Luis Fernando Puente v. the State of Texas ( 2021 )

NUMBER 13-20-00014-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
LUIS FERNANDO PUENTE, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 197th District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Justices Longoria, Hinojosa, and Tijerina
Memorandum Opinion by Justice Tijerina
Appellant Luis Fernando Puente seeks reversal of his conviction of four counts of
possession of child pornography and one count of continuous sexual abuse of a child
under fourteen. See TEX. PENAL CODE ANN. §§ 21.02; 43.26(a). Puente received a sixty-
year term of confinement for continuous sexual abuse of a child and a ten-year term of
confinement on each count of possession of child pornography, which will run
concurrently. By three issues, Puente contends that the trial court improperly (1–2)
allowed testimony that violated his right to confrontation and constituted bolstering of a
witness (issues one and two), and (3) denied his motion to suppress evidence (issue
three). We affirm.
I. ADMISSION OF TESTIMONY
A. Standard of Review
We review a trial court’s evidentiary ruling for an abuse of discretion. Ramos v.
State, 245 S.W.3d 410, 417–18 (Tex. Crim. App. 2008). If the trial court’s ruling is correct
under any applicable legal theory and is reasonably supported by the record, we will not
disturb that ruling. Id. at 418.
B. Confrontation Clause
By his first issue, Puente contends that Sonja Eddleman, the State’s expert
witness, “simply regurgita[ted] the hearsay statements” from reports made by non-
testifying nurses describing what the alleged child victims had said occurred. Specifically,
Puente argues that the statements read by Eddleman during her testimony were
testimonial; thus, the trial court violated his right to confrontation by admitting those
statements.
1. Applicable Law
“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted
with the witnesses against him[.]” U.S. CONST. amend. VI. In Crawford v. Washington, the
Supreme Court held that the Sixth Amendment confrontation right applies not only to in-
court testimony but also to out-of-court statements that are testimonial in nature. 541 U.S.
2
36, 59 (2004). The Supreme Court explained that the Confrontation Clause forbids the
admission of testimonial hearsay unless the declarant is unavailable to testify, and the
defendant had a prior opportunity to cross examine the declarant. Id. at 68. This is so
even if, the statement “falls under a firmly rooted hearsay exception or bears
particularized guarantees of trustworthiness.” Wall v. State, 184 S.W.3d 730, 735 (Tex.
Crim. App. 2006). Whether a particular out-of-court statement is testimonial is a question
of law. De La Paz v. State, 273 S.W.3d 671, 680 (Tex. Crim. App. 2008).
“Testimonial” statements are those that were made under circumstances which
would lead an objective witness to reasonably believe that the statements would be
available for use at a later trial. See Wall, 184 S.W.3d at 735. In other words, testimonial
statements are made when the circumstances indicate that the interviewer’s primary
purpose was to establish past events to further a criminal prosecution. See De La Paz,
273 S.W.3d at 680. However, if the primary purpose of gathering the complained-of
statements is something other than for a criminal investigation, “the Confrontation Clause
does not require such statements to be subject to the crucible of cross examination.”
Michigan v. Bryant, 562 U.S. 344, 361 (2011). In general, statements made for medical
diagnosis or treatment have a primary purpose other than the pursuit of a criminal
investigation. See id. at 362 n.9; see also Trejo v. State, No. 13-10-00374-CR, 2012 WL
3761895, at *2 (Tex. App.—Corpus Christi–Edinburg Aug. 30, 2012, pet. ref’d) (mem. op.,
not designated for publication).
3
2. Discussion
First, Puente generally complains of Eddleman’s reading of statements the alleged
child victims made to hospital personnel when each was examined after the alleged
sexual assaults occurred. Puente argues that Eddleman’s testimony violated
the Confrontation Clause because she read out-of-court statements documented in
reports by hospital personnel who did not testify at trial.1 We note that Puente’s argument
focuses on statements read by Eddleman that were allegedly made by the alleged child
victims and documented by hospital personnel in the medical reports.
