Opinion
14-22-00941-CR
12-12-2024
LEOPOLDO RODRIGUEZ PENA, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 272nd District Court Brazos County, Texas Trial Court Cause No. 17-02943-CRF-272
Panel consists of Justices Jewell, Bourliot, and Poissant.
OPINION
Margaret "Meg" Poissant Justice
A jury found appellant Leopoldo Rodriguez Pena guilty of continuous sexual abuse of a child and assessed punishment at life imprisonment. In three issues, appellant contends that (1) the trial court erred in overruling an objection to testimony concerning extracted cellphone data, in violation of his Sixth Amendment right to confrontation; (2) he was denied the right to have the same jury assess punishment as determined his guilt; and (3) there is legally insufficient evidence to support his conviction. We affirm.
The Supreme Court of Texas ordered the Court of Appeals for the Tenth District of Texas to transfer this appeal (No. 10-22-00422-CR) to this court. Misc. Docket No. 22-9115 (Tex. Dec. 20, 2022); see Tex. Gov't Code Ann. §§ 73.001, .002. Because of the transfer, we decide the case in accordance with the precedent of the transferor court under principles of stare decisis if our decision otherwise would have been inconsistent with the transferor court's precedent. See Tex. R. App. P. 41.3.
I. Background
Appellant is the stepfather of three sisters, L.G., V.M., and A.P, who are the complainants in this case. At trial, the complainants described sexual abuse by appellant that occurred when each child was in elementary school and continued for a period of years. The complainants described the abuse as sexual touching, vaginal, anal and oral penetration, and being forced to perform masturbation on appellant. After years of these acts, the complainants told their mother on April 23, 2017, that appellant had been touching them. Their mother immediately took them to the police department to make a police report.
To protect the complainants' identities, we refer to them by initials. See Tex. Const. art. I, § 30 (granting crime victims "the right to be treated with fairness and with respect for the victim's dignity and privacy throughout the criminal justice process"); see McClendon v. State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).
After the children reported the accusations to the police department, officers accompanied the complainants' mother to their home to retrieve some belongings. At the home, police sergeant Mike Clark spoke briefly with appellant and observed appellant texting and receiving calls on a cellphone. The police, with appellant's consent, took the black cellphone-appellant's work phone-to perform a search of it.
On April 24, 2017, the complainants were separately interviewed at the local children's assessment center by a forensic interviewer and described the sexual acts appellant had performed with them. Two of the complainants also described how appellant took photographs of them with his cellphone during some of these acts or while they were in states of undress.
After observing the interviews of the complainants at the children's assessment center, Sergeant Clark determined that he should also be looking for a white cellphone in appellant's possession. Police then obtained an arrest warrant and a search warrant. When they arrested appellant on April 25, 2017, they found a white Samsung cellphone in the car he was driving at the time of his arrest. Law enforcement later extracted the data from this white cellphone, which showed that the cellphone had been reset to its factory settings on April 23, 2017, at 5:14 p.m., which was the day of the complainants' outcry and shortly after police left appellant's home with his black cellphone.
Appellant was indicted on July 6, 2017, and then re-indicted on August 9, 2018, for continuous sexual abuse of a child. The case proceeded to trial in November 2022. On November 18, 2022, a jury found him guilty as alleged in the indictment. Trial re-convened for the punishment phase of trial on December 2, 2022. Because one juror became ill after the verdict in the guilt/innocence phase of trial and was not present for the punishment phase, the trial court seated the alternate juror on the jury over appellant's objection and motion for mistrial. The jury assessed appellant's punishment at life imprisonment. The trial court sentenced appellant in accordance with the jury's decision. This appeal ensued.
II. Right to Confrontation
In his first issue, appellant contends that his Sixth Amendment right to confrontation was violated when the trial court overruled his objection to testimony about data that had been extracted from appellant's cellphone by a third party who did not testify at trial.
A. Cellphone Data
When police arrested appellant, they searched the car he was driving and removed from it a white Android cellphone, which was admitted at trial as State's Exhibit 11. Kenneth Sikes, an evidence technician responsible for digital forensic analysis for the Brazos County District Attorney's Office, testified that law enforcement sent appellant's cellphone to the Regional Computer Forensics Laboratory, which is run by the Federal Bureau of Investigation. At the lab, the data on the cellphone was extracted with Cellebrite software.
