Opinion
04-21-00460-CR
02-22-2023
Andon Joseph SAMBRANO, Appellant v. The STATE of Texas, Appellee
DO NOT PUBLISH
From the 452nd District Court, Kimble County, Texas Trial Court No. 2020-DCR-1025 Honorable Robert Rey Hofmann, Judge Presiding
Sitting: Rebeca C. Martinez, Chief Justice Irene Rios, Justice Liza A. Rodriguez, Justice
MEMORANDUM OPINION
REBECA C. MARTINEZ, CHIEF JUSTICE
A jury convicted appellant Andon Joseph Sambrano of indecency with a child, a second-degree felony, and assessed punishment at fifteen years' confinement with the Texas Department of Criminal Justice. Tex. Penal Code Ann. § 21.11(a), (d). In two issues, Sambrano complains that the trial court abused its discretion in admitting (1) a hearsay statement made by the complainant during the guilt-innocence phase of trial and (2) extraneous-conduct evidence during the punishment phase of trial. We affirm.
I. Background
In a one-count indictment, Sambrano was charged with indecency with a child for allegedly touching the breast of D.M., who was fourteen years old at the time of the incident. Sambrano pleaded not guilty, and the case proceeded to a jury trial.
To protect the identities of minor children, we refer to the children and the complainant's mother by their initials. See Tex. R. App. P. 9.8(b)(2).
A. Guilt/Innocence Phase
During the guilt/innocence phase, D.M., her friend K.W., and Jennifer Giese, an investigator with Child Protective Services (hereinafter "CPS"), testified.
1. D.M.
D.M. testified that her mother, S.M., and Sambrano began dating when she was approximately three years old. Eventually, D.M., her younger brother, I.M., and S.M. moved into a house with Sambrano. Beginning when she was approximately five years old, D.M. recalled that Sambrano would enter her bedroom, "like touch me," "take off my blankets," try to pull off her clothes, and try to kiss her. To inhibit such contact, D.M. described sleeping on her back with her hands out. D.M. also described instances where Sambrano's temper would flare. According to D.M., Sambrano punched a hole in her bedroom wall. When D.M. was between three and five years old and the two argued, Sambrano would put a sock or towel in her mouth, fill a bathtub with water, and hold her head underneath the water.
As D.M. grew older, Sambrano did not want D.M. to "hang out with [boys], talk to them," and Sambrano chastised D.M. when he learned of such communications. During one argument about a boy, D.M. testified that Sambrano "pulled me off the bed and, of course, I tried to fight him, because he was like on top of me, and he got the blanket, put it over my face, and I could not breathe." During another argument over a boy, Sambrano hit D.M. in the stomach with a paddle. D.M. did not tell her mother about Sambrano's conduct because he threatened to "hurt my family" or "shoot us all."
The nighttime encounter that gave rise to the criminal charge for which Sambrano stood trial occurred when D.M. was fourteen years old. According to D.M., Sambrano entered D.M.'s bedroom while she was half asleep, turned off her night light, and tried to take the covers off of her. Sambrano then put his hand in D.M.'s shirt and touched her breast and nipple. D.M. pushed Sambrano away and told him to get out, but he argued with D.M. and physically pushed her down. Eventually, Sambrano left D.M.'s bedroom. The following day, D.M. participated in a junior high school track competition as a member of her school's team. D.M. further testified that, at the track competition, she told K.W., a classmate and fellow track member, "just parts" of what had transpired with Sambrano the night before.
2. K.W.
K.W. recalled interacting with D.M. at a track competition. K.W. observed that D.M. was "very sad," "very down," "wasn't talking to anyone," and crying. The State then asked K.W. what D.M. had told her regarding Sambrano, to which he lodged a hearsay objection. The State asserted that D.M.'s statement qualified as an excited utterance in light of her demeanor; the trial court overruled Sambrano's objection. K.W. then testified before the jury that "[s]he said that - [s]he was very upset and he - like that he was touching her, and that's all she told me."
3. Giese
Giese was dispatched to Sambrano's residence to investigate an allegation that Sambrano had sexually abused D.M. Giese recalled sitting down in private with D.M. and her mother and that D.M. "was extremely nervous." Giese testified that she "told [D.M.] that there was a concern of possible, of her and an adult, of sexual abuse going on, and before I finished, she just shook her head and she told me 'yes.'" Giese immediately notified her supervisor, and she arranged for D.M. to visit with a forensic interviewer at the Children's Advocacy Center.
