Paul T. Zurita v. State ( 2018 )

Opinion issued July 31, 2018
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-17-00274-CR
NO. 01-17-00275-CR
———————————
PAUL ZURITA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 22nd District Court
Hays County, Texas
Trial Court Case Nos. CR-14-0693 and CR-16-0646
MEMORANDUM OPINION
Paul Zurita was indicted on five counts of sexual assault of a child and three
counts of indecency with a child by sexual contact. See TEX. PENAL CODE
§§ 20.011(a)(2), 21.11. The charges were tried before a Hays County jury, which
found Zurita guilty as charged on all counts.1 The jury sentenced Zurita to eight
years’ confinement on each of the sexual-assault counts and ten years’ confinement,
suspended, on each of the indecency counts. The trial court ordered that the
sentences for the sexual-assault counts be served concurrently and those for the
indecency counts be served concurrently, but that the sexual-assault punishment be
served consecutively with the indecency punishment. The trial court also made
affirmative findings, including family violence findings, on all counts.
On appeal, Zurita contends that the trial court erred in (1) orally instructing
the jury during closing argument; (2) allowing the State to comment on his silence
during closing argument; (3) admitting the mother’s outcry-witness testimony;
(4) finding the complainant competent to testify; (5) allowing the sexual-assault
nurse examiner to testify concerning the complainant’s medical history; and
(6) entering judgment on the verdict without a sufficient in-court identification of
him as the perpetrator. We affirm the trial court’s judgments of conviction.
1
Pursuant to the Texas Supreme Court’s docket equalization powers, this
appeal was transferred from the Third Court of Appeals to this Court on April
14, 2017. See TEX. GOV’T CODE § 73.001; Order Regarding Transfer of Cases
From Courts of Appeals, Misc. Docket No. 17-9066 (Tex. Mar. 28, 2017).
We are unaware of any conflict between precedent from the Third Court of
Appeals and that of this court on any relevant issue. See TEX. R. APP. P. 41.3.
2
BACKGROUND
Josie was born in 1997, three years after her parents, Lilly and Ron, were
married.2 Zurita is Ron’s brother and Josie’s uncle.
When Josie started public school, she was diagnosed with mild intellectual
disability and ADHD. She was placed in special education classes through age 13.
After that, she was homeschooled.
Josie was 18 years old at time of trial. She does fifth-grade level homework
and testified that the last book she read was “Diary of a Wimpy Kid,” which is
intended for late elementary and middle-school readers.
Lilly testified that, because of Josie’s cognitive deficits, Josie cannot
distinguish between people’s good and bad intentions and cannot protect herself
from harm. Josie does not live independently and cannot work or provide her own
food, shelter, and medical care.
By the time Josie turned 14, Lilly and Ron had separated. Ron shared a house
with his brothers, Zurita and Sam. Lilly lived nearby with Josie. Lilly’s household
also included Lilly’s brother, Trey, and Josie’s younger brother, Dan. The parents’
houses were within walking distance of each other. Josie and Dan primarily lived
with Lilly, but they would visit Ron during the week and stay overnight with him on
2
All first names are pseudonyms.
3
the weekends. When Josie stayed with Ron, she usually slept on a pallet in his
bedroom.
A. Sexual abuse and outcry
Josie and Zurita had a playful relationship. Josie frequently watched TV in
Zurita’s room, almost always with the door open. Josie spent the night of her 14th
birthday, on Christmas Eve in 2012, at Ron’s home. She did not sleep in her usual
place because the house was full of relatives who had traveled to spend Christmas
with the family. Josie slept on the floor in Sam’s room. Zurita lay on his side next
to Josie. He reached under the blankets to touch her vagina. Josie reported this
incident as the first time Zurita touched her inappropriately.
Soon thereafter, Zurita started to touch and lick Josie’s breasts as well. When
Josie would lie on Zurita’s bed to watch TV, Zurita would lie close behind Josie and
reach under the blanket to place his fingers on or into her vagina. If Zurita heard or
saw someone coming near the room, he would move away from Josie.
