Derek Renee Sosa v. State ( 2015 )


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  • Opinion issued June 25, 2015.
    In The
    Court of Appeals
    For The
    First District of Texas
    ————————————
    NO. 01-14-00157-CR
    ———————————
    DEREK RENEE SOSA, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the 262nd District Court
    Harris County, Texas
    Trial Court Case No. 1368317
    MEMORANDUM OPINION
    A jury convicted Derek Renee Sosa of the first-degree felony offense of
    aggravated sexual assault of a child under fourteen years of age and assessed his
    punishment at twenty-five years’ incarceration in the Texas Department of
    Criminal Justice, Institutional Division. In four issues, Sosa complains that (1) the
    trial court erred by allowing an emergency responder to testify as an outcry witness
    even though the State failed to comply with Texas Code of Criminal Procedure
    Article 38.072’s mandatory notice requirements with respect to that witness, (2)
    the trial court erred when, without a hearing, it found that both the emergency
    responder and a forensic interviewer could testify as outcry witnesses under Article
    38.072 regarding the same offense, (3) the trial court abused its discretion when it
    designated the emergency responder as an outcry witness under Article 38.072
    because the alleged outcry statement is merely a general allusion of sexual abuse,
    and (4) the cumulative impact of the first three errors deprived Sosa of his right to
    a fair trial under the U.S. and Texas Constitutions. We affirm the trial court’s
    judgment.
    Background
    Sosa was indicted for sexually assaulting his live-in girlfriend’s eight-
    year-old daughter, Jane, by unlawfully, intentionally, and knowingly causing
    Jane’s sexual organ to contact Sosa’s sexual organ. 1 Sosa pleaded “not guilty” and
    his guilt or innocence was tried to a jury.
    1
    In order to protect the complainant’s privacy, we will refer to her by the
    pseudonym “Jane.” See TEX. CODE CRIM. PROC. ANN. art. 57.02(h) (West Supp.
    2014).
    2
    A.    Pretrial Matters
    After voir dire and prior to the entry of Sosa’s plea, the court heard pretrial
    motions outside the presence of the jury. During the bench conference, the State
    indicated that it intended to call three outcry witnesses: emergency responder
    Salvador Carbajal, Houston Police Department (HPD) Officer Mark Rooney, 2 and
    forensic interviewer Lisa Holcomb. The State had previously notified Sosa that it
    intended to offer outcry statements through Officer Rooney, Holcomb, and Deann
    Rodgers, the sexual assault nurse examiner (SANE) who examined Jane. The
    notice also included a written summary of each witness’s statement. Sosa objected
    to the State’s use of multiple outcry witnesses, and argued that Jane’s mother or a
    woman named “Janet” was the proper outcry witness. After hearing arguments
    from counsel, the court allowed “EMS officer [Carbajal] to testify as an outcry
    witness and also the forensic interviewer [Holcomb] just as to the allegations.”
    B.    Evidence and Testimony
    The State called several witnesses to testify at trial including Jane, Carbajal,
    Rodgers, Holcomb, and the DNA analyst who analyzed Jane’s vaginal swabs. The
    State also admitted into evidence Rodgers’s report from her medical evaluation of
    Jane and a redacted videotaped interview that Sosa gave to HPD officers the same
    day he was arrested for assaulting Jane.
    2
    Officer Rooney did not testify at trial.
    3
    Jane testified that she lived in an apartment with her mother and Sosa, and
    that the day the police came to her apartment, Sosa had “hurt” her. Specifically,
    Jane testified that while her mother was at work, Sosa unlocked her bedroom door
    with a “shrimp stick,” 3 got undressed, and then climbed on top of her. Although
    she did not use the correct terminology, using anatomically correct dolls and a
    tissue box, Jane testified that Sosa inserted his penis into her vagina and then
    licked her vagina while they were in her bedroom. Sosa then carried her into his
    bedroom and did the same thing to her there. According to Jane, this had happened
    on six prior occasions. Jane also testified that when her mother called to check on
    her that morning, she told her mother what had happened, and her mother came
    home immediately and called the police.
