John Cruz Buentello v. State , 2016 Tex. App. LEXIS 13030 ( 2016 )

Opinion issued December 8, 2016
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-15-00834-CR
———————————
JOHN CRUZ BUENTELLO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court
Harris County, Texas
Trial Court Case No. 1450047
OPINION
John Buentello was convicted of aggravated sexual assault of a child1 and
sentenced to life imprisonment. He argues that there was legally insufficient
evidence of a necessary element of the offense: penetration. He also challenges
1
TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i).
three of the trial court’s rulings during his trial: (1) overruling his objection that the
outcry witness’s testimony was inadmissible because the child’s outcry was not
reliable and the forensic examiner designated as the outcry witness was not the first
adult the child told of the abuse, (2) denying his motion for continuance, and
(3) denying his motion for mistrial. We affirm.
Background
Buentello lived out-of-state but would visit his son and his son’s family in
the Houston area occasionally. The son had a blended family with five children,
including Amy,2 who was Buentello’s son’s step-daughter.
According to Amy’s mother, Buentello visited only occasionally in the
beginning and would spend equal time with all the children. Over time, though, his
visits became more frequent—sometimes more than once a month—and he began
to spend more of his time focused on Amy. When Amy was 10, she disclosed to
her step-father that Buentello had touched her when she was seven years old.
Amy’s step-father—who is Buentello’s son—described what happened the
night that Amy first disclosed that Buentello had touched her. He testified that his
oldest daughter woke him late one night, crying. She took him to Amy’s bedroom,
where Amy was sitting on the floor and also crying. Amy was reluctant to talk
about why she was upset. Eventually she told her step-father that something bad
2
To protect her privacy, we identify the complainant by a pseudonym.
2
had happened because of Buentello. He immediately woke up Amy’s mom, and
Amy told her mom, in general terms, that Buentello had touched her.
The next morning, Amy’s mom called Child Protective Services, which
referred Amy to The Children’s Assessment Center to be interviewed by a forensic
investigator, Susan Odhiambo. The forensic investigator explained to the jury that
she is charged with obtaining facts necessary to investigate accusations of sexual
abuse of a child. Odhiambo conducts multiple child interviews each day.
Odhiambo recorded her interview of Amy. In that interview, Amy
established that she knew the difference between a truth and a lie, and she
promised to tell the truth. Then Amy described specific details about Buentello’s
past conduct toward her. Odhiambo testified that Amy was “certain” about her
recollection and “consistent” with her description of who had assaulted her, the
time frame of the assault, and the location where it occurred.
Two years later, at Buentello’s trial, Amy testified that Buentello assaulted
her late one evening while he was visiting from Louisiana. Amy said that it
happened in 2010, when she was seven. That night, when everyone else went to
bed, she went to her bedroom to watch television. About twenty minutes later, she
became thirsty and went to the kitchen for a drink. Buentello was lying on the
couch in the study. He called her over in a stern voice. When she complied, he told
her, again in a stern voice, to sit on the couch. She hesitated, and he told her in a
3
harsher voice to sit down. Then he told her to lie down. He laid behind her, with
his arms wrapped around her and a blanket spread over them, in silence, for about
five minutes. She felt “uncomfortable” and “awkward” and wanted to leave, so she
told him she was hot and stood to go to her room. He said, “No, just take your
clothes off.” She told him no.
Buentello stood up, raised her arms above her head, and tried to take her
shirt off. Amy resisted, but he took off her shirt and then the rest of her clothes. He
then pushed her to the couch. He laid behind her and told her to go to sleep.
Buentello began rubbing Amy’s legs. She testified that he then moved
“towards my vagina.” When asked whether he “was touching your vagina on the
outside or on the inside,” she testified, “On the inside.” She stated that he began
“moving around . . . forward and back” and that whatever was touching her was
“warm and soft and it hurt.”
When a noise came from the stairs, Buentello told her to go to her room. She
did. Buentello stayed with the family the rest of the weekend; Amy did not tell
anyone what happened.
Amy testified that what Buentello did to her that night made her feel
“scared” and “disgusted.” She testified about additional disturbing events
involving Buentello touching her. She said that Buentello would unexpectedly put
lotion on his hands and rub her legs. Twice when he did this, he reached far into
4
her shorts. On another occasion, he commented to her that her “butt” and “boobs”
were “growing.”
