Opinion
No. 14-04-00963-CR
Memorandum Opinion filed March 2, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 228th District Court, Harris County, Texas, Trial Court Cause No. 963,554. Affirmed.
Panel consists of Justices FOWLER, EDELMAN, and GUZMAN.
MEMORANDUM OPINION
Appellant Jose Fernando Perez-Del Rio was convicted of the offense of indecency with a child and was sentenced to six years' confinement in the Texas Department of Criminal Justice, Institutional Division, and fined $10,000. On appeal, appellant contends (1) the evidence of the complainant's age is factually insufficient, (2) the trial court erred by admitting into evidence a videotape of a Child Assessment Center interview with the complainant, and (3) the trial court erred by admitting videotapes in the punishment phase without a proper foundation and in violation of Texas Rule of Evidence 403. We affirm.
Factual Background
In July of 2003, the complainant, J.A., took a job as a live-in housekeeper for appellant and his wife. J.A. was sixteen years old at the time. Shortly after J.A. started working, appellant began looking at her and acting in ways that made her uncomfortable. On one morning, appellant came into J.A.'s room and woke her by grabbing her upper thigh as he told her to get up. Later, while she was cleaning, appellant asked her to sit down, and he again grabbed her legs and told her that her legs were pretty. During another episode, appellant asked J.A. to massage his feet, and J.A. complied, using lotion appellant provided. Appellant then asked J.A. to massage his arms and hands, and while J.A. was bending down massaging his left hand, appellant grabbed her breast over her clothes. J.A. backed away and told appellant to stop, which he did. As J.A. was about to leave the room, appellant called her back in, and, while pulling up his shorts on one side, he asked her to give him a massage "right there." That night, at about 3:00 a.m., J.A. saw appellant come into her room and then leave without saying anything. Appellant later apologized to J.A. for going into her room. The next day, appellant took J.A. to a pool hall and bought her a beer, which she did not drink. While playing pool, appellant got close to J.A., and she felt his "private part" against her "backside." When they got in appellant's truck to leave the pool hall, appellant told J.A. he was "feeling horny." That evening, appellant and J.A. were alone in the house, and appellant began talking to J.A. During the conversation, he asked her if she had ever been "kissed with passion." J.A. began to cry. Appellant then asked her if she had ever touched a "body instrument." When J.A. replied that she had not, appellant said, "you just lost $100." Appellant also asked J.A. if she would get mad if he gave her a kiss. When she responded that she would, appellant wanted an explanation, so J.A. told him she did not kiss people she did not like or did not feel attracted to. Appellant then asked her if she was scared of falling in love with him, to which she answered that she was not. Appellant replied that she "just lost $20." Thereafter, appellant began "acting mean" to J.A., and she was fired a few days later.Discussion of Appellant's Issues
I. The Sufficiency of the Evidence of J.A.'s Age In his first issue, appellant contends the evidence of J.A.'s age is factually insufficient to support a finding of guilt because it is based solely on her testimony. Appellant maintains J.A.'s age cannot be determined beyond a reasonable doubt because contrary testimony was offered by appellant's wife, and J.A.'s testimony was not supported by corroborating testimony or documentary evidence such as a birth certificate, passport, or identity card. We disagree. When evaluating a challenge to the factual sufficiency of the evidence, we view all the evidence in a neutral light and inquire whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). We may find the evidence factually insufficient in two ways. Id. First, when considered by itself, the evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, after weighing the evidence supporting the verdict and the evidence contrary to the verdict, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. at 484-85. In conducting the factual sufficiency review, we must employ appropriate deference so that we do not substitute our judgment for that of the fact finder. Id. at 481-82; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). We will not set aside the judgment unless the evidence supporting the verdict is so weak as to be clearly wrong and manifestly unjust. Zuniga, 144 S.W.3d at 481. Appellant was charged with and convicted of felony indecency with a child by intentionally and knowingly engaging in sexual contact with J.A., a person younger than seventeen years of age and not his spouse, by touching through clothing the breast of J.A. with the intent to arouse and gratify his sexual desire. See TEX. PEN. CODE ANN. § 21.11(a)(1), (c). At trial, J.A. testified that she was then sixteen years old, that she was sixteen during the time she worked as a housekeeper for appellant and his wife, and that her birthday was "July 5th." The State did not introduce a birth certificate or other documentary evidence of J.A.'s age; nor did it elicit testimony from other family members concerning her age. As part of the defense case, appellant's wife testified that it was her understanding that J.A. was seventeen years old, and that she and appellant would not have hired anyone younger than seventeen for the housekeeping job. According to appellant, the evidence of J.A.'s age was not factually sufficient to support a finding of guilt because "distinguishing whether a teenager is sixteen or seventeen is not a reasonable inference that may be drawn by the jury from the evidence." Appellant urges us to adopt a "neutral method" for conducting a factual sufficiency review of a complainant's age that apparently requires additional corroborating evidence. In support of this contention, appellant cites two unpublished cases, Smith v. State, No. 05-03-01282-CR, 2004 WL 1089206 (Tex.App.