Romelo Hernandez Diaz v. State ( 2015 )

ACCEPTED
01-15-00532-cr
FIRST COURT OF APPEALS
HOUSTON, TEXAS
9/24/2015 3:58:58 PM
CHRISTOPHER PRINE
CLERK
NO. 01-15-00532-CR
IN THE COURT OF APPEALS FOR THE
FIRST JUDICIAL DISTRICT FILED IN -
1st COURT OF--APPEALS
- ----
HOUSTON, -
--- TEXAS
- - ----ID K ------
9/24/2015
- 3:58:58
- -- PM
---- VO ------
NO. 1453096 CHRISTOPHER -- A. PRINE
----
----Clerk
IN THE 248TH DISTRICT COURT OF
~SCOUNTY,TEXAS
FILED IN
ROMELO HERNANDEZ DIAZ 1st COURT
APPELLANT OF APPEALS
HOUSTON, TEXAS
9/24/2015 3:58:58 PM
VS. CHRISTOPHER A. PRINE
Clerk
THE STATE OF TEXAS APPELLEE
APPELLANT'S BRIEF
KEN GOODE
P.O.Box 590947
Houston, Texas 77259
(409) 779-3631
State Bar # 08143200
Goodedkc@msn.com
IDENTIFICATION OF THE PARTIES
Romelo Hernandez Diaz Appellant
TDCJ-ID
Huntsville, Texas
Juan Aguirre Trial Defense Attorney
2028 Buffalo Terrace,
Houston, Texas
Cara Burton Trial Prosecutor
1201 Franklin
Houston, Texas
Hon. Katherine Cabaniss Trial Judge
1201 Franklin
Houston, Texas
Ken Goode Appellate Attorney
P.O. Box 590947
Houston, Texas
Devon Anderson Appellate D.A.
1201 Franklin
Houston, Texas
TABLE OF CONTENTS
Identification of the Parties .
Table of Contents.......................................................................................... ii
Index of Authorities..................................................................................... iii
Statement of the Case................................................................................... 1
Issues Presented............................................................................................... 2
Summary of the Argument............................................................................ 3
Statement of Facts......... 4
Argument.......................................................................................................... 9
Prayer for Relief...................................................... 16
Certificate of Service........................................................................................... 17
Certificate of Word Count Compliance...................................... 17
INDEX OF AUTHORITIES
CASES
Brooks v, State,
323 S.W.3d 893 (Tex. Crim. App. 2010)......................................... 9
Connell v. State,
233 S.W.3d 460 {Tex.App.-Fort Worth 2007, no pet.).................. 10
Conner v, State,
67 S.W.3d 192 (Tex. Crim. App. 2001)........................................... 10 h
Graham v. State,
643 S.W.2d 920 (Tex. Crim. App. 1983)....................................... 15
Hooper v. State,
214 S.W.3d 9 (Tex.Crim. App. 2007).............................................. 9
long v. State,
800 S.W.2d 545 (Tex. Crim. App. 1990)........................................... 13
Proctor v. State,
356 S.W.3d 681 (Tex.App.-Eastland 2011, pet. ref'd.).................... 10
Scott v. State,
202 S.W.3d 405 {Tex.App.-Texarkana 2006}pet. refd.}................. 10
Soto v. State,
267 S.W.3d 327 {Tex.App.-Corpus Christi 2008, no pet.)............... 10
State v. Kurtz,
152 S.W.3d 72 (Tex. Crim. App. 2004}............................................. 12
Villalon v, State,
791 S.W.2d 130 {Tex.Crim. App. 1990).......................................... 10
Winegarner v. State,
235 S.W.3d 787 (Tex. Crim. App. 2007) 12
STATUTES & RULES
TEX.CODECRIM. PRO. Art. 38.072................................... 13
TEX.R. EVID.801(a).................................................................................... 15
TEX.R. APP. PROC.44.2(b)........................................................................ 16
TO THE HONORABLE JUDGES OF SAID COURT:
Comes now Romelo Hernandez Dlaz, appellant, and in support of this brief
shows as follows:
STATEMENT OF THE CASE
Appellant was charged by indictment with indecency with a Child (c. R.-8);
Appellant pleaded not guilty and proceeded to jury trial (c.R.-394)
The jury found appellant guilty and assessed 40 years in prison and a fine in
the amount of $10,000 (c.R.-392).
Appellant timely filed notice of appeal (C.R.- 397).
The trial court certified that appellant has the right to appeal (c.R.-393).
