Carlos Rivas v. State ( 2007 )

MEMORANDUM OPINION

No. 04-06-00375-CR

Carlos RIVAS, Appellant

v.

The STATE of Texas, Appellee

From the 175th Judicial District Court, Bexar County, Texas Trial Court No. 2003-CR-10018 Honorable Mary Roman, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Catherine Stone, Justice

Karen Angelini, Justice

Steven C. Hilbig, Justice

Delivered and Filed: June 6, 2007

AFFIRMED

Carlos Rivas was found guilty of four counts of aggravated sexual assault and one count of indecency with a child. On appeal, he argues that (1) the report of the sexual assault nurse examiner should not have been admitted in evidence because it constituted improper bolstering of the complainant's testimony and violated Texas Rule of Evidence 403, and (2) the trial court should have granted his motion for mistrial because during closing argument in the punishment phase of the trial, the prosecutor characterized him as a "monster." We affirm the judgment of the trial court.

Background

Rivas's step-daughter, C.C., testified at trial that Rivas sexually assaulted her on multiple occasions. C.C., a ten year-old-girl, testified that when she was seven years-old, Rivas touched her genitals with his hands, performed oral sex on her, and penetrated both her vagina and her anus with his penis. ⁽¹⁾ According to C.C., Rivas made her touch herself while he masturbated, and they would then have a contest to "see who could make the white stuff come out first." C.C. also testified that Rivas made her perform oral sex on him.

Detective Frederick Allen Roussel of the San Antonio Police Department's sex crimes division testified that he investigated the allegations against Rivas. When he interviewed C.C., he asked her to draw a picture to illustrate what had happened to her. According to Detective Roussel, when C.C. was unable to draw what she wanted to illustrate, she began to simulate oral sex:

Like I said, she was unable to draw what she wanted to get across, so she knelt down on the floor and was sitting on the back of her calves. She took her hand and made kind of a fist and . . . She doubled over, leaned forward with her hand like that, and was motioning her hand up and down with her mouth open, moving her head up and down . . . .

According to Detective Roussel, he became so uncomfortable that he opened the closed door to the room: "So, I just opened the door a little bit, just because it was a little uncomfortable. I don't know exactly why I felt like I had to open the door, but I wanted the door opened. So, it was just strange seeing a seven-year-old demonstrate something like that that was fairly graphic and accurate."

Detective Roussel also testified that he interviewed Rivas. When asked on cross-examination by defense counsel what Rivas had told him, Detective Roussel testified that Rivas said the allegations were untrue and that the allegations were motivated by a custody issue over his and his wife's infant daughter, R.R.

Detective Roussel also testified that he searched the apartment where Rivas, his wife, C.C., and R.R. lived. During the search, an evidence technician, Detective Garcia, took photographs and removed the bedding from C.C.'s room. Kimberly F. Landers, a forensic scientist with the Bexar County Criminal Investigation Laboratory, conducted testing on the bedding and testified at trial that she was able to identify the presence of sperm on the blue blanket taken from C.C.'s bottom bunk bed. Robert Sailors, also a forensic scientist with the Bexar County Criminal Investigation Laboratory, performed DNA analysis on the blue blanket and compared it to Rivas's DNA sample. According to Sailors, Rivas was not excluded as a contributor of the human DNA identified on the blanket; "[t]hat means the two genetic profiles, the one from the blanket and the one from Carlos Rivas, they matched." Because he had a match, Sailors then considered whether the match was coincidental or was a true match. Sailors determined that the profile observed on the blanket would be expected to occur in one in eighty-seven quadrillion individuals in the Southwestern Hispanic population. The profile would be expected to occur in one in every 127 quadrillion individuals in the Southeastern Hispanic population. And, the profile would be expected to occur in one in every 746 quadrillion individuals in the Caucasian population. For the African-American population, the profile would occur in one in every 16.7 quintillion individuals.

Annette Santos, a sexual assault nurse examiner at the Alamo Children's Advocacy Center examined C.C. She took a history from C.C. and performed a head-to-toe and an anal-genital examination. She noted in her medical report that the results from the examination were normal.

Rivas testified on his behalf and denied the allegations. He claimed that he and his wife had had sexual relations on the blue blanket found in C.C.'s room; that the blue blanket had been on his and his wife's bed; and that he had no idea how the blanket had found its way to C.C.'s room. Although Rivas and his wife had only been married a short time at the time C.C. made the allegations against him, Rivas testified that he and his wife had a stormy and argumentative relationship. According to Rivas, they had argued, and he told his wife that she could leave but could not take their infant daughter.