Amy’s mother testified about two more strange events involving Buentello
that occurred in 2013, when Amy was 10. During a visit, Buentello asked Amy’s
mother if Amy’s younger sister could nap with him in Amy’s bedroom. According
to Amy’s mother, Amy insisted to her that Buentello not be allowed to nap with
the young girl. Amy said she “was afraid that Grandpa was going to hurt her little
sister.”
The second strange event involved Buentello’s asking to take Amy to
Louisiana to stay with him. Amy’s mother testified that she offered to let Amy and
her brother visit Buentello together, but Buentello said no. Buentello became angry
with Amy’s mother because she would not allow Amy to stay with him alone.
Although Amy’s mother thought these two events were strange, at the time
she trusted Buentello. However, looking back on these two specific events and
reflecting on Amy’s behavior during that time, Amy’s mother testified that there
were signs that Amy was uncomfortable: she had begun to avoid Buentello during
his visits and would stay physically close to her when he was nearby.
Around this same time, when Amy was 10 and Buentello was not in the
home, Amy and her older sister were in Amy’s room, laughing and talking. Amy
opened her dresser and unexpectedly saw Buentello’s Bible in her dresser drawer.
5
The realization that he had recently been in her bedroom upset her, and she began
to cry. Her sister asked why she was upset. When Amy told her about Buentello,
her sister was “in shock.” That is when Amy’s sister persuaded her to tell her
parents, and they woke her step-father to tell him what Buentello had done.
The Children’s Assessment Center forensic investigator, Susan Odhiambo,
testified as the designated outcry witness. Before trial began, Buentello had
challenged whether Odhiambo was the proper outcry witness because Amy had
spoken to her step-father and her mother first. He did not call any witnesses in
support of his challenge. The State responded that Odhiambo was the first person
to whom Amy disclosed sufficient details of the encounter to qualify it as an
aggravated sexual assault. The trial court denied Buentello’s challenge and
designated the CAC investigator, Odhiambo, as the outcry witness.
During her testimony, Odhiambo recounted Amy’s description of the
assault, including Amy’s statement that Buentello “was playing with her private.”
When asked whether Amy confirmed that Buentello had touched inside her, and
not just outside her vagina, Odhiambo responded, “She said it three different
times.” Buentello’s counsel asked whether Amy prefaced her statements about
penetration with the phrase “I think,” and Odhiambo confirmed that she had, but
she also indicated that Amy’s phrasing was an affirmation that she had been
penetrated: “She said she thinks she was, yes.”
6
Another trial witness was Amy’s therapist, Stephanie Legendre. About
eleven months before trial, the State notified Buentello that Legendre would be
testifying as an expert and provided her name and address. Next to her name was
the notation, “Therapist/Child Expert.” When Buentello realized, during trial, that
Legendre was going to testify that Amy has post-traumatic stress disorder, he
indicated surprise and moved for a continuance. His motion was denied.
Legendre testified that she is a licensed professional counselor who
specializes in child sexual-abuse victims. She has been treating Amy for two years.
According to Legendre, Amy avoids discussing the assault, and, when she does
discuss it, she demonstrates emotions of “shame and embarrassment.” In their
sessions, Legendre has observed evidence of trauma, including hypervigilance
(described as a startle response), depression, irritability, shame, suicidal ideations,
failure to accept nurture, self-inflicted cuts, and poor self-image.
Legendre opined that Amy’s “core issue” is post-traumatic stress disorder,
which she described as avoidance of discussing a traumatic issue, intrusion of
memories, nightmares, hypervigilance, extreme reactiveness, and altered cognition
(described as having a distorted view of oneself as “disgusting or ugly or fat”).
Legendre also discussed the concept of grooming, in which an offender
identifies a child’s vulnerabilities, uses those to build a relationship with the child,
increases attention to the child, and then uses the developed relationship to coerce
7
the child into sexual contact. Legendre also explained how children commonly
disclose sexual assault. She testified that a delayed outcry, like Amy’s, is common
and that an outcry is typically a process in which the child will give more
information about the sexual assault over time.
