Carlos Rivas v. State ( 2009 )

i i i i i i
MEMORANDUM OPINION
No. 04-06-00375-CR
Carlos RIVAS,
Appellant
v.
The STATE of Texas,
Appellee
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 2003CR10018
Honorable Mary Román, Judge Presiding
Opinion by: Karen Angelini, Justice
Sitting: Catherine Stone, Chief Justice
Karen Angelini, Justice
Steven C. Hilbig, Justice
Delivered and Filed: July 8, 2009
AFFIRMED
Carlos Rivas was found guilty of four counts of aggravated sexual assault and one count of
indecency with a child. On original submission, he argued that (1) the report of the sexual assault
nurse examiner should not have been admitted in evidence because it constituted improper bolstering
of the complainant’s testimony; (2) the report of the nurse examiner should not have been admitted
in evidence because it violated Texas Rule of Evidence 403; and (3) the trial court should have
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granted his motion for mistrial because during closing argument in the punishment phase of the trial,
the prosecutor characterized him as a “monster.” On June 6, 2007, we issued an opinion in this case
holding that (1) “bolstering” was not sufficient to preserve error for appeal; (2) the trial court did not
abuse its discretion in determining that the admission of the nurse examiner’s report did not violate
rule 403; and (3) the State’s use of “monster” was not improper argument. Rivas v. State, No. 04-06-
00375-CR, 2007 WL 1608550 (Tex. App.—San Antonio 2007), rev’d, 275 S.W.3d 880 (Tex. Crim.
App. 2009) (Rivas I). Rivas then filed a petition for discretionary review attacking only our first
holding regarding preservation of error. On January 28, 2009, the Texas Court of Criminal Appeals
remanded this case back to us for further consideration, holding that Rivas had made more specific
objections than “bolstering” and thus had preserved error with respect to those specific objections.
Rivas v. State, 275 S.W.3d 880, 887 (Tex. Crim. App. 2009) (Rivas II). Therefore, we now consider
these specific objections identified by the court of criminal appeals.
BACKGROUND
Rivas’s step-daughter, C.C., testified at trial that Rivas sexually assaulted her on multiple
occasions. C.C., a ten year-old-girl, testified that when she was seven years-old, Rivas touched her
genitals with his hands, performed oral sex on her, and penetrated both her vagina and her anus with
his penis.1 According to C.C., Rivas made her touch herself while he masturbated, and they would
then have a contest to “see who could make the white stuff come out first.” C.C. also testified that
Rivas made her perform oral sex on him.
1
… C.C. described these actions by various euphemisms (“private part,” “back part,” etc.); however, although
C.C. used euphemisms, her testimony clearly identified the parts of the female and male bodies at issue and the actions
that she claimed took place.
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Detective Frederick Allen Roussel of the San Antonio Police Department’s sex crimes
division testified that he investigated the allegations against Rivas. When he interviewed C.C., he
asked her to draw a picture to illustrate what had happened to her. According to Detective Roussel,
when C.C. was unable to draw what she wanted to illustrate, she began to simulate oral sex:
Like I said, she was unable to draw what she wanted to get across, so she knelt down
on the floor and was sitting on the back of her calves. She took her hand and made
kind of a fist and . . . She doubled over, leaned forward with her hand like that, and
was motioning her hand up and down with her mouth open, moving her head up and
down . . . .
According to Detective Roussel, he became so uncomfortable that he opened the closed door to the
room: “So, I just opened the door a little bit, just because it was a little uncomfortable. I don’t know
exactly why I felt like I had to open the door, but I wanted the door opened. So, it was just strange
seeing a seven-year-old demonstrate something like that that was fairly graphic and accurate.”
Detective Roussel also testified that he interviewed Rivas. When asked on cross-examination
by defense counsel what Rivas had told him, Detective Roussel testified that Rivas said the
allegations were untrue and that the allegations were motivated by a custody issue over his and his
wife’s infant daughter, R.R.
