Opinion
NO. 14-16-00941-CR
04-26-2018
DEMICHAEL JEROME SMITH, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 506th Judicial District Court Waller County, Texas
Trial Court Cause No. 15-05-15255
MEMORANDUM OPINION
A jury convicted appellant DeMichael Jerome Smith of four counts of aggravated sexual assault of a child, and the trial court sentenced him to life in prison for each count with the sentences to run concurrently. In two issues on appeal, appellant contends that the evidence is insufficient to support his conviction on one of the counts and that the trial court erred in permitting hearsay testimony as "outcry evidence" when it was not elicited from the first adult to whom outcry was made. We affirm.
Background
The four counts against appellant charged that he sexually assaulted M.S., a child younger than 14 years of age, by causing (1) his sexual organ to penetrate her sexual organ, (2) his finger to penetrate her sexual organ, (3) his sexual organ to penetrate her anus, and (4) his sexual organ to penetrate her mouth. Appellant is M.S.'s paternal uncle. M.S. was seven years old at the time of the alleged abuse. There were also allegations at trial that appellant had abused M.S.'s younger brother and sister, but those allegations were not part of the charges in this case. The State presented several witnesses who testified regarding the alleged abuse of the children.
Sergeant Christopher Garrett of the Prairie View Police Department testified that he first learned of the allegations from M.S.'s mother, Adesta Smith, who in turn had originally learned of the abuse from her neighbor, Mildred Hood, who had looked after the children while Adesta was in the hospital. Although Garrett testified that Hood told him what the children had told her, he did not provide any details of that communication.
Adesta testified that she indeed originally learned of the abuse from Hood but subsequently discussed it with M.S. herself in some detail. According to Adesta, M.S. indicated that appellant had used his fingers to penetrate her vagina, made her perform oral sex on him, and performed oral sex on her. Adesta further stated that M.S. reported appellant threatened to kill Adesta and M.S.'s father if M.S. told anyone about the abuse.
M.S. was nine years old at the time of trial. She testified inconsistently both that the alleged abuse had occurred and that it did not happen. She acknowledged that she had told other people about details of the abuse and that she told them the truth. Some of M.S.'s testimony involved the use of anatomically correct dolls on which she indicated what appellant did to her. She said that she was scared to tell what happened because appellant was in the courtroom, and she stated that appellant said he would hurt her and her parents if she told on him.
M.S.'s younger brother, D.S., also testified. He described observing appellant sexually assault M.S., including penetrating her vagina and mouth with his penis. D.S. also stated that appellant sexually assaulted him as well.
D.S. and M.S. used euphemisms for certain body parts, but the implications of the testimony was clear.
M.S. and D.S. were interviewed by forensic interviewer Nick Canto at Scotty's House, a child advocacy center. Canto testified that M.S. told him that appellant penetrated her vagina and mouth with his penis and penetrated her vagina with his finger. Canto further stated that M.S. told him that appellant told her to lie and that D.S. told him about seeing appellant sexually assault M.S. A defense expert, Joanna Collins, acknowledged in her testimony that she watched the videotaped interview that Canto conducted with M.S. She further acknowledged that M.S. said in the interview that appellant had penetrated her anus with his penis.
Doctor Marcella Donaruma, who is board certified in general pediatrics and child abuse pediatrics, testified that she conducted a physical examination of M.S. after the alleged abuse, which included taking a "history of present illness." Although Donaruma's examination of M.S.'s genitals and anus did not reveal any abnormalities or trauma, she explained that this was normal even for children who had been sexually assaulted. Donaruma relayed M.S.'s description of the sexual assault by appellant, specifically including the allegation that appellant penetrated her anus with his penis. Donaruma further testified that M.S. told her that appellant said "if I told he was going to kill me and them." Donaruma's medical records concerning her examination of M.S. were also admitted into evidence, including notes from the history of present illness.
Sufficiency of the Evidence
In his first issue, appellant challenges the sufficiency of the evidence to support his conviction for count 3, alleging that appellant penetrated M.S.'s anus with his sexual organ. In reviewing the sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict and determine, based on that evidence and any reasonable inferences therefrom, whether any rational factfinder could have found the elements of the offense beyond a reasonable doubt. Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011). We do not sit as a thirteenth juror and may not substitute our judgment for that of the factfinder by reevaluating the weight and credibility of the evidence. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). Rather, we defer to the factfinder to fairly resolve conflicts in testimony, weigh the evidence, and draw reasonable inferences from basic to ultimate facts. Id. As judge of the credibility of the witnesses, a jury may choose to believe all, some, or none of the testimony presented. Cain v. State, 958 S.W.2d 404, 407 n.5 (Tex. Crim. App. 1997). In assessing the sufficiency of the evidence, we consider all of the evidence that the jury was permitted to consider, whether properly or improperly admitted. Moff v. State, 131 S.W.3d 485, 488 (Tex. Crim. App. 2004).