Rivas was subsequently found guilty of four counts of aggravated sexual assault and one count of indecency with a child. He was sentenced to twenty-five years imprisonment for the aggravated sexual assault counts and to twelve years imprisonment for the indecency with a child count, all to run concurrently. Rivas now brings this appeal.

Medical Report

In his first and second issues, Rivas argues that the trial court erred in overruling his objection and admitting in evidence State's Exhibit 22, the report of the sexual assault nurse examiner, for two reasons: (1) the report constituted improper bolstering of C.C.'s testimony; and (2) the probative value of the report was substantially outweighed by the danger of unfair prejudice in violation of Texas Rule of Evidence 403. We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001).

At trial, Annette Santos, a registered nurse and a sexual assault nurse examiner at the Alamo Children's Advocacy Center, testified that she examined C.C. on August 7, 2003. She identified State's Exhibit 22 as the medical record of her sexual assault examination of C.C. According to Santos, a medical examination has three parts: (1) the history obtained from the child and/or parent; (2) the head-to-toe physical examination of the child; and (3) the genital and anal examination of the child. The exam is performed for medical purposes to determine what happened, whether testing is needed for sexually transmitted diseases, and whether there is any injury to the child. The examiner also considers whether the child has behavioral or emotional symptoms, such as problems sleeping or thoughts of hurting herself.

Here, the medical report, State's Exhibit 22, indicated that C.C. had the following "behavior/emotional symptoms": problems sleeping ("can't sleep, wake at night"), problems in school ("repeating 1st grade"), anger ("sad & mad about what he did"); and was a runaway ("one time I packed a bag with my clothes and toys"). ⁽²⁾ Under the "physical symptoms/history" portion of the report, there is a notation that C.C. had "vaginal irritation." In the "history of assault/abuse" portion of the report, Santos wrote down C.C.'s description of the incidents of sexual assault. After Santos took down the history, she performed a head-to-toe examination of C.C. and noted that the physical examination was normal. She then did an anal and genital examination of C.C. and also noted that the results were normal.

Rivas objected to the admission of this report as improper bolstering and a violation of Texas Rule of Evidence 403. A general objection to "bolstering," however, is not sufficient to preserve error, because it does not sufficiently inform the trial court of the nature of the objection. In re J.G., 195 S.W.3d 161, 183 (Tex. App.--San Antonio 2006, no pet.). Before the adoption of the Rules of Evidence, "bolstering" was a proper objection when one item of evidence was used by a party to add credence or weight to some earlier unimpeached evidence that the same party had offered. McKay v. State, 707 S.W.2d 23, 33 (Tex. Crim. App. 1985); Pless v. State, 576 S.W.2d 83, 84 (Tex. Crim. App. 1978); Montoya v. State, 43 S.W.3d 568, 573 n.2 (Tex. Crim. App.--Waco 2001, no pet.). "Under case law existing prior to the promulgation of the Rules of Evidence, bolstering an unimpeached witness was 'automatically' error." Montoya, 43 S.W.3d at 573 n.2. However, although the Texas Rules of Evidence incorporate some concepts from "bolstering" in Rules 613(c) and 608(a), the Rules do not contain a specific rule pertaining to or prohibiting "bolstering." See id. Indeed, "nothing in the Rules prevents a party from adding credence to an unimpeached witness or adding credence to other evidence as long as that additional evidence is relevant." Id. "In fact, the Rules favor admissibility." Id. (citing Tex. R. Evid. 402, 403). "Given the focus of the Rules favoring admission, as well as the lack of a specific prohibition of this type of evidence, an objection that certain evidence is 'bolstering' in no way invokes the Rules or informs the trial court of the basis for exclusion under the Rules." Id. As such, a party's objection must inform the trial court why or on what basis the otherwise admissible evidence should be excluded. Id.; see also Cohn v. State, 849 S.W.2d 817, 819-21 (Tex. Crim. App. 1993). Here, at trial, Rivas did not identify which Rule of Evidence, if any, was violated by the admission of the nurse's report. As such, he failed to preserve his objection for appeal. ⁽³⁾

Rivas also objected at trial that the admission of the report violated Rule 403. On appeal, Rivas argues that the trial court abused its discretion in admitting the report in evidence because the probative value of the evidence was substantially outweighed by the danger of unfair prejudice.

