Austen Lopez v. the State of Texas ( 2021 )

Affirmed and Memorandum Opinion filed September 2, 2021.
In The
Fourteenth Court of Appeals
NO. 14-20-00289-CR
AUSTEN LOPEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 367th District Court
Denton County, Texas
Trial Court Cause No. F17-3042-367
MEMORANDUM OPINION
Appellant Austen Lopez appeals his convictions for indecency with a child
and aggravated sexual assault of a child under the age of 14 in multiple issues. See
Tex. Penal Code Ann. §§ 21.11(a)(1); 22.021. We affirm.1
1
The Supreme Court of Texas ordered the Second Court of Appeals to transfer this case
to this court. See Tex. Gov’t Code Ann. § 73.001. Under the Texas Rules of Appellate
Procedure, “the court of appeals to which the case is transferred must decide the case in
accordance with the precedent of the transferor court under principles of stare decisis if the
transferee court’s decision otherwise would have been inconsistent with the precedent of the
BACKGROUND2
At trial, the State’s first witness was A.L., the child complainant. A.L. lived
in an apartment with her mother, I.G., two younger brothers, and appellant. A.L.
was seven at the time the events at issue in this appeal occurred. A.L. testified that
appellant touched her and made her feel uncomfortable. According to A.L., the
first time appellant made her feel uncomfortable occurred when she was in her
bedroom taking off her clothes before showering. Appellant entered the bedroom,
put A.L. on her bed while she was naked, and took off his clothes. A.L. said
appellant then “put his pee pee in mine” while she was on her back. A.L. used two
dolls, representing a male and female, to explain how she and appellant were
positioned when this episode occurred. A.L. also circled on a diagram of a girl and
a boy what she meant when she used the term “my pee pee” and “his pee pee.”
A.L. testified that both she and appellant were naked when appellant put “his
pee pee” in hers. A.L. also testified that she felt something moving as appellant
was on top of her. According to A.L., this movement caused her pain. A.L. told
appellant to stop and appellant promised A.L. that he would not do it again.
Appellant told A.L. not to tell her mother about the abuse. Despite appellant’s
promise, he continued to sexually assault A.L. A.L. testified that appellant got on
top of her while she was naked “maybe five times.” According to A.L., appellant
also asked her to touch his penis with her hand. A.L. testified that she touched
appellant’s penis with her hand multiple times.
The State next called I.G., A.L.’s mother, and the trial court conducted a
transferor court.” Tex. R. App. P. 41.3. We are unaware of any conflict between the Second
Court of Appeals precedent and that of this court on any relevant issue.
2
Because appellant has not challenged the sufficiency of the evidence supporting his
convictions, we include only those facts necessary to provide background for his issues raised in
this appeal.
2
hearing outside the presence of the jury to determine whether I.G. could properly
testify as an outcry witness. I.G. testified that A.L. first revealed the abuse to her
when she told her that appellant “had gotten on top of her, without pants, started
moving, and it would hurt her.” A.L. told I.G. that this happened four or more
times and that appellant also asked her to touch his penis with her hands. A.L. also
told I.G. that appellant warned A.L. not to tell I.G. about the abuse “because he
would be gone for a long time.” A.L. also disclosed that she told appellant to stop
because he was hurting her.
Appellant’s trial counsel did not have any questions regarding A.L.’s outcry
on cross-examination, but he did object to I.G.’s testimony as an outcry witness
under the Sixth Amendment and Texas Rule of Evidence 403. The trial court
overruled appellant’s objections and found I.G. could testify as an outcry witness.
Appellant’s trial counsel sought to question I.G. about her immigration
status. Appellant’s attorney asked I.G. if she remembered telling a police officer
that appellant had threatened to have her deported. Appellant’s trial counsel also
asked I.G. whether she was a United States citizen when A.L. outcried to her and
what her citizenship status was at the time of trial. I.G. responded that she was not
a citizen and reiterated that she was “not from here.” I.G. further explained that
she was not working to change her citizenship status. After argument, the trial
court determined that appellant’s line of questioning regarding I.G.’s citizenship
status was not relevant and did not allow counsel to ask about it in front of the jury.
In front of the jury, I.G. repeated A.L.’s outcry and said that she went to the
police to report what happened. I.G. testified that she spoke with Child Protective
Services (CPS) and took A.L. to a forensic interview and a Sexual Assault Nurse
Examiner (SANE) exam shortly after she reported the abuse to the police.