Appellant points out that the majority of the witnesses called by the State offered no testimony regarding whether appellant assaulted M.S. in the manner alleged in count 3. He further emphasizes that at various points in her testimony, M.S. herself denied that such assault had occurred.
As the State points out, however, Dr. Donaruma testified that during her medical examination of M.S., M.S. told her that appellant "put his middle part in my butt hole . . . [f]ive times." Donaruma had earlier explained that when M.S. spoke of appellant's "middle part," M.S. indicated the crotch area. Donaruma's testimony was supported by her own notes in M.S.'s medical records. Although Donaruma indicated her physical examination of M.S.'s anal area did not reveal any abnormalities or trauma, she stated that such injury was "vanishingly rare" under such circumstances.
Moreover, at a different point in her testimony, M.S. was asked, "Do you remember ever talking to a doctor about what [appellant] did with his middle part and your bottom?" M.S. responded, "Yes." When asked, "What did you tell the doctor?" M.S. said "[t]hat it hurted." As explained above, M.S. and others also testified that appellant threatened to hurt M.S.'s parents if she told anyone about the abuse. The jury could have interpreted this testimony as an explanation for why M.S. testified inconsistently regarding the abuse. M.S. also acknowledged that she told "the doctor the truth about what happened to [her] body." Additionally, defense expert Collins agreed that in her videotaped interview with Canto, M.S. described appellant penetrating her anus with his penis.
This evidence—M.S.'s testimony along with the testimony from two other witnesses that she had at least twice previously reported the same thing—was sufficient to support the jury's finding on count 3. As explained, the jury had reason to accept some parts of M.S.'s testimony and reject other parts. See Cain, 958 S.W.2d at 407 n.5; see also Navarro v. State, 280 S.W.3d 405, 407 (Tex. App.—Amarillo 2008, no pet.) (holding jury was permitted to accept complainant's prior statements over in-court testimony); Revels v. State, 334 S.W.3d 46, 53 (Tex. App.—Dallas 2008, no pet.) (explaining that jury could believe portions of individual's testimony that supported conviction while disregarding other inconsistent portions of testimony); Scugoza v. State, 949 S.W.2d 360, 363 (Tex. App.—San Antonio 1997, no pet.) (holding jury was free to accept complainant's prior statements over in-court testimony). Accordingly, we overrule appellant's first issue.
Hearsay
In his second issue, appellant contends that the trial court erred in admitting hearsay testimony as "outcry evidence" when it was not elicited from the first adult to whom outcry was made. Specifically, appellant asserts that the statements of Adesta Smith and Nick Canto, regarding what M.S. told them, were improperly admitted as outcry testimony.
Hearsay—an out-of-court statement offered to prove the truth of the matter asserted—is inadmissible unless it falls within an exception provided by a statute or rule. Tex. R. Evid. 801(c), 802. Article 38.072 of the Texas Code of Criminal Procedure provides an exception for hearsay statements by the victims of certain types of offenses, including aggravated sexual assault of a child. Tex. Code Crim. Proc. art. 38.072, § 1. Although the terms do not appear in the statute, a victim's out-of-court statement is commonly known as an "outcry," and an adult who testifies about the outcry is commonly known as an "outcry witness." Sanchez v. State, 354 S.W.3d 476, 484 (Tex. Crim. App. 2011). The statute applies to statements that describe the alleged offense and (1) were made by the child against whom the offense allegedly was committed and (2) were made to the first person, eighteen years of age or older, other than the defendant, to whom the child made a statement about the offense. Tex. Code Crim. Proc. art. 38.072, § 2(a). A statement that meets these requirements is not inadmissible because of the hearsay rule if, among other things, the trial court finds, in a hearing outside the presence of the jury, that the statement is reliable based on the time, content, and circumstances of the statement. Id. § 2(b)(2); Torres v. State, 424 S.W.3d 245, 258-59 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd). The provisions of Article 38.072 are mandatory and must be followed for the outcry statement to be admissible over a hearsay objection. Moore v. State, 233 S.W.3d 32, 35 (Tex. App.—Houston [1st Dist.] 2007, no pet.). To invoke the statutory exception, the State must notify the defendant of its intent, provide the name of the outcry witness, and provide a summary of the statement. See Tex. Code Crim. Proc. art. 38.072 § 2(b)(1). A trial court has "broad discretion" in admitting outcry-witness testimony. Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990); Buentello v. State, 512 S.W.3d 508, 516 (Tex. App.—Houston [14th Dist.] 2016, pet. ref'd).
