Wilson Vanhoy v. State ( 2011 )

NUMBER 13-09-00405-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
WILSON VANHOY, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 284th District Court
of Montgomery County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Garza
Memorandum Opinion by Justice Garza
A jury found appellant, Wilson Vanhoy, guilty of aggravated sexual assault of a
child, see TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i), (a)(2)(B) (West Supp. 2010), a
first-degree felony offense. See id. § 22.021(e). The jury assessed punishment at
thirty-nine years‘ imprisonment and payment of a $5,000 fine. By two issues, appellant
contends that the trial court erred by (1) including a definition of ―penetration‖ in the jury
charge that lessened the State‘s burden; and (2) admitting certain hearsay statements
made by the complainant. We affirm.
I. BACKGROUND1
On April 18, 2008, the thirteen-year-old complainant, J.H., went to spend the
night at the home of her friend, G.N. G.N. and her mother lived in the downstairs floor
of a duplex apartment. The upstairs residents were appellant‘s father, Clayton Vanhoy,
Clayton‘s fiancée, Trista Purcell, and Purcell‘s four-year-old daughter. Appellant, then
approximately twenty-eight years old, lived in a separate house located near the duplex
with his wife, Becky Linney,2 and their three children.
On the evening of April 18, the adults from the three families were gathered
outside, drinking and socializing at a ―goodbye‖ party; the property owner had recently
sold the property, and all of the families were required to move. J.H. testified that after
her friend had gone to sleep, she was watching television with one of the younger
children. Appellant came into the apartment with a young boy who wanted to play with
the other children. J.H. testified that while the children were playing, appellant ―french-
kissed‖ her and put his hand inside her shorts and touched her ―vaginal area.‖ J.H.
stated that she returned the kiss. Appellant then returned to the party, leaving J.H. with
the two young children.
Around 10:00 or 11:00 p.m., appellant returned to the apartment. The two young
children asked to return to appellant‘s home and left. According to J.H., she closed the
front door after appellant told her to do so. Appellant sat next to J.H. on the sofa and
1
This case is before the Court on transfer from the Ninth Court of Appeals in Beaumont pursuant
to an order issued by the Supreme Court of Texas. See TEX. GOV‘T CODE ANN. § 73.001 (West 2005).
2
Becky Linney testified that she and appellant are not legally married, but they have three
children together and she refers to him as her ―husband.‖
2
began kissing her. J.H. testified that appellant made her sit on his lap, facing and
straddling him as he kissed her. Appellant moved J.H. to the end of the sofa, with her
back against the arm of the sofa. Appellant knelt to the floor and touched J.H. ―inside
the vaginal lip area‖ with his fingers and with his mouth. Although J.H. told appellant to
stop more than once, he did not do so. J.H. also testified that appellant unzipped his
pants and told her to ―take it out,‖ but she refused. At this point, Becky and Trista came
in the front door. Appellant stood up. J.H. stated that Becky appeared to be ―mad‖ and
that she threw her drink on appellant. J.H. went into G.N.‘s bedroom, followed by Becky
and Trista. They questioned J.H., and she told them what had occurred. J.H. was later
informed that the police had been called. J.H. provided a written statement. Later that
evening, J.H. was taken home by the police. Four days later, a sexual assault nurse
examiner completed an examination of J.H.
Trista testified that at some point during the evening, Becky was looking for
appellant. Trista and Becky walked over to G.N.‘s apartment, opened the door, and
walked in. Trista entered the room first. She saw J.H. on the sofa with her legs ―spread
apart‖ and ―a little in the air‖; appellant was kneeling in front of her. When Trista and
Becky questioned J.H. in G.N.‘s bedroom about what happened, J.H. said that appellant
―stuck his finger in her vagina.‖
Becky testified that when she walked in behind Trista, she saw J.H. on the sofa
and appellant ―crouched down‖ in front of her. Appellant‘s hands were on each side of
J.H. and he was ―pushing himself up.‖ The prosecutor asked Becky if she heard J.H.
say that appellant had ―fingered‖ her. Defense counsel objected on the basis of
hearsay. The trial court overruled the objection, and Becky answered, ―yes.‖
3
Karen Trevino, a sexual assault nurse examiner at the Children‘s Safe Harbor in
Montgomery County, testified from her examination report of J.H.3 In the report, J.H.
stated that appellant touched her on her ―boobs, va-jj, [and her] butt‖ with his face and
fingers. Trevino testified that she had previously heard the term ―va-jj‖ to refer to
vagina. According to Trevino, J.H. reported that appellant ―put his fingers on her
vagina‖ and his ―mouth on her vagina.‖
Appellant did not testify. In his written statement, however, which was admitted
in evidence, he explained that he was ―kicked in the knee and fell as a joke‖ and that his
wife, Becky, ―thought [he] was between [J.H.‘s] legs.‖
II. CHARGE ERROR
By his first issue, appellant contends that the trial court erred in submitting an
erroneous definition of ―penetration‖ to the jury. Appellant argues that: (1) the
erroneous definition lessened the State‘s burden; and (2) by submitting any definition of
―penetration,‖ the trial court impermissibly commented on the evidence.
