Summary
In Prestiano, defense counsel did not object to a therapist's hearsay testimony about a minor victim's statements concerning sexual abuse and to corresponding exhibits.
Summary of this case from Vega v. StateOpinion
NO. 01-17-00763-CR
08-20-2019
Joseph PRESTIANO, Appellant v. The STATE of Texas, Appellee
OPINION ON REHEARING
Joseph Prestiano has moved for rehearing of our March 26, 2019 opinion and judgment. We deny his motion for rehearing, withdraw our opinion and judgment of March 26, 2019, and substitute the following opinion and judgment in its place.
Prestiano appeals from three judgments of conviction for aggravated sexual assault of a child younger than six years old. He contends that:
(1) as to the third count in the indictment only, the evidence is legally insufficient to sustain his conviction, in which the State alleged that he penetrated the child's mouth with his penis;
(2) the trial court erred in overruling his hearsay objections to a picture of sex toys drawn by the child during therapy and her counselor's testimony that the child drew the toys to explain what Prestiano did to her; and
(3) his trial lawyer rendered ineffective assistance by not lodging a hearsay objection to the therapist's testimony about the child's use of dolls and drawings to communicate the circumstances of her abuse.
We reject Prestiano's evidentiary and ineffective-assistance claims. As to the third count, we agree that the evidence is legally insufficient to prove beyond a reasonable doubt that Prestiano penetrated the child's mouth with his penis. The evidence is sufficient, however, to sustain a conviction for the lesser-included offense of aggravated sexual assault by contact. We thus reform his judgment of conviction under the third count to reflect a conviction for the lesser-included offense, affirm his other two judgments of conviction, and remand to the trial court for a new punishment hearing as to the reformed conviction for the lesser-included offense.
BACKGROUND
Prestiano was indicted for three counts of aggravated sexual assault of a child younger than six years old. See TEX. PENAL CODE § 22.021(a)(1)(B), (a)(2)(B). All counts concerned a girl for whom he babysat. In the first count, the State alleged that Prestiano contacted the child's sexual organ with his mouth. See id. § 22.021(a)(1)(B)(iii). In the second count, the State alleged that he contacted the child's sexual organ with his penis. See id. In the third count, the State alleged that Prestiano penetrated the child's mouth with his penis. See id. § 22.021(a)(1)(B)(v).
Prestiano pleaded not guilty, and the case was tried to the bench.
The child was seven years old when she took the stand. She testified that Prestiano sexually abused her. Specifically, the child stated that he would touch her "private part and stuff." She clarified that by "private part" she meant her "pee-pee." Prestiano would touch her there with "weird toys and his hands" and sometimes his mouth. She said that he put the toys inside of her—that is, that Prestiano would put them in her "private part." She initially could not recall what the toys looked like but did remember drawing a picture of them in therapy. Subsequently, however, she recalled that one of the toys "was green and it vibrated when he pressed a button or something." When shown a photo of the green device and another vibrator, she recognized both. He kissed her on the mouth and on her "private part." She also said that he made her touch his "private part" sometimes, including with her finger and mouth. When she referred to his "private part" she meant the body part used to go "pee-pee." She stated that he would slide his private part "up and down on my private part." She also said that "gray stuff" came out of his "private part." She said that he abused her "a lot."
The child's mother also testified. Her daughter made her outcry to her mother, disclosing Prestiano's abuse, several days after Christmas 2015, when she was five years old. The mother testified that her daughter was "a little fearful" and was "afraid she would get in trouble." The child indicated to her mother that Prestiano touched her genitals with his tongue. When the mother asked her daughter if "she wanted to see a policeman" about the abuse, the child "started crying and said that she didn't want to be arrested." Her mother contacted Child Protective Services so that a uniformed officer would not be directly involved. Her daughter was interviewed by a child advocate, while a police officer listened in from another room.
The child subsequently began seeing a therapist, Vickie Purdy, who likewise testified. Purdy is a licensed professional counselor. She treated the child weekly from February through April 2016. Purdy stated that the child "had a lot of anxiety and fear, some feelings of guilt that she hadn't said anything for so long." The child "had nightmares and drew pictures." Because the child was so young, Purdy primarily used "non-directive, child-centered play therapy." Over defense counsel's objection, Purdy testified that the child demonstrated with dolls what had happened to her. Purdy also testified over objection about a drawing the child made of "some toys that had been used with her."
Law enforcement officers seized two vibrators—one lime green and the other black with multihued rhinestones—from Prestiano's home during a search. A forensic analyst with the Texas Department of Public Safety analyzed the sex toys for DNA. Two samples taken from the green vibrator showed that DNA from two people were present, and the child could not be excluded as a "possible contributor" to this mixture of DNA. Two samples from the other vibrator showed mixtures of DNA from two and three people respectively. The child could not be excluded from these samples, either.
Prestiano took the stand in his own defense. He testified that he babysat the child "quite a bit" at her parents' home. He denied touching her inappropriately, kissing her "anywhere that would have seemed inappropriate," or using a vibrator on her. He acknowledged that the green and black vibrators were his. As an explanation for the DNA evidence, Prestiano stated that the child discovered the green vibrator after going through his backpack, which he usually carried with him. He was not certain if she also had come across the black vibrator, or how she did so if she did, but indicated that it also was in his backpack. He testified that he had not realized that the vibrators were in the backpack, explaining that he thought that he "had thrown those out more than once" but that they kept turning up. He said that the vibrators "may have been in there for years" and that he had "thought they were long gone." When the child found the green vibrator and showed it to him, Prestiano told her that it was a "toy lipstick" but she nonetheless asked: " ‘Is it for,’ and motioned down." Prestiano explained that that he had seen the child use her own toys "on her genitals." According to him, the child asked him questions of an adult or sexual nature that made him uncomfortable "quite frequently." He further testified that the child was generally naked at home, saying that it "was rare that she ever had clothes on."
The trial court found Prestiano guilty of the three counts, and it entered separate judgments of conviction for each one. It assessed his punishment at 50 years of confinement on each count and ordered that the sentences run concurrently.
DISCUSSION
I. Legal Sufficiency
Prestiano contends that there is insufficient evidence to sustain his conviction for the third count of aggravated sexual assault of a child, in which the State alleged that he penetrated the child's mouth with his penis. The State disagrees but further responds that if the court agrees with Prestiano, it should reform his conviction to one for aggravated sexual assault of a child by contact. Prestiano contends that the court cannot do so because aggravated sexual assault of a child by contact is not a lesser-included offense of aggravated sexual assault of a child by penetration.