ISSUES PRESENTED ON APPEAL
POINT OF ERROR 1
THE EVIDENCE IS INSUFFICIENT TO SUPPORT THE
CONVICTION FOR INDECENCY WITH A CHILD
POINT Of ERROR 2
THE TRIAL COURT ERRED BY FAILING TO CONDUCT A
RELIABILITY HEARING PRIOR TO ADMITTING OUTCRY
TESTIMONY FROM LISA HOLCOMB
2
SUMMARY OF THE ARGUMENT
Appellant brings two points of error. The first challenges the sufficiency of
the evidence to establish that the element of identity.
The second point asserts error in the admission of outcry testimony without
the mandatory reliability hearing under article 38.072 of the Texas code of
Criminal Procedure.
3
STATEMENT OF FACTS
Appellant challenges the sufficiency of the evidence. The record
reveals the following salient facts presented at trial in this prosecution for
Indecency with a Child:
State's Evidence
The State's first witness was Wilma Lowe, the mother of the
complainant. She testified that appellant began dating her mother in 2004
and was living with her mother at the time the complainant made outcry of
sexual misconduct in February of 2012 (R.R.-3-30).
According to Lowe, her children, including the complainant, who was
11 years old in February of 2012, called appellant "Tio Romelo.". (R.R.-3-
38). She recalled appellant having given the complainant $50 as a gift prior
to the outcry incident. (R.R.-3-39-40).
Lowe testified that she dropped her children, including the
complainant, off at her mother's trailer while she attended night school on
February 17, 2012. She wanted to stay later and attend a party so she
called her mother to ask that the children stay longer than planned. (R.R.-3-
40).
[4]
Her mother refused so Lowe angrily went over to her mother's trailer.
When the children got in her vehicle, the complainant told her that she
knew why her grandmother wouldn't watch them anymore. The
complainant told Lowe that appellant had been touching her "down there."
(R.R.-3-46). Lowe drove back to the trailer and confronted her mother with
the complainant's allegation and threatened to call the police. Appellant
ran out the back door and was seen running down the esplanade on the
beltway (R.R.-3-48-49).
Lowe testified that only a well ness exam was conducted on the
complainant at that time and the results did not reveal any injuries (R.R.-3-
53).
The State's next witness was Deputy Garza of the Sheriff's Office. She
was dispatched to the appellant's home on February 17, 2012 in response
to the report made by Wilma Lowe (R.R.-3-78). Garza stated that the report
was that an 11 year old had been sexually assaulted by her grandmother's
boyfriend, who had fled the scene. She added that the name of the suspect
was Romelo Diaz. (R.R.-3-83).
[5]
She interviewed Wilma Lowe at the scene. According to her} Lowe
told her that the complainant stated that appellant had touched her "down
there." 9R.R.-3-87}.
Garza also spoke with the complainant's grandmother. Initially the
grandmother said she didn't think anything had happened} but changed her
mind and stated that she believed her grandchildren and expressed
surprise that it happened under her nose. (R.R.-3-104).
Garza interviewed the complainant} who told her that when she was
10 years old she had fallen asleep in her bathing suit at appellant's home
and had been awakened by appellant touching her private area. She
pointed to her breast and genitalia area to demonstrate (R.R.-3-108).
The complainant told Garza that appellant was very drunk} and gave
her $50 after touching her breast and genitalia (R.R.-3-109). The
complainant stated that the first time appellant had touched her was when
she was 9 years old (R.R.-3-109).
The State's next witness was Lisa Holcomb, a forensic interviewer
with the Children's Assessment Center. She testified that the complainant
disclosed to her that she had been sexually abused, and was certain about
the details (R.R.-3-127). Holcomb testified that the complainant reported
[6]
multiple incidents and pointed to the body parts affected, namely, her
breast and private parts (R.R.-3-133-134). Holcomb believed that the
complainant was reliving the abuse when she provided details (R.R.-3-131).
The complainant was the State's next witness. She testified that on
two separate occasions she had fallen asleep and been awakened by
appellant touching her private parts over her clothing. She explained that
her private parts were her breast and vagina. One occurred at her home;
the other occurred at appellant's trailer (R.R.-3-167-208).
Regarding the incident in her house, she stated that she knew it was
appellant even though it happened in the dark at night because the TV was
on and provided enough light for her to identify him (R.R.-3-190).
Regarding the incident at appellant's trailer, she stated that during
the commission of the act it was too dark to see appellant's face, but she
smelled alcohol on him and could see his hair (R.R.-3-168).