Appellant asserts that neither Adesta nor Canto was a proper outcry witness because Mildred Hood was the first person M.S. told about the alleged abuse. See Tex. Code Crim. Proc. art. 38.072, § 2(a)(3). Appellant further complains that Canto was not named in the State's notice of intent regarding outcry testimony and that the trial court did not hold a hearing regarding the reliability of the testimony from either Adesta or Canto.
We begin our analysis by noting that appellant only raised a single hearsay objection that was overruled during Adesta's testimony and a single hearsay objection that was overruled during Canto's testimony. Appellant neither requested a running objection nor a ruling outside the presence of the jury. Accordingly, the only issues appellant has preserved are his objections to the specific testimony to which he objected. See Merrit v. State, 529 S.W.3d 549, 556 (Tex. App.—Houston [14th Dist.] 2017, pet. ref'd) (citing Lopez v. State, 253 S.W.3d 680, 684 (Tex. Crim. App. 2008)).
Appellant's objection to Adesta's testimony only preserved his complaint against her statement that: "[M.S.] told me a part of, I guess, the outcry at that time. But she basically told me that her uncle had used his fingers and [sic] to penetrate her, that he had her do oral sex to him. He had also done oral sex to her." As to Canto, appellant objected when he was asked, "When you asked [M.S.] if anybody told her to lie, what did she say?" The trial judge overruled the objection, and Canto replied, "She said yes." The prosecutor then asked Canto who M.S. said told her to lie, and Canto responded with appellant's name. We will assume without deciding that appellant's hearsay objections preserved any error in relation to the admission of these two portions of outcry testimony.
The improper admission of hearsay testimony under article 38.072 is nonconstitutional error that is harmless unless the error affected the appellant's substantial rights. See Tex. R. App. P. 44.2(b); Garcia v. State, 126 S.W.3d 921, 927 (Tex. Crim. App. 2004); Merrit, 529 S.W.3d at 557. An error is harmless if we are reasonably assured that the error did not influence the verdict or had only a slight effect. See Garcia, 126 S.W.3d at 927; Merrit, 529 S.W.3d at 557. Likewise, the improper admission of evidence is not reversible error if the same or similar evidence is admitted without objection at another point in the trial. See Mayes v. State, 816 S.W.2d 79, 88 (Tex. Crim. App. 1991); Merrit, 529 S.W.3d at 557.
Adesta later testified to the same allegations without objection: that appellant had penetrated M.S.'s vagina with his fingers and that he had made her perform oral sex on him and had performed oral sex on her. This same information came in through several other witnesses, including M.S., D.S., Canto, and Donaruma. Although Canto did not otherwise testify that appellant told M.S. to lie, this information also came in from multiple sources, including Adesta, M.S., and Donaruma. On this record, we conclude that any error in admitting the objected-to testimony of Adesta and Canto did not influence the verdict or had only a slight effect. See Garcia, 126 S.W.3d at 921; Merrit, 529 S.W.3d at 557; see also Nino v. State, 223 S.W.3d 749, 754 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (holding any error in admission of forensic interviewer's hearsay description of outcry statement was harmless when the complainant and his mother each provided substantially the same account); Chapman v. State, 150 S.W.3d 809, 814-15 (Tex. App.—Houston [14th Dist.] 2004, pet. ref'd) (concluding the improper admission of outcry testimony was harmless when the same or similar information was admitted elsewhere at trial); Duncan v. State, 95 S.W.3d 669, 672 (Tex. App.—Houston [1st Dist.] 2002, pet. refd) (holding error in admission of outcry witness's hearsay testimony was harmless when similar testimony was developed and offered without objection from complainant, doctor, and medical records). Accordingly, we overrule appellant's second issue.
We affirm the trial court's judgment.
/s/ Martha Hill Jamison
Justice Panel consists of Justices Boyce, Jamison, and Brown.
Do Not Publish — TEX. R. APP. P. 47.2(b).