A. Standard of review and applicable law
In a legal-sufficiency review, we view the evidence in the light most favorable to the judgment to determine whether a rational factfinder could have found the essential elements of the crime beyond a reasonable doubt. Gear v. State , 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) (relying on Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ). In a bench trial, when the trial court sits as the sole factfinder, it alone assesses the credibility of the witnesses and decides how much weight to give each witness's testimony, which it may choose to believe or disbelieve in whole or part. Joseph v. State , 897 S.W.2d 374, 376 (Tex. Crim. App. 1995) ; Hernandez v. State , 538 S.W.2d 127, 131 (Tex. Crim. App. 1976). We defer to the trial court's resolution of conflicts in the evidence. Isassi v. State , 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
The statute criminalizing aggravated sexual assault of a child sets forth several distinct offenses. Vick v. State , 991 S.W.2d 830, 833 (Tex. Crim. App. 1999). A person may commit an aggravated sexual assault of a child in several ways, including by intentionally or knowingly causing:
• the child's mouth to contact his penis, or
• the penetration of the child's mouth by his penis,
if the child is younger than 14 years of age, regardless of whether the person knew the child's age. See TEX. PENAL CODE § 22.021(a)(1)(B), (a)(2)(B) ; Smith v. State , 340 S.W.3d 41, 48 (Tex. App.—Houston [1st Dist.] 2011, no pet.). The uncorroborated testimony of the child is sufficient, standing alone, to support a conviction. Gonzalez v. State , 522 S.W.3d 48, 57 (Tex. App.—Houston [1st Dist.] 2017, no pet.). The child need not directly and explicitly testify as to contact or penetration with the same clarity and ability of an adult witness to prove these facts beyond a reasonable doubt. See Villalon v. State , 791 S.W.2d 130, 133–35 (Tex. Crim. App. 1990).
B. Analysis
In the third count of the indictment, the State alleged that Prestiano intentionally penetrated the child's mouth with his penis. The child's testimony was the supporting evidence on this subject. In response to questions posed by the State, the child testified as follows:
Q. Did any part of you ever touch his private part?
A. I think my finger and my mouth, but he forced me to do it.
Q. You're not in trouble, babe.
A. I know.
Q. Okay. So, did his private part touch your mouth? Did it ever go inside of your mouth?
A. I think it just touched it a little bit.
* * *
Q. His private part touched your mouth?
A. Yes, I think.
"Penetration" is not defined by statute. The Court of Criminal Appeals has therefore afforded this term its ordinary meaning in the context of aggravated sexual assault, noting that it means "to enter into" or "to pass through." Green v. State , 476 S.W.3d 440, 447 (Tex. Crim. App. 2015) (quoting Vernon v. State , 841 S.W.2d 407, 409 (Tex. Crim. App. 1992) ). This definition distinguishes penetration from "mere contact with the outside of an object." Vernon , 841 S.W.2d at 409 ; accord Villa v. State , 417 S.W.3d 455, 461–62 (Tex. Crim. App. 2013). Penetration of the mouth thus occurs whenever an object parts the lips and passes into or through them. See, e.g. , Dixon v. State , 886 S.W.2d 852, 856 (Tex. App.—Beaumont 1994, pet. ref'd) (female defendant who forced child to perform oral sex on her penetrated child's mouth with her sexual organ as her labia was in child's mouth); see also Vernon , 841 S.W.2d at 408–10 (evidence that defendant inserted finger into child's outer labia but not into vagina sufficed to prove penetration); Sherbert v. State , 531 S.W.2d 636, 637 (Tex. Crim. App. 1976) (insertion of penis between labia suffices to show penetration even if vagina not entered).
The child testified that Prestiano touched her mouth with his penis. Touching ordinarily connotes contact. See IslasMartinez v. State , 452 S.W.3d 874, 877–79 (Tex. App.—Dallas 2014, pet. ref'd) (undefined term "contact" synonymous with "touching" in context of aggravated sexual assault). Because the word "mouth" encompasses not only the lips but also the tongue, gums, teeth, and cavity containing these parts, the child's testimony that Prestiano touched her mouth with his penis conceivably could mean either contact or penetration. See Johnson v. State , 882 S.W.2d 39, 41 (Tex. App.—Houston [1st Dist.] 1994, pet. ref'd) (affording statutorily undefined term "mouth" its ordinary meaning in context of aggravated sexual assault). When asked whether Prestiano touched her mouth with his penis or placed it inside her mouth, however, the child responded that his penis "just touched it a little bit." Viewed in the context of these questions distinguishing between touching the mouth and placement inside of the mouth, the child's testimony—even allowing for her young age and limited ability to articulate the nature of Prestiano's sexual abuse—cannot support a finding of penetration. On this record, a factfinder could do no more than speculate as to whether penetration or mere contact occurred, and the factfinder "is not permitted to draw conclusions based on speculation because doing so is not sufficiently based on facts or evidence to support a finding beyond a reasonable doubt." Temple v. State , 390 S.W.3d 341, 360 (Tex. Crim. App. 2013) ; see also Hooper v. State , 214 S.W.3d 9, 16 (Tex. Crim. App. 2007) ("Speculation is mere theorizing or guessing about the possible meaning of facts and evidence presented.").
We thus hold that legally insufficient proof supports Prestiano's conviction under count three of the indictment for aggravated sexual assault by penetration.
C. Reformation
Prestiano contends that the legal insufficiency of the evidence as to the third count requires us to reverse that conviction and render a judgment of acquittal. Rather than acquit Prestiano, the State contends that we must reform his conviction to the offense of aggravated sexual assault by contact, which the State argues is a lesser-included offense of aggravated sexual assault by penetration. Prestiano replies that aggravated sexual assault by contact is not a lesser-included offense.
When an appellate court finds the evidence legally insufficient to prove an element of the charged offense, but the factfinder necessarily found the defendant guilty of a lesser-included offense for which the evidence is sufficient, the appellate court must reform the judgment to reflect conviction for the lesser-included offense. Lee v. State , 537 S.W.3d 924, 927 (Tex. Crim. App. 2017). An offense is a lesser-included offense of another if, among other things, "it is established by proof of the same or less than all of the facts required to establish the commission of the offense charged." TEX. CODE CRIM. PROC. art. 37.09(1). To decide whether Prestiano's conviction for aggravated sexual assault by penetration should be reformed to a one for aggravated sexual assault by contact, we therefore must answer two questions:
(1) in convicting Prestiano of aggravated sexual assault by penetration, must the trial court sitting as factfinder have necessarily found every element required to convict him of aggravated sexual assault by contact; and
(2) is there legally sufficient evidence to support a conviction for aggravated sexual assault by contact?
See Thornton v. State , 425 S.W.3d 289, 300 (Tex. Crim. App. 2014). If we answer these questions in the affirmative, then we must reform Prestiano's conviction as the State advocates. Id. Otherwise, we must render a judgment of acquittal as to the third count as Prestiano advocates. See id.
The State maintains that we must answer the first question in the affirmative because the offenses of aggravated sexual assault by contact and aggravated sexual assault by penetration differ only in the degree of physical invasion involved, with the latter always factually subsuming the former. See TEX. PENAL CODE § 22.021(a)(1)(B)(ii), (v) (penile penetration of the mouth versus penile contact with the mouth); Maldonado v. State , 461 S.W.3d 144, 149 (Tex. Crim. App. 2015) (noting that "penetration cannot physically occur in the absence of contact"). We agree with the State.