    Carbajal and his partner responded to a call at Jane’s apartment regarding a
    possible sexual assault. Carbajal testified that he briefly interviewed Jane in order
    to determine if she was injured. Specifically, Carbajal testified that he asked Jane,
    “[W]as your mommy’s boyfriend on top of you?,” to which Jane answered,
    “[Y]es.” When asked if she was hurting anywhere, Jane told Carbajal that her
    stomach hurt. She also told Carbajal that this had happened six times before.
    Carbajal, who did not ask Jane any more questions, checked Jane’s vital signs and
    3
    The “shrimp stick” was identified as a skewer.
    4
    stomach for bruising, and then transported Jane and her mother to Texas Children’s
    Hospital.
    Rodgers, the SANE at Texas Children’s who examined Jane the morning of
    the alleged assault, also testified at trial. Rodgers took a detailed medical history
    from Jane and collected various types of physical evidence, including vaginal
    swabs. Rodgers testified that Jane told her that she was at the hospital that day
    because her “mom’s boyfriend” “Derek” hurt her. Jane also told Rodgers that
    “Derek” had “opened [her bedroom] door with a stick and laid on top of her in the
    front and then took her to his room where he did the same thing. And at that point,
    he had licked and [Jane] had only pointed to her vaginal area. Jane reported to
    Rodgers that both she and “Derek” were naked when this occurred and that it had
    happened six times before.
    The State also offered Rodgers’s notes from her examination of Jane as
    State’s Exhibit 23. State’s Exhibit 23, which was admitted under the business
    record exception with “no objection” from Sosa, includes the following statement:
    [Jane was] asked if someone hurt her [and Jane] stated, “Yes, Derek.”
    [Jane] reports Derek is mom’s boyfriend. . . . [Jane] stated, “I heard
    his belt go off after he opened my door with a stick. He started to lay
    on top of me in the front. I was in my room then he took me to his
    room. He did the same thing there and he licked my ([Jane] points to
    vaginal area). His clothes were off and he took my clothes off. That’s
    all I remember.” [Jane] reports Derek had done this to her before,
    [Jane] stated, “six times.” Areas of pain: [Jane complained] of
    abdominal pain.
    5
    Holcomb, the forensic interviewer at the Children’s Assessment Center who
    interviewed Jane, also testified at trial. Holcomb testified that Jane told her about
    the sexual abuse and that Jane used her own body, as well as anatomically correct
    dolls, to explain to Holcomb what Sosa had done to her. According to Holcomb,
    Jane was detailed and very demonstrative during the interview. Specifically, Jane
    told Holcomb that she:
    [H]eard [Sosa’s] belt go off, and he put it on the floor, and then he
    laid on me. She had described this had happened, he had came off
    work, came in her room, went back in the bathroom, he took off his
    pants and shirt and then his belt came off in the bathroom, then he
    started to lay on me and he took me to his room. He laid on me until a
    little bit, but then he went to the side and then he went to the other
    side, then he went back in his room and go to sleep. My alarm woke
    me up, and he came running in my room and started doing the same
    thing again.
    Holcomb testified that Jane positioned the dolls in multiple sexual positions,
    including one in which both the male and female doll were facing one another and
    the dolls’ sexual organs were exposed and touching. According to Holcomb, Jane
    talked “about [Sosa] going up and down,” and hurting her with his penis when his
    penis was touching the inside and outside of Jane’s vagina. Jane also told Holcomb
    that Sosa licked her vagina or “private space” when Jane was trying to get away
    from him. Jane told Holcomb that this was the sixth time that Sosa had abused her.
    The DNA analyst who tested the swabs collected by Rodgers testified that
    her analysis revealed that while 99.961 percent of the Caucasian, African
    6
    American, and Hispanic populations could be excluded as a contributor to the male
    DNA obtained from Jane’s vaginal swabs, Sosa was within the .039 percent of the
    population that could not be excluded as a contributor. When asked about the
    significance of her findings, the analyst testified: “I can’t testify to the significance.
