Rene Gomez v. State ( 2011 )

Affirmed and Memorandum Opinion filed October 27, 2011.
In The
Fourteenth Court of Appeals
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NO. 14-09-00982-CR
NO. 14-09-00987-CR
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RENE GOMEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 212th District Court
Galveston County, Texas
Trial Court Cause Nos. 07CR3214 & 07CR3215
MEMORANDUM OPINION
A jury convicted appellant Rene Gomez of two counts of aggravated sexual assault
of a child and the jury assessed punishment at twenty years’ confinement in the
Institutional Division of the Texas Department of Criminal Justice. TEX. PENAL CODE
ANN. § 22.021 (West 2011). Appellant challenges the judgment and contends that the
trial court abused its discretion in allowing a therapist to testify about statements the
complainant made during ―play therapy.‖ Because appellant failed to preserve this
argument for appeal, and because, in any event, the admission of this evidence was neither
erroneous nor harmful, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
At the time of the offense, appellant was dating the mother of the five-year-old
complainant, K.C. The child and her mother had been living with appellant for
approximately eighteen months when, on September 11, 2007, K.C. told her mother that
appellant had been ―rubbing his pee pee in [her] front and back.‖ K.C.’s mother contacted
police and brought the child to the Children’s Advocacy Center in Galveston and to the
University of Texas Medical Branch for evaluation. K.C. entered counseling with Cindy
Hammons, a licensed professional counselor who specializes in working with children and
adolescents.
The State intended to introduce Hammons’s testimony, based on play-therapy
theory, that K.C.’s behavior was ―not inconsistent with a child of sexual abuse.‖ Because
this testimony would be based on specialized scientific knowledge, the State requested a
Daubert hearing to establish the validity of Hammons’s methods. See Daubert v. Merrell
Dow Pharm., Inc., 509 U.S. 579, 592–93, 113 S. Ct. 2786, 2796, 125 L. Ed. 2d 469 (1993).
The trial court ruled that Hammons could describe play therapy and recount what she saw
K.C. do and heard K.C. say during play-therapy sessions, but that she could not provide
any interpretations of K.C.’s behavior or statements. Hammons testified that play therapy
is a well-recognized means of communicating with and treating very young children.
Hammons further testified that K.C. said that appellant had hurt her, that she was afraid he
was going to find her and hurt her again, and that he had ―touched [her] with his pee
pee . . . at her private parts.‖ In the sole issue presented for our review, appellant contends
that the admission of this testimony was harmful error.
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II. ANALYSIS
We review a trial court’s decision to admit evidence under an abuse-of-discretion
standard. Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App. 2006). Under this
standard, we affirm a trial court’s ruling unless its determination lies outside the zone of
reasonable disagreement. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App.
2010). If the trial court’s decision is correct under any theory of law applicable to the
case, we will sustain the decision. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App.
2000).
Appellant contends that in recounting the statements K.C. made during counseling
sessions, Hammons did not rely on the results of any play therapy. He contends that such
statements should have been excluded as hearsay.
There are several problems with appellant’s argument. First, appellant did not
object at trial to the admission of this testimony. Instead, he objected to the State’s
proposed introduction of Hammons’s expert testimony interpreting K.C.’s behavior during
play therapy. The trial court sustained that objection. Thus, after asking Hammons to
describe play therapy—testimony which only provided context for K.C.’s statements—the
State simply elicited factual testimony about what Hammons observed K.C. say and do.
Because appellant did not object at trial that this testimony was hearsay, the argument that
he makes on appeal is waived. See TEX. R. APP. P. 33.1(a). Moreover, K.C.’s mother
testified that her daughter made such statements to her as well. Thus, even if appellant
had objected, and even if the trial court had erred in overruling the objection, the admission
of this cumulative evidence would not have been harmful. See Hudson v. State, 675
S.W.2d 507, 511 (Tex. Crim. App. 1984) (noting the general rule that the erroneous
admission of evidence is cured if the same evidence is admitted elsewhere without
objection); see also TEX. R. APP. P. 44.2(b) (in reviewing a criminal case, an appellate
court must disregard nonconstitutional errors that do not affect substantial rights).
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We accordingly overrule the sole issue presented for our review and affirm the trial
court’s judgment.
/s/ Tracy Christopher
Justice
Panel consists of Chief Justice Hedges and Justices Anderson and Christopher.
Do Not Publish — TEX. R. APP. P. 47.2(b).
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