Opinion
No. 09-09-00294-CR
Submitted on May 20, 2010.
Opinion Delivered July 21, 2010. DO NOT PUBLISH.
On Appeal from the 260th District Court, Orange County, Texas, Trial Cause No. D-070786-R.
Before GAULTNEY, KREGER, and HORTON, JJ.
MEMORANDUM OPINION
Andrew Romero appeals his conviction for indecency with a child, a second degree felony. See TEX. PEN. CODE ANN. § 21.11 (Vernon Supp. 2009). In his appeal, Romero raises four issues. In issues one and two, Romero claims that neither legally nor factually sufficient evidence support the jury's verdict. Romero's last two issues complain that the trial court's erroneous admission of evidence resulted in an unfair trial. We overrule Romero's issues and affirm the trial court's judgment.
Although the Legislature amended section 21.11 of the Texas Penal Code after the date that Romero is alleged to have committed the offense, there were no changes in the provision pertinent to this appeal. Therefore, we cite the current version.
Background
In December 2007, the State indicted Romero for indecency with a child. The indictment alleges that on or about June 17, 2007, in Orange County, Romero "did then and there with the intent to arouse and gratify the sexual desire of ANDREW ROMERO, engage in sexual contact by touching the genitals of [C.N.], a child younger than 17 years and not the spouse of ANDREW ROMERO[.]" During the trial, C.N.'s mother ("Mother") explained C.N. complained to her on June 17, 2007, about Romero's conduct. According to Mother, C.N. told her that she did not want to go to Romero's house for the summer "[b]ecause [Romero] touches me." When Mother asked C.N. to describe what C.N. meant, C.N. pointed to her vagina. When C.N. told her mother what happened to her, Mother explained that C.N. "was crying[,]" and C.N. further told her that when the incident occurred, "[Romero's wife] was upstairs sleeping." C.N. also told Mother that "she went to the rest room" to get away from Romero, that Romero had apologized to [C.N.] the next day, and that Romero had been apologizing to her every time since. Mother then called Romero to confront him. Romero talked to Mother three different times that day, and he offered Mother three different explanations to account for what C.N. claimed had happened. According to Mother, Romero first claimed that "he didn't know what happened," then said "that he must have rolled over [] and hurt [C.N.]," and finally, Romero offered "that he must have mistaken [C.N.] for [his wife]." Mother testified that Romero told her that he and C.N. had lain together on the couch. Mother explained that C.N. said it happened on the couch while they were lying there together. Mother said that she "believed [C.N.] from the beginning," and that C.N.'s version of the incident "never changed." According to Mother, C.N. told her that the reason she did not tell her about the incident sooner was because she did not want to get Romero in trouble. C.N. was eleven years old when she testified at trial. At trial, C.N. described that Romero had touched her inappropriately. During the trial, C.N. pointed to her genital area to explain where Romero had touched her. C.N. further testified that Romero touched her when they were lying on a couch while watching television. C.N. explained that it hurt when Romero touched her, but she also testified that she did not remember if Romero had touched her over or under her clothes. After Romero touched C.N., she "got up and went to the bathroom." According to C.N., there were other similar incidents, all of which had occurred at Romero's house. C.N. further explained that Romero told her that he was sorry, and then he never said anything else about it. C.N. did not tell anyone right away "because [she] was scared[,]" but she testified that she told her mother because she wanted Romero to stop. During the trial, the State also called Mike Holzapfel, the investigating detective on C.N.'s case. Holzapfel observed C.N.'s Garth House interview and heard her explain to the forensic interviewer that Romero had touched her in an inappropriate manner. Detective Holzapfel testified that he obtained Mother's statement and that Mother's statement "corroborates the Garth House interview[.]" Additionally, Detective Holzapfel expressed his opinion that he believed Romero had touched C.N inappropriately with the intent to arouse and gratify Romero's sexual desire. After the State rested, Romero explained his version of the events. Romero agreed that he told Mother that "maybe [he] laid on the couch and went to sleep and grabbed [C.N.]." Romero testified that because Mother asked for an explanation, his explanation had been "the very best thing [he] could come up with." Romero denied that he had inappropriately touched C.N., and he denied that he grabbed her intentionally. According to Romero, C.N. was excitable and sometimes took things out of context, so Romero "just believe[s] that maybe [C.N.] mistook a move for something that wasn't." Romero's wife also testified on Romero's behalf. In describing C.N., she said that C.N. "just gets excited about anything that happens[.]" Romero's wife further testified that she had blocked out "R-rated" television programs because she caught C.N. watching one. The jury found Romero guilty of indecency with a child, assessed his punishment at twenty years' imprisonment, and assessed a $10,000 fine. Romero timely filed a motion for new trial and an appeal.Issue One