During her testimony, Eddleman, a sexual assault nurse examiner who supervises
other hospital personnel on her team, explained her role as follows: “So the team at
Driscoll has social workers, forensic nurses, and two child abuse pediatricians, and I
actually review all of their documentation and their care.” When the State asked the trial
court to designate Eddleman as an expert “in the area of forensic examinations, sexual
assault examinations,” Puente objected stating, “This witness is merely here for
bolstering.” The trial court overruled the objection and found her to be an expert.
Eddleman testified that the purpose of a sexual assault examination is to diagnose
and treat the patient for any injuries. During Eddleman’s testimony, the State offered, and
the trial court admitted, the child victims’ medical records. When the State offered the first
child victim’s medical records, Puente stated, “[N]o objection with regards to the
documentation being submitted. I renew my objection with regards to this particular
1
In the argument section of his brief addressing the confrontation-clause issue, Puente does not
state specifically what testimony was admitted in violation of the Confrontation Clause and generally avers
the trial court violated his right to confrontation when it allowed Eddleman’s entire testimony regarding what
was documented in the complainants’ medical records after the alleged sexual assault.
4
witness commenting on these particular documents of which she . . . wasn’t the one who
did the exam.” When the State offered the medical records of the second alleged child
victim, Puente stated, “No objection, Your Honor. I’m not asking if this document has been
on file, but I renew my objection as to this particular witness as bolstering.”
Eddleman read from the medical reports prepared by hospital personnel that
transcribed the statements made by the two alleged child victims during their medical
examinations including, among other things, their medical history and details of the
alleged sexual assaults, which the children claimed Puente committed. Specifically,
Eddleman read the following, without objection: one child victim “stated, ‘I remember he
put his middle part in my back part, (and she indicated her anus by pointing), and my front
part, (and she indicated her female sexual organ by pointing)[.] ‘He’ is [Puente]. He is my
mom’s sister’s husband. He did it more than one time,’ end of quote.” Regarding one of
the children’s demeanor, Eddleman read the medical report as follows:
She was described as cooperative. She speaks in complete sentences. She
was a reluctant historian, which we use ‘reluctant’ for they’re just not talking
and talking, they’re, like, pausing and deciding . . . if they’re going to speak
or not. And she had intermittent eye contact. And her mom said that she
had a speech impediment and was diagnosed with a learning delay.
As to the second alleged child victim, Eddleman read, without objection, “[The
child] said, quote, ‘I was asleep, I think. I remember [Puente] touched me here (and she
pointed to her genital area) with his hand, I think. It happened more than one time, but
not a lot,’ end of quote.” Eddleman continued reading from the medical reports and
testifying as to their contents, without objection.
5
To preserve error for a Confrontation Clause violation, the defendant must have
objected at trial on that basis. Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App.
2005) (explaining that to preserve an appellate complaint based on the Confrontation
Clause, the appellant must have specifically informed the trial court that he was objecting
on that basis); Paredes v. State, 129 S.W.3d 530, 535 (Tex. Crim. App. 2004); see also
Cavil v. State, No. 09-08-00049-CR, 2009 WL 2617780, at *3 (Tex. App.—Beaumont
Aug. 26, 2009 pet. ref’d) (mem. op, not designated for publication) (concluding that
appellant waived his Confrontation Clause issue because he did not object at trial on that
basis) (citing Deener v. State, 214 S.W.3d 522, 527 (Tex. App.—Dallas 2006, pet. ref’d)).
However, Puente does not state in his brief where he objected on the basis that
Eddleman’s testimony violated the Confrontation Clause, and we find no such objection.
Therefore, Puente failed to preserve this issue for our review.2 See TEX. R. APP. P. 33.1.