Though criminalized by the same statute and subject to the same range of punishment, aggravated sexual assault by contact is a lesser-included offense of aggravated sexual assault by penetration because the only thing separating the two offenses is the degree of physical invasion. See TEX. PENAL CODE § 22.021(a)(1)(B)(ii), (v) ; Maldonado , 461 S.W.3d at 149 ; see also Hicks v. State , 372 S.W.3d 649, 657–58 (Tex. Crim. App. 2012) (holding that "the range of punishment is irrelevant in deciding whether an offense is a lesser-included offense" and concluding that reckless aggravated assault was lesser-included offense of intentional or knowing aggravated assault even though offenses are criminalized by same statute and impose same range of punishment); Ex parte Pruitt , 233 S.W.3d 338, 348 (Tex. Crim. App. 2007) (acts of genital-to-genital contact incidental to or subsumed by acts of penetration "are lesser-included offenses of these incidents of penetration"). The trial court necessarily found every element required to convict Prestiano of aggravated sexual assault by contact because its elements and the elements of aggravated sexual assault by penetration are identical but for the distinction between contact and penetration and "penetration cannot physically occur in the absence of contact." Maldonado , 461 S.W.3d at 149 ; see also Jourdan v. State , 428 S.W.3d 86, 97 (Tex. Crim. App. 2014) (defendant could not have penetrated child's sexual organ without first contacting it and therefore jury that found penetration necessarily would have found contact as well).
As to the second question, the child testified that Prestiano touched her mouth with his penis. Her testimony is legally sufficient evidence to support a conviction for aggravated sexual assault by contact. See Gonzalez , 522 S.W.3d at 57. Having answered both questions in the affirmative, we must reform the judgment to reflect a conviction for this lesser-included offense rather than rendering a judgment of acquittal as to count three. See Thornton , 425 S.W.3d at 300.
II. Hearsay Objections
Prestiano contends that the trial court erred in overruling his hearsay objection to a picture of two vibrators that the child drew in therapy. He likewise contends that the trial court erred in admitting Purdy's testimony that the child drew the vibrators to show Purdy the sex toys that Prestiano used on the child. The State responds that the drawing and Purdy's characterization of it are not hearsay or else are admissible under the exception for then-existing mental, emotional, or physical condition. The State further responds that any possible error in admitting the drawing and Purdy's testimony about it was harmless.
A. Standard of review and applicable law
We review evidentiary rulings for abuse of discretion. Gonzalez v. State , 544 S.W.3d 363, 370 (Tex. Crim. App. 2018). A trial court abuses its discretion if its ruling is outside the zone of reasonable disagreement. Id. But even if an evidentiary ruling is erroneous, it is not a ground for reversal unless it affected the defendant's substantial rights. TEX. R. APP. P. 44.2(b) ; Coble v. State , 330 S.W.3d 253, 280 (Tex. Crim. App. 2010). Substantial rights are affected if the error had a substantial and injurious influence on the judgment. Coble , 330 S.W.3d at 280.
Hearsay—out-of-court statements offered for their truth—are generally inadmissible. See TEX. R. EVID. 801 – 02 ; Sanchez v. State , 354 S.W.3d 476, 484 (Tex. Crim. App. 2011). An exception to this general rule exists for statements expressing the speaker's then-existing state of mind or emotional, sensory, or physical condition, but this exception does not encompass statements of "memory or belief to prove the fact remembered or believed." TEX. R. EVID. 803(3) ; see Martinez v. State , 17 S.W.3d 677, 688 (Tex. Crim. App. 2000) (declarant's out-of-court statement that she was afraid of defendant admissible under state-of-mind exception); Gibbs v. State , 819 S.W.2d 821, 837 (Tex. Crim. App. 1991) (declarant's out-of-court statement not admissible under state-of-mind exception because it was nothing more than a statement of memory to prove fact remembered).
B. Analysis
The child testified that Prestiano showed her the sex toys and inserted them into her vagina. She independently recalled the green one in her testimony. The actual vibrators were admitted into evidence without objection, as was a photograph of them. The child recognized both vibrators when she was shown the photograph.
The child's drawing depicts two vibrators, one of which is green. It also contains handwritten notes; however, the copy in the record is illegible, there was no testimony as to the notes' content, and the parties do not discuss the notes in their briefs. The child testified that she made the drawing in therapy. But the State did not introduce the drawing into evidence during her testimony. Her therapist, Purdy, identified the drawing and explained that the child "wanted to show me some toys that had been used with her." At this point, defense counsel objected that Purdy's testimony was hearsay, and the trial court sustained the objection. After asking Purdy whether this drawing and several others were indicative of the child's "then existing state of mind and emotional condition," the State again offered the drawing of the toys into evidence. When the State did so, defense counsel again objected:
Your Honor, I'm objecting to this. This was done over two months after the initial outcry, and I believe that it's improper bolstering. It's allowing the child witness to testify again through her counselor, and I would object to it.
The trial court overruled this objection. Purdy then explained once again that the child said that "she wanted to draw pictures of some toys that were used." Defense counsel objected again, stating that both the drawing and Purdy's testimony had "nothing to do with [the child's] state of mind." The prosecutor rejoined that, "State's position is that it has everything to do with her state of mind. That's why she was in there in the first place. It's what she has had to work through from that moment to now." The trial court overruled the defense's objection.
Whether "bolstering" remains a valid objection is in doubt. See Rivas v. State , 275 S.W.3d 880, 886–87 (Tex. Crim. App. 2009). Even if valid, a "bolstering" objection might not preserve error as to hearsay. See id. ("bolstering" is an inherently ambiguous objection with roots in multiple evidentiary rules, including the hearsay rule); see also Williams v. State , 927 S.W.2d 752, 763 (Tex. App.—El Paso 1996, pet. ref'd) ("bolstering" objection did not preserve contention that videotape was not admissible under hearsay exclusion for prior consistent statements offered to rebut charge of recent fabrication or improper influence or motive). But see State v. Balderas , 915 S.W.2d 913, 919 (Tex. App.—Houston [1st Dist.] 1996, pet. ref'd) ("Bolstering is generally a hearsay objection used when a party improperly offers evidence to support an unimpeached witness or to add credence or weight to earlier-introduced evidence."). Assuming that Prestiano's "bolstering" objection preserved his hearsay argument about the drawing for appeal, however, the admission of the drawing into evidence is not a ground for reversal.
We agree with Prestiano that the drawing is hearsay. The definition of hearsay, which generally consists of out-of-court statements offered in evidence for the truth of the matter asserted, encompasses "nonverbal conduct that a person intended as a substitute for verbal expression." TEX. R. EVID. 801(a), (d). The child made this drawing to communicate with her therapist about what had happened to her and thus her drawing was nonverbal conduct as defined in the hearsay rule. See TEX. R. EVID. 801(a) ; McMinn v. State , 558 S.W.3d 262, 269 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (distinguishing decision that held child's drawing made in therapy was hearsay). Accordingly, unless an exception to the hearsay rule applies, the child's drawing is inadmissible hearsay. See TEX. R. EVID. 802.