Josie recalled one incident when Zurita locked the door to his bedroom after
she entered. He asked Josie if he could lick her vagina. She refused several times
but eventually let him. Josie also recounted another incident that occurred when she
was lying on Zurita’s bed watching TV. Zurita got on the bed, lay behind Josie,
reached into her underpants, and penetrated her vagina with his fingers. Josie told
Zurita he was hurting her and pushed his hand away.
4
Eventually, Zurita touched Josie’s vagina almost every day she was there. He
would also touch her anus. One night, Zurita exposed his penis and touched it near
or on her anus. In the same incident, Zurita also touched his penis to Josie’s vagina
but did not penetrate it.
The last incident occurred when Josie was 15 years old. One night, as Zurita
came out of Ron’s room, he noticed that Josie was dancing by herself in the living
room. Josie immediately stopped and sat on the floor. Josie recounted that Zurita
“just gave [her] that look like he wanted something,” so she followed him to his
room. Zurita locked the door and had Josie suck his penis until he ejaculated. The
ejaculate landed on Josie’s hands and pants. Zurita told Josie not to tell anyone and
that he would wash her pants. Josie changed into shorts and left her stained pants
on the sofa.
The next day, Josie returned to her mother’s house and went to her bedroom.
When Lilly found Josie, she was lying on her bed. Her face was flushed and she
looked like she had been crying. Lilly asked Josie, “[w]hat happened? Are you
upset? What’s wrong?” Josie began crying and told Lilly what Zurita had done to
her. Lilly confirmed that she was the first person over the age of 18 to whom Josie
disclosed Zurita’s abuse.
Lilly asked Josie if she would tell her Uncle Trey about Zurita’s conduct, and
Josie said she was willing. When Trey joined them, he saw that Josie was crying,
5
and she looked scared, sad, and heartbroken as he and Lilly asked her questions.
Josie described the same incidents that she previously had disclosed to Lilly. When
asked why she had not told anyone about the abuse before, Josie explained that she
“was saving [Zurita] from going to jail,” and “saving [his] life.” Also, she believed
that if she revealed the abuse, Zurita “would hate [her] and wouldn’t look at [her] or
talk to [her] ever again.”
After Lilly, Trey, and Josie finished their discussion, Trey called Dan, who
was at his father’s house. Trey asked Dan to look for the pants that Josie had been
wearing when Zurita ejaculated on her. Dan found the pants in a pile of dirty clothes
in the laundry room. Trey picked up Dan and drove home. Once inside the house,
Trey put the pants in a clean plastic bag, sealed it, and stashed it on a high shelf in
his bedroom.
Lilly arranged for Josie to meet with a psychiatrist, and then she called the
Kyle Police Department and reported the sexual assaults. She gave the sealed plastic
bag containing Josie’s pants to Detective J. Swonke. Swonke conducted separate
interviews with Lilly, Dan, Trey, and Zurita about the allegations. He also collected
DNA samples from Josie and Zurita.
Swonke interviewed Zurita in an unlocked room; Zurita could leave at any
time. The jury heard an audio recording of the interview. When Swonke asked
Zurita if his semen would be found on Josie’s clothing, Zurita responded “probably.”
6
Zurita explained to Swonke that he had ejaculated into the toilet the night before and
saw Josie use his bathroom the next day. Zurita speculated that when Josie used the
bathroom, her pants touched the toilet seat or the floor near the toilet where some of
the ejaculate may have fallen. Swonke next asked Zurita how Josie could have
known that Zurita was uncircumcised, Zurita responded, “I don’t know.”
Zurita volunteered to take the blame for Josie’s sexual assault, even though
he denied having committed it. Swonke testified that, before he interviewed Zurita,
he had never had a child abuse suspect tell him “I didn’t do it, but I’ll own up to
everything.” Zurita also told Swonke that if he went to court, no one would “see it
[his] way,” and that he knew he “would go to jail and be labeled a sex offender.”
When Swonke ended the interview, Zurita left the police station.
A Department of Public Safety employee performed serology testing on
Josie’s clothing. She concluded that the stain on Josie’s pants appeared to be a
singular deposit of wet semen, explaining that sitting on dried semen on a toilet seat
or brushing against dried semen on a bathroom floor could not have created such a
stain. A DNA analyst for the Department of Public Safety testified that, to a
reasonable degree of scientific certainty, the profile of the DNA found on Josie’s
pants was consistent with Zurita’s DNA profile. The jury also heard testimony from
J. Mott, a trained, certified, and experienced sexual-assault nurse examiner,
concerning Josie’s medical history which she collected and relied on in conducting
7
the forensic examination. Mott testified that her examination showed trauma to
Josie’s hymen that had healed and was a type of injury consistent with blunt force
trauma.
