Maynard v. State

Full title: CARLOS MAYNARD, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Eighth District, El Paso

Date published: Oct 28, 2003

No. 08-01-00359-CR (Tex. App. Oct. 28, 2003)

Opinion

No. 08-01-00359-CR.

October 28, 2003. DO NOT PUBLISH.

Appeal from the 409th District Court of El Paso County, Texas (TC# 20000D05402).

Before Panel No. 3 BARAJAS, C.J., LARSEN, and CHEW, JJ.

MEMORANDUM OPINION

RICHARD BARAJAS, Chief Justice

This is an appeal from jury convictions for four counts of aggravated sexual assault of a child and two counts of indecency with a child by contact. The jury assessed punishment at forty (40) years' imprisonment on each aggravated sexual assault of a child count and assessed fifteen (15) years' imprisonment for each indecency with a child count. We affirm the judgment of the trial court.

I. SUMMARY OF THE EVIDENCE

At trial, the victim, Appellant's stepdaughter, testified that she lived in the same home with Appellant during the period he was married to her mother, Maria Maynard. She related that when she was six years old, Appellant entered her room while her mother was at work, and he touched her breasts and her vagina. The victim testified that this conduct continued virtually every day for four years. At the age of ten, the victim related that Appellant forced her to engage in acts of sexual intercourse. This course of conduct mirrored the prior sexual activity in that Appellant would enter her bedroom at morning when her mother was at work. He would remove his clothes and slip into her bed and touch her breasts and vagina. He would then disrobe her and place his penis into her vagina. He would tell the victim that "it wasn't going to hurt her" and that "it was normal for this to happen." These assaults continued for approximately seven years. Appellant threatened that he would do something to her mother if she told what was happening. The victim gave detailed testimony concerning the nature of these sexual assaults. She related that Appellant's actions included digital-vaginal penetration, oral penetration and ejaculation in her mouth, and one attempt at anal penetration. The victim stated that the last instance of sexual assault occurred in January of 2000. The victim first revealed the sexual assaults when she went to see a doctor as she was having problems with her menstrual cycle. She believed he was named David Young. She was asked if she had ever had sexual relations and she informed the doctor of Appellant's sexual assaults. He informed her mother, and he made a report to Child Protective Services. The victim told her mother and they both gave statements to Detective Guillermo Martinez of the El Paso Police Department. As a result of these statements, Detective Pete A. Natera went to the victim's residence, and he enlisted the victim in making a recorded call to Appellant. She called Appellant and requested that he give her a ride to a restaurant. The following exchange occurred:

Appellant: Ok, I'll be right over.

Victim: You're not going to — huh, want me to do something?

Appellant: Really?

Victim: Uhm, uhm.

Appellant: Really?

Victim: I don't know.

Appellant: Come on. Yolanda, can I tell you something? Listen to what I am going to tell you. What we were doing, that is not what was making you sick, Yolanda. It's that you don't take vitamins Yolanda, but the sex has nothing to do with it.

Victim: I don't know.

Appellant: Come on don't be mean. Don't be mean Yolanda. Look, last week I was hoping you would call me. I was going to give you $100. I know you were going to need money for clothing and all of that.

Victim: Ok.

Appellant: And we can still do it, give me five days and you got $100. Don't be mean, nothing will happen to you, Yolanda. Please.

Victim: What do you want me to do?

Appellant: We'll come over here.

Victim: Here?

Appellant: Right now when I go over we'll talk.

Victim: Whatever.

Appellant: I'll be right over, I'm on my way.

Victim: Ok.

Appellant: Bye.

Victim: Bye.

As a result of this conversation, Natera obtained an arrest warrant and Appellant was arrested. Appellant was taken to the police station and he agreed to give a written statement. In this statement, Appellant stated that he had never had sex with the victim, but he had fondled and kissed her breasts on several occasions. He also stated that he kissed her nipples. He knew this was wrong but he did it regardless.

II. DISCUSSION

In Issue No. One, Appellant asserts that the court abused its discretion in allowing the victim's mother to relate an out-of-court statement of a non-testifying doctor. At trial, the following exchange occurred while the victim's mother was testifying:

STATE: How did you find out that she had been sexually assaulted?

WITNESS: Because she started having problems with her periods and I had to take her to the doctor.

STATE: Problems with her menstrual period?

WITNESS: Yes.

STATE: Did you take her to the doctor?

WITNESS: Yes, sir.

STATE: You don't recall that doctor's name right now, do you?

WITNESS: He was a Chinese doctor, but he's already moved to California. He was the one that explained everything to me afterwards.

STATE: And what did he explain to you?

DEFENSE: Objection, Your Honor, to hearsay statements.

STATE: Information acted on, Judge. At this point not offered for the truth of the matter asserted.

COURT: Overruled.

. . .