In his first issue, Romero asserts that the evidence is legally insufficient to establish proper venue in Orange County. The State bears the burden to prove, by a preponderance of the evidence, that venue is proper in the county in which the case is tried. TEX. CODE CRIM. PROC. ANN. art. 13.17 (Vernon 2005); Murphy v. State, 112 S.W.3d 592, 604 (Tex. Crim. App. 2003). Evidence is sufficient to prove venue if "from the evidence the jury may reasonably conclude that the offense was committed in the county alleged." Rippee v. State, 384 S.W.2d 717, 718 (Tex. Crim. App. 1964); 40 GEORGE E. DIX ROBERT O. DAWSON, TEXAS PRACTICE: CRIMINAL PRACTICE PROCEDURE § 2.87 (2d ed. Supp. 2008-2009) (venue is sufficiently proven "if there is evidence from which a trier of fact could conclude that an element of the offense occurred in the county of prosecution"). In reviewing a challenge to proof of venue, an appellate court must presume that venue was proven in the trial court unless venue was disputed in the trial court or the record affirmatively shows the contrary. TEX. R. APP. P. 44.2(c)(1) (creating venue presumption for criminal cases). In this case, the record reflects that Romero did not dispute venue when his case was in the trial court. In his appeal, Romero fails to identify the record reference where he claims that he disputed venue. Venue may be established by either direct or circumstantial evidence. Black v. State, 645 S.W.2d 789, 790 (Tex. Crim. App. 1983). ""The trier of fact may make reasonable inferences from the evidence to decide the issue of venue.'" Hernandez v. State, 198 S.W.3d 257, 268 (Tex. App.-San Antonio 2006, pet. refd) (quoting Bordman v. State, 56 S.W.3d 63, 70 (Tex. App.-Houston [14th Dist] 2001, pet. refd.). In this case, the witnesses were instructed to limit their testimony to events that occurred in Orange County. When C.N. testified about an incident that occurred on the couch, Romero lodged no objection. Given the trial court's instruction that the testimony be limited to events that had occurred in Orange County, and the absence of a challenge to venue in the trial court, the record supports venue in Orange County, Texas. See TEX. R. APP. P. 44.2(c)(1); Hernandez, 198 S.W.3d at 268; see also Rippee 384 S.W.2d at 718. We overrule Romero's first issue.Issue Two
In his second issue, Romero asserts that the evidence is factually insufficient to prove that he committed the offense of indecency with a child. In a factual sufficiency review, we consider all of the evidence in a neutral light. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007). "Evidence can be factually insufficient in one of two ways: (1) when the evidence supporting the verdict is so weak that the verdict seems clearly wrong and manifestly unjust, and (2) when the supporting evidence is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust." Id. (citing Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)). In assessing factual sufficiency, we must give due deference to the fact-finder's determinations on the weight and credibility of the evidence. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003). An appellate court may not reverse for factual insufficiency when "'the greater weight and preponderance of the evidence actually favors conviction.'" Roberts, 220 S.W.3d at 524 (quoting Watson, 204 S.W.3d at 417). In his brief, Romero argues that C.N. is an "excitable girl" with a vivid imagination and that she was allowed to watch television programs that were inappropriate for her age. Even if the jury agreed that C.N. had seen inappropriate programs on television, C.N.'s description of the incident was sufficiently detailed to allow the jury to conclude that C.N. was describing an event that had actually occurred. See Sledge v. State, 262 S.W.3d 492, 502 (Tex. App.-Austin 2008, pet. ref'd). Moreover, C.N.'s testimony alone about the incident is sufficient to support a conviction for indecency with a child. TEX. CODE CRIM. PROC. ANN. art. 38.07 (Vernon 2005); Navarro v. State, 241 S.W.3d 77, 81 (Tex. App.-Houston [1st Dist.] 2007, pet. ref'd). Because the jury was in the best position to judge C.N.'s demeanor and credibility, it was free to believe C.N., and it was also free to disbelieve Romero. Newby v. State, 252 S.W.3d 431, 436-37 (Tex. App.