Harris County Sheriff’s Office Deputy J. Pietsch testified about his criminal
investigation. He testified that, early on in the investigation, he attempted to speak
with Buentello. When asked whether he was able to obtain a statement from
Buentello, Pietsch responded, “I was advised that the defendant had obtained legal
counsel.” At that point, Buentello’s counsel made a non-specific objection, and the
trial court sustained it. He moved to have the jury instructed to disregard the
statement, and the trial court gave the jury that instruction. He then moved for a
mistrial, but the trial court denied his motion.
Pietsch was then asked whether Buentello had ever agreed to give a
statement. He answered, “No,” which was immediately followed by a sustained
“asked and answered” objection. Again, Buentello moved for a mistrial, and his
motion was denied.
Buentello did not testify during the guilt/innocence phase of the trial. The
focus of his closing argument was that the offense of aggravated sexual assault
required proof of penetration beyond a reasonable doubt. He argued that the
evidence was insufficient to find penetration and, to the extent the jury believed
8
that there had been any touching, they should convict only on the lesser-included
offense of indecency with a child. The jury convicted Buentello of aggravated
sexual assault of a child.
During the punishment phase of the trial, two adult sisters testified about
events that occurred when they were children parishioners at a church in Corpus
Christi that had been led by Buentello. The younger sister testified about indecent
physical contact Buentello had with her. The older sister testified that Buentello
had sexually assaulted her, including engaging in intercourse, when she was
fourteen. They and other witnesses asked that Buentello be given a life sentence.
Buentello testified that he is a 70-year-old man who is in poor health and
fears dying in prison. He denied any wrongdoing with Amy or the two sisters who
had testified. He said he hoped, “if [he] made [Amy] uncomfortable, made her not
feel special, that she can get over it.” He also expressed his hope that the family
would be “able to forgive and be[ ] able not to make a mountain out of a molehill.”
The jury sentenced Buentello to life imprisonment. Buentello appeals his
conviction.
Legal Sufficiency
In his first issue, Buentello argues that there is legally insufficient evidence
that he penetrated Amy. While he acknowledges that Amy testified that there was
9
penetration, he argues that deficiencies in her testimony “overwhelmingly
outweigh” evidence of penetration.
A. Standard of review
We review sufficiency of the evidence using the standard enunciated in
Jackson v. Virginia, 443 U.S. 307, 318−20, 99 S. Ct. 2781, 2788–89 (1979). See
Brooks v. State, 323 S.W.3d 893, 898–912 (Tex. Crim. App. 2010). Under that
standard, “the relevant question is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” See Jackson, 443 U.S.
at 319, 99 S. Ct. at 2789; Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App.
2009). We consider all reasonable inferences that may be drawn from the evidence
in making our determination, including all direct and circumstantial evidence.
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
Evidence is insufficient in four circumstances: (1) no evidence exists that is
probative of an element of the offense in the record; (2) only a “modicum” of
evidence exists that is probative of an element of the offense; (3) the evidence
conclusively establishes a reasonable doubt; and (4) the alleged acts do not
establish the criminal offense charged. See Jackson, 443 U.S. at 314, 320, 99 S. Ct.
at 2786, 2789; Laster, 275 S.W.3d at 518; Williams v. State, 235 S.W.3d 742, 750
(Tex. Crim. App. 2007).
10
The jury has the exclusive role of evaluating the facts, the credibility of the
witnesses, and the weight a witness’s testimony should be given. Penagraph v.
State, 623 S.W.2d 341, 343 (Tex. Crim. App. [Panel Op.] 1981); Jaggers v. State,
125 S.W.3d 661, 672 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). The jury
may choose to believe all, some, or none of a witness’s testimony. See Davis v.
State, 177 S.W.3d 355, 358 (Tex. App.—Houston [1st Dist.] 2005, no pet.). And
the jury alone must reconcile any conflicts in the evidence. Wyatt v. State, 23
S.W.3d 18, 30 (Tex. Crim. App. 2000).
Under the Jackson standard, we defer to the factfinder “to resolve conflicts
in the testimony, to weigh the evidence, and to draw reasonable inferences from
basic facts to ultimate facts.” Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton,
235 S.W.3d at 778. If there are conflicts in the evidence, we must presume the
factfinder resolved the conflicts in favor of the verdict and defer to that
determination, as long as it is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at
2793; Penagraph, 623 S.W.2d at 343 (“A jury is entitled to accept one version of
the facts and reject another or reject any of a witness’[s] testimony.”).