The State contends that the hearsay exception for then-existing mental, emotional, or physical condition applies to the drawing. See TEX. R. EVID. 803(3). But this exception contains its own exception. Under Rule 803(3), a statement regarding the witness's then-existing state of mind or emotional, sensory, or physical condition remains subject to exclusion under the hearsay rule if it is "a statement of memory or belief to prove the fact remembered or believed." Id. ; see Delapaz v. State , 228 S.W.3d 183, 207 (Tex. App.—Dallas 2007, pet. ref'd) (statements of memory or belief offered to prove fact remembered or believed are themselves excepted from state-of-mind exception to hearsay rule). The relevance of the child's drawing at trial was as an expression of her memory to prove the fact remembered, specifically that Prestiano used sex toys on her. Thus, the drawing is not admissible under the hearsay exception for then-existing mental, emotional, or physical condition. See TEX. R. EVID. 803(3) ; Glover v. State , 102 S.W.3d 754, 762–63 (Tex. App.—Texarkana 2002, pet. ref'd) (mother's testimony as to her underage daughter's out-of-court statements about sex with defendant not admissible under Rule 803(3) as purpose of evidence was to prove that defendant had sex with daughter); cf. Salazar v. State , 127 S.W.3d 355, 362–63 (Tex. App.—Houston [14th Dist.] 2004, pet. ref'd) (sexually abused children's statements in therapy that they were sad, angry, and fearful were admissible under hearsay exception for then-existing state of mind).
It is possible that evidence like the child's drawing could be admitted under another exception to the hearsay rule. Our concurring colleague contends that the hearsay exception for statements made for medical diagnosis or treatment applies. See TEX. R. EVID. 803(4). We decline to decide whether this exception applies under the circumstances of this case, however, for two interrelated reasons. First, the State did not urge this exception at trial and has neither cited Rule 803(4) nor argued that it applies on appeal. Second, because the State did not urge Rule 803(4) below, the record lacks the evidentiary predicate required to assess the drawing's admissibility under this exception. See Taylor v. State , 268 S.W.3d 571, 588–91 (Tex. Crim. App. 2008) (statements made by sexually abused children in therapy admissible under Rule 803(4) on showing that they were aware that their statements were made for diagnosis or treatment and that proper diagnosis or treatment depended on their truthfulness as well as showing that particular statements at issue were pertinent to diagnosis or treatment such that reasonable therapists would rely on these statements in diagnosing and treating patients); accord Munoz v. State , 288 S.W.3d 55, 58–60 (Tex. App.—Houston [1st Dist.] 2009, no pet.). We therefore proceed to consider whether the admission into evidence of the drawing, which was hearsay for which the State failed to establish an applicable hearsay exception, was harmful. See Martinez v. State , 178 S.W.3d 806, 815–16 (Tex. Crim. App. 2005) (remanding to court of appeals to conduct harm analysis where State failed to carry its burden to show applicability of exception to hearsay rule).
When the drawing is considered in the context of the entire record, we are confident that its admission did not affect Prestiano's substantial rights. The child testified about the vibrators and Prestiano's use of them independently of the drawing. Her drawing of the sex toys was introduced only after she had testified about them. The vibrators themselves, as well as a photograph of them, were admitted into evidence without objection. Though he denied using the sex toys on the child, Prestiano conceded that he had them with him on at least one occasion when babysitting her. On this record, the child's drawing was cumulative and was the least damning evidence on this subject. We hold that its admission was harmless beyond a reasonable doubt. See Brooks v. State , 990 S.W.2d 278, 287 (Tex. Crim. App. 1999) (any error in admitting hearsay was "harmless in light of other properly admitted evidence proving the same fact"); Lamerand v. State , 540 S.W.3d 252, 257 (Tex. App.—Houston [1st Dist.] 2018, pet. ref'd) (any error in admission of medical report containing statements made by child to doctor was harmless given that child herself testified without objection about sexual abuse and identified defendant as perpetrator); Quinonez-Saa v. State , 860 S.W.2d 704, 707 (Tex. App.—Houston [1st Dist.] 1993, pet. ref'd) (even if autopsy photos were not rendered admissible under exceptions to hearsay rule, their admission was harmless because they were cumulative).
Purdy's explanation of the drawing—that the child made it because she wanted to show Purdy "toys that had been used with her"—is inadmissible hearsay for the same reason that the drawing itself is inadmissible. As with the drawing, however, we are confident that when viewed in light of the entire record, the admission of this testimony did not affect Prestiano's substantial rights. The objectionable testimony consists of a single-sentence answer made in response to one question. By the time Purdy testified about the drawing's purpose, the child already had testified about the vibrators. She testified that Prestiano had sexually abused her with these sex toys. The vibrators themselves and a photograph of them had been admitted into evidence. Further, without objection, the child herself had testified that she drew the sex toys in therapy with her counselor. On this record, we conclude that Purdy's testimony did not have a substantial and injurious influence on the judgment and therefore was harmless. See Coble , 330 S.W.3d at 280.
III. Ineffective Assistance
Prestiano contends that his trial attorney rendered ineffective assistance by failing to object to Purdy's testimony about the child's use of dolls and drawings to communicate about the sexual abuse during counseling and several of the child's drawings that were admitted as exhibits. He argues that this evidence was hearsay and that no exception to the hearsay rule was applicable. The State responds that defense counsel's performance was not deficient because the evidence was admissible. The State further contends that, even if deficient, defense counsel's performance did not adversely affect the outcome of Prestiano's trial.
A. Standard of review and applicable law
We assess claims of ineffective assistance under the test articulated by the United State Supreme Court in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Lopez v. State , 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). Under this test, Prestiano must establish two elements. First, he must prove by a preponderance of the evidence that his lawyer's representation fell below an objective standard of reasonableness under prevailing professional norms. Id. Second, he must show that his lawyer's deficient performance prejudiced his defense by demonstrating that there is a reasonable probability that the result would have differed or a probability that suffices to undermine confidence in the outcome. Id.
We must presume that Prestiano's lawyer discharged his duties within prevailing professional norms and made the choices he did based on sound trial strategy. Id. at 142–43 ; Macias v. State , 539 S.W.3d 410, 415–16 (Tex. App.—Houston [1st Dist.] 2017, pet. ref'd). Thus, we cannot find that Prestiano's lawyer rendered ineffective assistance unless the trial record affirmatively demonstrates that his performance was deficient when viewed in the context of the totality of the representation and without the benefit of hindsight. Lopez , 343 S.W.3d at 142–43. If such evidence of deficiency is lacking, we must assume that his lawyer's choices resulted from trial strategy if any reasonably sound strategic motivation is conceivable. Id. at 143.
B. Analysis
Prestiano moved for a new trial but did not assert ineffective assistance of counsel. The trial record therefore is silent as to his lawyer's decision not to object to portions of Purdy's testimony and the corresponding exhibits.
The Court of Criminal Appeals addressed a similar ineffective-assistance claim on a similarly silent record in Lopez. A jury convicted Lopez of aggravated sexual assault of a child and assessed punishment at 50 years' confinement. 343 S.W.3d at 139. At trial, three witnesses testified as to what the child told them about the same events. Id. at 140. Thus, the testimony of two of these witnesses was improper, constituting inadmissible hearsay that merely bolstered the child's own testimony. Id. ; see also TEX. CODE CRIM. PROC. art. 38.072. On appeal, Lopez complained of his trial lawyer's failure to invoke the provisions of Article 38.072 to limit the amount of hearsay admitted against him. 343 S.W.3d at 140. The record was "silent as to trial counsel's reason for not objecting to the improper testimony." Id. The State responded with several possible theories, including the possibility that Lopez's trial lawyer may have made a tactical decision to allow all three witnesses to testify in order to expose inconsistencies in the child's outcries. Id. at 141. The Court of Criminal Appeals held that, because the record was silent as to defense counsel's reason for allowing the similar testimony without objection, Lopez failed to show that his lawyer's performance was deficient. See id. at 143–44 ; see also Macias , 539 S.W.3d at 417 (despite State's concession that doctor's opinion testimony as to child's truthfulness was improper, defendant failed to prove his lawyer rendered ineffective assistance where trial record was silent as to counsel's reason for not objecting).
