Steve Pasillas v. State ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-515-CR
STEVE PASILLAS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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A jury convicted Appellant Steve Pasillas of sexual assault of a child and
assessed his punishment at forty years‟ confinement. The trial court sentenced
him accordingly. Appellant brings three points, arguing that the trial court
improperly admitted certain evidence and that the evidence is insufficient to
sustain his conviction. Because the evidence is sufficient to support Appellant‟s
1
See Tex. R. App. P. 47.4.
conviction and because he does not clearly specify the evidence of which he
complains, we affirm the trial court‟s judgment.
I. Background Facts
Appellant appeals from his conviction of the sexual assault of his sister,
J.P. At trial, J.P. testified that Appellant had sexually assaulted her on multiple
occasions, beginning when she was in the first grade, stopping when she was in
the third grade, and resuming when she was in the seventh grade.
The State also called Araceli Desmarais, a sexual assault nurse examiner
at Cook Children‟s Medical Center in Fort Worth, to testify about her examination
of J.P. Desmarais testified about the physical findings from her examination of
J.P. as well as about statements J.P. had made during the examination about
sexual encounters between Appellant and her.
II. Evidentiary Rulings
In his first point, Appellant argues that the trial court abused its discretion
by admitting hearsay evidence over his objections. Appellant directs us to three
places in the record where he objected to Desmarais‟s testimony on the grounds
of hearsay. The first was in response to the question, “And at that time of taking
the patient history, what did [J.P.] tell you for the purpose of treatment and
diagnosis?” The second hearsay objection was lodged in response to the
statement, “She stated: „My brother, Steve, did stuff to me.‟ And I asked her
how old she was when it started.” The third hearsay objection to which Appellant
directs us was in response to the question, “What were the things after the yes-
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or-no questions that she told you?” Desmarais then began to recount the child‟s
description of the sexual abuse she had suffered with no objection from
Appellant. Desmarais completed her testimony on direct examination with no
further hearsay objections.
To preserve error, a party must continue to object each time the
objectionable evidence is offered.2 A trial court‟s erroneous admission of
evidence will not require reversal when other such evidence was received
without objection, either before or after the complained-of ruling.3 This rule
applies whether the other evidence was introduced by the defendant or the
State.4 Because Appellant did not object each time the complained-of evidence
was offered, he forfeited this point. We overrule Appellant‟s first point.
In his second point, Appellant complains that the trial court abused its
discretion by admitting extraneous offense evidence during the guilt phase over
his rule 403 and rule 404 objections. While Appellant obtained a ruling on his
objections at the beginning of J.P.‟s account of extraneous incidents and
renewed his objections once, he failed to contemporaneously object to more than
six pages of J.P.‟s recounting of extraneous incidents and failed to make a
2
Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003); Martinez v.
State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003) (citing Ethington v. State, 819
S.W.2d 854, 858 (Tex. Crim. App. 1991)); Fuentes v. State, 991 S.W.2d 267, 273
(Tex. Crim. App.), cert. denied, 528 U.S. 1026 (1999).
3
Lane v State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004); Leday v.
State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998).
4
Leday, 983 S.W.2d at 718.
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running objection. Consequently, he forfeited this point. 5 We overrule
Appellant‟s second point.
III. Sufficiency of the Evidence
In his third point, Appellant argues that the evidence is insufficient to
support his conviction. He does not, however, inform us of the manner in which
the evidence is insufficient. He merely states that the prosecution is required to
prove every element of an offense beyond a reasonable doubt and that the State
failed to do so. Although Appellant argues that the testimony of the child was
ambiguous and lacked credibility, he does not inform us what that testimony was,
in what way it was ambiguous, or why we should overturn the jury‟s
determination of credibility. He also argues that without the improperly admitted
hearsay testimony of Desmarais, the State‟s entire case would fail, but he does
not explain to us why it would fail. We note that we must consider all evidence,
even improperly admitted evidence, in evaluating the sufficiency of the evidence
a criminal case.6 We further note that the jury, not this court, is the sole judge of
the weight and credibility of the evidence.7 We overrule Appellant‟s third point.
5
See Geuder, 115 S.W.3d at 13; Martinez, 98 S.W.3d at 193; Fuentes, 991
S.W.2d at 273.
6
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007); Moff v.
State, 131 S.W.3d 485, 489–90 (Tex. Crim. App. 2004).
7
See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Brown v. State,
270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075
(2009); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
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IV. Conclusion
Having overruled Appellant‟s three points, we affirm the trial court‟s
judgment.
LEE ANN DAUPHINOT
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: December 8, 2011
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