Pursuant to Rule 403, relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . . ." Tex. R. Evid. 403 (emphasis added). "Probative value" refers to "the inherent probative force of an item of evidence - that is, how strongly it serves to make more or less probable the existence of a fact of consequence to the litigation - coupled with the proponent's need for that item of evidence." Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). "Unfair prejudice" is "a tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." Id. Thus, the court of criminal appeals has said that "[e]vidence might be unfairly prejudicial if, for example, it arouses the jury's hostility or sympathy for one side without regard to the logical probative force of the evidence." Id. at 880.

In considering whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, the trial court must balance (1) the inherent probative force of the proffered item of evidence along with (2) the proponent's need for that evidence against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or repeat evidence already admitted. Id. We review the trial court's ruling on the admission of the evidence for abuse of discretion. Id. at 879. A trial court abuses its discretion when its decision lies outside the zone of reasonable disagreement. Id.

In considering the above factors, we cannot say that the trial court's decision to allow the report in evidence was outside the zone of reasonable disagreement. The report was probative - it spoke directly to the offense. As such, it did not confuse or distract the jury from the main issue. Although the report was cumulative evidence (C.C. having testified to the same events and the sexual assault nurse having testified to her examination) and was, therefore, not essential to the State's case, the presentation of the evidence did not consume an inordinate amount of time. It was limited to one witness and, during the jury's presence, constitutes about six pages of the reporter's record. Nor did the report have a tendency to be given undue weight by a jury that had not been equipped to evaluate the probative force of the evidence. At the time of the admission of the report, the jury had already heard C.C.'s and Detective Roussel's testimony. Thus, the description of the assaults could not have surprised the jury. Finally, we emphasize that "unfair prejudice" does not "arise from the mere fact that evidence injures a party's case"; "[v]irtually all evidence that a party offers will be prejudicial to the opponent's case, or that party would not offer it." Casey, 215 S.W.3d at 883. "Evidence is unfairly prejudicial only when it tends to have some adverse effect upon a defendant beyond tending to prove the fact or issue that justifies its admission into evidence." Id. Rivas has not explained in his brief how the admission of the report was unfairly prejudicial except to say that it "underlined a lot of testimony that was already before the jury." We, however, can find no abuse of discretion by the trial court in determining that the probative value of the report was not substantially outweighed by the danger of unfair prejudice.

We, therefore, overrule appellant's first and second issues.

Jury Argument

In his final issue, Rivas argues that the trial court should have granted his motion for mistrial when, during closing argument at the punishment phase of the trial, the prosecutor called him a "monster." We review a trial court's ruling on a motion for mistrial for abuse of discretion. Archie v. State, No. PD-0051-06, 2007 WL 1260782, at *3 (Tex. Crim. App. May 2, 2007). As such, we must uphold the trial court's ruling if it was within the zone of reasonable disagreement. Id. "Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required." Id. (quoting Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004)).

During closing argument at the punishment phase, Rivas's counsel urged the jury to place Rivas on community supervision:

Is probation appropriate in this type of case? Only you know. Each person is judged by those who know him best. And are they shocked? You bet. Are they concerned? You bet. But this is the man right here, Carlos Rivas, whose fate you will decide today. Look at him. Because the State is going to have a lot to say about him. The State is going to have a lot to say about the poor little girl. The State is going to have a lot to say about how lives have changed. Well, ladies and gentlemen, you are going to effectuate change forever. You already have. But you are really going to effectuate change now.

Defense counsel then reminded the jury that Rivas was a human being:

So, what do you do? Where do you put him? Do you sentence him, throw away the key? Is he salvageable? Is he a human being? I mean, those are serious, serious issues and serious, serious questions. This family respects you because you are his jury. If there was any doubt in your mind, if there was a mistake made, if some of you weren't really sure, now is the time to make it right. Because once we all walk out of here today, you can't do anything about it.

(emphasis added). Defense counsel then asked the jury not to give in to emotion but to agree on an appropriate sentence. He concluded by calling Rivas a child of God:

Now, when I go home tonight, my wife is going to ask me what happened today. I have boys [who] would ask the same. And, I'm going to tell them I did everything that I could today to save a child of God. What are you going to tell your family? What are you going to tell this family? What are you going to tell C.C. and her family? What are you going to tell yourselves? Thank you.

(emphasis added).

In response, the prosecutor argued that Rivas should not be placed on community supervision:

Probation is not an option in this case. We do not send people out these front doors into the elevators, down to the parking garage and out into the community to commit the same crime over and over and over again. This is not a mistake. It's not an accident. This is an individual who took careful attention, who took time, who waited until mom was gone, who watched when mom was asleep, who took advantage of every opportunity to take this child by himself into his room, into the bathroom, onto her top bunk, behind the sheets, onto the floor, wherever he could, to lick her, to stick his fingers inside of her, to put his penis in her mouth, and he did it time and time and time again.