B. Proceedings in the trial court
The State initially brought three counts of indecency with a child by sexual
contact against Zurita in case number CR-14-0693. The State later filed another case
charging Zurita with two additional counts of sexual assault of a child and three
counts of indecency with a child by sexual contact. That case was assigned number
CR-16-0646. Before trial, Zurita was reindicted on the three counts originally
brought under case number CR-14-0693, and all eight counts against him were tried
under case number CR-16-0646. After Zurita’s conviction on all counts in case
number CR-16-0646, the State moved to dismiss the earlier case, and the trial court
granted the motion.
DISCUSSION
I. Appellate Jurisdiction
Zurita’s notice of appeal challenges both his convictions in CR-16-0646 and
the dismissal of charges in CR-14-0693, assigned appellate case numbers 01-17-
00274-CR and 01-17-00275-CR, respectively. We lack jurisdiction over the Zurita’s
appeal of the dismissal of initial charges.
8
There is no constitutional right to appellate review of criminal convictions.
See Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992). The Texas Legislature
confers the right of appeal in criminal cases, and a party may appeal only from
judgments of conviction or authorized orders. See TEX. CODE CRIM. PROC. art. 44.02
TEX. R. APP. P. 25.2(a)(2); see also Ragston v. State, 424 S.W.3d 49, 52 (Tex. Crim.
App. 2014). Although statute allows the state to appeal an order dismissing an
indictment, it does not give the defendant a corresponding right. See TEX. R. APP.
P. 25.2(a)(2); see also Petty v. State, 800 S.W.2d 582, 583–84 (Tex. App.—Tyler
1990, no writ) (applying federal law holding that dismissal of indictment is not
appealable order).
Because there is no judgment of conviction or appealable order in trial court
case CR-14-0693, we lack jurisdiction over that appeal. See State v. Sanavongxay,
407 S.W.3d 252, 259 (Tex. Crim. App. 2012). We therefore dismiss appeal number
01-17-00274-CR for lack of jurisdiction.
Zurita has the right to appellate review of the judgments of conviction in
appeal number 01-17-00275-CR. See TEX. CODE CRIM. PROC. art. 44.02. We
therefore address his issues challenging those judgments.
II. Closing Argument
Zurita contends that the trial court erred by giving the jury an instruction
during closing argument that was not included in the charge. He further contends
9
that the trial court erred in overruling Zurita’s objection, based on speculation, to the
State’s comment on the meaning of Zurita’s statement during his interview with
Swonke, in response to Swonke’s summary of the accusations against him, when
Zurita stated, according to the State, “I’m not agreeing with you. I’m just listening.”
A. Preservation of error and standard of review
To preserve an issue regarding improper jury argument for appellate review,
a defendant must object to the jury argument and pursue the objection to an adverse
ruling. Estrada v. State, 313 S.W.3d 274, 303 (Tex. Crim. App. 2010); Mathis v.
State, 67 S.W.3d 918, 926–27 (Tex. Crim. App. 2002); Archie v. State, 221 S.W.3d
695, 699 (Tex. Crim. App. 2007); see also TEX. R. APP. P. 33.1(a) (providing that,
to preserve complaint for appellate review, complaint must be made to trial court by
timely request, objection, or motion that states ground for ruling sought with
sufficient specificity to make trial court aware of complaint); Threadgill v. State, 146
S.W.3d 654, 670 (Tex. Crim. App. 2004) (holding that because defendant failed to
object to jury argument, he forfeited right to raise issue on appeal).
We review a trial court’s ruling on an objection to improper argument for
abuse of discretion. See Garcia v. State, 126 S.W.3d 921, 924 (Tex. Crim. App.
2004). “The trial court does not abuse its discretion unless its determination lies
outside the zone of reasonable disagreement.” Martinez v. State, 327 S.W.3d 727,
736 (Tex. Crim. App. 2010).