Nonetheless, medical records created for treatment purposes and statements
documented in medical records made for the purpose of medical diagnosis and treatment
are not considered testimonial. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 312, n.2
(2009) (concluding that medical reports created for treatment purposes were
not testimonial); Berkley v. State, 298 S.W.3d 712, 715 (Tex. App.—San Antonio 2009,
pet. ref’d) (holding medical records were non-testimonial); Sullivan v. State, 248 S.W.3d
746, 750 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (noting that numerous Texas
courts agree that medical reports are non-testimonial); see also Harding v. State, No. 13-
2
Puente does not identify in his brief any statements in the medical reports read by Eddleman that
are testimonial, and we are not allowed by the Texas Rules of Appellate Procedure to make Puente’s
argument for him. See TEX. R. APP. P. 38.1(i).
6
14-00090-CR, 2015 WL 6687287, at *6–7 (Tex. App.—Corpus Christi–Edinburg Oct. 29,
2015, pet. ref’d) (mem. op., not designated for publication) (“[M]edical records created for
treatment purposes are not testimonial.”). Thus, even assuming that Puente preserved
the issue, Eddleman’s testimony did not violate the Confrontation Clause because the
primary purpose of the complained-of statements that were documented by hospital
personnel were to provide medical treatment to the complainants, and the records
Eddleman read were created for the purpose of medical treatment. See Sullivan, 248
S.W.3d at 750; Horner v. State, 129 S.W.3d 210, 217 (Tex. App.—Corpus Christi–
Edinburg 2004, pet. ref’d) (stating that the “exception for a statement made for purposes
of medical diagnosis or treatment is ‘firmly rooted,’” and, admission of such testimony
under the medical diagnosis hearsay exception does not violate an appellant’s right of
confrontation); see also Bryant, 562 U.S. at 362 n.9 (explaining that when the primary
purpose is something other than criminal investigation, “the Confrontation Clause does
not require such statements to be subject to the crucible of cross examination” and stating
that generally statements made for the purpose of medical diagnosis or treatment have a
primary purpose other than the pursuit of a criminal investigation); Garza v. State, No. 13-
19-00472-CR, 2021 WL 822301, at *5 (Tex. App.—Corpus Christi–Edinburg Mar. 4, 2021,
no pet. h.) (mem. op., not designated for publication) (concluding that the appellant’s right
to confrontation was not violated when the trial court admitted medical records that were
created for a medical purpose).
Moreover, the child victims testified at Puente’s trial. Therefore, the trial court’s
admission of Eddleman’s testimony regarding their statements in the medical reports did
7
not violate the Confrontation Clause because the complainants were subject to cross-
examination at trial. See Crawford, 541 U.S. at 59; De La Paz, 273 S.W.3d at 680; see
also Oliva v. State, No. 13-15-00609-CR, 2017 WL 2608280, at *7 (Tex. App.—Corpus
Christi–Edinburg June 15, 2017, no pet.) (mem. op., not designated for publication)
(finding no Confrontation Clause violation where the witness read from a report prepared
by a non-testifying nurse because the statements read were allegedly made by the
complainant, who testified and was subject to cross-examination); Segura v. State, No.
05-15-00032-CR, 2015 WL 8273712, at *5 (Tex. App.—Dallas Dec. 8, 2015, no
pet.) (mem. op., not designated for publication) (determining that the
Confrontation Clause had not been violated because the statements were made to a
nurse for the purpose of medical treatment and not to further a criminal prosecution, and
therefore, were not testimonial, and concluding in addition, that the complainant was
subject to cross-examination); DeLeon v. State, No. 13-18-00480-CR, 2019 WL 4200297,
at *4–5 (Tex. App.—Corpus Christi–Edinburg Sept. 5, 2019, pet. ref’d) (mem. op., not
designated for publication). Therefore, the trial court properly allowed Eddleman’s
testimony. Puente’s first issue is overruled.
C. Bolstering
Next, Puente argues that “[t]he trial court’s rulings to admit inadmissible hearsay
and hearsay upon hearsay from an expert witness amounted to improper bolstering of
the complainants’ testimony.” Puente states, “Trial counsel objected numerous times to
Eddleman, the [S]tate’s expert, testifying and explicitly reading directly off reports created
8
by other individuals solely to bolster the complainants’ testimony”3 and argues “This type
of repetitive evidence, is exactly what courts have held to be improper and inadmissible.”
