Guadalupe Saldivar v. State ( 2004 )

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    NUMBER 13-03-319-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

  GUADALUPE SALDIVAR,                                                           Appellant,

v.

THE STATE OF TEXAS,                                                                Appellee.

    On appeal from the 370th District Court

of Hidalgo County, Texas.

  M E M O R A N D U M O P I N I O N

Before Chief Justice Valdez and Justices Hinojosa and Castillo

Opinion by Chief Justice Valdez

            After a jury trial, appellant, Guadalupe Saldivar, was convicted of indecency with a child and aggravated sexual assault. The jury assessed punishment at twenty years confinement for the count of indecency with a child and forty-three years confinement for the count of aggravated sexual assault. Appellant raises the following four issues on appeal : (1) the trial court erred in admitting hearsay testimony from a counselor who failed to qualify as an expert witness; (2) the State engaged in improper arguments at both the guilt/innocence and punishment phase of the trial; (3) the trial court erred in denying appellant’s motion for directed verdict; and (4) the evidence was factually insufficient to support a guilty verdict. We affirm.

I. Factual and Procedural Background

          As this is a memorandum opinion and the parties are familiar with the facts, we will not recite the facts here except as necessary to advise the parties of the Court’s decision and the basic reasons for it. See Tex. R. App. P. 47.4.

II. Analysis

A. Improper Argument

          In his second issue, appellant contends the State engaged in improper argument at both the guilt/innocence and punishment phase of the trial. Specifically, appellant asserts the State’s arguments: (1) improperly invited an inference that appellant must be guilty of the present crime because he is a convicted felon; (2) improperly called for appellant to be given a life sentence; (3) overstepped the boundaries of permissible plea for law enforcement and asserted a community expectation; and (4) in total, irreparably harmed appellant and thus merits a remand.

Preservation of Error

          To preserve the present issue for appellate review, appellant must have made a timely objection to the alleged improper jury argument and pursued it to an adverse ruling. See Tex. R. App. P. 33.1(a)(1); King v. State, 953 S.W.2d 266, 268 (Tex. Crim. App. 1997). The record reflects that appellant failed to object to the State’s comments, in the guilt/innocence and punishment phase of the trial, regarding his prior felony conviction and the alleged request that he be given a life sentence. Appellant forfeits our review of those issues. In regard to the alleged impermissible plea for law enforcement, appellant properly preserved this argument.

Standard of Review

          An assertion of improper jury argument requires us to review the record in its entirety to determine whether any erroneous statements were made, and if so, whether they were so prejudicial as to deprive appellant of a fair and impartial trial. Willis v. State, 785 S.W.2d 378, 385 (Tex. Crim. App. 1989). There are four permissible areas of jury argument: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement. Wilson v. State, 938 S.W.2d 57, 59 (Tex. Crim. App. 1996); Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988). An argument which exceeds these bounds is error, but only becomes subject to reversal if, in light of the record as a whole, the argument is extreme or manifestly improper, violative of a mandatory statute, or injects new facts harmful to the accused into the trial. Felder v. State, 848 S.W.2d 85, 94-95 (Tex. Crim. App. 1992); Everett v. State, 707 S.W.2d 638, 640 (Tex. Crim. App. 1986). The use of an analogy to emphasize or explain evidence is acceptable. Broussard v. State, 910 S.W.2d 952, 959 (Tex. Crim. App. 1995). Counsel is allowed wide latitude to draw inferences from the evidence so long as the inferences drawn are reasonable, fair, legitimate, and offered in good faith. Gaddis, 753 S.W.2d at 398.

Analysis

          During the State’s argument, the following exchange took place:

          Now, last week we saw the news cameras come in here. There was a lady from the Monitor. I know you’ve been instructed not to watch the news and not to read the newspapers regarding this case, but let me tell you, the community is interested in what you’re going to do.

          MR. BANKER: Judge, I object.

          MR. SANCHEZ: Judge, I can’t ask for a plead (sic) for justice?

          THE COURT: Just both sides, settle down. The news media has got nothing to do with these matters.

          MR. BANKER: That is a tactic to–

          THE COURT: The objection will be overruled. Let’s continue.

          After considering the argument and the record as a whole, we cannot say the argument is extreme or manifestly improper, violative of a mandatory statute, or injects new facts harmful to the accused into the trial. We do not construe the statements as admonishing the jury as to what verdict the community expects. Rather, the argument properly refers to the jury's status as representative of the community as a whole, and as such, it is permissible as a proper plea for law enforcement. See Whittington v. State, 580 S.W.2d 845, 847 (Tex. Crim. App. 1979). Accordingly, we overrule appellant’s second issue.