Detective Roussel also testified that he searched the apartment where Rivas, his wife, C.C.,
and R.R. lived. During the search, an evidence technician, Detective Garcia, took photographs and
removed the bedding from C.C.’s room. Kimberly F. Landers, a forensic scientist with the Bexar
County Criminal Investigation Laboratory, conducted testing on the bedding and testified at trial that
she was able to identify the presence of sperm on the blue blanket taken from C.C.’s bottom bunk
bed. Robert Sailors, also a forensic scientist with the Bexar County Criminal Investigation
Laboratory, performed DNA analysis on the blue blanket and compared it to Rivas’s DNA sample.
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According to Sailors, Rivas was not excluded as a contributor of the human DNA identified on the
blanket; “[t]hat means the two genetic profiles, the one from the blanket and the one from Carlos
Rivas, they matched.” Because he had a match, Sailors then considered whether the match was
coincidental or was a true match. Sailors determined that the profile observed on the blanket would
be expected to occur in one in eighty-seven quadrillion individuals in the Southwestern Hispanic
population. The profile would be expected to occur in one in every 127 quadrillion individuals in
the Southeastern Hispanic population. And, the profile would be expected to occur in one in every
746 quadrillion individuals in the Caucasian population. For the African-American population, the
profile would occur in one in every 16.7 quintillion individuals.
Annette Santos, a sexual assault nurse examiner at the Alamo Children’s Advocacy Center
examined C.C. She took a history from C.C. and performed a head-to-toe and an anal-genital
examination. She noted in her medical report that the results from the examination were normal.
Rivas testified on his behalf and denied the allegations. He claimed that he and his wife had
had sexual relations on the blue blanket found in C.C.’s room; that the blue blanket had been on his
and his wife’s bed; and that he had no idea how the blanket had found its way to C.C.’s room.
Although Rivas and his wife had only been married a short time, Rivas testified that he and his wife
had a stormy and argumentative relationship. According to Rivas, they had argued, and he told his
wife that she could leave but could not take their infant daughter.
Rivas was subsequently found guilty of four counts of aggravated sexual assault and one
count of indecency with a child. He was sentenced to twenty-five years imprisonment for the
aggravated sexual assault counts and to twelve years imprisonment for the indecency with a child
count, all to run concurrently.
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MEDICAL REPORT
In its opinion, the court of criminal appeals noted that “[b]ecause of the multifarious origins
of ‘bolstering,’ courts have found concern with it as an objection on its face.” Rivas II, 275 S.W.3d
at 887. The court then noted the following:
Many appellate courts have cited the Cohn concurrence as authority to abandon
“bolstering” as a valid objection to preserve error for review. A party’s objection
must inform the trial court why or on what basis the otherwise admissible evidence
should be excluded. The Court of Appeals relied on this principle in the instant case
when it held that “a general objection to ‘bolstering’ is not sufficient to preserve
error, because it does not sufficiently inform the trial court of the nature of the
objection.”
But the appellant’s objections were not just general objection to “bolstering.” We set
out his objections at some length above. Several grounds other than “bolstering” were
specified.
One was that the medical exception to the hearsay rule did not apply in the absence
of physical evidence of abuse. This was specified in the appellant’s first and third
objections.
Another was that the evidence was inadmissible because the child had not been
impeached. This was specified in the second, fourth, seventh, and ninth objections.
Yet another was connected to an appellate opinion (or opinions) on which the
appellant relied, which (he said) stood for the proposition that the child’s statements
would be used as a basis for the nurse’s “back door” diagnosis or opinion that sexual
abuse had occurred. This ground was made when he presented the opinions to the
court and when he made his fifth, sixth, and tenth objections.
Id.