Contradictory evidence will not diminish the legal sufficiency of the evidence that
supports the verdict. See McDonald v. State, 462 S.W.2d 40, 41 (Tex. Crim. App.
1970). If the evidence is insufficient, we must reverse and enter an order of
acquittal. See Tibbs v. Florida, 457 U.S. 31, 41, 102 S. Ct. 2211, 2218 (1982).
11
B. Legally-sufficient evidence of penetration
A person commits the offense of aggravated sexual assault of a child if that
person intentionally or knowingly “causes the penetration of the anus or sexual
organ of a child by any means.” See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i).
Outcry testimony can be legally sufficient evidence to support a conviction without
corroboration or substantiation. Eubanks v. State, 326 S.W.3d 231, 241 (Tex.
App.—Houston [1st Dist.] 2010, pet. ref’d).
Amy testified, unequivocally, that Buentello penetrated her. She did not
know whether it was his finger, penis, or some other object, but it touched her “on
the inside,” was “moving around,” and “hurt” her. This testimony provides legally-
sufficient evidence of penetration. Any of the alleged deficiencies in her
testimony—such as whether Amy told the forensic investigator, Odhiambo, during
her interview about the penetration or disclosed additional aspects of the assault at
trial that she had not previously mentioned—do not diminish the legal sufficiency
of her direct trial testimony on the issue. See Penagraph, 623 S.W.2d at 343. We
hold that Amy’s trial testimony provided legally sufficient evidence of penetration
and overrule Buentello’s first issue.
Forensic Investigator’s Outcry-Witness Testimony
In his second and fourth issues, Buentello argues that the CAC’s forensic
investigator, Odhiambo, should not have been allowed to testify as a designated
12
outcry witness. First, he argues that Odhiambo was not the proper outcry witness
because Amy told her step-father and mother about the sexual assault first.3
Second, Buentello argues that Amy’s outcry was not reliable.
A. Standard of review
A trial court has “broad discretion” in admitting outcry-witness testimony.
Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990). We will not reverse
the trial court’s decision to admit outcry-witness testimony unless it falls outside
the zone of reasonable disagreement. Id.; Tear v. State, 74 S.W.3d 555, 558 (Tex.
App.—Dallas 2002, pet. ref’d).
B. The trial court did not abuse its discretion in determining that the
forensic investigator was the proper outcry witness
The Texas Code of Criminal Procedure allows admission of certain hearsay
testimony in the prosecution of sexual offenses against minors. TEX. CODE CRIM.
PROC. ANN. art. 38.072. The statute allows the designation of an outcry witness to
testify about a child’s disclosure of abuse but requires that the outcry witness be
the “first person, 18 years of age or older, other than the defendant, to whom the
child made a statement about the offense.” Id. § 2(a)(3); Garcia, 792 S.W.2d at 91.
To qualify, the disclosure must include more than “a general allusion that
something in the area of child abuse was going on.” Garcia, 792 S.W.2d at 91. It
3
Amy’s older sister did not qualify as the outcry witness because an outcry witness
must be over 18 at the time of the outcry and Amy’s sister was younger than that
at that time. See TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2(a)(3).
13
must “in some discernible manner describe[] the alleged offense.” Id. This furthers
the societal interest in curbing child abuse by preventing the designation of a
person who only received a vague suggestion of abuse over a later-in-time person
who received a more detailed account of sexual abuse. See id.
Buentello argues that the State failed to prove that Amy did not provide
specific details about the abuse to her parents during their late-night conversation
that occurred before Amy was interviewed by the forensic investigator.
There was no testimony regarding what, exactly, Amy said to her parents
that night. Buentello did not call any witnesses when he challenged the
investigator’s designation as the outcry witness. Both Amy and her parents
testified on direct examination that Amy did not give them any specifics and,
instead, spoke only in “general” terms.
The burden was not on the State to prove a lack of sufficient disclosure in
these earlier conversations; instead, it was Buentello’s burden to establish that one
of the parents was the proper outcry witness instead of the later-in-time forensic
interviewer. See id. at 91–92 (stating that defendant had burden to establish that
other person was proper outcry witness); cf. Davis, 345 S.W.3d at 78 (appellant
must provide record to show trial court abused its discretion).
Buentello’s attorney did not question Amy on what she told her parents, nor
did he question the step-father or mother on what specifics Amy told them.