-Dallas May 17, 2004, no pet.) (not designated for publication), and Villareal v. State, No. 05-97-01047-CR, 1999 WL 102228 (Tex.App.-Dallas March 2, 1999, no pet.) (not designated for publication). However, these cases merely list the evidence the courts found sufficient to show the complainants were under seventeen years of age; they do not hold or otherwise articulate a requirement that multiple sources of evidence are necessary to support such a finding. See Smith, 2004 WL 1089206, at * 2, 12 (evidence of appellant's age consisted of complainant's testimony of her current age, her age at the time of the offense, and her birth date (but not the year), as well as testimony of her mother, grandmother, and two non-family members regarding complainant's age); Villareal, 1999 WL 102228, at * 1 (evidence of appellant's age consisted of appellant's confession, a police officer's affidavit, testimony of complainant and her mother concerning the length of time complainant knew appellant, and the jury's visual determination of complainant's age during her testimony). Merely because more or different evidence of the complainant's age was available in other cases does not require us to conclude that the evidence available in this case is factually insufficient. The testimony of a child victim alone is sufficient to support a conviction for aggravated sexual assault or indecency with a child. Perez v. State, 113 S.W.3d 819, 838 (Tex.App.-Austin 2003, pet. ref'd); see TEX. CODE CRIM. PROC. art. 38.07. The Court of Criminal Appeals has held that, in a prosecution for aggravated rape of a child, the testimony of the complainant as to her age and birth date was sufficient to prove that she was under the age of seventeen at the time of the offense. See Jason v. State, 589 S.W.2d 447, 449 (Tex.Crim.App. 1979). Additionally, we note that in Smith, one of the cases cited by appellant, the court of appeals cited Jason with approval and rejected the argument that the complainant's testimony was factually insufficient because the State did not introduce evidence of her birth certificate or elicit testimony of the year of her birth. See Smith, 2004 WL 1089206, at *11. Therefore, we reject appellant's contention that J.A.'s testimony concerning her age was factually insufficient because it was not corroborated by other testimony or documentary evidence such as a birth certificate. Appellant also contends the testimony of appellant's wife that she believed J.A. was seventeen years old contradicts J.A.'s testimony that she was sixteen, and asserts that, because J.A. would not have been hired unless she was at least seventeen, she had a reason to deceive appellant and his wife. However, testimony regarding the wife's belief does not prove the truth of the belief; at most, it was an issue for the jury to consider. In our factual sufficiency review, we must defer to the jury's determination concerning what weight to give conflicting testimony because resolution of facts often turns on evaluation of credibility and demeanor. See Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App. 2000); Cain, 958 S.W.2d at 408-09. The jury could have believed J.A.'s testimony concerning her age and disbelieved the testimony of appellant's wife. On this record, we do not find that the evidence supporting the verdict is so weak as to be clearly wrong and manifestly unjust. See Zuniga, 144 S.W.3d at 481. We therefore overrule appellant's first issue.2. The Admission of the CAC Tape
In his second issue, appellant contends the trial court improperly admitted into evidence a videotaped Child Assessment Center ("CAC") interview with J.A. because it is inadmissible hearsay and its credibility is questionable. We review the trial court's decision to admit evidence for an abuse of discretion. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000). We will uphold the trial court's ruling if it was within the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990) (op. on reh'g). The State presented J.A. as a witness in its case-in-chief, but did not seek to introduce the CAC videotape during her testimony. On cross-examination, in an apparent effort to discredit her testimony and to establish that her testimony concerning the alleged "breast-touching incident" was recently fabricated, appellant questioned J.A. about the details of her statements to investigators. Appellant's counsel then asked if the trial was the first time J.A. alleged that the incident happened on a certain day; J.A. responded that she also told the CAC interviewer when they were recording her. Appellant's counsel then commented that the recording would "speak for itself." Further cross-examination focused specifically on J.A.'s videotaped statement to the CAC interviewer:[Defense]: And isn't it true that on that statement that you had given, [J.A.], that you didn't mention anything about the breast touching, right?