She added that he stopped for awhile and went in the restroom and
turned on the light, which enabled her to recognize that it was appellant
(R.R.-3-217)
The complainant testified that she first told her grandmother, who
told her it would remain a secret between them (R.R.-3-199).
[7]
She recalled that during the incident at appellant's trailer he placed
her hand on his private part, and gave her $50 the next morning (R.R.-3-
195).She had originally, in her interview at the Children's Assessment
Center, been unsure whether she might have felt only appellant's finger.
(R.R.-3-217).
Danielle Madera, staff psychologist at the Children's Assessment
Center, was the State's final witness. After observing the complainant
testify, she expressed the opinion that the complainant was remembering
actual events. She pointed to the complainant's mention of sensory details,
such as the odor on appellant during the incident (R.R.-3-231).
She explained why delay in outcry is common in child sexual abuse
cases, and described the grooming process whereby a perpetrator gains the
trust of a child and or her family (R.R.-3-223).
According to Madera, children do not typically lie about sexual abuse.
She cited literature in the field of child sexual abuse which estimated that
between 2 and 4 percent of sexual abuse complaints made by children are
false, and usually occur in child custody settings (R.R.-3-230-235).
She expressed the opinion that such was not present in this case
(R.R.-3-232).
[8]
ARGUMENT AND AUTHORITIES
POINT OF ERROR NO.1
THE EVIDENCEIS INSUFFICIENTTO SUPPORTTHE
CONVICTION FOR INDECENCYWITH A CHILD
I.
A. Standard of Review
Review of appellant's challenge to the sufficiency of the evidence requires
that this court consider all of the evidence in the light most favorable to the
verdict. Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010).
If, when viewed in this light, any rational factfinder could have found the
essential elements of the offense beyond a reasonable doubt, then the evidence
is sufficient to support the verdict. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.
App.2007).
A person commits indecency with a child by engaging in sexual contact with
a child younger than seventeen years of age. Tex. Penal Code Ann. sec.
21.11(a)(1). "Sexual contact" includes touching by a person, including touching
through clothing, of the genitals of a child with the intent to arouse or gratify the
sexual desire of any person. Id. sec. 21.11(c)(1).
[9]
The testimony of a child victim alone is sufficient to support a conviction for
indecency with a child. Proctor v. State, 356 S.W.3d 681, 685 (Tex. App.-Eastland
2011, pet. ref'd.).
Whether the defendant possessed the requisite intent to commit an offense
is often proven through circumstantial evidence surrounding the crime. Scott v.
State, 202 S.W.3d 405, 408 (Tex. App.-Texarkana 2006, pet. ref' d.). The jury may
infer the requisite intent from the acts, words, and conduct of the accused.
Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001).
In the context of indecency with a child, the jury can infer the intent to
arouse or gratify from conduct alone. Scott, 202 S.W.3d at 408. No oral
expression of intent or visible evidence of sexual arousal is necessary. Connell v.
State, 233 S.W.3d 460, 467 (Tex. App.-Fort Worth 2007, no pet.).
The courts will give wide latitude to testimony given by child victims of
sexual abuse. Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990).
The victim's description of what happened need not be precise, and the
child is not expected to communicate with the same level of sophistication as an
adult. Soto v. State, 267 S.W.3d 327, 332 (Tex. App.-Corpus Christi 2008, no pet.).
[10]
Corroboration of the victim's testimony by medical or physical evidence is
not required. Id. at 332.
B. The Evidence
The complainant's testimony adequately shows that by the term "princess
parts" she was referring to her genitalia and breast. Moreover, there is sufficient
evidence to establish the genital touching, including touching through clothing,
necessary for the sexual contact element of indecency with a child.
However, appellant asserts that there is insufficient evidence to establish
beyond a reasonable doubt that he perpetrated the criminal offense.
The complainant testified about two incidents of sexual abuse. According to
her, both events occurred at night in the dark when she was sleeping. (R.R.-3-167-
208).
Concerning the earliest incident, which occurred in her home, she testified
that the only available light was from a TV in the room; Concerning the second
incident, which occurred in appellant's trailer, she testified the only light was
provided when she observed appellant in a nearby bathroom. (R.R.-3-168-217).
[11]
Notwithstanding evidence of flight by appellant when confronted by the
complainant's agitated mother, {R.R.-3-48-49}, appellant asserts that no rational
juror could have found the essential element of identity beyond a reasonable
doubt.