STATE: What did the doctor explain to you had happened with respect to [the victim]?

WITNESS: He told me that [the victim] had been abused by my husband since she was quite little.

The trial court's ruling regarding the admissibility of evidence is reviewed for an abuse of discretion, and absent an abuse of discretion, the court's decision to admit evidence will not be overruled on appeal. Levario v. State, 964 S.W.2d 290, 296 (Tex.App.-El Paso 1997, no pet.). An abuse of discretion occurs only if the decision was made without reference to any guiding rules or principles or was reached in an arbitrary or unreasonable manner. Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App. 1990). If the court's ruling was within the "zone of reasonable disagreement," the reviewing court should not disturb the decision. Id. at 391. "Hearsay" is a statement, other than one made by the declarant while testifying at trial, offered in evidence to prove the truth of the matter asserted. Tex.R.Evid. 801(d). Hearsay is not admissible evidence unless excepted by the rules of evidence, a statute, or a rule promulgated pursuant to statutory authority. Barnum v. State, 7 S.W.3d 782, 789 (Tex.App.-Amarillo 1999, pet. ref'd); Tex.R.Evid. 802. Appellant maintains that the doctor's statement was covered by no exception to the hearsay rule and was offered for the truth of the matter asserted. The State maintained at trial and also asserts on appeal that the statement fits into the exception where a police officer may testify he relied upon hearsay to further the investigation so as not to be put in the misleading position of seeming to have just happened upon the scene. See Schaffer v. State, 777 S.W.2d 111, 114-15 (Tex.Crim.App. 1989). While a police officer is allowed some explanation of his or her presence and conduct at a crime scene, "the police officer should not be permitted to relate historical aspects of the case, replete with hearsay statements in the form of complaints and reports on grounds that she was entitled to tell the jury the information upon which she acted." Id. Whether testimony constitutes impermissible indirect hearsay "turns on how strongly the content of the out-of-court statement can be inferred from the context." Head v. State, 4 S.W.3d 258, 261-63 (Tex.Crim.App. 1999). The question becomes whether the strength of the inference produces an "inescapable conclusion" that the evidence is being offered to prove the substance of an out-of-court statement. Id. at 262. If we assume that the mother's statement is, in fact, indirect hearsay, the relation of the doctor's statement seems to be offered to prove that a physician examined the victim and came to a conclusion that she had been abused since she was young. This seems clearly to provide the substance of an out-of-court statement. Accordingly, it was inadmissible hearsay and the court abused its discretion in admitting the statement into evidence. The admission of inadmissible hearsay is considered nonconstitutional error, and it will be deemed "harmless" if the reviewing court, after examining the record as a whole, is reasonably assured that the error did not influence the jury verdict or had but a slight effect. See Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998); Broderick v. State, 35 S.W.3d 67, 74 (Tex.App.-Texarkana 2000, pet. ref'd). The error must not be viewed in isolation but in relation to the entire proceedings. See Kotteakos v. United States, 328 U.S. 750, 764-65, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). If there is sufficient evidence other than the improperly admitted evidence that the jury could have considered in deciding his guilt, the error did not affect a substantial right of the Appellant. Hughes v. State, 12 S.W.3d 166, 168 (Tex.App.-Fort Worth 2000, no pet.). In the present case, the victim gave very descriptive details of the prolonged sexual abuse inflicted by Appellant. She related that the doctor was the first individual she told of the abuse. There was also a written confession wherein Appellant admitted to committing sexual indecencies upon the victim. There was also the telephone conversation where Appellant seemed to be setting up a sexual encounter with the victim. We find that, given this evidence, that the error had slight effect on the jury's verdict. Issue No. One is overruled. In Issue No. Two, Appellant contends the court abused its discretion by denying his request to cross-examine the victim regarding sexual relations with another individual. During Appellant's cross-examination of the victim, he approached the bench and proposed that he be able to inquire about her past sexual history with her boyfriend. Appellant maintained that he wanted to show motive and bias in that she lost her virginity to the boyfriend and she feared facing her mother. As such she wanted to blame her stepfather whom she disliked. The court conducted a in-camera hearing to determine if such questioning would be allowed. At this hearing, the victim stated that a boy named Andy Zamarron had been her only boyfriend whom she dated when she was sixteen. She denied ever having had sex with him and stated that she had only kissed him, held hands, and hugged. He had not touched her breasts. She also stated that Appellant had never found herself and Zamarron partially disrobed in the bathroom. The court ruled regarding this testimony that it was not admissible under Rule of Evidence 412. Zamarron then testified that he never had sex with the victim. They only hugged, kissed and held hands. The witness stated that he did not know and the victim had not told him if she was having sex with someone other than Appellant although she had other boyfriends. The court denied Appellant's request to ask these questions in