Opinion
Nos. 05-08-00464-CR, 05-08-00465-CR
Opinion Filed February 17, 2009. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 7, Dallas County, Texas, Trial Court Cause Nos. F07-00412-JY; F07-00415-JY.
Before Justices BRIDGES, RICHTER, and MAZZANT. Opinion By Justice BRIDGES.
OPINION
Felipe Jesus Vazquez appeals his aggravated sexual assault convictions. A jury convicted appellant and sentenced him to sixty years' confinement in each case. In two issues, appellant argues the trial court erred in excluding evidence that complainant's mother continued to have a relationship with appellant after complainant's outcry and in admitting certain testimony. We affirm the trial court's judgments. Because appellant does not challenge the sufficiency of the evidence to support his conviction, only a brief recitation of the facts is necessary. A.R., ten years old at the time of trial, testified appellant is her father, and she lived with appellant and her mother in a house in Mesquite. A.R. could not remember how old she was at the time, but it was about four and a half years before she testified. A.R. testified appellant touched her "urination zone" with his hand and made skin-to-skin contact. Using anatomical drawings, A.R. testified appellant touched her "behind" with his "forbidden zone," indicating A.R.'s anus and appellant's penis. A.R. testified it "felt like a really hard slug had swallowed a rock and it fell in my behind." A.R. was not sure, but she thought appellant "was trying to go into the part where I go number two." Appellant "kept missing, and it started hurting." Appellant's private part felt "hard and slimy." A.R. testified her "whining and crying" made appellant stop. Later that day, appellant showed A.R. a video on the computer depicting a "woman putting her mouth on the man's urination part." Appellant tried to get A.R. to "do it," and "his forbidden zone touched [her] mouth but didn't go in." On another occasion appellant touched A.R.'s "behind" with his mouth, but all A.R. could remember was "the tongue trying to get inside my cheeks." "It felt like a slug," A.R. testified. "Not a slug that swallowed a rock, but just a slug." Appellant's counsel attempted at trial to introduce evidence that A.R.'s mother continued to have a dating and sexual relationship after A.R. made an outcry. Counsel stated evidence of the relationship "goes to her belief in the veracity of the complainant." Outside the presence of the jury, counsel questioned A.R.'s mother, who testified she continued a social and sexual relationship with appellant for "at least six months" after A.R.'s outcry. A.R.'s mother testified she thought the case against appellant was not going to trial because she "didn't want to put [her] daughter through it, so [she] thought maybe [she] could get it dropped [herself]." The trial court excluded the evidence of the continuing relationship between appellant and A.R.'s mother. A jury subsequently convicted appellant of both offenses, and these appeals followed. In his first issue, appellant argues the trial court erred in excluding evidence that A.R.'s mother continued to have a dating and sexual relationship after A.R. made an outcry. We review a trial court's decision regarding the admissibility of evidence under an abuse of discretion standard. Cameron v. State, 241 S.W.3d 15, 19 (Tex.Crim.App. 2007) (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991)). Because trial courts are in the best position to decide questions of admissibility, appellate courts uphold a trial court's admissibility decision when that decision is within the zone of reasonable disagreement. Cameron, 241 S.W.3d at 19; Montgomery, 810 S.W.2d at 391. An appellate court may not reverse a trial court's decision regarding the admissibility of evidence solely because the appellate court disagrees with the decision. Cameron, 241 S.W.3d at 19; Montgomery, 810 S.W.2d at 391. Because appellant was offering the evidence rather than attempting to exclude it, the only issue affecting admissibility is whether the evidence was relevant. Cameron, 241 S.W.3d at 20. Rule of evidence 401 defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex. R. Evid. 401. Rule 402 states that "relevant evidence is admissible, except as otherwise provided by Constitution, by statute, by these rules, or by other rules prescribed pursuant to statutory authority. Evidence which is not relevant is inadmissible." Tex. R. Evid. 402. Here, A.R. testified appellant sexually assaulted her in her anus and on her mouth, as charged in the indictments. Appellant argues evidence of A.R.'s mother's continuing social and sexual relationship with appellant after the outcry provided at least a "small nudge" toward disproving that a sexual assault had occurred. Specifically, appellant argues the ongoing relationship indicates A.R.'s mother did not believe an assault occurred and was relevant to impeach her credibility. However, A.R. testified her mother was not present when the sexual assaults occurred. A.R.'s mother testified she continued a relationship with appellant because she thought the case would not come to trial, not because she believed the assaults never occurred. Under these circumstances, A.R.'s mother's continuing relationship with appellant was not relevant to the issue of whether A.R. was telling the truth. See Tex. R. Evid. 401, 402. Further, whether or not A.R.'s mother believed the assaults occurred was not relevant to whether A.R. was telling the truth. The testimony of a child sexual abuse victim alone is sufficient to support a conviction for indecency with a child or aggravated sexual assault. See Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon 2005). We overrule appellant's first issue. In his second issue, appellant argues the trial court erred in admitting hearsay statements from the complainant that were offered by the State as prior consistent statements. At trial, the prosecutor asked A.R.'s mother what "[A.R.] has told you has happened." Appellant's counsel objected that "that's going to be hearsay." The prosecutor responded that "it's a prior consistent statement" and that appellant's counsel had "opened the door on his cross-examination and tried to say that [A.R.] has said many different things." Appellant's counsel argued that appellant's counsel had "asked [A.R.'s mother] if [A.R.] had made statements to other people, not to [A.R.'s mother]." The trial court overruled appellant's objection. A.R.'s mother testified that A.R. told her about times that appellant hurt her "booty with his pee-pee." On appeal, appellant makes two arguments concerning the objected-to testimony: the State failed to prove A.R.'s statement was made before the motive to fabricate had arisen as required under rule of evidence 801(e)(1)(B), and there was no evidence the incident wherein appellant hurt A.R.'s "booty with his pee-pee" was the same matter testified to by A.R. at trial. Thus, the arguments appellant raises on appeal are different from the objection made at trial. An objection at trial that does not comport with the complaint on appeal presents nothing for review. Tex. R. App. P. 33.1; Chambers v. State, 903 S.W.2d 21, 32 (Tex.Crim.App. 1995). We overrule appellant's second issue. We affirm the trial court's judgment.