[J.A.]: Yes, I did.
[Defense]: You didn't mention that at the first part of the tape though, did you?
[J.A.]: The first part of the tape? At the beginning I was telling everything that happened on every day.
[Defense]: Okay. And the truth is that you told the story all the way up until you got terminated on Saturday, right?
[J.A.]: Yes, sir. And all the way till when my mom called him.
[Defense]: Okay. And then you just told that whole story and the lady got up and left the room; is that correct?
[J.A.]: Yes, sir.
[Defense]: And up until that point, you had basically been fired and your mom had talked to them and that was the end of the interview, right?
[J.A.]: Yes, sir.
[Defense]: Okay. And then isn't it true that the lady comes back in there and says tell me about the breast-touching incident and you said oh, yeah?
[J.A.]: Yes.Later, the State offered the videotape during the testimony of the CAC interviewer who had conducted J.A.'s videotaped interview. Appellant objected to admitting the videotape as a violation of Texas Code of Criminal Procedure article 38.071, inadmissible hearsay, and improper bolstering. The State responded that the videotape was admissible because appellant had opened the door, and it was admissible under Texas Rule of Evidence 801(e)(1)(B) as a prior consistent statement offered to rebut a charge of recent fabrication or improper influence or motive. On appeal, appellant contends that the safeguards contained in Texas Code of Criminal Procedure article 38.071, section 5, should be applied here to render the tape inadmissible, even though this article applies only when a child younger than thirteen years old is unavailable to testify. See TEX. CODE CRIM. PROC. art. 38.071, § 5(a). Appellant argues that the statutory safeguards should be applied because of "the extenuating circumstances regarding the limited cross-examination," leading questions during the CAC interview, and J.A.'s "apparent" motive to lie because she was fired from her job after only one week. We do not reach this issue, however, because we find that the CAC videotape was admissible as a prior consistent statement offered to rebut a charge of recent fabrication and as a response to appellant's opening the door to the videotape. Under Rule 801(e)(1)(B), a prior statement is not hearsay if it is "consistent with the declarant's testimony, and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive." TEX. R. EVID. 801(e)(1)(B). Appellant's counsel's cross-examination of J.A. sought to create an impression that J.A.'s testimony at trial differed from the statements she gave to others and to imply that the CAC interviewer asked leading questions about the "breast-touching incident," all in an effort to cast doubt on J.A.'s credibility. We hold that, on this record, the trial court did not abuse its discretion in admitting the CAC videotape as a prior consistent statement. See Graves v. State, 176 S.W.3d 422, 429 (Tex.App.-Houston [1st Dist.] 2004, pet. struck) (holding CAC videotape admissible as prior consistent statement when defense challenged complainant's credibility on cross-examination). Moreover, appellant's counsel's specific questions concerning the videotape and the CAC interviewer's questioning raised issues about the nature of the videotape, and so opened the door to admission of the tape as evidence. See id. Appellant also suggests that the CAC videotape constituted improper bolstering, because it allowed the State to present its principle witness twice. However, as we have held, the State was entitled to introduce the videotape to rehabilitate J.A. after defense counsel challenged her credibility. Therefore, admitting the videotape does not constitute improper bolstering. See Skeen v. State, 96 S.W.3d 567, 578 (Tex.App.-Texarkana 2002, pet. ref'd) ("Testimony elicited to rebut prior impeachments by opposing counsel is not considered improper bolstering."). We overrule appellant's second issue.