Sikes testified that the Cellebrite software extracted the data into a report in three formats: a "logical copy," a deeper "file system copy," and an even more in-depth "physical extraction." Sikes described a logical copy as the information one can find while holding a phone and looking at it, such as pictures, emails, and text messages. A file system copy reflects the underlying operating system of the cellphone, and the physical extraction is a "bit-for-bit copy of the phone." Sikes testified that these extractions are copies of the data available on the cellphone. At trial, the Cellebrite report containing the extracted data was not offered into evidence.
However, Sikes's testimony was based on his analysis of the extracted data. He testified that he used the "actual extraction"-meaning the "hard data"-in his analysis. When Sikes began to testify about the conclusions he reached in his analysis of this extracted data, appellant objected based on the Confrontation Clause, asserting that appellant could not "cross-examine anyone who actually did the report. [Sikes is] just reading the result of what someone else did. He cannot verify or anything like that." The trial court overruled the objection. Sikes then testified that there was very little data on the 2014 white cellphone because it had been reset to factory settings on April 23, 2017, at 5:14 p.m.
B. Standard of Review & Applicable Law
A trial court's ruling on the admissibility of evidence is reviewed for an abuse of discretion. Thomas v. State, 651 S.W.3d 102, 110 (Tex. App.-Houston [14th Dist.] 2021, pet. ref'd). We will not reverse the trial court's evidentiary ruling if it was within the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh'g). The appellate court must review the trial court's ruling in light of what was before the trial court at the time the ruling was made and uphold the trial court's ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002).
The Sixth Amendment's Confrontation Clause guarantees a criminal defendant the right to confront the witnesses against him. U.S. Const. amend. VI.; see Smith v. Arizona, 602 U.S. 779, 783 (2024); Paredes v. State, 462 S.W.3d 510, 514 (Tex. Crim. App. 2015) (citing Pointer v. Texas, 380 U.S. 400 (1965)). In operation, it protects a defendant's right of cross-examination by limiting the prosecution's ability to introduce statements made by people not in the courtroom. Smith, 602 U.S. at 783-84. The Confrontation Clause bars the admission at trial of testimonial statements of an absent witness unless the witness is unavailable and the defendant had a prior opportunity to cross-examine him. Id. at 784.
Two limits define the scope of this prohibition. Id. First, it is confined to "testimonial statements," such as statements made in a police interrogation to establish past events potentially relevant to later criminal prosecution, testimonial certificates of the results of forensic analysis, and certificates of analysis. Id.; Paredes, 462 S.W.3d at 514. Second, it bars only the introduction of hearsay- meaning, out of court statements offered to prove the truth of the matter asserted. Smith, 602 U.S. at 785.
C. Analysis
Citing Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) and Bullcoming v. New Mexico, 564 U.S. 647 (2011), appellant argues Sike's testimony rests on results of a cellphone extraction that he did not perform, violating appellant's right to cross-examine the person who extracted the data, in violation of the Confrontation Clause. These two cases involve certification of laboratory or forensic test results as a substitute for live testimony.
In Melendez-Diaz, the defendant objected to the admission of "certificates of analysis" from a laboratory that had confirmed a tested substance was cocaine. 557 U.S. at 308. The Supreme Court held that admission of these certifications violated the Confrontation Clause and that the laboratory analyst who performed the testing should have been required to testify about his or her findings. Id. at 311. The Supreme Court emphasized that the certificates of analysis fell with a core class of testimonial statements because they were an affirmation made for the purpose of proving some fact. Id. at 310. In Bullcoming, a laboratory report certified the results of a blood alcohol test, but the analyst who certified the results did not testify. 564 U.S. at 653. The Supreme Court stated that the certified report contained "more than a machine-generated number." Id. at 661. In Bullcoming, the Court also disallowed a surrogate witness, who did not participate in or observe the forensic testing, from testifying about the test results. Id. at 662. Unlike Melendez-Diaz and Bullcoming, this case does not involve certifications by an out-of-court witness or laboratory or forensic test results that are more than a machine-generated number.