However, this is the extent of Puente’s argument.
At trial, Puente generally objected when the State asked the trial court to admit
Eddleman’s curriculum vitae, stating that he objected “to the exhibit to the extent
that . . . this witness is going to be used to bolster somebody else’s testimony” and later
when the State offered Eddleman as an expert witness, stating, “This witness is merely
here for bolstering. And to the extent that that’s what I think she’s here for, I would
respectfully object.” Puente also objected when the State offered the medical records
during Eddleman’s testimony by stating the following: (1) “Your Honor, before we
proceed . . . just by looking at the documents [the prosecutor] has in her hand, I’m going
to renew my objection with regards to bolstering just so that I don’t waive anything”; (2)
“[N]o objection with regards to the [medical records] being submitted. I renew my
objection with regards to [Eddleman] commenting on these particular documents of
which . . . she wasn’t the one who did the exam”; and (3) “No objection [to admission of
the medical records], Your Honor. I’m not asking if [these medical records have] been on
file, but I renew my objection as to this particular witness as bolstering.”
“‘Bolstering’ may . . . be understood . . . to be any evidence the sole purpose of
which is to convince the factfinder that a particular witness or source of evidence is worthy
of credit, without substantively contributing ‘to make the existence of [a] fact that is of
3
Puente cites several pages from the reporter’s record wherein he claims that this bolstering
occurred. However, he does not specifically state which statements are objectionable and why. See TEX.
R. APP. P. 38.1(i).
9
consequence to the determination of the action more or less probable than it would be
without the evidence.’” Cohn v. State, 849 S.W.2d 817, 819–20 (Tex. Crim. App. 1993).
“Accordingly, evidence that corroborates another witness’ story or enhances inferences
to be drawn from another source of evidence, in the sense that it has an incrementally
further tendency to establish a fact of consequence, should not be considered
‘bolstering.’” Id.As set out above, Puente generally cites to pages in the reporter’s record wherein
he states that he objected based on bolstering. Puente, however, does not explain how
his objections preserve any error or how any statements by Eddleman constitute improper
bolstering. Puente does not state why the trial court should have concluded that the sole
purpose of any of Eddleman’s testimony was to convince the jury that any of the witnesses
or source of the evidence was worthy of credit, without substantively contributing “‘to
make the existence of [a] fact that is of consequence to the determination of the action
more or less probable than it would be without the evidence.’” See id. Puente does not
explain how the trial court abused its discretion by allowing Eddleman to testify over these
objections. And he points to no objections, and we find none, to specific testimony that
could have bolstered any other witnesses’ credibility. Moreover, when Eddleman read
from the complainants’ medical reports, Puente did not object on any basis. Accordingly,
Puente has not shown on appeal that the trial court acted outside the zone of reasonable
disagreement in this regard. See id.; see also TEX. R. APP. P. 38.1(i) (explaining that the
appellant must provide substantive argument with citation to appropriate authority to
succeed on appeal); Rivas v. State, 275 S.W.3d 880, 886-87 (Tex. Crim. App.
10
2009) (stating that “[b]ecause of the multifarious origins of ‘bolstering,’ courts have found
concern with it as an objection on its face[; thus, m]any appellate courts have cited the
Cohn concurrence as authority to abandon ‘bolstering’ as a valid objection to preserve
error for review” and noting that “the term ‘bolstering’ is slowly dying as an objection on
its face” in part because of “its inherent ambiguity,” but that “it has not yet expired, despite
the fact that the term itself failed to survive the adoption of the Rules [of Evidence in
1998]”). We overrule Puente’s second issue.
II. MOTION TO SUPPRESS
By his third issue, Puente contends that the trial court should have granted his
motion to suppress evidence retrieved from his cell phone. The State responds that
Puente did not have standing to challenge the seizure of his cell phone because he did
not have an expectation of privacy at the place where the cell phone was found.
