Opinion
No. 04-19-00649-CR
12-09-2020
Marcus Chavez PONCIANO, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 399th Judicial District Court, Bexar County, Texas
Trial Court No. 2018CR5316
Honorable Frank J. Castro, Judge Presiding Opinion by: Rebeca C. Martinez, Justice Sitting: Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice Liza A. Rodriguez, Justice AFFIRMED
Appellant Marcus Chavez Ponciano appeals his conviction for aggravated sexual assault. In four issues, Ponciano argues the trial court erred by: (1) failing to notify Ponciano that his trial counsel had purportedly been disciplined by the State Bar of Texas; (2) admitting testimony about the minor complainant's outcry; (3) excluding impeachment evidence; and (4) allowing an expert witness to testify about the complainant's truthfulness. We affirm the trial court's judgment.
BACKGROUND
A Bexar County grand jury charged Ponciano by indictment with the offense of aggravated sexual assault of B.G., his niece by marriage. During an admissibility hearing outside the presence of the jury, B.G. testified that when she was twelve years old, she told her grandmother and legal parent, I.G., that Ponciano "made [her] have sex with him for things that [she] had wanted." She specified that she told I.G. Ponciano put his penis in her vagina. She also testified that I.G. was the first adult she told about Ponciano's conduct. During that hearing, I.G. testified that B.G. told her Ponciano "put [his penis] inside her private" and "hurt her." Ponciano objected to I.G.'s testimony about B.G.'s outcry on the basis that B.G. "never described anything about all" and that admissible outcry testimony "needs to be more than just mere illusion [sic] of some type of sex." The trial court denied Ponciano's objection and ruled the outcry statement was admissible.
To protect the privacy of the minor child, we refer to the child and her grandmother by their initials.
The record shows that I.G. legally adopted B.G. However, because the witnesses at trial consistently referred to I.G. as B.G.'s grandmother, we will do the same here for the sake of clarity.
Before the jury, B.G. testified Ponciano got in bed with her with no clothes on, removed her shorts and underwear, and had penetrative sex with her. I.G. again testified that B.G. told her Ponciano "had put his private in her and it had hurt her." I.G. also testified that Ponciano admitted to her that he had sex with B.G. After considering the evidence, the jury found Ponciano guilty as charged in the indictment. Ponciano elected to have the trial court assess his punishment, and it sentenced him to life in prison. Ponciano timely filed a motion for new trial, which was overruled by operation of law. He now appeals.
SUSPENSION OF PONCIANO'S TRIAL COUNSEL
In his first issue, Ponciano argues his conviction should be reversed because he did not know that the State Bar of Texas purportedly placed his trial counsel on probated suspension shortly before the trial began. Ponciano contends: (1) the trial court had a duty to inform him of the disciplinary proceedings against his attorney; and (2) its failure to do so "implicates the voluntariness of his [not guilty] pleading, of his announcement of ready when trial was called, and his previous waiver of his right to have the jury assess punishment."
As the State notes, however, there is nothing in the appellate record about Ponciano's trial counsel's purported suspension. Instead, Ponciano points to materials in the appendix of his brief to support this argument. We must determine this case on the appellate record as filed and cannot consider documents that are attached as appendices to Ponciano's brief. Blank v. State, 172 S.W.3d 673, 675 n.1 (Tex. App.—San Antonio 2005, no pet.). Moreover, Ponciano did not present this argument to the trial court, even though he retained appellate counsel who timely filed a motion for new trial on his behalf. TEX. R. APP. P. 33.1; Olivarez v. State, 386 S.W.3d 329, 331 (Tex. App.—San Antonio 2012, no pet.). Finally, Ponciano cites no authority holding that this error, if any, is reversible. TEX. R. APP. P. 38.1, 44.1. For these reasons, Ponciano has not preserved his first issue for our review, and we overrule it.
OUTCRY TESTIMONY
In his second issue, Ponciano argues I.G.'s testimony about B.G.'s outcry was inadmissible hearsay. In cases involving sexual conduct against a child younger than 14 years of age, an out-of-court statement made by the victim to an outcry witness may be admissible hearsay if the requirements of article 38.072 of the Texas Code of Criminal Procedure are satisfied. TEX. CODE CRIM. PROC. ANN. art. 38.072; Lopez v. State, 343 S.W.3d 137, 140 (Tex. Crim. App. 2011). The outcry witness must be the first person over the age of 18, other than the defendant, to whom the child spoke about the offense. TEX. CODE CRIM. PROC. art. 38.072 § 2(3). "The statement must be more than words which give a general allusion that something in the area of child abuse is going on." Lopez, 343 S.W.3d at 140 (internal quotation marks omitted). The record must show that the child described the alleged offense to the outcry witness in some discernible manner. Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990). We review a trial court's ruling on the admissibility of an outcry statement for abuse of discretion. Mireles v. State, 413 S.W.3d 98, 103 (Tex. App.—San Antonio 2013, pet. ref'd), abrogated on other grounds by Meadows v. State, 455 S.W.3d 156, 171 n.2 (Tex. Crim. App. 2015). A trial court abuses its discretion when its ruling is outside the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990).