The State argues that the data from which Sikes formed his conclusions did not implicate the Confrontation Clause because they were raw data extracted from appellant's cellphone by a computer software called Cellebrite, and they did not involve another person's opinions about or interpretations of the data. We agree. The software used to extract data from the cellphone, Cellebrite, has previously been described by a Texas court as "a simple data transfer" for which no "specialized knowledge" is required. Wright v. State, 618 S.W.3d 887, 892-93 (Tex. App.-Fort Worth 2021, no pet.). Although Wright addressed reliability, rather than the Confrontation Clause, the court in Wright explained that "copying data using Cellebrite is like the common exercise of using a thermometer." Id. at 895. Sikes's testimony in this case similarly described that to copy the data from a cellphone, one simply connects the cellphone to the computer and runs the Cellebrite software. Sikes testified that he analyzed the "hard data," and his analysis did not depend on another's testing or analysis.
The parties do not cite a Texas case that directly addresses whether cellphone extraction reports and data are testimonial statements or hearsay that trigger the Confrontation Clause, and we have found none. However, federal courts have already addressed the issue and concluded that they do not. See United States v. Hill, 63 F.4th 335, 359 (5th Cir. 2023), cert. denied, 144 S.Ct. 207.
See also United States v. Arce, 49 F.4th 382, 391-94 (4th Cir. 2022) (holding cellphone data extracted by Cellebrite were non-testimonial, machine-generated data, though two report labels of "Child Exploitation Material" and "Child Exploitation Material (non-CAM)/Age Difficult" were testimonial).
In Hill, the Fifth Circuit analyzed a Confrontation Clause challenge and decided that cellphone extraction reports reflect non-testimonial statements. See Hill, 63 F.4th at 359. The court compared such cellphone extractions to analogous cases in which they had determined that GPS cellphone tracking reports containing only "raw, machine-produced data" were not the hearsay statements of a witness and did not trigger the Confrontation Clause. Id. at 358 (citing United States v. Waguespack, 935 F.3d 322, 333-34 (5th Cir. 2019); United States v. Ballesteros, 751 Fed.Appx. 579, 579-80 (5th Cir. 2019) (unpublished)). The court further discussed multiple other circuits' holdings that "machine statements aren't hearsay." Id. (citing United States v. Lizarraga-Tirado, 789 F.3d 1107, 1110 (9th Cir. 2015) (satellite images with machine generated location markers); United States v. Lamons, 532 F.3d 1251, 1263 (11th Cir. 2008) (cell phone call and billing records); United States v. Moon, 512 F.3d 359, 362 (7th Cir. 2008) (raw drug test data); United States v. Washington, 498 F.3d 225, 230 (4th Cir. 2007) (raw drug test data); United States v. Hamilton, 413 F.3d 1138, 1142 (10th Cir. 2005) (computer-generated 'header' information); United States v. Khorozian, 333 F.3d 498, 506 (3d Cir. 2003) (same)).
The Fifth Circuit emphasized that there are key differences between test reports generated by a person's analysis, which implicate the Confrontation Clause, and test reports that are the result of machine analysis. Id. at 359; see Paredes, 462 S.W.3d at 519 (holding "raw, computer-generated data" were not the functional equivalent of live, in-court testimony and did not violate the Confrontation Clause). Such machine-generated data do not contain representations that are dependent on the validity of human analysis or the integrity of the sample. See Hill, 63 F.4th at 359. The court thus concluded that "raw cellphone extraction reports contained 'only machine-generated results,' and were thus non-testimonial." Id. Thus, it was not a violation of the defendant's Sixth Amendment right of confrontation of witnesses to allow testimony based on the mechanically-extracted data. See id.
Other courts have similarly concluded that data extracted from cellphones do not trigger the Confrontation Clause. See State v. Green, 543 P.3d 484, 489, 489-93 (Idaho 2023); State v. Lautanen, 217 N.E.3d 59, 74-75 (Ohio Ct. App. 2023); Tennessee v. Jones, No. M2023-00799-CCA-R3-CD, 2024 WL 4442058, at *14-15 (Tenn. Crim. App. Oct. 8, 2024) (unpublished op.); United States v. Buyer, No. 22 Cr. 397 (RMB), 2023 WL 6805821, at *3 (S.D.N.Y. Oct. 16, 2023) (decision & order); United States v. Jean-Claude, No. (S1) 18 Cr. 601 (PGG), 2022 WL 2334509, at *25 (S.D.N.Y. June 27, 2022) (mem. op. & order).