A. Standard of Review
We review a trial court’s ruling on a motion to suppress for abuse of discretion.
Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010). In reviewing a trial court’s ruling
on a motion to suppress evidence for an abuse of discretion, we use a bifurcated
standard. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000) (en banc) (citing
Guzman v. State, 955 S.W.2d 85, 88 (Tex. Crim. App. 1997) (en banc)). We give almost
total deference to the trial court’s findings of historical fact that are supported by the record
and to mixed questions of law and fact that turn on an evaluation of credibility and
demeanor. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007) (citing Guzman,
995 S.W.2d at 89). We “review de novo ‘mixed questions of law and fact’ that do not
11
depend upon credibility and demeanor.” Id. (quoting Montanez v. State, 195 S.W.3d 101,
107 (Tex. Crim. App. 2006)); Guzman, 995 S.W.2d at 89.
In our review, we must view the evidence in the light most favorable to the trial
court’s ruling. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). When the trial
court has not made a finding on a relevant fact, we imply the finding that supports the trial
court’s ruling if it is supported by the record. Id.B. Discussion
At trial, Puente objected to the evidence obtained on his cell phone on the basis
that the cell phone had been illegally seized; therefore, he argued that the evidence was
fruit of the poisonous tree requiring suppression. The trial court held a motion to suppress
hearing outside the presence of the jury.
At the suppression hearing, it was established that Puente’s relative located
Puente’s cell phone at his brother-in-law’s residence, and she then gave it to Ranger
Patrick O’Connor.4 It was further established that the officers acquired a search warrant
prior to viewing the contents of Puente’s phone. The State presented evidence that
Puente did not reside at his brother-in-law’s residence and that he had simply been a
non-overnight guest when he either intentionally or accidently left his cell phone there.
4
Specifically, Ranger O’Connor testified that Puente’s wife informed him that Puente had a cell
phone that he had left at his brother-in-law’s residence after visiting. Ranger O’Connor stated, “After that, I
talked to, his sister, [L.C.], and asked her if the phone was still there. She believed that it was. I followed
her over to that residence, . . . and asked if I could have the phone, and then later she brought it out to me
at that residence.” Ranger O’Connor did not enter the residence himself. L.C. is the complainants’ mother,
and she testified at trial that she acquired the phone from her brother’s, (Puente’s brother-in-law), house.
During argument at the motion to suppress hearing, Puente stated that his mother had acquired
the phone from his brother-in-law’s residence. However, Ranger O’Connor did not make this statement and
no such evidence was presented at the motion to suppress hearing.
12
The State argued that Puente lacked standing to challenge the seizure of his cell
phone because Puente presented no evidence that he owned or had an interest in the
residence where his cell phone had been found. Therefore, the State claimed he had no
expectation of privacy. Puente countered that since his relative located his phone at a
place where she did not reside, she did not have a right to enter the property.5 The trial
court overruled Puente’s objection to admission of the contents of his cell phone and
denied his motion to suppress.
Standing was the main issue at the suppression hearing. However, on appeal,
Puente does not challenge this basis for the trial court’s ruling. Instead, he argues that
the officers lacked exigent circumstances to seize his cell phone.6
“A ‘theory of law’ is applicable to the case if the theory was presented at trial in
such a manner that the appellant was fairly called upon to present evidence on the issue,”
and “[i]f the appellant fails to argue a ‘theory of law’ applicable to the case on appeal, that
argument is forfeited.” State v. Copeland, 501 S.W.3d 610, 613 (Tex. Crim. App.
2016); Marsh v. State, 343 S.W.3d 475, 479 (Tex. App.—Texarkana 2011, pet. ref’d)
(stating that the appellant must challenge all of the grounds for the trial court’s ruling on
5
Puente referred to this relative as his mother; however, as previously stated, Ranger O’Connor
stated that it was Puente’s sister who provided the cell phone. However, L.C., Puente’s sister-in-law,
testified that she acquired the phone.