3. The Admission of Videotapes in the Punishment Phase
In his third issue, appellant contends the admission of two videotapes — State's Exhibit 5 and State's Exhibit 6 — in the punishment phase violated Texas Rule of Evidence 403 and lacked a proper foundation. Both exhibits were related to an incident in 1995 in which appellant was charged with possession of child pornography. State's Exhibit 5 is a videotape seized from appellant's vehicle in 1995, which contains several different excerpts, including one of a young girl lying on a couch in shorts while smoking what appears to be a marijuana cigarette, one of a girl riding a bicycle, one of a girl playing with a puppy, and one of a naked woman on a bed looking at photographs of young girls. State's Exhibit 6 is a crime scene videotape depicting the adult and child pornography in appellant's possession. The trial court made a preliminary ruling that, if the State laid a proper foundation, the evidence was admissible and relevant to punishment. We address appellant's arguments as applied to each exhibit. a. State's Exhibit 5 (i) Rule 403 Appellant contends the trial court abused its discretion by admitting State's Exhibit 5 in violation of Texas Rule of Evidence 403. Rule 403 provides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. See TEX. R. EVID. 403. However, we do not reach appellant's Rule 403 contention because appellant failed to preserve the issue by making a timely and sufficiently specific objection on this ground and obtaining an adverse ruling from the trial court. See TEX. R. APP. P. 33.1(a). When the trial court made its preliminary ruling, appellant objected to the excerpt of the nude woman looking at pornography on the ground of optional completeness only; appellant apparently believed that showing more of the excerpt, to include scenes of the woman having sex with a man, would be less prejudicial to him. Although appellant used the words "highly prejudicial" and "probative value," he did so only in the context of his objection on the grounds of optional completeness. Likewise, when appellant objected to the parts of the exhibit containing the images of young girls as lacking a proper foundation, he referred to them being "highly prejudicial" only in the context of his objection to a lack of foundation. Nowhere did appellant argue that the exhibit violated Rule 403 or words to that effect in a manner that would make the trial court aware he was making a Rule 403 objection. Indeed, in his brief, appellant does not direct us to any place in the record where such an objection was made. Further, when State's Exhibit 5 was offered, appellant objected to a lack of foundation only, and asked to take the sponsoring witness on voir dire "with regards to chain of custody." Appellant made no objection on Rule 403 grounds. And, it appears that the trial court granted his request to play the entire portion of the videotape, so appellant received the relief he requested. Because appellant's objections did not specifically alert the trial judge to the alleged error of which he now complains, he has failed to preserve error. See Goff v. State, 931 S.W.2d 537, 551 (Tex.Crim.App. 1996) ("Where his trial objections do not comport with his arguments on appeal, appellant has failed to preserve error on those issues."). (ii) Alleged Lack of Foundation As noted above, appellant objected to portions of State's Exhibit 5 on the grounds that they lacked a proper foundation. On appeal, appellant argues the scenes are neither relevant nor related to the charged offense, and complains that the videotape's sponsoring witness, Detective Pacheco, could not testify as to "by whom, when, and where the videotapes were made." The foregoing constitutes appellant's entire argument concerning a lack of foundation. He cites no rule or case law in support of his conclusory argument. We therefore hold that appellant has waived this issue. See Tex.R.App.P. 38.1(h) (requiring an appellant's brief to contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record); Rhoades v. State, 934 S.W.2d 113, 119 (Tex.Crim.App. 1996) ("It is incumbent upon counsel to cite specific legal authority and to provide legal argument based upon that authority."). Even if appellant had not waived the issue, however, his argument would fail. Texas Rule of Evidence 901 governs the authentication requirement for the admissibility of evidence. Reavis v. State, 84 S.W.3d 716, 719 (Tex.App.