The State’s next witness was Jennifer Edwards, the CPS investigator who
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handled A.L.’s case. Edwards interviewed appellant and questioned him about the
alleged abuse. Appellant told Edwards that “his pee pee could have touched her
when he carried her naked from her room while he was also naked and they were
going to the shower.” Appellant also said that A.L. “complained that she was
uncomfortable in her vaginal area,” so he “examined her in the bathtub by
spreading her legs and then poking it . . . [t]o see if it was poofy.”
Ashley Enslow, A.L.’s forensic interviewer, testified next. The trial court
conducted a second hearing outside the presence of the jury to determine whether
Enslow qualified as a second outcry witness. In addition to other episodes of
sexual assault, Enslow testified that A.L. told her about one episode of sexual
assault during which she was laying on her stomach. According to A.L., appellant
“had her lay on her stomach on her bed. He took off his clothes, laid on his
stomach on top of her, rubbed his thing on her bottom, which she later clarified to
be her vagina.”
Appellant objected to this portion of Enslow’s testimony because, in
appellant’s view, I.G. had already discussed the “events which took place with
Austen laying on [A.L.].” The trial court overruled appellant’s objection, stating
that Enslow was “qualified to testify as to the additional offenses that have been
articulated during [Enslow’s] interview.” The trial court then instructed the State
that, “[a]ny testimony regarding the previous outcry statement is not going to be
admitted.” After the jury returned to the courtroom, Enslow discussed multiple
allegations of sexual abuse that A.L. disclosed during her forensic interview. This
included the episode where A.L. was laying on her stomach.
SANE nurse Julie Carriker was the State’s next witness. Carriker conducted
the SANE examination on A.L. Carriker recorded what A.L. told her during the
examination and she testified that A.L. had injuries consistent with an adult male
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being on top of her and rubbing his penis on or in her vagina.
The State next called police officer Gregory Latson. Latson took I.G.’s
statement when I.G. came to the police station to report appellant’s alleged abuse
of A.L. Outside the presence of the jury, Latson testified that I.G. told him
appellant made threats to get her deported and to have her children taken away
from her. Latson also testified that he believed that I.G. was not an American
citizen. Latson further testified that I.G. never told him that she was using the
abuse allegations to take appellant’s children away from him, or to have appellant
thrown in jail. Arguing the evidence was relevant, appellant once again asked the
trial court to admit the evidence related to I.G.’s citizenship status. The trial court
ruled against admission of the evidence for a second time.
After the State rested its case, appellant called multiple witnesses outside the
presence of the jury and proffered testimony related to I.G.’s citizenship status.
Appellant argued that the proffered witnesses’ testimony established that I.G.’s
citizenship status was relevant and should be admitted. The trial court once again
ruled against appellant.
Appellant did call his father and mother to testify in front of the jury.
Appellant’s father testified that he assisted with parental counseling involving
appellant being naked around A.L.
In closing argument, appellant argued there was a lack of a clear timeline of
when the abuse occurred. Appellant also asserted that I.G. had a motive to make
false allegations against appellant because she was frustrated in her relationship
with appellant, who seemingly did not want to work, and wanted him out. In
appellant’s view, I.G. saw an opportunity to get rid of appellant by using
appellant’s “running around the house naked.” Appellant argued that I.G. coached
A.L. on what to say to get appellant out.
5
The jury found appellant guilty of both charges. The jury assessed
appellant’s punishment at five years in prison for indecency with a child and
twelve years in prison for aggravated sexual assault. This appeal followed.
ANALYSIS
Appellant challenges his convictions in four issues. Appellant’s first three
issues challenge evidentiary rulings by the trial court. Appellant argues the trial
court abused its discretion when it (1) excluded evidence related to I.G.’s
citizenship status; and (2) allowed Enslow to testify as a second outcry witness. In
his fourth issue, appellant argues that he received ineffective assistance of counsel
because his trial counsel failed to ask the trial court to strike I.G.’s testimony as the
first outcry witness. We address these issues in order.
I. The trial court did not abuse its discretion when it excluded evidence
related to I.G.’s citizenship status.
Appellant argues in his first issue that the trial court abused its discretion
when it excluded evidence related to I.G.s’ citizenship status because, in
appellant’s view, the evidence was relevant to I.G.’s bias or motive to fabricate
sexual abuse allegations against appellant.3
3
Appellant did not argue in the trial court, nor has he attempted to argue on appeal, that
the trial court’s exclusion of his proffered evidence regarding I.G.’s citizenship status violated
his constitutional right to confront the witnesses against him by depriving him of the opportunity
to show that a witness is biased against him. See Golliday v. State, 560 S.W.3d 664, 670 (Tex.