As in Lopez , it is conceivable that Prestiano's trial lawyer made a strategic decision to refrain from objecting to Purdy's hearsay testimony about the child's statements, and the corresponding exhibits, to reveal any inconsistencies in the child's account of the sexual abuse. On this record, we must assume that Prestiano's lawyer's inaction resulted from a tactical choice to incur the risk posed by the hearsay in exchange for the opportunity to expose inconsistencies in the child's testimony and to challenge her credibility. Prestiano has not controverted the strong presumption that his lawyer's performance was within prevailing professional norms and his ineffective assistance claim therefore fails because he has not proven by a preponderance of the evidence that his lawyer's performance was deficient. See Lopez , 343 S.W.3d at 143–44 ; Macias , 539 S.W.3d at 417.
CONCLUSION
We reform Prestiano's judgment of conviction under the third count of the indictment to reflect a conviction for the lesser-included offense of aggravated sexual assault of a child by contact and affirm his judgments of conviction under the other two counts of the indictment. We remand to the trial court for a new punishment hearing. See Lee , 537 S.W.3d at 927 ("When an appellate court finds the evidence insufficient to establish an element of the charged offense, but the jury necessarily found the defendant guilty of a lesser offense for which the evidence is sufficient, the appellate court must reform the judgment to reflect the lesser-included offense and remand for a new punishment hearing."); Flores v. State , 888 S.W.2d 187, 193 (Tex. App.—Houston [1st Dist.] 1994, pet. ref'd) (holding that, while it was reasonable to expect that trial court would assess same punishment for lesser-included offense, remand for new punishment hearing was required because court of appeals could not say so with certainty).
Justice Keyes, concurring in part and dissenting in part. OPINION CONCURRING IN PART AND DISSENTING IN PART
Evelyn V. Keyes, Justice
I join the opinion and judgment of the panel on rehearing except with respect to (1) the majority's arguments and conclusions on Prestiano's evidentiary objections to hearsay and bolstering, as to which I concur only in the judgment, and (2) the majority's ruling remanding this case for a new punishment hearing, from which I respectfully dissent. I write separately on the evidentiary issues because I believe the majority's holding that Exhibit 6—a drawing of sex toys made by the child complainant during play therapy—is inadmissible is directly contrary to and undermines well-established law concerning the admissibility of out-of-court statements made by child sexual abuse victims during therapy as relevant substantive evidence. Thus the majority's holding can have a pernicious effect on the prosecution of sex crimes with children if relied upon as authority in subsequent cases. I also write separately on the issue of remand of the reformed judgment for a new punishment hearing under the statutory law applicable to this case as inefficient and wasteful of litigant and judicial resources.
Discussion
I. Evidentiary Rulings
In issues two, three, and four, Prestiano argues that Exhibit 6—a drawing of sex toys used with the child—was inadmissible under Texas Rules of Evidence 801 and 802, prohibiting bolstering and hearsay. He further argues that Exhibit 6 was not admissible as an exception to the prohibition against hearsay under Rule 803(3) as a statement of a then-existing mental or emotional condition when made and that no predicate was laid for its admission as a statement made for medical diagnosis or treatment under Rule 803(4). I disagree with all of these arguments. I would hold that Exhibit 6 was not inadmissible bolstering or hearsay. Rather, it was properly admitted under both Rule 803(3) and Rule 803(4) as relevant substantive evidence pertinent both to show the child victim's state of mind and emotions caused by the sexual abuse she had experienced and as a statement made in the course of treatment for her fears and anxiety through play therapy.
A. Applicable Law
Hearsay, or an out-of-court statement offered for the truth of the matter asserted, is, as the majority states, generally inadmissible unless a statute, the rules of evidence, or other rules prescribed under statutory authority provide otherwise. See TEX. R. EVID. 801, 802 ; Sanchez v. State , 354 S.W.3d 476, 484 (Tex. Crim. App. 2011). An exception to the general rule exists for statements expressing the declarant's "then-existing state of mind" or "emotional, sensory, or physical condition," but the exception does not apply to "a statement of memory or belief to prove the fact remembered or believed." TEX. R. EVID. 803(3) ; compare Martinez v. State , 17 S.W.3d 677, 688 (Tex. Crim. App. 2000) (en banc) (declarant's out-of-court statement that she was afraid of defendant was admissible under state-of-mind exception), with Gibbs v. State , 819 S.W.2d 821, 837 (Tex. Crim. App. 1991) (declarant's out-of-court statement that was nothing more than statement of memory to prove fact remembered was not admissible under state-of-mind exception). Another exception to the hearsay rule applies to statements that are "made for—and [are] reasonably pertinent to—medical diagnosis or treatment" and that "describe[ ] ... past or present symptoms or sensations; their inception; or their general cause." TEX. R. EVID. 803(4) ; see Taylor v. State , 268 S.W.3d 571, 588–90 (Tex. Crim. App. 2008) (if child-declarant sexual assault victim can and does believe that her statement to mental-health professional will facilitate her diagnosis or treatment, statement is admissible under exception to hearsay rule for statement made for purposes of medical diagnosis or treatment, whether or not mental-health professional is, strictly speaking, member of medical profession; however, record must reflect that truth-telling was vital component of particular course of therapy or treatment and that child-declarant was aware of this).
"Bolstering" is "any evidence the sole purpose of which is to convince the factfinder that a particular witness or source of evidence is worthy of credit, without substantively contributing ‘to make the existence of [a] fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.’ " Cohn v. State , 849 S.W.2d 817, 819–20 (Tex. Crim. App. 1993) (en banc). "Accordingly, evidence that corroborates another witness' story or enhances inferences to be drawn from another source of evidence, in the sense that it has an incrementally further tendency to establish a fact of consequence, should not be considered ‘bolstering.’ " Id. at 820 (holding that expert testimony describing behavioral characteristics typically exhibited by child victims of sexual abuse and behavior observed in complaining witness was admissible as relevant substantive evidence under Texas Rules of Evidence 401 and 402 ).
B. Background
I agree with the majority's statement of the record with respect to the child's testimony that Prestiano showed her the sex toys and inserted them into her vagina; that she independently recalled the green one on the stand; that the actual vibrators were admitted into evidence without objection, as was a photograph of them; and that the child recognized both vibrators when she was shown the photograph. The child also identified the drawing depicting two vibrators, one of which was green, as a drawing that she made in therapy. However, the State did not introduce the drawing into evidence during her testimony. Instead, the State called her therapist, Vickie Purdy, to the stand and qualified her to testify as to the child's state of mind and emotional state during therapy.
Purdy identified the drawing and explained play therapy, in which the child was "learning how to express her feelings," including her fears, by using books, talk therapy, and "frequently expressive arts," including drawing pictures and playing with dolls. Purdy testified that, as part of her therapy, the child "would draw on occasion."