14
Buentello presents no evidence of how Amy described the events to her parents or
whether those descriptions were detailed enough to describe the offense of
aggravated sexual assault. Thus, we cannot say that the trial court abused its broad
discretion in overruling Buentello’s objection to Odhiambo being designated the
outcry witness.
We overrule Buentello’s second issue.
C. The trial court did not abuse its discretion in concluding that Amy’s
statement was sufficiently reliable
Before a designated outcry witness may testify about the child’s disclosure,
the trial court must find, “in a hearing conducted outside the presence of the jury,
that the statement is reliable based on the time, content, and circumstances of the
statement.” TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2(b)(2). “The phrase ‘time,
content, and circumstances’ refers to ‘the time the child’s statement was made to
the outcry witness, the content of the child’s statement, and the circumstances
surrounding the making of that statement.’” Broderick v. State, 89 S.W.3d 696,
699 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (quoting MacGilfrey v.
State, 52 S.W.3d 918, 921 (Tex. App.—Beaumont 2001, no pet.)).
In such a hearing, the trial court’s focus is whether the child’s outcry
statement is reliable, not whether the outcry witness is credible. Sanchez v. State,
354 S.W.3d 476, 487–88 (Tex. Crim. App. 2011); see TEX. CODE CRIM. PROC.
ANN. art. 38.072, § 2(b)(2). The trial court considers the circumstances of the
15
outcry, not the abuse itself. Sanchez, 354 S.W.3d at 487. Outcry reliability is
determined on a case-by-case basis. Davidson v. State, 80 S.W.3d 132, 139 (Tex.
App.—Texarkana 2002, pet. ref’d).
Outcry testimony admitted in compliance with Article 38.072 is considered
substantive evidence and is admissible for the truth of the matter asserted in the
testimony. Duran v. State, 163 S.W.3d 253, 257 (Tex. App.—Fort Worth 2005, no
pet.).
Buentello challenged the reliability of Amy’s outcry, and the trial court
overruled his challenge. On appeal, he notes that some intermediate appellate
courts have enumerated eleven “indicia of reliability” that a trial court may
consider in determining the reliability of a child’s outcry.4 See Buckley v. State,
4
The Texarkana court has listed eleven factors that trial courts may consider to
evaluate the reliability of an outcry:
(1) whether the victim testifies at the trial and admits making the
out-of-court statement; (2) whether the child is of a level of maturity
to understand the need to tell the truth and to have the ability to
observe, recollect, and narrate; (3) whether the child’s out-of-court
statement is corroborated by other evidence; (4) whether the child’s
out-of-court statement was spontaneously made in the child’s own
terminology or whether there is evidence of prior prompting or
manipulation by adults; (5) whether the child’s out-of-court
statement is clear and unambiguous and rises to the needed level of
certainty; (6) whether the statement is consistent; (7) whether the
statement describes an event that a child of his or her age could not
be expected to fabricate; (8) whether there is abnormal behavior by
the child after the contact; (9) whether there is a motive for the child
to fabricate the out-of-court statement; (10) whether the statement is
against the interest of the child, e.g., the child expects punishment
because of reporting the conduct; and (11) whether there was an
16
758 S.W.2d 339, 343–44 (Tex. App.—Texarkana 1988), aff’d on other grounds,
786 S.W.2d 357 (Tex. Crim. App. 1990); see also Torres v. State, 424 S.W.3d 245,
257 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d); In re M.R., 243 S.W.3d
807, 813 (Tex. App.—Fort Worth 2007, no pet.); Norris v. State, 788 S.W.2d 65,
71 (Tex. App.—Dallas 1990, pet. ref’d); but see Broderick, 89 S.W.3d at 699
(stating, “Although courts have enumerated factors that may assist in ascertaining
the reliability of an outcry statement, the focus of the inquiry must remain upon the
outcry statement, not the abuse itself” and holding that child’s outcry may be
reliable even if it contains vague or inconsistent statements about details of sexual
abuse); Carty v. State, 178 S.W.3d 297, 306–07 (Tex. App.—Houston [1st Dist.]