The jury found Sambrano guilty of indecency with a child, and he elected to have the jury assess punishment.
B. Punishment Phase
During the punishment phase, the State called I.M., S.M., Giese, and Thomas Alonzo, a lifelong friend of Sambrano's.
The State sought to elicit testimony from I.M., who was fourteen years old at the time of trial, about an incident that allegedly occurred when I.M. was two years old. Sambrano objected on the grounds that I.M.'s youth at the time of the incident rendered him incompetent to testify as to the incident and that the admission of such testimony was unduly prejudicial. The trial court overruled Sambrano's objection. Before the jury, I.M. recalled being two years old and attending pre-kindergarten. One of I.M.'s teachers discovered bruises on his lower back, and she notified CPS. I.M. maintained that Sambrano caused the bruising during a spanking that he had administered. On cross-examination by Sambrano, I.M. admitted to receiving spankings from S.M. However, according to I.M., S.M.'s spankings did not leave any bruising. I.M. also admitted to not recalling anything else when he was two years old, aside from the spanking administered by Sambrano.
S.M. recounted receiving a phone call from I.M.'s pre-kindergarten, seeing the bruising, being investigated by CPS, and Sambrano and her being ordered to take a parenting class. S.M. sponsored seven photographs that she testified depicted the bruising on I.M. that she observed. I.M.'s buttocks are exposed in all the photographs. One of the photographs shows I.M. crouched on all fours with his pants drawn down to expose his buttocks; in this photograph, I.M. is smiling and his head is turned towards the camera. In three other photographs, I.M. is completely or nearly naked and his back and buttocks are exposed. Several photographs show bruising on I.M.'s lower back and upper buttocks. Over Sambrano's objection, the trial court admitted the photographs that S.M. identified.
Giese, on recall by the State, testified that she had interviewed Sambrano while the indecency with a child charge was pending. Giese's interview focused on what she termed "general questions," relating to mental health issues, CPS history, and how he disciplined the children. Sambrano acknowledged to Giese that he had been involved in a CPS investigation relating to I.M. However, Sambrano characterized the investigation as involving a "birthmark" on I.M.
Alonzo admitted to having previously served a prison sentence for convictions on felony counts of aggravated assault with a deadly weapon, criminal mischief, and "possession." During the case's pendency, Sambrano shared a jail cell with Alonzo. Upon Alonzo's release, Sambrano asked Alonzo to "take some letters to his kids."
Although Sambrano was eligible for the jury to consider assessing punishment at community supervision, the State urged the jury to deny Sambrano community supervision. It posited that the parenting class Sambrano completed twelve years earlier had failed to rehabilitate him, likened community-supervision terms to the parenting class, suggested that Sambrano was undeserving of community supervision, and that community supervision would not rehabilitate him. Instead, the State requested that the jury assess punishment at confinement for a term of between ten and twenty years. See Tex. Penal Code Ann. § 12.33(a) (providing an imprisonment range for a second-degree felony of not more than 20 years or less than 2 years). The jury assessed punishment at fifteen years' confinement. The trial court signed a judgment of conviction and confinement in accordance with the jury's verdict. Sambrano now appeals.
II. Discussion
B. Hearsay Objection
1. Substantial Rights Review
Sambrano's first issue does not concern constitutional error. See Tex. R. App. P. 44.2(b); Macedo v. State, 629 S.W.3d 237, 240 (Tex. Crim. App. 2021) (assuming admission of hearsay testimony was non-constitutional error and disregarding error because it did not affect defendant's substantial rights). "An error does not affect substantial rights if the appellate court has 'a fair assurance from an examination of the record as a whole that the error did not influence the jury, or had but a slight effect.'" Macedo, 629 S.W.3d at 240 (quoting Gonzalez v. State, 544 S.W.3d 363, 373 (Tex. Crim. App. 2018)). Regarding the harmful error analysis, the Texas Court of Criminal Appeals has written:
In making this determination, we consider: (1) the character of the alleged error and how it might be considered in connection with other evidence; (2) the nature of the evidence supporting the verdict; (3) the existence and degree of additional evidence indicating guilt; and (4) whether the State emphasized the complained of error.Gonzalez, 544 S.W.3d at 373.