A. Standard of Review and Applicable Law
In analyzing a jury charge issue, our initial inquiry is whether error exists in the
charge submitted to the jury. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App.
2005) (en banc). If error is found, the degree of harm necessary for reversal depends
on whether the appellant preserved the error by objection. Id. If the defendant properly
objected to the erroneous jury charge, reversal is required if we find ―some harm‖ to the
defendant's rights. Id. If the defendant failed to object or stated that he has no
3
Defense counsel objected to the admission of State‘s Exhibit No. 9, Trevino‘s report, on the
basis of hearsay. The trial court overruled the objection and admitted the report. The trial court‘s
decision to admit the report, which contained statements made by J.H., is the subject of appellant‘s
second issue, discussed below.
4
objection to the charge, reversal is required only if the record shows ―egregious harm‖ to
the defendant. Id. at 743–44.
Here, appellant stated his objection to the definition of penetration in the charge
as follows: ―The defense objects in paragraph 2 to the definition of penetration included
in the charge.‖ Defense counsel did not state the basis of his objection to the definition.
On appeal, appellant argues that the definition of penetration submitted in the charge
(1) lessened the State‘s burden and (2) constituted a comment on the evidence.
Neither argument was made to the trial court. Because appellant failed to ―distinctly
specify‖ the ground of his objection to the charge, we conclude that the issue should be
resolved as if there was no objection. See Mays v. State, 318 S.W.3d 368, 385 n.53
(Tex. Crim. App. 2010) (noting that article 36.14 of code of criminal procedure requires
a defendant who objects to jury charge to ―distinctly specify‖ the ground or basis of his
objection); Hall v. State, 283 S.W.3d 137, 160 (Tex. App.—Austin 2009, pet. ref‘d) (―To
preserve a complaint of charge error, Hall was required to ‗distinctly specify each
ground of objection‘ in a manner ‗specific and clear enough to apprise the trial court of
the nature of the objection.‘‖) (quoting Pennington v. State, 697 S.W.2d 387, 390 (Tex.
Crim. App. 1985)); Reyes v. State, 910 S.W.2d 585, 592–93 (Tex. App.—Amarillo 1995,
pet. ref‘d) (holding nothing presented for review where objection to charge is not specific
enough); see TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007) (―Before said charge
is read to the jury, the defendant or his counsel shall have a reasonable time to examine
the same and he shall present his objections thereto in writing, distinctly specifying each
ground of objection.‖) (emphasis added). Accordingly, because appellant failed to
distinctly specify his grounds of objection to the charge, we may only reverse if the
5
record shows egregious harm. See Ngo, 175 S.W.3d at 743–44.
To determine whether a defendant suffered egregious harm, we assess the
degree of harm in light of (1) the entire jury charge, (2) the state of the evidence,
including contested issues, (3) the arguments of counsel, and (4) any other relevant
information in the record. Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App.
2008); see Almanza v. State, 686 S.W.2d 157, 172 (Tex. Crim. App. 1985) (op. on
reh'g). Errors that result in egregious harm are those that affect ―the very basis of the
case,‖ ―deprive the defendant of a valuable right,‖ or ―vitally affect a defensive theory.‖
See Warner, 245 S.W.3d at 461–62.
B. Discussion
The charge contained the following definition of ―penetration‖: ―‗Penetration‘
means contact with the female sexual organ which would reasonably be regarded as
more intrusive than contact with the outer vaginal area.‖ Appellant first argues that this
definition of penetration ―was wrong.‖ In Karnes v. State, 873 S.W.2d 92, 96 (Tex.
App.—Dallas 1994, no pet.), the Dallas Court of Appeals, citing Vernon v. State, 841
S.W.2d 407, 409 (Tex. Crim. App. 1992), defined penetration as follows: ―Penetration,
within the meaning of section 22.021 of the penal code, occurs so long as contact with
the female sexual organ could reasonably be regarded by ordinary English speakers as
more intrusive than contact with outer vaginal lips. . . . Touching beneath the fold of the
external genitalia amounts to penetration within the meaning of the aggravated sexual
assault statute.‖ Karnes, 873 S.W.2d at 96 (citations omitted). Appellant argues that
―[t]he jury instructions in the present case altered the language of Vernon and Karnes to
make it more favorable to the State.‖ The instruction in the present case substituted
6
―outer vaginal area‖ for ―outer vaginal lips.‖ Appellant argues that ―outer vaginal lips‖
defines a precise anatomical area, whereas ―outer vaginal area‖ is vague and
undefined. Thus, according to appellant, the instruction permitted the jury to find
penetration based on contact with the outer vaginal lips, instead of requiring contact
―more intrusive than‖ such contact.