B. Motion for Directed Verdict

          In his third issue, appellant contends the trial court erred by denying his motion for directed verdict on the basis of no evidence and/or insufficient evidence. Appellant asserts the “facts of the instant case are disputed and contradictory to the extent that evidence was insufficient to send the case to the jury.”

Standard of Review

          A challenge to the denial of a motion for directed verdict is actually a challenge to the legal sufficiency of the evidence. See Madden v. State, 799 S.W.2d 683, 686 (Tex. Crim. App. 1990). A legal sufficiency challenge requires us to question 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. Jackson v. Virginia, 443 U.S. 307, 319 (1979). In reviewing a challenge to the legal sufficiency of the evidence, we consider only the evidence and inferences tending to support the findings and disregard all evidence and inferences to the contrary. Love v. State, 972 S.W.2d 114, 118 (Tex. App.–Austin 1998, pet. denied). A reviewing court must not consider whether it is persuaded by the State’s evidence; rather, the trier of fact is the sole judge of the credibility of the witnesses and the weight of the evidence. Bonham v. State, 680 S.W.2d 815, 819 (Tex. Crim. App. 1984).

          In analyzing issues of legal sufficiency, the evidence is measured against the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). “Such a charge would be one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried.” Id.           Section 22.021 of the penal code, under which appellant was convicted, states in relevant part that a person commits the offense of aggravated sexual assault if the person intentionally or knowingly “(iii) causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor; [or] (iv) causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor; . . . and (2) if: . . . (B) the victim is younger than 14 years of age.” Tex. Pen. Code Ann. § 22.021(a)(1)(B)(iii), (iv), (2)(B) (Vernon Supp. 2004). Section 21.11 of the penal code, under which appellant was also convicted, states in relevant part that a person commits the offense of indecency with a child if, “with a child younger than 17 years and not the person’s spouse, . . . the person: . . . (2) with intent to arouse or gratify the sexual desire of any person: (A) exposes the person’s anus or any part of the person’s genitals, knowing the child is present.” Tex. Pen. Code Ann. § 21.11(a)(2)(A) (Vernon 2003).

Analysis

          The record reflects, in summary, the following evidence in support of submitting the case to the jury and appellant’s convictions. Rosalie Farber, an expert witness, testified that E.M. (the child victim) demonstrated classic signs indicative of severe trauma, and E.M. consistently conveyed that appellant was the perpetrator. Further, Farber testified that upon questioning M. S., E.M.’s brother, in connection with E.M.’s treatment, M.S. stated that he had once pulled appellant “off” E.M. Lorenza Guerrero, E.M.’s examining nurse and expert witness, testified that E.M.’s hymen was torn, and the tears were indicative of something, inclusive of a male sexual organ or finger, being placed in her sexual organ. Guerrero also stated that E.M. implicated appellant as the perpetrator during routine questioning for examination purposes. Finally, E.M. identified appellant as the perpetrator in open court and testified that appellant touched her breast and “private part,” placed his finger in her “private part” and anus, put his sexual organ in her “private part,” forced her to take his sexual organ in her mouth, forced her to kiss him, and inserted his tongue in her mouth. E.M. testified that appellant repeatedly touched her in this manner asserting it happened “ten times,” and E.M. stated that M.S. had pulled appellant off of her on one occasion. E.M. described appellant’s sexual organ as being “hard and not that hard.”

          Curiously, appellant asserts “the facts of the instant case are disputed and contradictory to the extent that evidence was insufficient to send the case to the jury.” To the contrary, in a jury trial, as opposed to a bench trial, the jury is the trier of fact and the sole judge of the credibility of the witnesses and the weight of the evidence. Bonham, 680 S.W.2d at 819. When viewed in the light most favorable to submission of the case to the jury and the verdict, we conclude that a rational trier of fact could have found the requisite elements to support appellant’s convictions for indecency with a child and aggravated sexual assault. Accordingly, we overrule appellant’s third issue.

C. Factual Sufficiency

          In his fourth issue, appellant asserts that the evidence is factually insufficient to support his convictions. Specifically, appellant asserts that the State failed to carry its burden to establish he abused his daughter as “the evidence was so contradictory as to establish nothing.” Appellant admits medical testimony establishes a crime was committed against E.M.; however, appellant asserts “the identity of the perpetrator was not proven beyond a reasonable doubt.”