10
B. Oral instruction
Zurita complains that the trial court committed reversible error by instructing
the jury during closing argument that “[t]here is no statute of limitations on the eight
counts of this indictment.” During the State’s closing, the prosecutor told the jury,
“As long as we allege a date before the indictment and before the statute of
limitations run out.” The trial court interjected,
Can I interrupt you just a second there? Because I noticed there was no
mention of the statute of limitations in the charge. There should have
been. That’s an omission by us. There is no statute of limitations on the
eight counts of this indictment.3
Zurita’s counsel did not timely object to the trial court’s oral instruction. In the
defense closing, Zurita’s counsel reiterated that no statute of limitations applies to
sexual offenses against children. Because he did not object in the trial court and
affirmatively stated the same proposition, we hold that Zurita has waived appellate
review of this issue.
C. Silence during police interview
On appeal, Zurita contends that the trial court erred in overruling his objection
to the portion of the State’s closing, where the prosecutor argued that Zurita must be
guilty because he raised no protest during Detective Swonke’s recitation of the
3
The trial court’s instruction is a correct statement of Texas law. See TEX.
CODE CRIM. PROC. art. 12.01(1).
11
accusations against him. Zurita maintains that this remark was an improper
comment on his silence. The State argued:
Let’s talk about defendant’s statement. And part of this is what he told
Detective Swonke. And [prosecutor co-counsel]’s probably going to
talk to you more about what he said in court today. You can’t see what’s
going on because it’s all audio, but I think you can kind of infer what’s
going on a little bit. Swonke, at the very beginning, is giving the
defendant kind of a rundown of what the accusations are. And you hear
the defendant say this: I’m not agreeing with you. I’m just listening. So
what is the defendant sitting there doing probably?
At trial, Zurita interposed an objection that the State was improperly speculating as
to “what the defendant is doing.” The trial court overruled the objection, and the
State continued:
What do you think he’s doing after he’s sitting there, been explained
that “she’s accusing you of licking her vagina, of sucking your penis”?
Is an innocent person going to sit there and do this: “I’m not agreeing
with you. I’m just listening”? Absolutely not. Sexual assault of a child
is one of the worst accusations ever. Do you know what the innocent
person is going to be doing? “Hell, no, I didn’t do that. There is
absolutely no way. She’s lying.” I didn’t do it but I’ll take the fall.
That’s what he says. I didn’t do it but I’ll take the fall.
Zurita’s objection did not inform the trial court that he intended to object to
the State’s argument as a comment on the defendant’s silence, and even if it had,
that objection does not apply. The objection in the trial court does not comport with
the challenge on appeal. See TEX. R. APP. P. 33.1(a)(1); see also Bennett v. State,
235 S.W.3d 241, 243 (Tex. Crim. App. 2007) (no error preserved where objection
12
at trial does not comport with the complaint on appeal). The State’s remarks
concerned Zurita’s statements and behavior during the noncustodial interview with
Swonke, not any attempt by Zurita to invoke his Fifth Amendment right. See
Herrera v. State, 241 S.W.3d 520, 524–25 (Tex. Crim. App. 2007) (Fifth
Amendment and state statutory protections do not preclude admission of statement
that does not stem from custodial interrogation). Finally, Zurita waived his Fifth
Amendment right to remain silent by voluntarily taking the stand in his own defense.
See Ramirez v. State, 74 S.W.3d 152, 155 (Tex. App.—Amarillo 2002, pet. ref’d)
(citing Nelson v. State, 765 S.W.2d 401, 403 (Tex. Crim. App. 1989)); see also
Felder v. State, 848 S.W.2d 85, 99 (Tex. Crim. App. 1992) (“Once an appellant
decides to testify at trial he opens himself up to questioning by the prosecutor on any
subject matter which is relevant.”). Accordingly, we hold that Zurita has not
properly preserved any Fifth Amendment challenge to his convictions.
III. Evidentiary Complaints
Zurita next complains about the trial court’s admission of testimony from
Lilly as an outcry witness as well as its admission of testimony from Josie, whom
the trial court found competent to testify.
A. Standard of review
We review a trial court’s decision to admit or exclude evidence under an
abuse-of-discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim.