In his first issue, Rivas argues that “[t]he trial court erred when it overruled [his] objection
and admitted into evidence the report of the sexual assault nurse examiner because the evidence
constituted improper bolstering of the complainant’s testimony.” He then discusses the procedural
history of the nurse examiner’s report being admitted in evidence, noting that abuse of discretion is
the appropriate standard of review on appeal. Rivas then quotes Cohn v. State, 849 S.W.2d 817, 819
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(Tex. Crim. App. 1993), for the proposition that bolstering occurs “when one item of evidence is
improperly used by a party to add credence or weight to some earlier unimpeached piece of evidence
offered by the same party.” Rivas’s entire legal analysis of the issue consists of the following:
When a sexual abuse examination is at issue, and there is no physical evidence of
abuse, the testimony of the sexual assault examiner “can only be seen as an attempt
to directly bolster the credibility of the complainant and a direct comment on the
complainant’s truthfulness.” Salinas v. State, 166 S.W.3d 368, 371 (Tex. App.—Fort
Worth 2005, pet. ref’d).
The line of questions to Annette Santos regarding C.C.’s declarations during the
SANE exam was improper bolstering, and the actual exam report was undoubtedly
bolstering also. No aspect of C.C.’s declarations had been impeached prior to the
State’s questions, and her declarations in the SANE examination were consistent
with her prior testimony – if more detailed and complete. The questions and the
report “underlined” the child’s credibility to the jury, to the extent that this evidence
covered items about which she had already testified. With regard to the item about
which C.C. did not testify – Count II of the indictment – the evidence was still
improper, because it was a comment on the child’s truthfulness. Id. The court abused
its discretion when it overruled the objection.
The State argued at trial that the evidence was admissible as a hearsay declaration
made for the purpose of medical diagnosis and treatment. TEX . R. EVID . 803(4)
provides that statements made for the purpose of medical diagnosis and treatment are
not excluded by the hearsay rule even though the declarant is available to testify.
Appellant’s counsel argued that there was no diagnosis of sexual assault and
therefore the declaration was not made for the purpose of diagnosis or treatment. As
stated before, there was a “Diagnostic Impressions” section of the report, and that
section stated that the “normal” physical exam “[c]an be consistent with the history
provided.” It is argued here that this is not a diagnosis, but even if it is, it is a direct
comment on the truthfulness of the complainant, and is therefore inadmissible
bolstering.
Thus, Rivas relies on two legal authorities: the Fort Worth Court of Appeals’ opinion in Salinas and
Texas Rule of Evidence 803(4).
We disagree with Rivas’s assertion that Salinas stands for the proposition that when there
is no physical evidence of abuse, a sexual assault examiner may never testify. The Fort Worth Court
of Appeals in Salinas, 166 S.W.3d at 369, dealt with the issue of whether allowing the State’s expert
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to testify about her diagnosis of sexual abuse, which was based solely on the self-reported medical
history of the complainant, constituted a direct opinion on the credibility of the complainant. In
Salinas, the complainant testified that the defendant had penetrated her anus with his finger. Id. at
370. The State’s expert testified that, generally, there will be no physical evidence of the mere
insertion of a finger into the anus of a six-year-old child. Id. Nevertheless, the expert diagnosed
sexual abuse based solely upon the history provided by the complainant, noting that the medical
exam was consistent with that history. Id. That is, the expert “diagnosed sexual abuse by digital
penetration of the anus because the child told her that digital penetration had occurred and because
there was no physical evidence of any sexual abuse.” Id. The Fort Worth Court of Appeals held that
such testimony was “a direct comment on the credibility of the complaining witness.” Id. at 371.
According to the court, “[b]ecause there was no physical indication of digital penetration, [the
expert]’s testimony can only be seen as an attempt to directly bolster the credibility of the
complainant and a direct comment on the complainant’s truthfulness.” Id. “Although [the expert]
could properly testify that the physical exam was normal, the trial court abused its discretion in
admitting [the expert]’s testimony that she had diagnosed sexual abuse based on the child’s medical
history.” Id.
The facts of this case, however, are distinguishable. Santos’s diagnostic impression was a
“normal examination,” which “[c]an be consistent with history provided.” Unlike in Salinas, Santos
made no diagnosis of sexual abuse. “Moreover, testimony that informs the jury that sexual abuse
does not always result in physical trauma is at best neutral testimony – this fact alone does not
militate in favor or against a finding of sexual abuse.” Uribes v. State, No. 04-07-00774-CR, 2009
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WL 330972, at *1 (Tex. App.—San Antonio 2009, no pet.). Santos never testified directly about
C.C.’s credibility or honesty. See id.
