CRIM. PROC. ANN. art. 42.08(a) (Vernon Pamphlet 2005); TEX. PEN. CODE ANN. § 3.03(a), (b). No factual determinations are required,³ so there is nothing for a jury to determine. We hold that due process does not require that the jury be given information about the trial court's ability to cumulate sentences or order them to run concurrently. We overrule issue one.

Due Process and Right to Jury Trial — Cumulation Not Submitted

Manzano's second issue directly asserts that, because cumulation of his sentences results in an increase in the "maximum sentence," a logical extension of the due-process and jury-trial requirements of Apprendi and the cases following it would require submission of the question to the jury. See United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The State again points to the fact that the trial judge made no factual determination but simply exercised the discretion given to him by statute. We addressed this issue in Marrow v. State and concluded that no Apprendi violation occurred. Marrow v. State, 169 S.W.3d 328, 330-31 (Tex.App.-Waco 2005, pet. ref'd). Neither due process nor the requirement of trial by jury requires that the statutorily-assigned role of the trial judge in the determination of whether to cumulate sentences or allow them to run concurrently be reassigned to the jury. We overrule Manzano's second issue.

Conclusion

Having overruled Manzano's four issues, we affirm the trial court's judgment.