Crim. App. 2018) (“Nothing in the record indicates that Appellant properly put the trial judge on
notice that he was making a Confrontation Clause argument in support of admitting the excluded
evidence. Parties are not permitted to bootstrap a constitutional issue from the most innocuous
trial objection, and trial courts must be presented with and have the chance to rule on the specific
constitutional basis for admission because it can have such heavy implications on appeal.”)
(internal quotations omitted); Irby v. State, 327 S.W.3d 138, 145 (Tex. Crim. App. 2010) (“The
constitutional right of confrontation includes the right to cross-examine the witnesses and the
opportunity to show that a witness is biased or that his testimony is exaggerated or
unbelievable.”). Appellant did argue, however, that the trial court’s abuse of discretion in
excluding the proffered evidence regarding I.G.’s citizenship status precluded him from
6
A. Standard of review and applicable law
We review a trial court’s decision to exclude evidence for an abuse of
discretion. See Henley v. State, 493 S.W.3d 77, 82–83 (Tex. Crim. App. 2016).
Under this standard, we may not reverse a judgment unless we believe that the trial
court’s ruling was so clearly wrong as to lie outside the zone within which
reasonable people might disagree. Id. If the trial court’s evidentiary ruling is
correct on any theory of law applicable to that ruling, we will uphold the trial
court’s decision. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App.
2009). This is true even if the trial court failed to give a reason or used the wrong
reason for the ruling. Bowley v. State, 310 S.W.3d 431, 434 (Tex. Crim. App.
2010).
Generally, a defendant may cross-examine a witness for her purported bias,
interest, or motive, without undue limitation. See Tex. R. Evid. 613(b) (providing
for impeachment of witness by evidence of alleged bias or interest in favor or
against a party); Hammer v. State, 296 S.W.3d 555, 563 (Tex. Crim. App. 2009).
For impeachment evidence to be admissible, the defendant must establish a causal
connection or logical relationship between the evidence and the witness’s alleged
bias or motive. Johnson v. State, 433 S.W.3d 546, 552 (Tex. Crim. App. 2014).
Limiting a defendant’s right to cross-examine a witness is within a trial court’s
discretion. Hammer, 296 S.W.3d at 561.
B. The trial court did not abuse its discretion when it excluded
appellant’s proffered evidence because appellant failed to
establish the evidence was relevant.
presenting a complete defense, thereby requiring this court to apply the constitutional harm
standard set forth in Rule 44.2(a) of the Texas Rules of Appellate Procedure. Because we
conclude that the trial court did not abuse its discretion when it excluded the evidence, we need
not reach appellant’s harm argument.
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As recounted above, appellant had the opportunity to question I.G. outside
the presence of the jury. During that questioning, I.G. admitted she was not a
citizen of the United States, but she did not recall mentioning appellant’s alleged
deportation threats to Officer Latson. I.G. further testified that she was not seeking
to change her current citizenship status. In addition, Officer Latson testified
outside the presence of the jury that I.G. never threatened appellant, nor did she
state that she intended to use A.L.’s allegations to take the children away from
appellant, or to have him incarcerated. Instead, according to Officer Latson, I.G.
merely reported A.L.’s outcry allegations against appellant. Based on this
proffered testimony, we hold that the trial court did not abuse its discretion when it
impliedly concluded that the proffered evidence was not relevant because appellant
had not established a causal connection or logical relationship between the
proffered evidence and I.G.’s alleged bias or motive. See Garcia v. State, 397
S.W.3d 860, 864 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d) (affirming
trial court’s exclusion of evidence because defendant failed to establish excluded
evidence was relevant because he did not establish a link between alleged bad
behavior by complainant’s mother and an alleged bias against appellant by
complainant’s mother).4 Because the trial court did not abuse its discretion when it
excluded the proffered evidence regarding I.G.’s citizenship status, we overrule
appellant’s first issue.
4
While appellant does not cite Sansom v. State from this court, we conclude that it does
not dictate a different outcome here because it is distinguishable. 292 S.W.3d 112 (Tex. App.—
Houston [14th Dist.] 2008, pet. ref’d). In Sansom, this court determined that the trial court had
harmlessly erred when it prohibited the defendant from questioning his estranged wife about her
citizenship status to show that her daughters, the complainants, had a motive to make false
allegations against defendant. 292 S.W.3d at 120–21. We based this analysis on the existence of
evidence in the record that one of the complainants had threatened defendant that she would call
the police to report he had sexually assaulted her if defendant pursued a divorce from her mother.
Id. The case before us lacks evidence of such a direct link between I.G.’s citizenship status and a
bias or motive to coach A.L. to make false allegations against appellant.
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II. The trial court did not abuse its discretion when it admitted I.G.’s
outcry witness testimony.