Ponciano contends B.G.'s outcry to I.G. was no more than a "general allusion that something in the area of child abuse was going on." During the admissibility hearing, the trial court heard testimony that B.G. told I.G. that Ponciano "hurt her" by putting his penis in her vagina and "ma[king] [her] have sex with him" in exchange for things she wanted. Additionally, I.G. testified that B.G. told her Ponciano would "send [his wife] to the store, McDonald's, Dairy Queen every night to rape [B.G.]." I.G. also testified that B.G. told her the abuse first happened "in the summer after school had ended, so it was between June and July" of 2015. While Ponciano correctly notes that B.G. did not complete her outcry to I.G. in a single conversation and finished it in a second conversation with both I.G. and Ponciano's wife, he cites no authority for his assertion that those facts rendered I.G.'s testimony about the outcry inadmissible. TEX. R. APP. P. 38.1.
On this record, we cannot say the trial court abused its discretion by concluding the outcry statement was admissible. See MacGilfrey v. State, 52 S.W.3d 918, 920-21 (Tex. App.—Beaumont 2001, no pet.). The trial court's conclusion that B.G.'s description of Ponciano's conduct went beyond a general allusion of abuse is not outside the zone of reasonable disagreement. See id. We therefore overrule Ponciano's second issue.
IMPEACHMENT EVIDENCE
In his third issue, Ponciano argues the trial court should have allowed him to impeach B.G. with psychological records purportedly showing she had recanted an earlier allegation of sexual assault against her stepbrother. He contends this evidence goes to "accusatory behavior by a complainant" and thus is proper impeachment evidence. He also argues B.G.'s psychological records were necessary to rebut medical testimony introduced by the State. See TEX. R. EVID. 412(b)(2)(A).
As the State notes, however, these arguments do not comport with the arguments Ponciano raised at trial. See Clark v. State, 365 S.W.3d 333, 339-40 (Tex. Crim. App. 2012); Orcasitas v. State, 511 S.W.3d 213, 220 (Tex. App.—San Antonio 2015, no pet.). In the trial court, Ponciano did not contend that B.G. had recanted any previous allegations of sexual assault. Instead, he explicitly argued he should be allowed to impeach her with evidence of her "past sexual behavior"—specifically, with evidence of "the stepbrother having sex with her or something to this nature." Moreover, while Ponciano argued both at trial and on appeal that B.G.'s psychological records were admissible "if the State tries to introduce any evidence of medical evidence," he limited his trial argument on that point to an assertion that B.G.'s "prior sexual behavior" was admissible. On appeal, in contrast, he disclaims any reliance on evidence of B.G.'s prior sexual behavior, arguing, "The issue here is one of non-sexual conduct which may tend to impeach the truthfulness of the witness." Because the arguments Ponciano asserted in the trial court do not comport with his argument on appeal, he has not preserved those issues for our review. See Lucio v. State, 351 S.W.3d 878, 902 (Tex. Crim. App. 2011).
Ponciano also argued in the trial court that he should be allowed to impeach B.G. with evidence that another individual accused him of sexual assault around the same time as B.G. but later recanted her accusation. Although Ponciano briefly reiterates this complaint on appeal, he cites no authority showing the trial court erred by refusing to allow him to impeach B.G. with this purported recantation. TEX. R. APP. P. 38.1.
We overrule Ponciano's third issue.
EXPERT TESTIMONY
In his fourth issue, Ponciano challenges the testimony of the State's medical expert, Dr. Nancy Kellogg. He argues that, by testifying that her examination of B.G. supported "a concern for sexual abuse," Dr. Kellogg offered an inadmissible opinion on the truthfulness of B.G.'s own testimony. He also argues Dr. Kellogg's testimony constituted improper bolstering of B.G.'s testimony.
"[A] party must object each time the inadmissible evidence is offered or obtain a running objection." Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003). Here, Ponciano objected when the State first asked Dr. Kellogg, "Was there concern for sexual abuse?" The trial court overruled that objection. Ponciano did not request a running objection, and he did not object again when Dr. Kellogg later testified that B.G.'s "history supported a concern for sexual abuse." Because "[a]n error in the admission of evidence is cured where the same evidence comes in elsewhere without objection," Ponciano waived his objection to the testimony he challenges in his fourth issue. See id. Ponciano's fourth issue is overruled.
CONCLUSION
We affirm the trial court's judgment.
Rebeca C. Martinez, Justice DO NOT PUBLISH