Appellant also argues that the instruction in the present case substituted
―regarded‖ for ―regarded by ordinary English speakers,‖ see id., thereby transforming ―a
precise objective test‖ into ―a very subjective test.‖ Finally, appellant argues that
because ―penetration‖ is not defined in the penal code, the trial court erred in submitting
any instruction defining the term. Appellant argues that even if the definition had
correctly stated the law, it nonetheless constituted an improper comment on the
evidence.
Assuming, without deciding, that the jury charge erroneously submitted a
definition of ―penetration‖ that lessened the State‘s burden of proof and improperly
commented on the evidence, we still conclude that appellant was not egregiously
harmed by the error. By testifying that appellant touched her with his fingers ―inside the
vaginal lip area,‖ J.H. testified that the necessary penetration had occurred. See id.
Trista testified that J.H. told her that appellant ―stuck his finger in her vagina.‖ The State
did not emphasize or discuss penetration during its closing argument. See Almanza,
686 S.W.2d at 171 (providing that the arguments of counsel are a factor when
determining harm). In his closing argument, appellant‘s counsel did not discuss
penetration. Instead, he emphasized that when Becky and Trista entered the
apartment, they only saw appellant ―on his knees crouched on the ground in front of
7
[J.H.].‖ He also cast doubt on the ―time frame,‖ arguing that appellant did not have time
to sexually assault J.H. in the ―less than five minutes‖ he was in the apartment with J.H.
before Becky and Trista arrived. Thus, we conclude that appellant has not shown that
he suffered the sort of harm that affected the very basis of his case, deprived him of a
valuable right, or vitally affected a defensive theory. See Warner, 245 S.W.3d at 461–
62. We overrule appellant‘s first issue.
III. HEARSAY EVIDENCE
By his second issue, appellant complains that the trial court erred in admitting
hearsay statements made by J.H., which were included on page five of Trevino‘s sexual
assault examination report of J.H. At trial, the State argued that J.H.‘s statements to
Trevino were admissible as an exception to the hearsay rule under Texas Rule of
Evidence 803(4). See TEX. R. EVID. 803(4) (providing that hearsay statements meeting
the following criteria are not excluded by the hearsay rule: ―Statements 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 insofar as reasonably pertinent to diagnosis or
treatment‖). Appellant contends that J.H.‘s statements to Trevino did not qualify as an
exception to the hearsay rule under rule 803(4) because the examination of J.H. was
not for the purpose of diagnosis or treatment.
A. Standard of Review and Applicable Law
We review a trial court's decision to admit evidence for an abuse of discretion.
Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App. 2006). A trial court abuses its
discretion only if its decision is ―so clearly wrong as to lie outside the zone within which
8
reasonable people might disagree.‖ Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim.
App. 2008). If the trial court's decision is correct on any theory of law applicable to the
case, we will uphold the decision. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim.
App. 2009). Furthermore, improper admission of evidence is harmless if the same or
similar evidence is admitted without objection at another point in the trial. See Estrada
v. State, 313 S.W.3d 274, 302 n.29 (Tex. Crim. App. 2010) (noting that any preserved
error with respect to admission of complained-of evidence was harmless in light of ―very
similar‖ evidence admitted without objection); Prieto v. State, 337 S.W.3d 918, 922
(Tex. App.—Amarillo 2011, no pet) (citing Coble v. State, 330 S.W.3d 253, 282 (Tex.
Crim. App. 2010)).
For statements to be admissible under Rule 803(4), the proponent of the
evidence must show that (1) the declarant was aware that the statements
were made for the purposes of medical diagnosis or treatment and that
proper diagnosis or treatment depended on the veracity of the statement
and (2) the particular statement offered is also ‗pertinent to treatment,‘ that
is, it was reasonable for the health care provider to rely on the particular
information in treating the declarant.
Prieto, 337 S.W.3d at 921 (citing Taylor, 268 S.W.3d at 589, 591; Mbugua v. State, 312
S.W.3d 657, 670–71 (Tex. App.—Houston [1st Dist.] 2009, pet. ref‘d)).
B. Discussion
Page five of Trevino‘s report contains J.H.‘s statements that appellant touched
her on her ―boobs, va-jj‖ and ―butt‖ with his face and fingers. Even assuming that the
trial court erred in admitting J.H.‘s statements to Trevino under the exception in rule
803(4), we conclude that any such error was harmless because: (1) J.H. herself
testified without objection that appellant touched her with his fingers ―inside the vaginal
lip area‖; and (2) ―very similar‖ evidence was admitted without objection by Trista‘s
9
testimony that J.H. told her that appellant ―stuck his finger in her vagina.‖ See Estrada,
313 S.W.3d at 302 n.29. We overrule appellant‘s second issue.
IV. CONCLUSION
We affirm the trial court‘s judgment.
DORI CONTRERAS GARZA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
18th day of August, 2011.
10