In his second issue appellant asserts that the trial court abused its discretion
when it permitted I.G. to testify as an outcry witness because her testimony was
not sufficiently detailed. The State responds that A.L.’s outcry to I.G. was
sufficiently specific such that its admission as an outcry statement was within the
trial court’s discretion. We agree with the State.
A. Standard of review and applicable law
We review the trial court’s designation of an outcry witness for an abuse of
discretion. See Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App.
1990); Rosales v. State, 548 S.W.3d 796, 806 (Tex. App.—Houston [14th Dist.]
2018, pet. ref’d). The designation will be upheld when supported by the evidence.
Rosales, 548 S.W.3d at 806. A trial court abuses its discretion only if its ruling is
outside the zone of reasonable disagreement, and we will not disturb the trial
court’s ruling unless a clear abuse of discretion is shown. Id.Under the Texas Rules of Evidence, hearsay is not admissible unless it falls
within an exception to the rule. Tex. R. Evid. 802; Rosales, 548 S.W.3d at
806. Article 38.072 of the Code of Criminal Procedure provides a statutory
exception to the rule against hearsay for prosecutions of certain sexual crimes.
See Tex. Code Crim. Proc. Ann. art. 38.072, § 2(b); Rosales, 548 S.W.3d at 806.
The burden of proof is on the State, as the proponent of the evidence, to establish
the elements of Article 38.072 in order for the testimony to be admissible.
Rosales, 548 S.W.3d at 806.
The statute requires the trial court to hold a hearing outside the presence of
the jury to determine whether the statement is reliable based on the time, content,
and circumstances of the statement. Tex. Code Crim. Proc. Ann. art. 38.072,
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§ 2(b)(2); Rosales, 548 S.W.3d at 806. To be admissible, the proponent of the
evidence must establish that the statements (1) were made by the child against
whom the offense was allegedly committed; and (2) were made to the first person,
18 years of age or older, other than the defendant, to whom the child made a
statement about the offense. Tex. Code Crim. Proc. Ann. art. 38.072,
§ 2(a)(1)(A), (2), (3); Rosales, 548 S.W.3d at 806.
The Court of Criminal Appeals has interpreted this statute to mean that
an outcry witness must be the first person, 18 years old or older, to whom the child
makes a statement that in some discernible manner describes the alleged offense.
Rosales, 548 S.W.3d at 806 (citing Garcia, 792 S.W.2d at 91). The statement of
the child must be more than words giving a general allusion that something in the
area of child abuse was going on. Id. In addition, outcry witness designations are
event-specific, not person-specific. Rosales, 548 S.W.3d at 806–07. More than
one outcry witness may testify if each witness testifies regarding different events.
See Rosales, 548 S.W.3d at 807 (citing Lopez v. State, 343 S.W.3d 137, 140 (Tex.
Crim. App. 2011)).
B. A.L. described appellant’s sexual abuse to I.G. with sufficient
specificity to qualify as an outcry statement and the trial court did
not abuse its discretion when it allowed I.G. to testify about A.L.’s
outcry to her.
Appellant contends that A.L.’s outcry to I.G. was limited to a general
allusion because, in appellant’s view, all A.L. told I.G. was that appellant got on
top of her, he started moving, and it hurt her. Having reviewed the record, we
disagree that A.L.’s outcry provided only a general allusion to sexual abuse.
Instead, A.L.’s outcry provided specific details of the abuse. For example, I.G.
testified that A.L. told her that appellant “had gotten on top of her, without pants,
started moving, and it hurt her.” In addition, A.L. told I.G. that the abuse occurred
10
in her bedroom, that appellant had taken her clothes off, and that the abuse
happened four or more times. A.L. also told her mother that appellant “asked her
to touch his parts” with her hands while he was rubbing on top of her without
pants. A.L. also told I.G. that appellant covered her face and he told “her to not
say anything because he would be gone for a long time.” We conclude that A.L’s
statement to I.G. regarding appellant’s sexual abuse was more than a general
allusion that something in the area of child abuse was going on. See Nino v. State,
223 S.W.3d 749, 753 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (“Though
the child’s statements were not lengthy or detailed, they contained sufficient
information about the nature of the act and the perpetrator to fall under article
38.072 of the Texas Code of Criminal Procedure.”); cf. Rosales, 549 S.W.3d at 807
(concluding trial court did not abuse its discretion when it determined person was
not proper outcry witness because the complainant’s statement that defendant
“touched her the wrong way” was only a general allusion that abuse had occurred).
We therefore hold that the trial court did not abuse its discretion when it admitted
I.G.’s testimony as an outcry witness. We overrule appellant’s second issue.