13
Ohio App. 2000). See Buentello v. State, 512 S.W.3d 508, 516–17 (Tex. App.—Houston
[1st Dist.] 2016, pet. ref’d) (applying abuse-of-discretion standard to review ruling
under outcry-witness statute). A trial court abuses its discretion when its decision
lies outside the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d
372, 391 (Tex. Crim. App. 1990).
B. Outcry witness testimony
Zurita challenges the propriety of the trial court’s admission of Lilly’s
testimony as an outcry witness on two grounds. First, he complains that no evidence
shows that Josie is a “person with a disability” within the meaning of the article
38.072 of the Texas Code of Criminal Procedure. Second, he contends that no
evidence shows that Lilly qualifies as an outcry witness. Neither challenge is
availing.
1. Applicable law
The Code of Criminal Procedure makes an exception to the hearsay rule to
allow for admission of outcry hearsay testimony in the prosecution of sexual
offenses against minors and persons with a disability. See TEX. CODE CRIM. PROC.
art. 38.072. Under article 38.072, the State may designate an outcry witness to testify
about the disclosure of abuse by a child or a person with a disability, as long as the
witness is the “first person, 18 years of age or older, other than the defendant, to
whom the child or person with a disability made a statement about the offense.” Id.
14
§ 2(a)(3); see Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990). The Code
defines “a person with a disability” as “a person 13 years of age or older who because
of age or physical or mental disease, disability, or injury is substantially unable to
protect the person’s self from harm or to provide food, shelter, or medical care for
the person’s self.” TEX. CODE CRIM. PROC. art 38.072, § 3. Before a designated
outcry witness may testify about the complainant’s disclosure, the trial court must
find, “in a hearing conducted outside the presence of the jury, that the statement is
reliable based on the time, content, and circumstances of the statement.” TEX. CODE
CRIM. PROC. art 38.072, § 2(b)(2).
2. Analysis
The State designated Lilly as the outcry witness. The trial court conducted an
examination of Lilly’s eligibility to testify as an outcry witness outside the presence
of the jury. The State elicited from Lilly the following testimony about Josie’s status
as a disabled person:
State: Are you aware as to whether or not your daughter was ever
enrolled in a school special need program?
Lilly: Yes.
State: And what was the basis for that enrollment?
Lilly: MMR and ADHD.
...
State: And is there a process to enroll a student in those classes?
Lilly: Yes. They did testing on her.
15
State: Meaning she had to qualify to be enrolled in those classes.
Lilly: Yes, she did.
State: And she, in fact, was qualified?
Lilly: Yes.
Lilly testified that Josie never acquired a GED and does not have a job. She opined
that Josie possibly could work in some capacity, but she lacked the ability to provide
shelter or food for herself, or to obtain medical care when necessary. Josie would
be entitled to receive disability benefits, Lilly explained, but she was told that Josie
would have to wait until this criminal proceeding was resolved before she could
apply for them. Lilly observed that, due to Josie’s mental condition, Josie is unable
to distinguish between people who act with her best interest in mind and those who
don’t; she “trusts everybody.”
Zurita contends that this evidence does not support a finding that Josie was
substantially unable to protect herself from harm or to provide food, shelter, or
medical care for herself. The State elicited testimony from Lilly, however, that
Josie’s cognitive deficits make her unable to care for herself. She cannot live
independently or protect herself from individuals who might harm her. This
testimony tracks the functions identified in the statute as grounds for determining
whether the State is entitled to have an outcry witness testify for “a person with a
disability.” See TEX. CODE CRIM. PROC. art 38.072, § 1. Accordingly, we hold that
the trial court acted within its discretion in allowing Lilly to testify as an outcry-
16
witness. See Buentello, 512 S.W.3d at 518–20; Torres v. State, 424 S.W.3d 245, 259
(Tex. App.—Houston [14th Dist.] 2014, pet. ref’d); see also Morgan v. State, 365
S.W.3d 706, 708–09 (Tex. App.—Texarkana 2012, no pet.) (finding evidence
sufficient to support reasonable inference that victim was disabled person where
school records and developmental history were consistent with diagnosis of
intellectual disability, even though victim had worked at ice cream shop and could
ride his bicycle downtown without assistance; victim suffered brain injuries during
birth, attended special education classes while in school, and at age 29, still lived
with his mother).