2005, pet. ref’d) (considering reliability based on time, content and circumstances
of child’s statement, without reference to Buckley multi-factor test); Jones v. State,
No. 10-13-00106-CR, 2014 WL 3556520, at *3–4 (Tex. App.—Waco July 3,
2014, pet. ref’d) (mem. op., not designated for publication) (rejecting mechanical
application of Buckley factors). However, he does not analyze Amy’s outcry in
light of all eleven factors. Instead, he identifies three aspects of Amy’s disclosure
that he argues demonstrate its unreliability. We address each in turn.
opportunity under the evidence for the alleged act to have been
committed by the defendant.
Buckley v. State, 758 S.W.2d 339, 343–44 (Tex. App.—Texarkana 1988), aff’d on
other grounds, 786 S.W.2d 357 (Tex. Crim. App. 1990) (not addressing factors
listed by intermediate appellate court).
17
First, he argues that Amy did not tell Odhiambo that Buentello had
penetrated her. Odhiambo testified that Amy did disclose penetration. But, even if
she did not, inconsistency in a child’s outcry and later trial testimony “is a matter
of credibility and goes to the weight of the evidence,” not the reliability of the
statement or its admissibility. Marquez v. State, 165 S.W.3d 741, 747 (Tex. App.—
San Antonio 2005, pet. ref’d).
Second, Buentello argues that the State did not present any other witness or
physical evidence to corroborate Amy’s outcry statement. But neither
corroboration nor physical evidence is required for an outcry to be determined
reliable. See Gonzales v. State, 477 S.W.3d 475, 479 (Tex. App.—Fort Worth
2015, pet. ref’d). Furthermore, when a lengthy period of time passes between an
assault and a child’s outcry, “little weight” should be given to the lack of physical
evidence in determining whether the outcry was reliable. Naranjo v. State, No. 06-
03-00056-CR, 2004 WL 420145, at *2 (Tex. App.—Texarkana Mar. 9, 2004, pet.
ref’d) (mem. op., not designated for publication).
Third, Buentello argues that the outcry was unreliable because it occurred
two to three years after the alleged assault. Amy’s therapist, Legendre, testified
that it is “typical” for children to delay disclosing abuse for “months or years.” In
her opinion, a delayed outcry is more common than a close-in-time disclosure.
Moreover, “delay in the report of sexual abuse is to be expected when there is a
18
close personal relationship between the victim and the perpetrator . . . .” Madrid v.
State, No. 08-15-00195-CR, 2016 WL 3092575, at *5 (Tex. App.—El Paso June 1,
2016, no pet.) (mem. op., not designated for publication). Legendre’s testimony
indicates that an outcry that occurs two to three years after abuse may be reliable,
and Buentello does not cite to any authority suggesting the span of time required to
call into question the reliability of an outcry from a child abused at a young age.
Timing is one of three factors that the statute requires trial courts to consider
when analyzing the reliability of an outcry. TEX. CODE CRIM. PROC. ANN. art.
38.072, § 2(b)(2) (stating that reliability is determined “based on the time, content,
and circumstances of the statement”); Carty, 178 S.W.3d at 306. The trial court did
not abuse its discretion in determining that the content and circumstances of Amy’s
disclosure supported a conclusion of reliability. As the trial court noted when it
ruled, the outcry statement was made at the CAC very shortly after the initial
disclosure, and Amy acknowledged that she knew the difference between a lie and
the truth when she gave the statement. Further, as Odhiambo discussed, Amy
responded to open-ended questions by using terminology consistent with her age to
describe a sexual act that is beyond the common understanding of a child her age.
Moreover, the disclosure occurred immediately after Amy realized that Buentello
had been in her bedroom, and her outcry was generally consistent with the trial
testimony. See Carty, 178 S.W.3d at 307 (concluding that child’s outcry was
19
reliable because child disclosed abuse even after being told not to talk about it,
confirmed knowing difference between lies and truth, promised to be truthful, used
immature language to describe assault, and disclosed it in response to open-ended
questions and in manner that was consistent with trial testimony).
We conclude that a three-year delay by a young child in disclosing sexual
abuse by a relative does not, by itself, demonstrate unreliability to the extent that
would require a conclusion that the trial court was outside the zone of reasonable
disagreement in admitting the statement. See Davidson, 80 S.W.3d at 139 (on
mixed evidence of reliability, concluding trial court did not err by concluding that
outcry was reliable and admitting testimony of outcry statement).
We overrule Buentello’s fourth issue.