The State asked Purdy if she could identify the drawing, and she testified that the child "wanted to show me some toys that had been used with her." At this point, defense counsel objected that Purdy's testimony was hearsay and "improper bolstering," and the trial court sustained the objection as to hearsay.
In response to questioning by the State, Purdy then identified Exhibit 6 as a drawing made by the child in her presence on a certain date, and she went on to similarly identify Exhibits 7 through 10 as drawings made by the child and Exhibit 11 as the child's handwriting, all of which were made during the same therapy session on the same date as Exhibit 6, which Purdy knew, in part, by her own handwritten dates on the exhibits. The State asked, "And do all of those drawings and the writing, the exhibits, have to do with [the child's] then existing state of mind and emotional condition?" and Purdy answered, "They do." The State then offered into evidence Exhibits 6 through 11. Defense counsel objected to all of the exhibits as bolstering, stating, "It's allowing the child witness to testify again through her counselor, and I would object to it." The trial court overruled this objection and admitted the exhibits.
The State then tendered each of the exhibits to Purdy to explain what each item showed "in the course of your therapy with [the child]." With respect to Exhibit 6, Purdy explained once again that the child said that "she wanted to draw pictures of some toys that were used." Defense counsel objected again, stating that both the drawing and Purdy's testimony had "nothing to do with state of mind. It's just restating what she's alleged had happened." The prosecutor rejoined, "State's position is that it has everything to do with her state of mind. That's why she was in there [therapy] in the first place. It's what she has had to work through from that moment to now." The trial court overruled the objection, and the State then asked Purdy to explain what each of the drawings showed about what had happened to the child that she was working through in therapy. Purdy's testimony concluded with her response to questioning about what the child was working through in her writing in Exhibit 11. Purdy testified, "At the conclusion of the session, I asked, ‘How do you feel about getting all that out today?’ and she wrote, ‘good and bad.’ " Defense counsel did not make any other hearsay or bolstering objections, and the State passed the witness.
The defense then cross-examined Purdy about the child's fear expressed in therapy and its cause. Purdy testified that it was "due to being powerless and feeling unprotected and unsafe," but that "[the child] did make some improvement in terms of anxiety, stress, and a shifting of emotions and a recognition of where the responsibility lies." She then explained, on redirect examination by the State, that a child's fear changes when the child discloses abuse. There is fear initially that the child "might not be believed or that something bad, a bad consequence might occur. There's some relief at telling those that are in charge of her, that love her [and] respond."
On appeal, Prestiano argues that Exhibit 6 was inadmissible as bolstering and hearsay that was not an expression of the child's mental or emotional condition and that this exhibit lacked the proper predicate to be admissible as a statement made for medical diagnosis or treatment. He also argues his trial counsel's representation was constitutionally ineffective because counsel failed to raise a hearsay objection to Exhibits 7 through 11. I disagree.
C. Analysis
As the majority states, whether "bolstering" remains a valid objection is in doubt. See Rivas v. State , 275 S.W.3d 880, 886–87 (Tex. Crim. App. 2009). In Rivas , the Court of Criminal Appeals observed that the law of "bolstering" existed before the Texas Rules of Evidence were adopted and, as a term, "failed to survive the adoption of the Rules." Id. at 886. Even if valid, a bolstering objection might not preserve error as to hearsay, as bolstering is an inherently ambiguous objection with roots in multiple evidentiary rules, including the hearsay rule. Id. ; see also Williams v. State , 927 S.W.2d 752, 763 (Tex. App.—El Paso 1996, writ ref'd) ("bolstering" objection did not preserve contention that videotape was not admissible under hearsay exclusion for prior consistent statements offered to rebut charge of recent fabrication or improper influence or motive).
In this case, however, there can be no doubt, under Court of Criminal Appeals authority, that Exhibit 6 was not mere bolstering but was admissible evidence. See Cohn , 849 S.W.2d at 819–20. In Cohn , the court defined bolstering as "any evidence the sole purpose of which is to convince the factfinder that a particular witness or source of evidence is worthy of credit, without substantively contributing ‘to make the existence of [a] fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.’ " Id. (citing Texas Rule of Criminal Evidence 401, a predecessor to current Rule 401 ). Here, it is clear that Exhibit 6 did not have the sole purpose of convincing the factfinder that the child was worthy of credit, but rather, was intended to make the existence of facts of consequence to the determination of Prestiano's guilt more probable than it would have been without the evidence. See id. First, the drawing of the sex toys the child made during play therapy corroborated her story and reflected that her fear and anxiety were caused by the sexual abuse and her memories of it. See id. And second, it "enhance[d] inferences to be drawn from [other] source[s] of evidence," including the child's other drawings, testimony as to what had happened to her, and identification of both the sex toys and the photograph of them introduced into evidence during her testimony. See id. at 820. Thus, it had "an incrementally further tendency to establish a fact of consequence," and, therefore, under established law, "should not be consider ‘bolstering’ " but admissible relevant substantive evidence of the sexual abuse the child suffered. See id. at 820 ; see also TEX. R. EVID. 401 (defining relevant evidence), 402 (addressing admissibility of relevant evidence).
This case is on all fours with Cohn. Accordingly, I would hold that Prestiano's bolstering objection, if valid, was unavailing.
Assuming with the majority, however, and contrary to the record, that Prestiano's objection that the drawing in Exhibit 6 and Purdy's testimony about that drawing had "nothing to do with state of mind" preserved a hearsay complaint and that Prestiano's additional complaint, raised for the first time on appeal, that the State failed to establish a predicate to the introduction of the evidence as a statement made for medical diagnosis or treatment under Rule 803(4) is properly before us, it is clear that both of these objections also fail.
In support of his hearsay objection to Exhibit 6, Prestiano argues on appeal that the drawing did not show the child's state of mind but was instead "a statement of memory or belief to prove the fact remembered or believed," which is an exception to the state-of-mind exception to the hearsay rule under Rule 803(3). The majority agrees. But this argument is contrary to both the record and the law. I would hold that, assuming Prestiano's hearsay objection to Exhibit 6 was preserved, Exhibit 6 was admissible under the plain language of Rule 803(3) and (4), as well as under Rules 401 and 402 as substantive evidence that had a tendency to make both the facts of the child's sexual abuse and its effect upon her more probable than it would be without the evidence and that was of consequence in determining the action. Accordingly, I would hold that the trial court's ruling admitting Exhibit 6 was well within its discretion and was not error. See Gonzalez v. State , 544 S.W.3d 363, 370 (Tex. Crim. App. 2018) (trial court abuses its discretion if its ruling is outside zone of reasonable disagreement).
Rule 803(3) provides, "A statement of the declarant's then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health)" is not excluded by the hearsay rule. TEX. R. EVID. 803(3). The record clearly shows that the drawing was made by the child in therapy because she wanted to show her therapist what she was feeling and working through during her play therapy session. In other words, the drawing was offered through the therapist to show the child's "then existing state of mind" or emotional condition at the time of therapy designed to help her "work through" her emotions, including anxiety and fear, and to determine their cause. The drawing thus made more probable the truth of the cause of that anxiety and fear, namely the effect of the child's memory of specific acts of abuse on her mental state that, given her age, required play therapy for her to be able to report to someone she trusted and who would respond so that she might overcome her fear. Witness the child's response when the therapist asked how she felt about the drawings she had made—"good and bad"—and the therapist's testimony that it is through such expression that a child begins to heal from a mental or emotional injury.