Zurita next complains that the trial court erred in allowing Lilly to testify as
an outcry witness because the evidence did not show that Lilly was 18 years of age
or older when Josie made the outcry. See TEX. CODE. CRIM. PROC. art. 38.072,
§ 2(a)(3). The record shows the contrary. During the hearing, the State asked Lilly:
State: . . . [Y]ou’re 18 years or older?
Lilly: Yes.
...
State: . . . [A]re you the first person 18 years or older, to your
knowledge, that Josie talked about the abuse with Paul?
Lilly: Yes.
Accordingly, this complaint is without merit.
17
C. Josie’s competency as a witness
Zurita next contends that Josie should not have been permitted to testify
because no evidence shows that she understood the obligation of an oath, or that she
knew that she could be punished for telling a lie.
Generally, every person is presumed competent to testify. TEX. R. EVID.
601(a). A witness is competent to testify if she (1) can intelligently observe events
at the time of their occurrence, (2) has the capacity to recollect those events, and
(3) has the capacity to narrate those events to the jury. See Hogan v. State, 440
S.W.3d 211, 213–14 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d).
A witness’s competency is a preliminary question for the trial court to
determine. See TEX. R. EVID. 104(a). The trial court is not bound by the rules of
evidence in determining whether a witness is competent. Gilley v. State, 418 S.W.3d
114, 121 (Tex. Crim. App. 2014). We review a trial court’s decision that a witness
is competent to testify under an abuse-of-discretion standard, considering all of the
witness’s testimony. Rodriguez v. State, 772 S.W.2d 167, 170 (Tex. App.—Houston
[14th Dist.] 1989, pet. ref’d); Beavers v. State, 634 S.W.2d 893, 895 (Tex. App.—
Houston [1st Dist.] 1982, pet. ref’d); see Montgomery v. State, 810 S.W.2d 372, 391
(Tex. Crim. App. 1990).
In a hearing outside the jury’s presence, Josie testified that she knew the
difference between the truth and a lie:
18
State: So if I stated that your name was Jeffrey, would that be the
truth or a lie?
Josie: A lie.
State: Why is that?
Josie: Because my name is [Josie].
State: If I stated . . . your birthday was in October, would that be the
truth or a lie?
Josie: A lie.
State: Why—why is that?
Josie: Because my birthday is on December 24th.
State: Okay, and if I stated that your mom—her name is [Lilly], would
that be the truth or a lie?
Josie: The truth.
State: Why is that?
Josie: Because her name is [Lilly].
After Josie indicated that she did not know the time or the day of the week, the Court
inquired:
Court:[…] if I said that desk is brown, is that a fact.
Josie: Yes, it’s brown.
Court:[…] if I were to say that desk was green, would that be a fact?
Josie: No, it’s not green.
The trial court ruled that Josie was competent to testify.
Zurita complains that the trial court erred because the court did not ensure that
Josie understood the obligation of an oath and the penalty of perjury for giving false
testimony. The Court of Criminal Appeals, however, has determined that a
19
demonstration that the witness understands the difference between the truth and a lie
provides a basis for a determination that the witness is competent. See Gilley, 418
S.W.3d at 121. In Gilley, the Court stated that “[a] trial court may inquire as to
whether the witness “possesses the capacity to appreciate the obligations of the oath
[to tell the truth while testifying]—or can at least distinguish the truth from a lie.”
Id. Here, Josie’s answers satisfied the trial court that she understood the difference
between the truth and a lie. The trial court thus acted within its discretion in finding
Josie competent to testify.
D. Admissibility of sexual-assault nurse examiner’s medical-history
testimony
Zurita contends that the trial court erred in overruling his hearsay objection to
the testimony about Josie’s medical history—relating to Zurita’s assaults against
her—from the nurse who conducted Josie’s sexual-assault nurse examination
(SANE). The Rules of Evidence contain an exception to the hearsay rule that permits
testimony about a person’s medical history when collected for diagnosis or
treatment. See TEX. R. EVID. 803(4). Zurita contends that the nurse’s testimony did
not fall within the exception because she was unqualified to diagnose or treat Josie.