    I can say that that is the lowest percentage that I can come back with on this test. If
    I had seen it one time in the database, that percentage would be higher, so more
    people could be included. So, since I didn’t see it, this is the lowest percentage that
    my statistics will allow for this test.”
    The State also offered into evidence State’s Exhibit 35-A, a redacted
    videotaped interview that Sosa gave to HPD officers after he was arrested for
    assaulting Jane. In that interview, which was published to the jury, Sosa told the
    officers that he had been drinking excessively the night before, and that he had no
    recollection of anything that happened between the time he was at the after-hours
    club and when he awoke the next morning.
    Sosa told the officers that he knew he had an issue with sex, and that he felt
    like a “monster” and needed help. According to Sosa, sex was an issue for him,
    and that when he drinks, he “feel[s] like whatever’s ready and available.” Sosa
    recounted two prior incidents with Jane. In the first incident, Sosa and Jane had
    been playing around on the bed, and Jane started jumping around and straddled
    Sosa’s lap, and he became sexually aroused. Sosa also told the officers that, on
    7
    another occasion when he had been drinking, he walked into Jane’s room, removed
    her panties, and touched her “vaginal area” with his hand and then with his penis,
    but he did not think that he penetrated her vagina. Sosa claimed that Jane seemed
    receptive.
    At trial, Sosa testified that he was traumatized by being accused of, and
    arrested for, molesting Jane when he was questioned by police, and that he was
    still hungover during the interview and made several incorrect statements. Sosa
    also testified that some of the statements he made in the video were “coerced.” He
    also claimed that he was referring to Jane’s mother, not Jane, when he described a
    particular sexual encounter to the police.
    Outcry Testimony Admitted Under Article 38.072
    In his first three issues, Sosa complains that the trial court abused its
    discretion by allowing Carbajal’s improper outcry statements to be admitted into
    evidence. Specifically, Sosa contends that (1) the trial court erred by allowing
    Carbajal to testify as an outcry witness even though the State failed to notify him
    that it intended to offer outcry testimony through Carbajal fourteen days in
    advance of trial as required by Article 38.072, § 2(b), (2) the trial court erred when,
    without a hearing, it found that both Carbajal and Holcomb could testify as outcry
    witnesses under Article 38.072 regarding the same offense, and (3) the trial court
    abused its discretion when it designated Carbajal as an outcry witness under
    8
    Article 38.072 because Jane’s statement to Carbajal was merely a general allusion
    of sexual abuse, not a proper outcry statement.
    A.       Article 38.072
    Article 38.072 provides a statutory exception to the hearsay rule for outcry
    statements made by a child victim of a sexual offense so long as that statement is a
    description of the offense and is offered into evidence by the first adult the
    complainant told of the offense. See TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2
    (West Supp. 2014); Sanchez v. State, 
    354 S.W.3d 476
    , 484 (Tex. Crim. App.
    2011). Outcry testimony admitted in compliance with Article 38.072 is considered
    substantive evidence, 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.).
    For the outcry statement to be admissible, Article 38.072 requires that earlier
    than the fourteenth day before the proceeding the State must notify the defendant
    of its intention to offer the outcry statement, provide the defendant with the name
    of the witness through whom it wishes to offer the statement, and provide the
    defendant with “a written summary of the statement.” TEX. CODE CRIM. PROC.
    ANN. art. 38.072, § 2(b); 
    Sanchez, 354 S.W.3d at 484
    (“The State must provide a
    summary of the outcry statement that will be offered into evidence.”). Article
    38.072 also requires the trial court to conduct a hearing outside the presence of the
    9
    jury to determine that the outcry statement is reliable based on the time, content,
    and circumstances of the statement. TEX. CODE CRIM. PROC. ANN. art. 38.072,
    § 2(b)(2). Article 38.072’s notice and hearing requirements are mandatory and
    must be complied with in order for an outcry statement to be admissible over a
    hearsay objection. See Long v. State, 
    800 S.W.2d 545
    , 547 (Tex. Crim. App. 1990).