Prosecutor’s Questions about Buentello’s
Pre-Arrest Refusal to Give a Statement
In his third issue, Buentello challenges the State’s attempt to ask a testifying
police officer whether, during his crime investigation, he contacted Buentello to
request a statement and whether Buentello gave him a statement. Although the trial
court sustained Buentello’s objections during this line of questioning and granted
his motion to instruct the jury to disregard an answer by Deputy Pietsch, Buentello
argues that the “attempt to introduce evidence that [he] refused to cooperate with
the police by giving a statement was the equivalent of a comment on [his] failure to
20
testify” and required a mistrial. He argues that the trial court erred when it denied
his motion for mistrial.
A. Standard of review
We review the trial court’s denial of a defendant’s motion for mistrial for an
abuse of discretion. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999);
Williams v. State, 417 S.W.3d 162, 172 (Tex. App.—Houston [1st Dist.] 2013, pet.
ref’d). A trial court may declare a mistrial when an error occurs that is so
prejudicial that the expenditure of further time and expense would be wasteful.
Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000). Whether a trial court
abused its discretion in denying a motion for mistrial depends on whether the
court’s instruction cured any prejudicial effect. See Dinkins v. State, 894 S.W.2d
330, 357 (Tex. Crim. App. 1995); Faulkner v. State, 940 S.W.2d 308, 312 (Tex.
App.—Fort Worth 1997, pet. ref’d). Generally, an instruction to disregard cures
the prejudicial effect. Dinkins, 894 S.W.2d at 357; Woodall v. State, 77 S.W.3d
388, 399 (Tex. App.—Fort Worth 2002, pet. ref’d). However, a comment may be
so egregious or inflammatory as to render the instruction ineffective in curing the
prejudice. See Dinkins, 894 S.W.2d at 357; Woodall, 77 S.W.3d at 400.
B. The questioning Buentello challenges
During the State’s direct examination of Deputy Pietsch, the officer testified
that he attempted to contact Buentello during the early stage of his investigation
21
but was unable to speak with him. He was asked whether he requested Buentello to
give a statement. Pietsch answered that he had requested a statement but was told
that Buentello had a lawyer. Buentello interrupted the answer to assert a non-
specific objection, which was sustained. He then successfully obtained an
instruction to the jury to disregard Pietsch’s answer. Buentello also moved for a
mistrial, but his motion was denied.
The State’s next question to Pietsch was whether he had requested a
statement from Buentello. Pietsch answered affirmatively, without objection. The
State next asked whether Buentello ever agreed to give a statement. Pietsch
answered, “No.” Buentello asserted an “asked and answered” objection, which the
trial court sustained. The State asked the same question twice more, and both times
the trial court sustained Buentello’s “asked and answered” objections. Buentello
moved for a mistrial, but the court again denied his motion.
C. The trial court did not abuse its discretion by denying motion for
mistrial
Buentello argues that the State’s line of questioning was “equivalent” to a
comment on his failure to testify at trial. The right not to testify in one’s own
criminal trial is protected by the Fifth Amendment to the United States
Constitution, which states, “No person . . . shall be compelled in any criminal case
to be a witness against himself.” U.S. CONST. amend. V.
22
“The plain language of the Fifth Amendment protects a defendant from
compelled self-incrimination.” Salinas v. State, 369 S.W.3d 176, 179 (Tex. Crim.
App. 2012), aff’d, 133 S. Ct. 2174 (2013). But a suspect’s interactions with police
officers are not compelled in “pre-arrest, pre-Miranda circumstances.” Id.
(referencing Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966)). Therefore,
a suspect’s decision to remain silent in a pre-arrest encounter does not implicate
the Fifth Amendment right against compulsory self-incrimination. Id.
The Fifth Amendment “is ‘simply irrelevant to a citizen’s decision to remain
silent when he is under no official compulsion to speak.” Id. (quoting Jenkins v.
Anderson, 447 U.S. 231, 241, 100 S. Ct. 2124, 2131 (1980) (Stevens, J.,
concurring)). Accordingly, a prosecutor can comment on pre-arrest silence at trial
without implicating the Fifth Amendment. See id.; Morales v. State, 389 S.W.3d
915, 921–22 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (holding that
prosecutor’s exchange with investigator, which confirmed that defendant did not
respond to investigator’s attempts to call him, was admissible because these
actions constituted pre-arrest, pre-Miranda silence).