This court has also previously addressed whether use of raw data in other contexts violates the Confrontation Clause. See Paredes v. State, 439 S.W.3d 522, 526-27 (Tex. App.-Houston [14th Dist.] 2014), aff'd, 462 S.W.3d 510 (Tex. Crim. App. 2015). In Paredes, we concluded that raw DNA data were non-testimonial and thus did not violate the Confrontation Clause. Id. at 527. Like the Cellebrite-extracted data here, the data in Paredes were not found in a formal report and were not admitted into evidence. Id. It was not the data's primary purpose to create an out-of-court substitute for trial testimony. See id. Second, like here, the raw data had been used by a testifying witness to develop her own opinions, and it was the testifying witness's analysis-not the raw data-that asserted facts relevant to appellant's prosecution. Id. In Paredes and here, the testifying witness was subject to cross-examination. See id.
Consistent with our analysis in Paredes and the analysis and conclusions in United States v. Hill, we conclude that the extracted cellphone data were not testimonial statements and did not violate the Confrontation Clause. We overrule appellant's first issue.
III. Alternate Juror
In his second issue, appellant contends that he was "entitled to the same jury at punishment" as in the guilt-innocence phase of trial. He contends it was error for the trial court to allow an alternate juror to sit on the jury for the punishment phase after a juror was unable to continue serving on the jury.
Article 33.011 of the Code of Criminal Procedure is the statutory provision that provides for alternate jurors. See Tex. Code Crim. Proc. Ann. art. 33.011. "An alternate juror is not a member of the regular jury until a trial court makes the determination that a sitting juror is disabled or disqualified and the trial court then replaces a sitting juror who becomes unable to perform his or her duties with an alternate juror." Becerra v. State, 685 S.W.3d 120, 131 (Tex. Crim. App. 2024). A juror is disabled if she has a "physical illness, mental condition, or emotional state that hinders her ability to perform her duties as a juror," Hill v. State, 90 S.W.3d 308, 315 (Tex. Crim. App. 2002), or that the juror was suffering from a condition that inhibited him from fully and fairly performing the functions of a juror. Scales v. State, 380 S.W.3d 780, 783 (Tex. Crim. App. 2012).
The jury returned its guilty verdict on November 18, 2022. Because of the impending Thanksgiving holiday, the trial court asked the jury to return for the punishment phase of trial on Friday, December 2, 2022. However, on December 2, one of the jurors reported to the trial court that she and her elderly father, for whom she was the medical caregiver, were ill. The trial court proposed to replace this juror with the alternate juror, who had been present throughout the guilt-innocence phase of trial. In response, appellant made the follow objection:
We would object on - to having the juror replaced at this time. There was [sic] lengthy deliberations. Kind of have no idea. The alternate juror wasn't necessarily present with that. And I understand that this is a separate proceeding. But given the nature of the case and what's been through, [sic] would object to the replacement of the juror at this time.
The trial court overruled appellant's objection, and the alternate joined the jury for the punishment phase of trial.
On appeal, appellant contends that article 37.07, § 2(b)(2) of the Code of Criminal Procedure does not allow an alternate juror to be placed on the jury for only the punishment phase of trial. See Tex. Code Crim. Proc. Ann. art. 37.07, § 2(b)(2). He argues instead that this statute requires, in pertinent part, that "if a finding of guilty is returned, . . . (2) in other cases where the defendant so elects in writing before the commencement of the voir dire examination of the jury panel, the punishment shall be assessed by the same jury . . . ." Id. (emphasis added).
However, appellant's argument on appeal does not comport with the objection he lodged in the trial court. To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling if they are not apparent from the context of the request, objection, or motion. Tex.R.App.P. 33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004). Simply stated, to preserve error, an objection must be timely, specific, and pursued to an adverse ruling. Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003). Appellant did not make a specific objection at trial and did not state the legal ground that he now argues on appeal. Because error was not preserved, we overrule issue two.
IV. Sufficiency of the Evidence
In his third issue, appellant argues that there is legally insufficient evidence to support his conviction because accusations of anal sex by two of the complainants were utterly implausible.
A. Applicable Law & Standard of Review
"Under the Due Process Clause, a criminal conviction must be based on legally sufficient evidence." Harrell v. State, 620 S.W.3d 910, 913 (Tex. Crim. App. 2021). In a sufficiency challenge, a reviewing court must determine whether a rational trier of fact could have found the essential elements of an offense beyond a reasonable doubt. See Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). "On appeal, reviewing courts 'determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict.'" Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015) (quoting Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)).
Legal sufficiency is measured by the elements of the offense as defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009). "Such a charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theory of liability, and adequately describes the particular offense for which the defendant was tried." Id.