-Houston [14th Dist.] 2008, pet. ref'd); see also Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000). Romero also argues that the evidence is insufficient to support the jury's verdict because there was no physical, forensic, or medical evidence introduced to support C.N.'s allegations. However, the lack of physical evidence does not render the evidence factually insufficient to support the verdict. See Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. 1978) (holding that victim's testimony is sufficient to prove sexual contact occurred even without physical evidence); Newby, 252 S.W.3d at 437. Next, Romero argues that there is insufficient evidence to show that he intended to arouse or gratify his sexual desire. With respect to proving intent to gratify sexual desires, juries generally infer the defendant's intent from circumstantial evidence rather than direct proof. Scott v. State, 202 S.W.3d 405, 408 (Tex. App.-Texarkana 2006, pet. ref'd). An intent to arouse or gratify sexual desire may be inferred from the defendant's conduct, remarks, or all of the surrounding circumstances. McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. 1981). "An oral expression of intent is not required[.]" Connell v. State, 233 S.W.3d 460, 467 (Tex. App.-Fort Worth 2007, no pet.). We conclude that from the evidence admitted at Romero's trial, the jury could reasonably infer that Romero acted with the intent to arouse and gratify his sexual desire. See McKenzie, 617 S.W.2d at 216. Last, Romero argues that the event C.N. described could not have occurred in Orange County in 2007 because he moved from Orange County to Liberty County in 2005. The indictment alleges that the offense occurred on or about June 17, 2007, which is the date C.N. made her outcry to Mother. The "on or about" language of an indictment allows the State to prove the offense occurred on any date that is anterior to the presentment of the indictment and that is within the statute of limitations period. See TEX. CODE CRIM. PROC. ANN. art. 21.02(6) (Vernon 2009); Sledge v. State, 953 S.W.2d 253, 256 (Tex. Crim. App. 1997); Thomas v. State, 753 S.W.2d 688, 693 (Tex. Crim. App. 1988) ("Where an indictment alleges that some relevant event transpired "on or about' a particular date, the accused is put on notice to prepare for proof that the event happened at any time within the statutory period of limitations."). The limitation period for the crime of indecency with a child at the time Romero was indicted was ten years from the eighteenth birthday of the victim of the offense. See Act of May 30, 2005, 79th Leg., R.S., ch. 1162, § 6, 2005 Tex. Gen. Laws 3802, 3806 (amended 2009) (current version TEX. CODE CRIM. PROC. ANN. art. 12.01(1)(E) (Vernon Supp. 2009) (further extending limitations period that applies to this offense)). Therefore, even if C.N.'s testimony relates to an incident that occurred in 2005 while Romero acknowledges that he lived in Orange County, it is not impossible that he committed the offense for which he was indicted, tried, and convicted in Orange County. Moreover, we can find no evidence in the record showing when Romero may have moved to Liberty County. Romero and Romero's wife did not mention moving when they testified at trial. Mother testified that Romero lived in Orange County after 2005. Based on Mother's testimony and in the absence of any testimony that Romero moved, the jury could have reasonably inferred that Romero continued to reside in Orange after 2005. Additionally, in light of the trial court's instructions to the State's attorney requiring that the State's witnesses limit their testimony to events in Orange County, together with the lack of an objection at trial to C.N.'s testimony describing what happened to her, the jury could reasonably infer that the incident she described occurred in Orange County. In summary, our neutral view of the record does not demonstrate that the proof of Romero's guilt is so weak as to undermine our confidence in the jury's verdict, nor does it demonstrate that the proof of Romero's guilt is greatly outweighed by contrary proof. See Roberts, 220 S.W.3d at 524. Therefore, in our opinion, the jury's decision to convict Romero for indecency with a child was not clearly wrong or manifestly unjust. See id. We hold that the evidence is factually sufficient to support Romero's conviction. We overrule Romero's second issue.Issue Three