    A trial court may designate multiple outcry witnesses so long as each one testifies
    about different offenses. See Lopez v. State, 
    343 S.W.3d 137
    , 140 (Tex. Crim. App.
    2011); see also TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2(a)(3) (stating outcry
    witness is first adult that complainant told about offense).
    B.    Harm
    The erroneous admission of outcry testimony in violation of Article 38.072
    is non-constitutional error. See TEX. R. APP. P. 44.2(b); Johnson v. State, 
    967 S.W.2d 410
    , 417 (Tex. Crim. App. 1998). Pursuant to Texas Rule of Appellate
    Procedure 44.2(b), a non-constitutional error must be disregarded unless it affected
    the defendant’s substantial rights, i.e., the error had a substantial and injurious
    effect or influence in determining the jury’s verdict. TEX. R. APP. P. 44.2(b); see
    Barshaw v. State, 
    342 S.W.3d 91
    , 93 (Tex. Crim. App. 2011). This Court will not
    overturn a criminal conviction for non-constitutional error if we, after examining
    the record as a whole, have fair assurance that the error did not influence the jury,
    or influenced the jury only slightly. 
    Barshaw, 342 S.W.3d at 93
    .
    10
    In assessing the likelihood that the jury’s decision was affected by the error,
    we consider everything in the record, including factors such as the nature of the
    evidence supporting the verdict, the character of the alleged error and how it might
    be considered in connection with other evidence in the case, whether the State
    emphasized the error, and whether overwhelming evidence of guilt was present.
    Bagheri v. State, 
    119 S.W.3d 755
    , 763 (Tex. Crim. App. 2003). When the error
    involves noncompliance with Article 38.072’s notice requirement, we also
    consider whether the defendant was surprised by the outcry testimony. See Zarco
    v. State, 
    210 S.W.3d 816
    , 832 (Tex. App.—Houston [14th Dist.] 2006, no pet.).
    Any such error is also harmless if the same or similar evidence is admitted without
    objection at another point in the trial. Nino v. State, 
    223 S.W.3d 749
    , 754 (Tex.
    App.—Houston [14th Dist.] 2007, no pet.) (holding erroneous designation of
    outcry witness under Article 38.072 was harmless because similar testimony was
    admitted through complainant); Duncan v. State, 
    95 S.W.3d 669
    , 672 (Tex. App.—
    Houston [1st Dist.] 2002, pet. ref’d) (holding improper admission of outcry
    testimony was harmless because similar testimony was admitted through
    complainant, pediatrician, and medical records).
    C.    Analysis
    Assuming, without deciding, that the trial court abused its discretion by
    allowing Carbajal to testify as an outcry witness even though his testimony was not
    11
    in compliance with Article 38.072 for one or more of the reasons set forth in
    Sosa’s first three issues, 4 we will now assess whether any of these errors affected
    Sosa’s substantial rights. See TEX. R. APP. P. 44.2(b).
    Aside from Carbajal’s testimony, the evidence supporting Sosa’s guilty
    verdict consists of Jane’s testimony, which not only includes the same relevant
    facts as Carbajal’s testimony but also unequivocally identifies Sosa as the man
    who assaulted her by putting his penis inside her vagina, testimony from the DNA
    analyst that Sosa was a member of the fraction of one percent of the population
    that could not be excluded as a contributor to the DNA found in Jane’s vagina the
    morning of the assault, testimony from Holcomb regarding Jane’s detailed
    description of the assault, and SANE Rodgers’s testimony and report regarding her
    medical evaluation of Jane. Jane’s testimony and the DNA evidence that
    corroborates her testimony standing alone is substantial, if not overwhelming,
    evidence of Sosa’s guilt.