2. Analysis
In Sambrano's first issue, he complains that the trial court abused its discretion in admitting a hearsay statement made by D.M. to K.W. at the track competition the day after the alleged incident occurred. According to Sambrano, the hearsay statement K.W. recounted did not qualify for the excited-utterance exception to the hearsay rule. Assuming, without deciding, that the trial court abused its discretion in overruling Sambrano's hearsay objection, we conclude that the error, if any, was harmless.
First, K.W.'s testimony would have had significantly less impact on the factfinder than D.M.'s. K.W.'s hearsay testimony, which constituted a single statement, was not very specific or detailed as to the elements of the charged offense. K.W.'s testimony was that D.M. told her "that [Sambrano] was touching [D.M.]." In contrast, D.M. specifically recounted how Sambrano put his hand in her shirt and touched her breast and nipple. This factor weighs against finding harm.
Second and third, viewed in the context of the rest of the evidence, K.W.'s hearsay statement was relatively insignificant. D.M.'s description of Sambrano's conduct - both of the charged incident and in the years preceding it - was substantially more graphic and descriptive. D.M. testified about how Sambrano touched her breast and nipple and the struggle that ensued afterwards. She also detailed years of unwanted contact, discipline, and possessiveness by Sambrano. K.W.'s testimony about what D.M. told her was vague and general in comparison to D.M.'s testimony. Additionally, the jury also heard from Giese, who recounted D.M.'s outcry and her nervous demeanor during the outcry. These factors weigh against finding harm.
Fourth, in the State's opening and closing arguments, it referenced D.M.'s statement to K.W. a total of four times. In opening argument, the State told the jury that "you will hear [D.M.] told a friend, and you will hear that this case was reported to CPS." The State's closing argument was punctuated by three references, wherein the State mentioned:
• "[Sambrano] had control until [D.M.] told her friend at a track meet. The straw broke and she had to tell somebody. She had had enough of his control."
• "And she had enough and she did tell a friend. How hard do you think it was for her to tell a friend what was going on?"
• "Who would think that a track meet . . . was a pivotal event, but for this young lady it was because of all of the things that were building up, and then it blew up and she told somebody."
As we read the record, the State did not showcase K.W.'s hearsay testimony. Instead, the State's references focused on D.M.'s perspective of telling K.W. At most, the fourth factor is neutral regarding the harm analysis.
In light of the above factors, we conclude that if inadmissible hearsay was admitted, it did not "influence the jury, or had but a slight effect." Macedo, 629 S.W.3d at 240 (quoting Gonzalez, 544 S.W.3d at 373). Therefore, we hold that, if the admission of K.W.'s hearsay statement was erroneous, the admission of such hearsay testimony was harmless. We overrule Sambrano's first issue.
C. Extraneous-Conduct Evidence
In Sambrano's second issue, he complains that the trial court abused its discretion in admitting, over his unduly prejudicial objection, extraneous-conduct evidence during the punishment phase. Collectively, Sambrano assails four pieces of evidence: (1) I.M.'s recollection of a spanking Sambrano allegedly administered when I.M. was two years old; (2) S.M.'s testimony about the ensuing CPS investigation and remedial measure; (3) Giese's testimony about a jailhouse conversation she had with Sambrano about the spanking; and (4) the seven photographs (collectively "the spanking evidence"). We address Sambrano's second issue in the collective fashion in which he advances it.
1. Standard of Review & Applicable Law
We review a trial court's decision to admit evidence of an extraneous offense during the punishment phase of trial for an abuse of discretion. See Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim. App. 2002). We will affirm if the trial court's decision is within the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh'g).
Article 37.07 of the Texas Code of Criminal Procedure provides that, during the punishment phase of trial,
evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence
of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.Tex. Code Crim. Proc. Ann. art. 37.07 § 3(a)(1).
The admissibility of evidence during the punishment phase of a non-capital trial "is a matter of policy, including the policy of giving complete information to the jury to allow it to tailor an appropriate sentence for the defendant." Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007). Thus, evidence that is "relevant to sentencing" is simply evidence that "is helpful to the jury in determining the appropriate sentence for a particular defendant in a particular case." Sims v. State, 273 S.W.3d 291, 295 (Tex. Crim. App. 2008) (quoting Ellison v. State, 201 S.W.3d 714, 719 (Tex. Crim. App. 2006)).