The purpose of a SANE is to determine whether the victim has been sexually
abused and needs medical attention. Generally, a patient’s statements to a
sexual-assault nurse examiner, made in the context of a SANE and pertinent to the
purpose of medical diagnosis and treatment, are admissible because the
20
circumstances support a reasonable inference that the victim understands the need to
be truthful. See Franklin v. State, 459 S.W.3d 670, 674, 677–78 (Tex. App.—
Texarkana 2015, pet. ref’d); Prieto v. State, 337 S.W.3d 918, 920–21 (Tex. App.—
Amarillo 2011, pet. ref’d). Texas courts routinely admit testimony from
sexual-assault nurse examiners under Rule 803(4). See Wells v. State, ___ S.W.3d
___, 2017 WL 6759029, at *4 (Tex. App.—Fort Worth 2017, pet. ref’d) (citing
Beheler v. State, 3 S.W.3d 182, 189 (Tex. App.—Fort Worth 1999, pet. ref’d));
Bargas v. State, 252 S.W.3d 876, 896 (Tex. App.—Houston [14th Dist.] 2008, no
pet.).
Nurse Mott explained the protocol and purpose of the SANE in detail. She
explained that she asks the patient for details about the assault so she can know where
to look for trauma and how to treat the patient. She confirmed that she received a
history of the assault from Josie and her mother for the purpose of Josie’s diagnosis
and treatment. The trial court acted within its discretion in admitting the nurse
examiner’s testimony.
IV. Sufficiency of the Evidence Identifying Zurita as the Perpetrator
Zurita challenges the sufficiency of the evidence supporting the jury’s finding
that he committed the offenses against Josie. Specifically, he claims that Josie failed
to identify him in the courtroom as the perpetrator, and that her failure to do so
renders the evidence insufficient to support the verdicts.
21
We apply a legal-sufficiency standard of review in determining whether the
evidence supports each challenged element of a criminal offense. See Jackson v.
Virginia, 443 U.S. 307, 318–19, 99 S. Ct. 2781, 2788–89 (1979); Temple v. State,
390 S.W.3d 341, 360 (Tex. Crim. App. 2013). Under this standard, we view all of
the evidence in the light most favorable to the verdict and determine whether a
rational factfinder could have found the essential elements of the crime beyond a
reasonable doubt. Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011)
(relying on Jackson, 443 U.S. at 318–19, 99 S. Ct. at 2788–89). We defer to the
jury’s resolution of conflicts in the evidence. Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010).
In her testimony, Josie confirmed that Zurita was in the courtroom and
described his shirt: “green stripes, brownish, yellowish.” This testimony is sufficient
evidence of identity. Even though the State did not use the preferred practice of
declaring, “let the record reflect that the witness has identified the defendant,” the
jury could evaluate Josie’s in-court identification of the defendant. See Miller v.
State, 667 S.W.2d 773, 775 (Tex. Crim. App. 1984); Williams v. State, 196 S.W.3d
365, 368 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). In Williams, we held
that the record contained sufficient evidence of identity where the victim identified
the man with the “white T-shirt” on as the man who robbed him, despite the
prosecutor’s failure to ask the court to let the record reflect that the victim had
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identified the defendant. 196 S.W.3d at 367. As in Williams, Zurita was the only
person on trial, and he interposed no objection concerning any potential for
confusion or misidentification caused by the in-court identification procedure. See
id. at 368 (distinguishing Rohlfing v. State, 612 S.W.2d 598, 601 (Tex. Crim. App.
1981), in which defendant preserved improper-identification complaint). In
addition, the State adduced evidence that the DNA in the semen found on Josie’s
pants was consistent with Zurita’s DNA profile, which constitutes some evidence
identifying him as the perpetrator of the offenses. We therefore conclude that legally
sufficient evidence supports the identification of Zurita as the perpetrator of the
crimes against Josie.
CONCLUSION
We dismiss the appeal of trial court case number CR-14-0693 for want of
appellate jurisdiction. We affirm the trial court’s judgments of conviction in trial
court case number CR-16-0646.
Jane Bland
Justice
Panel consists of Justices Keyes, Bland, and Massengale.
Do not publish. TEX. R. APP. P. 47.2(b).
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