    Although Sosa may claim surprise that the State intended to call Carbajal as
    an outcry witness, Sosa should not have been surprised by the substance of
    Carbajal’s testimony, particularly in light of the fact that Carbajal’s testimony was
    4
    The trial court heard arguments from Sosa and the State as to who the proper
    outcry witness should be during a bench conference held outside the jury’s
    presence and before the commencement of trial. This bench conference is
    sufficient to satisfy Article 38.072’s hearing requirement. See Zarco v. State, 
    210 S.W.3d 816
    , 831 (Tex. App.—Houston [14th Dist.] 2006, no pet.).
    12
    almost identical to the outcry statement the State notified Sosa that it intended to
    admit through another witness. See 
    Zarco, 210 S.W.3d at 833
    . Furthermore, the
    State did not emphasize Carbajal’s testimony, or any other outcry statements in its
    brief closing argument, focusing instead upon Jane’s testimony, the DNA
    evidence, and Sosa’s videotaped statement to police given the day of the alleged
    assault.
    Sosa argues that the admission of Carbajal’s testimony was harmful because
    the jury heard from successive witnesses about what Jane told them and it
    strengthened the State’s case. Although Carbajal, Holcomb, and Rodgers each
    testified about statements that Jane had made to them, Sosa did not object to
    Rodgers’s testimony or to the admission of her report, both of which are virtually
    identical to one another in terms of the relevant substance, and similar in content to
    Carbajal’s testimony. See Sanchez v. State, 
    269 S.W.3d 169
    , 172 (Tex. App.—
    Amarillo 2008, pet. ref’d) (rejecting defendant’s argument that he was harmed by
    admission of hearsay testimony from officer reiterating what victim told him about
    assaults because “what we have before us is the same evidence being presented to
    the jury through multiple sources to prove the same facts. It is this redundancy or
    cumulative nature of the evidence that proves fatal to [defendant’s] argument.”);
    Chapman v. State, 
    150 S.W.3d 809
    , 814 (Tex. App.—Houston [14th Dist.] 2004,
    pet. ref’d) (stating “improper admission of evidence is not reversible error if the
    13
    same or similar evidence is admitted without objection at another point in the
    trial”); 
    Duncan, 95 S.W.3d at 672
    . Additionally, although Sosa objected to
    Holcomb testifying as an outcry witness at trial, Sosa is not expressly challenging
    the admission of her testimony on appeal.
    Given the substantial, if not overwhelming, evidence of guilt in this case,
    and the fact that similar evidence was admitted without objection from multiple
    sources, we are reasonably assured that any error in admitting outcry testimony in
    violation of Article 38.072 did not influence the jury’s verdict in this case or had
    but a slight effect. See TEX. R. APP. P. 44.2(b); 
    Barshaw, 342 S.W.3d at 93
    .
    Accordingly, we overrule Sosa’s first, second, and third issues.
    Cumulative Harm
    In his fourth issue, Sosa argues that the cumulative impact of the
    aforementioned errors deprived him of his right to a fair trial pursuant to both the
    federal and state constitutions. U.S. CONST. amend. XIV; TEX. CONST. art. I, § 19.
    However, an allegation that the cumulative effect of two or more purported errors
    denies a defendant a fair trial is not a proper ground of error and thus presents
    nothing for appellate review. See Stoker v. State, 
    788 S.W.2d 1
    , 18 (Tex. Crim.
    App. 1989), abrogated on other grounds by Horton v. California, 
    496 U.S. 128
    ,
    
    110 S. Ct. 2301
    (1990); Ford v. State, 
    14 S.W.3d 382
    , 395 (Tex. App.—Houston
    14
    [14th Dist.] 2000, no pet.); Lape v. State, 
    893 S.W.2d 949
    , 953 (Tex. App.—
    Houston [14th Dist.] 1994, pet. ref’d).
    We overrule Sosa’s fourth issue.
    Conclusion
    We affirm the trial court’s judgment.
    Russell Lloyd
    Justice
    Panel consists of Justices Keyes, Huddle, and Lloyd.
    Do not publish. TEX. R. APP. P. 47.2(b).
    15