In a legal sufficiency review, we consider the evidence in the light most favorable to the verdict to determine whether any rational finder of fact could have found the essential elements of the offense beyond a reasonable doubt. Chambers v. State, 580 S.W.3d 149, 156 (Tex. Crim. App. 2019); see Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). In our analysis, we defer to the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318-19). When the record contains conflicting inferences, we presume that the trier of fact resolved any such conflicts in favor of the prosecution, and we must defer to that resolution. Padilla v. State, 326 S.W.3d 195, 200 (Tex. Crim. App. 2010) (citing Jackson, 443 U.S. at 326).
To establish the offense of continuous sexual abuse of a child, the State had to prove that during a period that is thirty days or more in duration, appellant committed two or more acts of sexual abuse, regardless of whether the acts of sexual abuse were committed against one or more victims, and, at the time of the offense, appellant was age seventeen or older and the victim was a child younger than age fourteen. See Tex. Penal Code Ann. § 21.02(b). Although the exact dates of the abuse need not be proven, the offense does require proof that two or more acts of sexual abuse occurred during a period of thirty days or more. Id. § 21.02(b). The State may seek one conviction under § 21.02 for multiple acts of sexual abuse over an extended period of time. See Price v. State, 434 S.W.3d 601, 605-06 (Tex. Crim. App. 2014).
B. Analysis
At trial, a forensic interviewer testified that during her forensic interview, V.M. described how appellant "stuck his thing in her butt" while her younger sister, A.P., was present in the room. However, the forensic interviewer could not recall questioning A.P. about the incident and A.P. did not report it. A.P., who was age sixteen at trial and age eleven at the time of her forensic interview, described anal sex similarly to V.M., stating that A.P. would be asleep on the couch and "wake up to his penis being in my butt." She testified that this happened "all the time" on the living room couch, without anyone else in the house becoming aware of it. Appellant argues that because these accusations are implausible, a rational factfinder could not conclude that he committed two acts of sexual abuse in a period of thirty or more days in duration.
Many of appellant's sexual acts with V.M. occurred while he was laying behind her on the couch or, once, when he was on his knees behind her. When V.M. testified at trial at age eighteen, she explained that her stepfather did not actually have anal sex with her. She explained that when she gave her forensic interview as a twelve-year-old, "back then I didn't know that it [appellant's penis] could be inserted in multiple places from the back."
However, the three complainants' testimony described multiple instances of sexual abuse by appellant, other than the anal sex that appellant argues is implausible. V.M. described vaginal sex, oral sex, and touching of her breasts and genitals by appellant, in episodes that occurred from third grade to seventh grade. For instance, she recalled that when she was eight years old, appellant undressed her and put his penis in her vagina, stopping only when he heard V.M.'s mother arrive in the driveway. She described frequent occurrences when appellant would lay behind her on the couch in the living room while the family watched television and would slide his hands under her underwear or insert his penis in her. Similarly, L.G. testified that "I was sexually assaulted by [appellant] second to seventh grade." She described a day when she stayed home from school, appellant penetrated her vagina with his finger, and "then he took me to his room, and he took off my pants and took pictures of me." A.P. testified at trial that appellant began touching her when she was six years old. She described an incident in which appellant touched her vagina with his hand and then made her masturbate his penis with her hand.
Under our standard of review, we must defer to the complainants' testimony about these acts, notwithstanding any conflicts in the evidence about anal sex, because that testimony supports the jury's verdict. See Edward v. State, S.W.3d 649, 656 (Tex. Crim. App. 2021) ("When faced with conflicts in the evidence, a reviewing court shall presume that the fact finder resolved those conflicts in favor of the verdict and defer to that determination."); see also Gutierrez v. State, 585 S.W.3d 599, 607 (Tex. App.-Houston [14th Dist.] 2019, no pet.) ("The complainant's testimony, standing alone, is sufficient to support appellant's conviction for continuous sexual abuse of a young child."); Smith v. State, 340 S.W.3d 41, 49 (Tex. App.-Houston [1st Dist.] 2011, no pet.) ("The testimony of a victim, even when the victim is a child, is alone sufficient to support a conviction for sexual assault."). We conclude that a rational juror could have found beyond a reasonable doubt, from the complainants' testimony, that there is legally sufficient evidence that appellant committed the offense of continuous sexual abuse of a child.
We overrule issue three.
V. Conclusion
Having overruled all three of appellant's issues, we affirm the trial court's judgment.