front of the jury in that there was no exception to Rule 412 and the probative value of the evidence was outweighed by the danger of unfair prejudice. In support of his contentions, Appellant states that the victim alleged Appellant had sexual relations with her on a frequent basis over a lengthy period of time. She never told anyone that Appellant was abusing her. Also, when she finally sought medical assistance with regard to her period, the doctor asked her if she had had sex. She had been dating Zamarron for three years and Zamarron testified in the in camera hearing that the victim had other boyfriends. Appellant maintains that the proposed cross-examination concerning the victim's relationship was admissible in that it tended to show bias or motive on the part of the victim to accuse him of a crime to cover her sexual activities with her boyfriend. Appellant contends that even though the victim denied having sex with Zamarron, the jury was entitled to view her demeanor while asserting those denials and thereby gauge her credibility. Again, a trial court's decision regarding the admissibility of evidence is reviewed for an abuse of discretion. Levario, 964 S.W.2d at 296. Rule 412 prohibits evidence of specific instances of an alleged sexual assault victim's past sexual behavior unless it is evidence (A) necessary to rebut or explain scientific or medical testimony offered by the State; (B) of past sexual behavior with the accused that is offered by the accused on the issue of consent; (C) that relates to the motive or bias of the alleged victim; (D) that is admissible under Rule 609, which deals with impeachment by evidence of a prior conviction; or (E) that is constitutionally required to be admitted. See Tex.R.Evid. 412(b)(2)(A-E). Furthermore, before a trial court may admit Rule 412(b)(2)(A-E) evidence, it must find that the probative value of said evidence outweighs the danger of unfair prejudice. See Tex.R.Evid. 412(b)(3). In his brief, it appears that Appellant is solely alleging that the testimony was constitutionally required to be admitted in accordance with subsection (E) of Rule 412 as he makes no mention of the rule. In Lopez v. State, 18 S.W.3d 220, 222-23 (Tex.Crim.App. 2000), the Court held that the Confrontation Clause of the Sixth Amendment will prevail if there is a conflict between it and the Rules of Evidence. The United States Constitution provides, in part, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. The Fourteenth Amendment to the United States Constitution makes the right to confrontation applicable to the states. Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). The Confrontation Clause ensures "the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact." See Maryland v. Craig, 497 U.S. 836, 845, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990). Cross-examining an adverse party allows the jury to assess a witness's credibility and exposes facts which the jury may use in its assessment. See Carroll v. State, 916 S.W.2d 494, 497 (Tex.Crim.App. 1996). While the Sixth Amendment protects an accused's right to cross-examine witnesses, it does not prevent a trial judge's limiting cross-examination on "concerns about, among other things, harassment, prejudice, confusion of the issues, the witness's safety, or interrogation that is repetitive or only marginally relevant." Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); see also Carroll, 916 S.W.2d at 498. "Relevant evidence" is defined as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex.R.Evid. 401. Evidence that is not relevant is not admissible. Tex.R.Evid. 402. In the instance case we find that the excluded evidence was only marginally relevant. Both witnesses would have testified that there was no sexual conduct between them. Thus the linkage between that alleged conduct and the bias and motive theorized concerning the victim's motive to lie to shift the blame to Appellant was tenuous. However, even if such linkage existed, we find that no harm occurred. When the trial court improperly denies an accused's opportunity to cross-examine a State's witness, we determine whether that denial harmed him. Love v. State, 861 S.W.2d 899, 904 (Tex.Crim.App. 1993); Shelby v. State, 819 S.W.2d 544, 547 (Tex.Crim.App. 1991). We analyze harm under the Van Arsdall standard. Van Arsdall, 475 U.S. at 684, 106 S.Ct. 1431; Shelby, 819 S.W.2d at 547. We first assume that "the damaging potential of the cross-examination was fully realized." Shelby, 819 S.W.2d at 547; Alexander v. State, 949 S.W.2d 772, 775 (Tex.App.-Dallas 1997, pet. ref'd). We then review the error in light of (1) the importance of the witness's testimony in the prosecution's case; (2) the cumulative nature of the testimony; (3) the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points; (4) the extent of cross-examination otherwise permitted; and (5) the overall strength of the prosecution's case. Shelby, 819 S.W.2d at 547; Alexander, 949 S.W.2d at 775. In the present case, while the victim's testimony was critical to the prosecution's case, there was also other evidence linking Appellant to the offense such as his confession and the recorded telephone conversation. While the excluded testimony was not cumulative, there was evidence corroborating the testimony of the victim in light of the confession and the recorded phone conversation. It is clear, and Appellant concedes, that he was otherwise permitted to cross-examine the victim. Finally, the prosecution presented a strong case given the detailed testimony of the victim, the confession, and the recorded phone conversation. We find that no harm occurred. Issue No. Two is overruled. Having overruled each of Appellant's issues on review, we affirm the judgment of the trial court.