6
At the motion to suppress hearing, in addition to arguing that Puente lacked standing to challenge
the seizure of his cell phone, the State argued, in the alternative, that exigent circumstances existed, and
Puente argued there were no exigent circumstances. Ranger O’Connor testified that Puente told officers
that he had shown the child victim pornography “as part of the alleged crime in order to groom her to
continue the crime. And so that would have been corroborating information, so you’ve got evidence inside
that phone that we would like for the case.” According to Ranger O’Connor, police officers “try to get the
evidence as quick as [they] can. . . . [Y]ou’ve always got a potential for it to be lost, discarded, possibly
tampered with. We always just want to get it as we can and get it in our custody that way we can preserve
it.” However, as it is not dispositive, we need not address this issue. See TEX. R. APP. P. 47.1.
13
appeal); see also State v. Hoskins, No. 05-13-00416-CR, 2014 WL 4090129, at *2 (Tex.
App.—Dallas Aug. 19, 2014, no pet.) (mem. op., not designated for publication) (“If even
one independent ground fully supports the complained-of ruling or judgment, but
an appellant does not assign error to that independent ground, we must accept the
validity of that unchallenged independent ground, and thus any error in the grounds
challenged on appeal is harmless because the unchallenged independent ground fully
supports the complained-of ruling or judgment.”); Johns v. State, No. 14-11-00420-CR,
2012 WL 1899195, at *8 (Tex. App.—Houston [14th Dist.] May 24, 2012, no pet.) (mem.
op., not designated for publication) (“By failing to challenge and adequately brief the basis
for the trial court’s ruling, appellant cannot demonstrate that the trial court abused its
discretion in admitting the video interview into evidence.”); State v. Aviles, No. 10-07-
00371-CR, 2008 WL 976955, at *1–2 (Tex. App.—Waco Apr. 9, 2008, no pet.) (mem. op.,
not designated for publication) (explaining that because the State, as the appellant, failed
to challenge each ground for the trial court’s ruling granting a motion to suppress the
issue was waived). Moreover, an appellate court cannot reverse on a legal theory not
presented to trial court by the complaining party. Hailey v. State, 87 S.W.3d 118, 122
(Tex. Crim. App. 2002).
Here, Puente has not challenged all grounds relied upon by the trial court in
denying his motion to suppress; accordingly, he cannot show that the trial court erred in
denying his motion. See Copeland, 501 S.W.3d at 613; Marsh, 343 S.W.3d at 479;
14
see also Hoskins, 2014 WL 4090129, at *2; Johns, 2012 WL 1899195, at *8; Aviles, 2008
WL 976955, at *1–2. We overrule Puente’s third issue.7
III. CONCLUSION
We affirm the trial court’s judgment.
JAIME TIJERINA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed on the
17th day of June, 2021.
7
We note that it is well settled that a non-overnight guest, such as Puente, has no reasonable
expectation of privacy in a residence that he does not own or have a possessory interest. See Villarreal v.
State, 935 S.W.2d 134, 139 (Tex. Crim. App. 1996) (“American society is not willing to sanction as
objectively reasonable the subjective expectation of privacy of someone who is in a residence under the
circumstances presented in this case.”); Marsh v. State, 01-04-00888-CR, 2006 WL 23420, at *2 (Tex.
App.—Houston [1st Dist.] Jan. 5, 2006, no pet.) (mem. op., not designated for publication) (concluding that
like in Villarreal, there was “nothing in the record to show that [the] appellant exhibited an actual subjective
expectation of privacy in the residence” where the evidence was found “or that any expectations he may
have had were of the types that society views as objectively reasonable” and noting that the “[a]ppellant
admit[ed] in his brief that the residence was ‘appellant’s sister’s house,’ but offer[ed] no evidence to
demonstrate that he had an actual subjective expectation of privacy in that residence.”).
15