I note that Prestiano made no challenge to the scientific validity of play therapy or to Purdy's credentials or the reliability of her testimony. And he made no objection to the admission of the other drawings and the child's statement of her feelings after expressing her fears through her drawings that she felt both "good and bad" for having told someone what was on her mind.
The drawing in Exhibit 6 was also admissible under Rule 803(4), as it evidences the child's symptoms and sensations at the time of therapy and at their inception, which symptoms and sensations were caused by the sexual abuse itself and her memory of it, including Prestiano's use of sex toys with her. See TEX. R. EVID. 803(4) (statement made for medical diagnosis or treatment describing "past or present symptoms or sensations; their inception; or their general cause" is not excluded as hearsay). Prestiano argues for the first time on appeal that the drawing was not properly admitted because the State failed to establish a predicate to its introduction under either Rule 803(3), to show the child's state of mind, or under Rule 803(4), as a statement made for medical treatment through play therapy. Even if his defense counsel had objected on that basis at trial—he did not—that objection would have failed based on the record and the law.
The majority opinion states that it is not necessary for the Court to decide whether Exhibit 6 is admissible under Rule 803(4) because the State did not urge this exception at trial. But we must uphold an evidentiary ruling if it was correct on any theory of law applicable to the case, even if the prevailing party did not present that theory to the trial court. See Henley v. State , 493 S.W.3d 77, 93 (Tex. Crim. App. 2016) ; see also Amador v. State , 376 S.W.3d 339, 343 n.4 (Tex. App.—Houston [14th Dist.] 2012, pet. ref'd) (proponent of hearsay testimony not required to specifically state exception to hearsay rule for overruling of hearsay objection to be affirmed based on such exception); George E. Dix & John M. Schmolesky, 43B Texas Practice: Criminal Practice and Procedure § 56:135, 461 (3rd ed. 2011) ("[A]n appellee [be it the State or the defendant below] has no obligation to raise a contention in the trial court in order to ‘preserve’ that contention in some sense for consideration on appeal.").
Defense counsel's objection that the drawing had "nothing to do with state of mind" did not preserve his argument that the State failed to lay the proper predicate for its introduction of the drawing. See, e.g. , In re A.B. , 133 S.W.3d 869, 875 (Tex. App.—Dallas 2004, no pet.) (appellant's hearsay objection did not preserve argument that proper predicate had not been laid to impeach witness); see also Ferris v. State , No. 01-09-00676-CR, 2011 WL 664016, at *4 (Tex. App.—Houston [1st Dist.] Feb. 17, 2011, no pet.) (mem. op., not designated for publication) ("Because appellant failed to make his insufficient predicate argument to the trial court, he has not preserved the issue for our review.").
Exhibit 6 was admitted along with Exhibits 7 through 11 (to which no objection was made when offered), after the State had established the predicate to its admissibility under both Rule 803(3), to show the child's state of mind, and Rule 803(4), as a statement pertinent to her treatment for fear and anxiety. The record plainly establishes that Purdy was a licensed therapist with appropriate credentials and many years of experience in play therapy; that the statement was made for treatment of the child's fears and anxieties caused by the sexual abuse she had suffered, and that the child knew that; and that the drawing was pertinent not only to her treatment but to the proof of the cause of her fears and anxieties, namely sexual abuse. See, e.g. , Lamper v. State , No. 07-18-00035-CR, 2018 WL 4056064, at *5 (Tex. App.—Amarillo Aug. 24, 2018, no pet.) (mem. op., not designated for publication) (admission under Rule 803(4) of drawings by child victim depicting her sexual abuse was not abuse of discretion where sponsoring witness testified child made drawings on her own initiative during therapy sessions and drawing can be beneficial during treatment of such young child). And this evidence corroborated the child's own previous testimony.
Under Taylor , if a child-declarant sexual assault victim can and does believe that her statement to a professional mental-health counselor will facilitate her diagnosis or treatment, the statement is admissible under Rule 803(4) for purposes of medical diagnosis or treatment. 268 S.W.3d at 587–89. In this regard, the Court of Criminal Appeals acknowledged the "almost universal tendency of courts" to recognize that "even children of a sufficient age or apparent maturity" will understand that veracity is in their best interest, and thus the courts require evidence that negates such an awareness. Id. at 589. However, in the mental health context, "this tacit presumption is far less compelling" and "not always so readily apparent," and may even not be accurate. Id. at 590. Thus, the record must reflect that truth-telling was a vital component of the particular course of therapy or treatment and that the child-declarant was aware that this was case. Id. at 589–90.
Here, the record reflects that the child knew that she was in therapy so that the therapist could help her work through her fears, and she knew that she was there so that she would feel better after expressing what she was thinking about and feeling. Hence, her voluntary drawing of the sex toys as something she wanted to tell the therapist—a drawing she could not have made had she never seen the toys. And hence the child's written response, in Exhibit 11, to Purdy's question at the end of her therapy session asking "how she felt about getting all that our today," that she felt both "good and bad." There is nothing to indicate that Exhibit 6 was not of sex toys the child had seen (and indeed her earlier identification of them during her own testimony showed that she had seen and could identify them) or that the memory of them was not bothering her, and there was everything to indicate her truthfulness in recounting her feelings to the therapist, knowing that "getting it all out" was designed to determine the cause of her fear and anxiety to help her get better. I would hold that Exhibit 6, a statement made in the course of the child's therapy for her fears and anxiety, was properly predicated and thus admissible under Rule 803(4).
I cannot agree with the majority's decision to categorize the admission of Exhibit 6 as erroneous—albeit harmless error—because I believe that the majority's ruling undermines sound jurisprudence in the area of hearsay, particularly in designating as hearsay a drawing made in play therapy by a child victim of sexual abuse designed to draw out the state of mind of the child and to treat her fear and anxiety caused by the acts of the defendant as the child remembers them. This is evidence that goes directly to the effect of the abuse on the child's mental and emotional condition that makes both the occurrence of the acts depicted and the harm they caused to the child more likely to be true.
I do, however, agree with the majority that, had there had been any error in the admission of Exhibit 6, any such error was harmless beyond a reasonable doubt. See Brooks v. State , 990 S.W.2d 278, 287 (Tex. Crim. App. 1990) (any error in admitting hearsay was "harmless in light of other properly admitted evidence proving the same fact"); Lamerand v. State , 540 S.W.3d 252, 257 (Tex. App.—Houston [1st Dist.] 2018, pet. ref'd) (any error in admission of medical report containing statements made by child to doctor was harmless given that child herself testified without objection about sexual abuse and identified defendant as perpetrator).
I would overrule Prestiano's bolstering and hearsay objections. Because the majority overrules these objections on different grounds, I concur in this part of the judgment. I agree with the majority that Prestiano's trial counsel did not commit ineffective assistance of counsel by failing to object to Exhibits 7 through 11 as hearsay.