Standard of Review

          When reviewing the factual sufficiency of the elements of the offense on which the State carries the burden of proof, we impartially examine all of the evidence and set aside the verdict only if “proof of guilt is so obviously weak as to undermine confidence in the [fact finder’s] determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by the contrary proof.” Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003). We review the evidence weighed by the fact finder that tends to prove the existence of a disputed elemental fact and compare it to evidence that is contrary to the disputed fact. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). However, we do not intrude upon the jury’s role as the sole judge of the weight and credibility given to witness testimony. Id. Due deference must be accorded to the fact finder’s determinations on the weight and credibility of the evidence, and we may not merely substitute our own judgment. Swearingen, 101 S.W.3d at 97; Johnson, 23 S.W.3d at 7. As in legal sufficiency, we measure issues of factual sufficiency against the elements of the offense as defined by a hypothetically correct jury charge. Wheaton v. State, 129 S.W.3d 267, 272 (Tex. App.–Corpus Christi 2004, no pet.); Adi v. State, 94 S.W.3d 124, 131 (Tex. App.–Corpus Christi 2002, pet. ref’d).

Analysis

          Appellant directs our attention to the following evidence in support of his contention that the evidence did not establish he was the perpetrator: (1) appellant testified that he did not sexually abuse his daughter in any way; (2) Lisa Resendez, appellant’s sister, testified that E.M. told her the story was not true and that E.M.’s aunts, on her mother’s side, forced her to fabricate the story indicating she would be placed in foster care if she did not; and (3) during cross examination of the State’s witnesses, counsel elicited testimony to establish the possibility that E.M.’s mother was prostituting E.M. for drug money and there was a second perpetrator.

          The jury was able to hear and view the testimony and evidence presented by both the State and appellant. Although contradictory evidence was offered, it is well within the province of the jury to judge the veracity and truthfulness of the witnesses before it and deduce the truth. We conclude that the evidence supporting appellant’s convictions for indecency with a child and aggravated sexual assault is not so obviously weak as to be clearly wrong and manifestly unjust or greatly outweighed by the contrary proof. Accordingly, we overrule appellant’s fourth issue.

D. Expert Testimony

          In his first issue, appellant asserts the trial court erred in admitting hearsay testimony from a counselor who failed to qualify as an expert witness. Specifically, appellant argues that the State failed to establish Farber’s qualifications to be an expert witness for purposes of Rule 803(4) of the rules of evidence. See Tex. R. Evid. 803(4). Appellant further asserts he was irreparably harmed by this error as “no other witness’s testimony was as complete and damaging as hers and without her testimony the State could not have prevailed.”

Standard of Review

           Erroneous admission of evidence is subject to a harm analysis under Rule 44.2(b) of the rules of appellate procedure. See Tex. R. App. P. 44.2(b); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). A violation of the evidentiary rules that results in the erroneous admission of evidence is non-constitutional error. See King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997); Tate v. State, 988 S.W.2d 887, 890 (Tex. App.– Austin 1999, pet. ref'd). Any non-constitutional error "that does not affect substantial rights must be disregarded." Tex. R. App. P. 44.2(b). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. See King, 953 S.W.2d at 271. A criminal conviction should not be overturned for non-constitutional error if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but slight effect. See Johnson, 967 S.W.2d at 417. The improper admission of evidence does not constitute reversible error if the same facts are proven by other properly admitted evidence. See Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999) (holding that any error in the admission of hearsay testimony was harmless in light of other properly admitted evidence proving the same fact).

Analysis

          We need not determine whether Farber qualified as an expert under rule 803(4), because we conclude any purported error was harmless. E.M. provided independent testimony, which alone could have been sufficient to support appellant’s convictions for indecency with a child and aggravated sexual assault. See Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon Supp. 2004); Perez v. State, 113 S.W.3d 819, 838 (Tex. App.–Austin 2003, pet. ref’d). Guerrero’s testimony corroborated E.M.’s and provided an expert opinion that E.M.’s sexual organ showed signs of penetration. Further, the bulk of Farber’s testimony did not address appellant’s guilt; rather, it addressed the classic effects of sexual trauma in general and the symptoms E.M. demonstrated. Thus, properly admitted independent testimony established all harmful facts asserted by Farber. The admission of Farber’s alleged hearsay testimony did not have a substantial and injurious effect or influence in determining the jury’s verdict. Accordingly, we overrule appellant’s first issue.

III. Conclusion

We affirm the judgment of the trial court.





                                                                        Rogelio Valdez,

                                                                        Chief Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this 10^th day of November, 2004.