-Fort Worth 2002, no pet.). Rule 901 provides that "[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." TEX. R. EVID. 901(a). Rule 901(b) provides illustrations of authentications complying with the rule. For instance, testimony by a witness with knowledge that the matter "is what it is claimed to be" is an acceptable method of authentication. Id. 901(b)(1). In the present case, the State did not offer the videotape as evidence of who, when, and why, but to show appellant possessed it. Appellant concedes that Detective Pacheco identified the videotape, verified its authenticity and quality as a duplicate, and verified that it was in appellant's possession. Thus, the trial court did not abuse its discretion in admitting the exhibit over appellant's objection based on a lack of foundation. Additionally, we have reviewed the excerpts from the videotape and find that the trial court did not abuse its discretion in determining that they were relevant to appellant's character and sentencing. See Erazo v. State, 144 S.W.3d 487, 491 (Tex.Crim.App. 2004) (stating that relevance during the punishment phase of a non-capital trial is determined by what is helpful to the jury). We therefore overrule this issue. b. State's Exhibit 6 Appellant also contends State's Exhibit 6, the crime scene videotape that includes a depiction of the evidence of child pornography in appellant's possession, was erroneously admitted in violation of Rule 403. Appellant does not argue that this videotape lacked a proper foundation. In response to appellant's argument, the State initially contends appellant has waived the issue by failing to object to the exhibit as violating Rule 403. We agree that appellant has failed to preserve the error of which he now complains. In his brief, appellant acknowledges that he objected below only on the grounds of relevance, hearsay, and bolstering. Our review of the record confirms these are the only grounds raised. Thus, appellant's argument on appeal does not comport with his trial objections, and he has failed to preserve error. See Goff, 931 S.W.2d at 551.Conclusion
We overrule appellant's issues and affirm the trial court's judgment. Appellant highlights the following requirements contained in article 38.071, section 5(a) for the admission of a child's videotaped testimony:
(1) no attorney or peace officer was present when the statement was made;
. . .
(4) the statement was not made in response to questioning calculated to lead the child to make a particular statement;
. . .
(12) only one continuous recording of the child was made or the necessity for pauses in the recordings or for multiple recordings has been established at the hearing or proceeding.
See Tex. Code Crim. Proc. art. 38.071, § 5(a).
In appellant's brief, he implies that, during the CAC videotaped interview, J.A. did not mention that appellant touched her breast until after the interviewer took a break and talked to either the police or a caseworker. Our review of the videotape reveals that J.A. mentioned the incident before the break, and the interviewer merely asked for more details about it after the break.
Appellant pleaded guilty to the charge and was placed on deferred-adjudication probation. Appellant's plea agreement, indictment, deferred adjudication judgment, and the details of his community supervision were admitted into evidence as State's Exhibit 4.
In relevant part, appellant argued against admitting the excerpt of the woman on the bed as follows:
[W]e would specifically object to just the introduction of that part under the rule of optional completeness. Because even though these pictures are prejudicial, the entire tape — the defense believes will be more fair and less prejudicial to show the context that they were played in. At first he's having some type of sexual relations with this woman. And there are adult pictures on the bed. And then if we pull that one instance out where there is some child pornography on the bed, it's going to give the impression to the jury that that's all they came there to do, was to have some type of sexual relations with child pornography. There's no adult pornography anywhere on the bed. It focuses in on the children. And we believe that it's highly prejudicial and it doesn't have anymore [sic] probative value as would the entire tape with regards to that sexual act with that lady and viewing the adult pictures.
Appellant argued, in relevant part, as follows:
Your Honor, basically the defense objects to the admissibility of the tape involving the girl on the bicycle because there's no way there would be any predicate laid with regards to who was doing the videotaping. My client, Mr. Del Rio, was not on that tape at all. His voice was not on the tape. We don't know . . . the date the tape was made, all we know is it was confiscated out of the back of his vehicle at one time. And we believe that it is highly prejudicial going to the fact that we don't even know who made that portion of the tape, whether it existed before he got it. We don't believe it's fair to draw the inference that he's the one that actually did the videotaping. Same with the girl playing with a puppy. Mr. Del Rio's voice is not on that tape. He didn't appear anywhere on that tape. It's just a portion of a videotape that was seized.