III. The trial court did not abuse its discretion when it admitted Enslow’s
testimony as a second outcry witness.
Appellant argues in his third issue that the trial court abused its discretion
when it admitted testimony from a second outcry witness regarding a single
incident of sexual abuse. The State responds that the trial court did not abuse its
discretion because it could have reasonably concluded that A.L.’s statements to
Enslow described separate and discrete episodes of abuse from the allegations first
disclosed to I.G. We once again agree with the State.
We review this issue under the standard set forth above in section II(A).
Here, Enslow testified outside the presence of the jury that A.L. revealed to her
11
that appellant had taken his clothes off in A.L’s bedroom, had A.L. lay on her bed
on her stomach, and appellant had then laid on his stomach on top of her and
rubbed his penis on her vagina. The trial court ruled that Enslow could testify as
an outcry witness because A.L. had reported additional episodes of abuse to her.
Because outcry testimony is event-specific, not person-specific, and there can be
more than one outcry witness as long as they describe different events, we
conclude the trial court did not abuse its discretion when it overruled appellant’s
objection and allowed Enslow to testify as a second outcry witness. See Polk v.
State, 367 S.W.3d 449, 453 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d) (“It
is therefore possible to have more than one outcry witness, as in this case, because
the outcry is about different events and different offenses.”). We overrule
appellant’s third issue.
IV. Appellant did not establish that he received ineffective assistance of
counsel.
Appellant contends in his final issue that he received ineffective assistance
of counsel because his trial counsel failed to move to strike the testimony of the
first outcry witness after the trial court admitted the testimony of the second outcry
witness.
An accused is entitled to reasonably effective assistance of counsel King v.
State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983); Bradley v. State, 359 S.W.3d
912, 916 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d). However, reasonably
effective assistance of counsel does not mean error-free representation. Ex parte
Felton, 815 S.W.2d 733, 735 (Tex. Crim. App. 1991). Isolated instances in the
record reflecting errors of omission or commission do not render counsel’s
performance ineffective, nor can ineffective assistance of counsel be established by
isolating one portion of trial counsel’s performance for examination. Wert v. State,
12
383 S.W.3d 747, 753 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Therefore,
when evaluating a claim of ineffective assistance, the appellate court looks to the
totality of the representation and the particular circumstances of the case without
the benefit of hindsight. Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App.
2011); Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
To establish ineffective assistance of counsel, a defendant must prove that
(1) trial counsel’s representation fell below the standard of prevailing professional
norms, and (2) there is a reasonable probability that, but for the deficient
performance, the result of the proceeding would have been different. Strickland v.
Washington, 466 U.S. 668, 687 (1984); see also Hernandez v. State, 726 S.W.2d
53, 55 (Tex. Crim. App. 1986) (applying Strickland standard to claims of
ineffective assistance under the Texas Constitution). Failure to make the required
showing of either deficient performance or sufficient prejudice defeats the claim of
ineffective assistance. Strickland, 466 U.S. at 697. If a criminal defendant can
prove trial counsel’s performance was deficient, he still must prove he was
prejudiced by his trial counsel’s actions. Thompson, 9 S.W.3d at 812. This
requires the defendant to demonstrate a reasonable probability that the result of the
proceeding would have been different if trial counsel had acted professionally. Id.A reasonable probability is a probability sufficient to undermine confidence in the
outcome. Malett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). “If it is easier
to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice
. . . that course should be followed.” Cox v. State, 389 S.W.3d 817, 819 (Tex.
Crim. App. 2012).
Appellant argues that his trial counsel were ineffective because they failed to
move to strike I.G.’s outcry witness testimony once the trial court admitted
13
Enslows’ testimony as a second outcry witness. We have already determined that
the trial court did not abuse its discretion when it admitted outcry testimony from
two witnesses because they testified regarding separate and distinct episodes of
abuse. As a result, appellant’s trial counsel’s failure to move to strike I.G.’s
testimony does not constitute ineffective assistance of counsel. See Bradley v.
State, 359 S.W.3d 912, 919 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d)
(“Counsel is not ineffective for failing to raise an objection that lacks merit.”);
Oliva v. State, 942 S.W.2d 727, 732 (Tex. App.—Houston [14th Dist.] 1997, pet.
dism’d) (“Trial counsel’s failure to object to admissible evidence does not
constitute ineffective assistance of counsel.”). We overrule appellant’s fourth
issue.
CONCLUSION
Having overruled appellant’s issues on appeal, we affirm the trial court’s
final judgment.
/s/ Jerry Zimmerer
Justice
Panel consists of Justices Bourliot, Zimmerer, and Spain.
Do Not Publish — TEX. R. APP. P. 47.2(b).
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