Further, we disagree with Rivas’s assertion that C.C.’s declarations had not been impeached
before the admission of the medical report. C.C. testified before Santos and was cross-examined by
Rivas, who attempted to show that C.C.’s memory of the events was not accurate, that she was
jealous of her mother’s relationship with Rivas and her new baby sister, and that her mother and
Rivas fought a lot and were fighting on the day she outcried to her mother.2 The whole point of the
cross-examination was to show that C.C. was not telling the truth. This impeachment by Rivas,
which suggested fabrication, permitted corroboration of C.C.’s testimony by Santos. See id.
Finally, we hold that the medical report was admissible as a statement made for the purpose
of medical diagnosis or treatment. See Uribes, 2009 WL 330972, at *2. Texas Rule of Evidence
2
… Indeed, during closing argument, Rivas highlighted these points:
Let’s talk a little bit about the time line in this case, ladies and gentlemen. When did this case take
place? W hen did the outcry come? July the 25th, 2003, at the baptism of the little sister. W hat does
she tell you? W ell, she told you there was a lot of arguing in the family. W hat did Carlos tell you?
They argued over the baby. He was attentive, but he was inattentive. There was stress. W hat did the
little girl say? I’m sad. I went to my room. She was upset. The very same day she’s going to tell you
right there on that report, you know, that’s State’s Exhibit 23. W hat did she say she did? I went to my
room. I withdrew. The same little girl who was left in W ashington by her mother for six months, not
with her natural father. W onder why? Not with – with her stepfather, who wasn’t her natural father.
She comes to San Antonio, Texas, in December. . . . The little girl is taken to school. She’s picked up
by a school bus. Her mother meets her every day. Carlos, hard working, drives 600 miles a day.
Leaves in the afternoon, comes back in the morning or late afternoon, depending on how long he takes
a nap while he’s on the road. The mother is there. The baby is born in March. Carlos’s attention shifts.
W here does the attention shift? T o his only child, his firstborn. Just like all fathers, proud. . . . In a
home where there is stress, in a home where there is arguing, in a home where they are fighting, who
were they fighting over? A baby. Children aren’t stupid, ladies and gentlemen. They know when they
are fighting over a baby. And what did Carlos say? He told her, you can go, but you are not taking my
baby. So, what goes through the mind of a seven year-old? Obviously, as she told you, sad, unhappy.
. . . The little girl couldn’t remember. And you saw her. The State was equally frustrated, ladies and
gentlemen, because about the last four times, all I remember, front or back, front or back, number one,
number two, because they led, led, led, led, led her. W hen was this, ladies and gentlemen, every time
they asked her a question. W hat was that about? And then all of a sudden, oh, yeah, I remember now.
. . . She can’t remember much, except what the State asks her and tells her. Now, children are children,
and the more you ask a child about something, you know, the more firm they become in their position.
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803(4) provides that “[s]tatements made for purposes of medical diagnosis or treatment and
describing medical history, or past or present symptoms, pain, or sensations, or the inception or
general character of the cause or external source thereof” are admissible as exceptions to the hearsay
rule as long as they are “reasonably pertinent to diagnosis or treatment.” TEX . R. EVID . 803(4). We
have interpreted rule 803(4) to include statements by victims of child abuse as to the source of their
alleged injuries. See Uribes, 2009 WL 330972, at *2; see also Burns v. State, 122 S.W.3d 434, 438-
39 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). Santos testified that she initially takes a history
for diagnosis and treatment. According to Santos, the history aids her in determining whether the
patient needs testing for infection or sexually transmitted diseases. “This testimony falls squarely
within rule 803(4).” Uribes, 2009 WL 330972, at *2.
Finding no abuse of discretion by the trial court, we overrule Rivas’s issue.
CONCLUSION
We affirm the judgment of the trial court.
Karen Angelini, Justice
Do not publish
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