This point of error should be sustained and an acquittal entered.
POINT OF ERROR NO.2
THE TRIAL COURT ERREDBY FAILINGTO CONDUCTA RELIABILITY
HEARING PRIORTO ADMITIING OUTCRYTESTIMONY FROM LISA
HOLCOMB.
I.
A. Standard of Review
This court reviews the admission of evidence under an abuse of discretion
standard. Winegarner v. State, 235 S.W.3d 787, 790 {Tex. Crim. App. 2007}. A trial
court has no discretion in determining what the law is or applying the law to the
facts. State v. Kurtz, 152 S.W.3d 72, 81 (Tex. Crim. App. 2004).
An outcry statement is not inadmissible because of the hearsay rule if,
among other things, a trial court finds, in a hearing conducted outside the
presence of the jury, that the statement is reliable based on the time, content,
[12]
and circumstances of the statement. TEX. CODE CRIM. PROC.ANN. art. 38.072
(2}(b)(2).
A general hearsay objection is sufficient to preserve a complaint on appeal
that a trial court did not hold an article 38.072 reliability hearing. Long v. State,
800 S.W.2d 545, 548 (Tex. Crim. App. 1990) (noting that the provisions of article
"are mandatory, and must be complied with in order for a statement to be
admissible over a hearsay objection.")
B. The Evidence
Appellant anticipated that Lisa Holcomb would testify as regards statements
the complainant had made to her during a forensic interview conducted under
the auspices of the Children's Assessment Center.
Defense counsel lodged the following objection to the proposed testimony:
"I believe that the testimony that would come from Ms. Holcomb would be
an outcry witness, yet this witness has just testified as to the outcry meeting all
the statutory requirements as questioned by Ms. Burton. So in essence I would
ask this witness not be allowed to testify since we've already had the outcry
witness."
(R.R.-3-112).
[13]
The prosecutor stated that "I don't want to offer any outcry statement from
her." {R.R.-3-112}.
No reliability hearing was conducted; the trial court overruled appellant's
objection. (R.R.-3-112).
Lisa Holcomb was permitted to testify concerning verbal and non-verbal
statements made by the complainant over the course of a forensic interview. In
addition, two photographs taken from the videotape of the forensic interview
which showed the complainant touching her body were admitted as evidence.
{R.R.-3-112-139}. The State elicited the following hearsay statements from
Holcomb:
• That the child disclosed to her that she had been sexually abused;
• That the child was certain as to the details;
• That the child was certain as to the person who sexually abused her;
• That the child named only one perpetrator;
• That the child disclosed multiple instances of abuse;
• That the child provided sensory details, and a specific time frame;
• That the child was able to explain to her what body parts had been
touched;
[14]
• That the child demonstrated to her, as depicted in State's Exhibits 120
and 121, the parts of her body that had been touched;
• That the child demonstrated to her that she had been touched on her
breast and privates.
{R.R.-3-127-134}.
c. Harm
The trial court erred in admitting Holcomb's testimony recounting the
child's statements, including the nonverbal conduct of the child which was dearly
intended as a substitute for verbal expression. See TEX. R. EVID. 801(a); Graham
v. State, 643 S.W.2d 920 (Tex. Crim. App. 1983).
Harm is apparent from the record. The State in final argument emphasized
the importance of Holcomb's testimony, stating "And you know that she gave a
clear and concise and consistent outcry to Lisa Holcomb." {R.R.-3-260.
Holcomb's testimony was not merely cumulative of other evidence
presented. For example, Holcomb testified that the child detailed multiple
incidents of sexual abuse.
[15]
Appellant's substantial rights were affected and reversal is warranted under
Texas Rule of Appellate Procedure 44.2(b).
This point of error should be sustained and a new trial ordered.
PRAYER FOR RELIEF
WHEREFORE, appellant prays that his points of error be sustained and a
judgment of acquittal be ordered or in the alternative that a new trial be ordered.
Respectfully submitted,
/S/KEN GOODE _
P.O.Box 590947
Houston, Texas 77259
(409) 779-3631
State Bar No. 08143200
[16]
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing was delivered to the
State this 25st day of September 2015 by hand delivery at 1201 Franklin, Houston,
Texas 77002.
/S/KEN GOODE _
CERTIFICATE OF WORD COUNT COMPLIANCE
Relying on the word count function in the word processing software used to
produce this document I certify that the number of words used in this appellate
brief is 2100.
/S/KEN GOODE. _
[17]