According to Pietsch’s testimony, during the first week of his investigation,
he reviewed Amy’s forensic interview and interviewed her parents. During the
second week of his investigation, he requested a copy of Amy’s sexual-assault-
examination records and called Buentello to attempt to interview him. Buentello
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had not been arrested. He had not been formally charged with assaulting Amy.
There is no evidence he had had any contact with the police, at that point, other
than the phone call. At that stage of the investigation—before his arrest and before
being read his Miranda rights—Buentello’s silence was not protected by the Fifth
Amendment right against compelled self-incrimination. See Salinas, 369 S.W.3d at
179. As such, the prosecutor was permitted to comment at trial on that silence. Id.
Because the State’s line of questioning did not implicate Buentello’s Fifth
Amendment right against compelled self-incrimination and, therefore, was not
objectionable on that basis, Buentello’s argument that the line of questioning
required a mistrial fails.5 We overrule his third issue.
Motion for Continuance
In his fifth issue, Buentello argues that the State did not give him adequate
notice regarding one of its witnesses, Amy’s treating therapist, Stephanie
Legendre. He contends that the trial court erred by denying his motion for
continuance based on the lack of adequate notice.
Buentello does not argue that the State failed to disclose Legendre’s identity.
Instead, he argues that he was not told that she would testify that she had
5
Alternatively, we would hold that Buentello did not preserve his Fifth Amendment
arguments for appeal. To preserve an issue for appeal, the party must present a
timely objection to the trial court, state specific grounds for that objection, and
obtain a ruling. TEX. R. APP. P. 33.1(a). Buentello did not present his argument to
the trial court that his Fifth Amendment right to remain silent was violated by the
prosecutor’s line of questioning; he only objected generally, without a specific
basis given, and then objected that the question had been “asked and answered.”
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diagnosed Amy with post-traumatic stress disorder. When he moved for a
continuance, he argued that “his defense would be prejudiced by . . . not [being]
provided with any documents related to [Legendre’s] testimony of PTSD with
which to fully investigate for cross-examination.”
A. Standard of review
A trial court has “broad discretion” in determining whether to grant a motion
for continuance. McAleer v. McAleer, 394 S.W.3d 613, 616 (Tex. App.—Houston
[1st Dist.] 2012, no pet.). To show that the trial court abused its broad discretion in
denying the motion, the movant must show that (1) the trial court wrongly denied
the motion and (2) the movant was prejudiced by the denial. Gonzales v. State, 304
S.W.3d 838, 843 (Tex. Crim. App. 2010). The trial court wrongly denies such a
motion when “the case made for delay was so convincing that no reasonable trial
judge could conclude that scheduling and other considerations as well as fairness
to the State outweighed the defendant’s interest in delay of the trial.” Id.
B. The trial court did not abuse its discretion by denying Buentello’s
motion for continuance
“Generally, notice of the State’s witnesses must be given upon request by
the defense.” Hamann v. State, 428 S.W.3d 221, 227 (Tex. App.—Houston [1st
Dist.] 2014, pet. ref’d). The Code of Criminal Procedure outlines the requirements
for the notice the State must provide:
25
On a party’s request . . . the party receiving the request shall disclose
to the requesting party the name and address of each person the
disclosing party may use at trial to present evidence under Rules 702,
703, and 705, Texas Rules of Evidence.
TEX. CODE CRIM. PROC. ANN. art. 39.14(b) (emphasis added).
The State provided this required notice. About eleven months before trial,
the State disclosed a list of witnesses that it intended to call at Buentello’s trial,
including Legendre. The notice included the name and address of each witness,
and—in addition to the statutory requirements—a brief description of each witness.
Legendre’s name and address was included on this notice, along with the following
brief description: “Therapist/Child Expert.”
Buentello argues that the State should have provided even more
information—that the therapist would discuss Amy’s PTSD diagnosis. But
Buentello does not cite any authority to support his argument that the State was
required to provide this information, and we decline to hold that it was required.
Because the State gave Buentello the required notice about its expert witness—and
more—we hold that the trial court did not abuse its discretion by denying the
continuance motion.
We overrule Buentello’s fourth issue.
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Conclusion
We affirm Buentello’s conviction.
Harvey Brown
Justice
Panel consists of Justices Jennings, Keyes, and Brown.
Publish. TEX. R. APP. P. 47.2(b).
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