In his third issue, Romero argues the trial court abused its discretion by allowing Detective Holzapfel to answer a question in a narrative manner and without answering "yes" or "no." Evidentiary rulings are committed to the trial court's discretion. See Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005). To reverse the trial court's judgment based on an erroneous evidentiary ruling, we must conduct a harm analysis. See TEX. R. APP. P. 44.2; see also Haley v. State, 173 S.W.3d 510, 518-19 (Tex. Crim. App. 2005) (applying Rule 44.2(b) harm analysis to the erroneous admission of evidence). If the error is nonconstitutional, as in this case, we apply Texas Rule of Appellate Procedure 44.2(b) and we are to disregard the error unless it affects substantial rights. See TEX. R. APP. P. 44.2. When the State's attorney asked Detective Holzapfel if C.N.'s story was plausible, he replied:[Detective Holzapfel]: Well, you know, I've listened to bunches of these interviews. Obviously, that's what I did for several years. And the only question I had in this interview was the victim describes — when the incident occurred, she described herself as laying on the couch.At that point, Romero's counsel objected and stated:
[Romero's counsel]: Your Honor, I'm going to object — I'm going to object that the simple question was[,] was it plausible, and he's gone on a narrative. If he wants to have him express it in a narrative, that's one thing; but that's a "yes" or "no" answer, is it plausible.The trial court overruled the objection. At that point, the State's attorney said: "Go ahead and finish." Romero's counsel did not object to the State's attorney's request that Detective Holzapfel "[g]o ahead and finish." At that point, Holzapfel described what C.N. told the forensic interviewer and he explained that he then suggested that the forensic interviewer ask C.N. for "more detail." When the forensic interviewer did, C.N. demonstrated how Romero had touched her, which led Detective Holzapfel to conclude that the event that C.N. had described was "very possible." Experts can testify regarding their opinions and give the reasons they hold their opinions. See TEX. R. EVID. 702. Here, Detective Holzapfel had been asked to give his opinion of whether C.N.'s story was plausible. In response to that question, the trial court allowed Detective Holzapfel to testify in a narrative manner to explain his opinion. Trial courts are required to exercise reasonable control over the mode and order of interrogating witnesses and the presentation of evidence so the interrogation and presentation are effective to determine the truth, and at the same time, the presentation avoids the needless consumption of time. TEX. R. EVID. 611. Here, Detective Holzapfel's testimony serves to explain why he had reached the conclusion that C.N.'s account was plausible, and Romero lodged no objection concerning Detective Holzapfel's qualifications to provide his opinion on the topic nor did he object that Detective Holzapfel's opinion on the question was irrelevant. The trial court could have reasonably allowed Detective Holzapfel to explain the reasons he held his opinion to save time. Because a trial court enjoys broad discretion in the conduct of the trial and the questioning of witnesses, we conclude that the trial court did not abuse its discretion when it allowed Detective Holzapfel to testify in a narrative form. See Deams v. State, 159 Tex. Crim. 496, 265 S.W.2d 96, 98 (1954). Romero also complains that he was harmed when the trial court allowed Detective Holzapfel and Mother to testify about C.N.'s credibility. To preserve a complaint for appellate review, the record must show that an objection was made "with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context[.]" TEX. R. APP. P. 33.1; see Griggs v. State, 213 S.W.3d 923, 927 (Tex. Crim. App. 2007). Because Romero failed to object at trial, we conclude that Romero failed to preserve his arguments with respect to these alleged errors. TEX. R. APP. P. 33.1; see also Saldano v. State, 70 S.W.3d 873, 887 (Tex. Crim. App. 2002) (holding that nearly every right may be waived by a party's failure to timely object during trial). We must disregard alleged errors that occurred in the trial court unless Romero's substantial rights were affected by the alleged error. See TEX. R. APP. P. 44.2(b). Here, Romero argues the admission of this evidence affected his substantial rights. In this case, the jury was not required to rely on Mother's or Detective Holzapfel's opinions, as C.N. testified at trial, without objection, concerning the details of Romero's sexual misconduct. See TEX. CODE CRIM. PROC. ANN. art. 38.07. Because C.N. testified in court, the jury could assess her credibility. Thus, Romero did not suffer any prejudice from the admission of the testimony that he now argues the trial court should not have permitted because the same or similar evidence was admitted without objection from another source. Mitchell v. State, 68 S.W.3d 640, 643 (Tex. Crim. App. 2002) (quoting Hughes v. State, 878 S.W.2d 142, 156 (Tex. Crim. App. 1992)). After examining the record as a whole, we conclude that testimony given by Detective Holzapfel and by Mother about C.N.'s credibility had no more than a slight effect, if any, upon the jury. Therefore, we hold that the trial court's admission of testimony about C.N.'s credibility did not affect Romero's substantial rights. We overrule Romero's third issue.