Texas Rule of Evidence 403 provides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403. Under this rule, "it is presumed that the probative value of relevant evidence exceeds any danger of unfair prejudice." Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009). It is therefore "the objecting party's burden to show that the probative value of the evidence is substantially outweighed by the danger of unfair prejudice." Tucker v. State, 456 S.W.3d 194, 207 (Tex. App.-San Antonio 2014, pet. ref'd). Rule 403 "envisions exclusion of evidence only when there is a 'clear disparity between the degree of prejudice of the offered evidence and its probative value.'" Hammer, 296 S.W.3d at 568 (quoting Conner v. State, 67 S.W.3d 192, 202 (Tex. Crim. App. 2001)).
When conducting a rule 403 analysis, courts balance "the following factors: (1) the probative value of the evidence; (2) the potential to impress the jury in some irrational, yet indelible, way; (3) the time needed to develop the evidence; [and] (4) the proponent's need for the evidence." Erazo v. State, 144 S.W.3d 487, 489 (Tex. Crim. App. 2004). "When the trial court exercises its discretion not to exclude the evidence by finding that the probative value of the evidence is not outweighed by the danger of unfair prejudice, we give deference to this decision." Tucker, 456 S.W.3d at 206 (citing Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003)). "Therefore, in determining whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, we do not conduct a de novo review and we 'should reverse the judgment of the trial court rarely and only after clear abuse of discretion.'" Id. (quoting Moses, 105 S.W.3d at 627).
2. Analysis
In light of article 37.07, the spanking evidence brings some probative value relating to the jury's assessment of punishment. See Erazo, 144 S.W.3d at 489 (describing the first rule 403 analysis factor as assessing the probative value of the evidence). S.M.'s testimony that the spanking incident resulted in a mandated parenting class lends some evidence to the State's argument that less intrusive punishment, such as community supervision, might be ineffective to deter future criminal conduct. The photographs of I.M. may support a finding that Sambrano committed a crime or bad act, and Giese's recount of Sambrano's characterization of the bruising as a "birthmark," may shed light on Sambrano's credibility. The probative value of these three pieces of spanking evidence also supports a conclusion that the State may have needed the evidence to argue that community supervision was an inadequate punishment. See Erazo, 144 S.W.3d at 489 (describing the fourth rule 403 analysis factor as the proponent's need for the evidence). On the other hand, Sambrano's unduly prejudicial argument includes his challenge to I.M.'s ability to recall the spanking allegedly administered twelve years earlier, when I.M. was two years old. While the trial court may have found I.M., at the time of trial, competent to testify, I.M.'s ability to recall only the spanking incident from his second year begs credulity.
However, as we read Sambrano's argument, he primarily complains about the photographs and I.M.'s testimony in relation to the second factor. See Erazo, 144 S.W.3d at 489 (describing the second rule 403 analysis factor as the potential to impress the jury in some irrational, yet indelible, way); see also In re Commitment of Adams, 122 S.W.3d 451, 454 n.3 (Tex. App.- Beaumont 2003, no pet.) ("We will confine our analysis to the arguments raised in the briefs."). In three of the photographs, a two-year old I.M. is completely or nearly naked, and his bruised lower back and buttocks are completely exposed. Mindful of article 37.07, we cannot say that evidence of Sambrano's aggression towards I.M. impressed the jury in some irrational, yet indelible, way. I.M.'s spanking, if true, and Sambrano's indecency with D.M. were all assaultive acts directed at minors, which suggests a potential rational, rather than irrational, impression.
Aside from Alonzo's testimony that he was asked to deliver jailhouse letters Sambrano drafted to his children, the spanking evidence consumed the balance of the State's punishment-phase presentation. See Erazo, 144 S.W.3d at 489 (describing the third rule 403 analysis factor as the time needed to develop the evidence).
On balance and analyzing Sambrano's second issue as he presents it, our rule 403 analysis leads us to hold that the trial court did not clearly abuse its discretion in admitting the spanking evidence. See Tucker, 456 S.W.3d at 206; see also Tex. R. App. P. 38.1(i); In re Commitment of Adams, 122 S.W.3d at 454 n.3. We overrule Sambrano's second issue.
III. Conclusion
We affirm the trial court's judgment.