II. Remand for New Punishment Hearing
I agree with the majority's opinion and ruling that the evidence was insufficient to support Prestiano's conviction on the third count of the indictment, aggravated sexual assault of a child under Penal Code subsection 22.021(a)(1)(B)(ii) by causing his penis to penetrate the child's mouth. I also agree that the evidence was sufficient to support Prestiano's conviction for the necessarily lesser-included offense of aggravated sexual assault of a child by contact of the defendant's penis with the child's mouth under subsection 22.021(a)(1)(B)(v). Accordingly, I join the judgment of the panel insofar as it reforms the judgment of the trial court on this issue.
However, the panel remands the case for a new punishment hearing on the ground that subsection 22.021(a)(1)(B)(v) is a lesser-included offense of subsection 22.021(a)(1)(B)(ii), even though the two offenses are in exactly the same subsection, down to the third value; the range of punishment is the same; the evidence is exactly the same except for the insufficiently proved penetration of the child's mouth during commission of the offense; and contact with the mouth of a child is a necessary element of the proof of penetration—so much so that the lesser-included offense is subsumed in the greater and disappears if the greater is proved. See Aekins v. State , 447 S.W.3d 270, 280, 283 (Tex. Crim. App. 2014).
I find remand of this case for a new punishment hearing to be futile, time-consuming, expensive, and contrary to the purpose and spirit of the rules of procedure. See TEX. CODE CRIM. PROC. ANN. ART. 1.03(3) (Code of Criminal Procedure seeks "[t]o insure a trial with as little delay as is consistent with the ends of justice"). The majority, however, believes itself bound to follow precedent I find distinguishable to a conclusion I believe incompatible with the spirit and purpose of the rules of procedure.
The majority relies for its decision to remand for a new punishment hearing on Lee v. State , 537 S.W.3d 924, 927 (Tex. Crim. App. 2017) ("When an appellate court finds the evidence insufficient to establish an element of the charged offense, but the jury necessarily found the defendant guilty of a lesser offense for which the evidence is sufficient, the appellate court must reform the judgment to reflect the lesser-included offense and remand for a new punishment hearing."), and Flores v. State , 888 S.W.2d 187, 193 (Tex. App.—Houston [1st Dist.] 1994, pet. ref'd) (holding that, while it was reasonable to expect that trial court would assess same punishment for lesser-included offense, remand for new punishment hearing was required because court of appeals could not say so with certainty). However, both of these cases are distinguishable.
In Lee , the defendant was convicted of continuous sexual abuse of a child, which was reformed to the lesser-included offense of aggravated sexual assault of a child. 537 S.W.3d at 925–26. In that case, the evidence showed that the defendant had committed aggravated sexual assault of the child twice—once in Texas and once in New Jersey. Id. at 925. The issue was whether this evidence was sufficient to prove continuous sexual abuse of a child under Texas Penal Code section 21.02(b). Id. at 926. The Court of Criminal Appeals held that it was not—that continuous sexual abuse of a child under Texas law requires the commission of two or more acts in violation of the statute within the state. See id. at 926–27. It concluded that the evidence was sufficient only to prove the lesser-included offense of aggravated sexual assault of a child under Penal Code section 22.021, which requires only one act of aggravated sexual assault in Texas. Id. at 926. Thus, the court reformed the judgment to convict the defendant only of the lesser-included aggravated sexual assault offense, and it remanded the case for a new punishment hearing. See id. at 927.
The facts of Lee are materially different from the facts in this case in that, in Lee , punishment under Texas law had to be determined on the basis of only one act of sexual assault of a child (the other act not being a violation of Texas law, but of New Jersey law), and the statutes under which the greater and the lesser-included offenses were punishable were different statutes with materially different elements, including multiple acts versus one act, each requiring different proof. Here, there was only one act and no different evidence required beyond proof of penetration during that act. The only question here was whether the act was punishable under Penal Code subsection 22.021(a)(1)(B)(ii) or (v).
Flores was not a sex offense case. See 888 S.W.2d at 189. It involved a conviction for theft under Penal Code section 31.03 that was reformed to a conviction for the lesser-included offense of unauthorized use of a vehicle under Penal Code section 31.07. See id. at 192–93. Both section 31.07 and the subsection of section 31.03 under which the defendant was convicted were third-degree felonies with the same range of punishment. See TEX. PENAL CODE §§ 31.03, .07. However, theft under section 31.03 comprises numerous offenses, including unlawful appropriation of a vehicle with the intent to deprive the owner of it, while unauthorized use of a vehicle under section 31.07 prohibits only the intentional and knowing operation of a vehicle without the owner's consent. Compare TEX. PENAL CODE § 31.03(a) – (j) (providing three types of "unlawful possession of property" with numerous potentially distinguishing features set out in different subsections, defining different unavailing defenses, and prescribing multiple levels of punishment), with § 31.07 (requiring proof only that actor "intentionally or knowingly operate[d] another's boat, airplane, or motor-propelled vehicle without the effective consent of the owner"). Again, the greater offense and the lesser-included offense were proscribed under different statutes with materially different levels of scienter and proof, were provable with different evidence, and could have resulted in different punishments.
Here, unlike in either Lee or Flores , both the greater offense of penetration of the mouth of a child by the defendant's sexual organ and the lesser-included offense of contact of the mouth of a child by the defendant's sexual organ are punishable as aggravated sexual assault of a child under the same subsection of Penal Code section 22.021 down to the third level, namely under subsections 22.021(a)(1)(B)(ii) and 22.021(a)(1)(B)(v); the proof of both is proof of the exact same act except that the greater offense includes proof of penetration; and both offenses are subject to the exact same range of punishment without any lesser degree of culpability or intent on the part of the actor.
In short, proof of penetration necessarily includes proof of contact, which is the only distinguishing feature in every case, and it can lead to no different punishment—so much so that the Court of Criminal Appeals has held that a contact allegation is not only factually subsumed by the act of penetration, so that sexual contact necessarily stands in the relationship of a lesser offense to the greater offense of penetration, but also that the relation between the offenses is so great that, if the greater is proved, the lesser disappears as a separate offense. Aekins , 447 S.W.3d at 280, 283 ; see also Maldonado v. State , 461 S.W.3d 144, 149 (Tex. Crim. App. 2015) (noting that "penetration cannot physically occur in the absence of contact"). In other words, the lesser offense is legally subsumed by the greater.
Remanding this case for a new punishment hearing before the same judge who assessed punishment in the first trial with the same evidence where the lesser offense is not only subsumed by the greater but disappears upon a finding of the greater is an illiberal reading of the rules of criminal procedure, with attendant additional expense and delay both to the defendant and to the State; hence it is an exercise in futility, and contrary to the purpose and spirit of the procedural rules. See TEX. CODE CRIM. PROC. ANN. ART. 1.03(3).
Accordingly, I dissent from the panel opinion and reformed judgment insofar as the panel remands the case to the trial court for a new punishment hearing.
Conclusion
I respectfully concur in the judgment insofar as it overrules the defendant's evidentiary objections. I dissent from the judgment solely insofar as the panel remands this case for a second punishment hearing. I would overrule the defendant's objections to the trial court's evidentiary rulings on different grounds; I would reform the judgment to reflect the defendant's conviction on the third count for the lesser-included offense of aggravated sexual assault of a child by contact; and I would affirm the judgment of the trial court as reformed.