The prosecutor then compared Rivas to a monster.

And go ahead and look at him. It's okay. Because you shouldn't feel guilty for sending a guilty rapist to prison. You should feel proud of your choice. Happy, no, but righteous because you are doing the right thing. They cannot make you feel guilty for the choices that that man made. Those were his choices. And now, you have found him guilty, and your choice is to say, we in Bexar County do not permit, tolerate, allow or give a light punishment to anyone who abuses our children, the children of our community.

I'm not going to give you a number, because I believe that is up to you all. But I will tell you this. I will ask you not to make [C.C.] look over her shoulder. I will ask you not to make [R.R.] worry down the line when she finds out the monster, the kind of monster that her father is.

Defense: I object to the use of that word, Your Honor. That is totally inappropriate.

Court: Sustained.

Defense: I ask the jury to disregard.

Court: Please disregard.

Defense: Move for a mistrial, Your Honor.

Court: Denied.

(emphasis added).

Rivas argues that the prosecutor characterizing him as a "monster" constituted improper jury argument. Permissible jury argument must encompass one of the following areas: summation of the evidence; reasonable deduction from the evidence; answers to opposing counsel's argument; or a plea for law enforcement. Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988).

While name-calling by the prosecution is generally improper argument, if the characterization is supported by the evidence, then it is permissible as a reasonable deduction from the evidence. See Burns v. State, 556 S.W.2d 270, 285 (Tex. Crim. App. 1977) (holding that reference to defendant being an "animal" "was warranted" and was "not an improper deduction from the evidence"); Easley v. State, 454 S.W.2d 758, 761 (Tex. Crim. App. 1970) (holding that use of "savage," while not to be commended, was supported by evidence). Here, the evidence showed that Rivas sexually molested and had sexual intercourse with his step-daughter, C.C., who was seven years-old. He forced her to perform oral sex on him and, in turn, performed oral sex on her. As such, we hold that the characterization of Rivas as a "monster" was a reasonable deduction from the evidence. See Resendez v. State, No. 14-99-01374-CR, 2001 WL 777861, at *1-*2 (Tex. App.--Houston [14th Dist.] 2001, pet. ref'd) (holding that prosecutor calling appellant a "monster" during closing argument was supported by the record where the evidence showed that appellant had sexually molested and had sexual intercourse with a female relative, who had been twelve years-old at the time of the first assault); Davis v. State, No. 05-96-01949-CR, 1998 WL 324724, at *2 (Tex. App.--Dallas 1998, no pet.) (holding that prosecutor calling defendant a "monster" was a reasonable deduction from the evidence where the evidence showed that defendant held his wife down and methodically carved and slashed her face, attempting to cut out her eyes, cut off her nose, cut off her ears, and slash out her teeth).

Alternatively, the State's argument was also proper, because it was a response to defense counsel's argument. Defense counsel emphasized that his client was a human being and a "child of God" whom he needed to save ("I did everything that I could today to save a child of God."). In doing so, defense counsel painted Rivas as angelic. Thus, the State's use of "monster" was a proper response to defense counsel's argument.

Moreover, even if the State's argument had been improper, the trial court still did not abuse its discretion in denying Rivas's motion for mistrial. Generally, any harm from an improper statement in a jury argument is remedied when the court instructs the jury to disregard, unless the remark is so inflammatory that the prejudicial effect cannot be removed by an admonishment. See Johnson v. State, 698 S.W.2d 154, 167 (Tex. Crim. App. 1985). Here, the trial court gave a prompt instruction for the jury to disregard. Therefore, any harm to Rivas was cured. See id.

We overrule Rivas's final issue.

Conclusion

Having overruled all issues, we affirm the judgment of the trial court.

Karen Angelini, Justice

Do not publish

1. C.C. described these actions by various euphemisms ("private part," "back part," etc.); however, although C.C. used euphemisms, her testimony clearly identified the parts of the female and male bodies at issue and the actions that she claimed took place.

2. C.C. did not actually write these notations found in the medical report. According to Santos, she tries to note the words of the child.

3. Indeed, on appeal, Rivas still does not identify which Texas Rule of Evidence was violated. See Tex. R. App. P. 38.1(h) (requiring appellant's brief to contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record).