Francisco Brallan Anavisca v. the State of Texas ( 2021 )

State’s Motion for Leave to File Sur-Reply Brief Denied; Affirmed and
Memorandum Opinion filed October 5, 2021.
In The
Fourteenth Court of Appeals
NO. 14-20-00160-CR
FRANCISCO BRALLAN ANAVISCA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 208th District Court
Harris County, Texas
Trial Court Cause No. 1660617
MEMORANDUM OPINION
A jury found Appellant Francisco Brallan Anavisca guilty of aggravated
sexual assault and assessed punishment at 80 years’ confinement. See Tex. Penal
Code Ann. § 22.021. Appellant appealed and, in three issues, asserts the trial court
erred by (1) denying his request for a jury instruction on a lesser-included offense,
(2) overruling his Confrontation Clause objections, and (3) denying his motion for
mistrial. For the reasons below, we affirm.
BACKGROUND
Appellant and Complainant met on MeetMe, an online social networking
application. Complainant told Appellant she liked rap music and, after talking for
a couple of weeks, Appellant and Complainant “made plans to meet up so
[Complainant] could go to the [recording] studio.” On October 15, 2016,
Appellant and a friend drove to Henderson, Texas to pick up Complainant from her
mother’s house. After picking Complainant up at approximately 1:00 a.m.,
Appellant drove Complainant back to his home in Houston. Appellant was 25
years old at the time and Complainant was fifteen.
Complainant remained at Appellant’s home for two days. On the second
day, Appellant texted one of Complainant’s friends to meet them at a nearby Pizza
Hut to pick up Complainant. Appellant drove Complainant to the Pizza Hut; a
police officer who had been tipped off by Complainant’s friend also was waiting at
the location. When Appellant and Complainant arrived, Appellant noticed the
police officer’s car and drove away. The officer initiated a traffic stop on
Appellant’s vehicle; Appellant pulled into a driveway, exited his vehicle, and ran
away.
The police officer proceeded to drive Complainant to the police station. On
the way, Complainant told the officer that Appellant made her have sex with him
while she was at his house. Appellant was arrested shortly thereafter and charged
with aggravated sexual assault of a child 14 to 17 years old.
Appellant proceeded to a jury trial in January 2020. The State presented
testimony from seven witnesses regarding the incident involving Appellant and
Complainant. The State also presented testimony from four other witnesses
2
regarding a separate extraneous offense involving Appellant and Beth.1 After three
days of testimony and evidence, the jury returned a verdict finding Appellant guilty
of aggravated sexual assault of a child.
Appellant elected to have the jury assess punishment. After hearing
testimony and evidence, the jury assessed punishment at 80 years’ confinement.
Appellant appealed.
ANALYSIS
Raising three issues on appeal, Appellant asserts the trial court erred by:
1. denying his request for a jury instruction on the lesser-included
offense of sexual assault;
2. overruling his Confrontation Clause objections to two witnesses’
testimony regarding statements made by Beth, a non-testifying
witness; and
3. denying his motion for mistrial after the testimony of a witness at the
punishment phase addressing the meaning of Appellant’s tattoos.
We address these issues individually below.
I. Lesser-Included Offense of Sexual Assault
In his first issue, Appellant asserts he was entitled to a jury instruction on the
lesser-included offense of sexual assault because “more than a scintilla of evidence
was adduced” that would have permitted the jury to find Appellant was guilty only
of sexual assault.
A. Standard of Review and Governing Law
In a prosecution for an offense with lesser-included offenses, the jury may
find the defendant not guilty of the greater offense but guilty of any lesser-included
1
Because Beth was a minor when the extraneous offense occurred, we refer to her using
a pseudonym. See Tex. R. App. P. 9.10(a).
3
offense. See Tex. Code Crim. Proc. Ann. art. 37.08. A charge on a lesser-included
offense should be given when (1) the lesser-included offense is included within the
proof necessary to establish the offense charged, and (2) there is some evidence in
the record that would permit a jury to rationally find that, if the defendant is guilty,
the defendant is guilty only of the lesser offense. Sweed v. State, 351 S.W.3d 63,
68 (Tex. Crim. App. 2011); Tutson v. State, 530 S.W.3d 322, 329-30 (Tex. App.—
Houston [14th Dist.] 2017, no pet.).
To determine whether the lesser-included offense is included within the
proof necessary to establish the charged offense, we compare the statutory
elements and any descriptive averments in the indictment for the greater offense
with the statutory elements of the lesser offense. Sweed, 351 S.W.3d at 68; Tutson,
530 S.W.3d at 329. This determination presents a question of law that does not
depend on any evidence produced during trial. Rice v. State, 333 S.W.3d 140, 144
(Tex. Crim. App. 2011).
For the second part of the analysis, we evaluate whether some evidence
exists from which a rational jury could acquit the defendant of the greater offense
while convicting the defendant of the lesser-included offense. Sweed, 351 S.W.3d
at 68; Tutson, 530 S.W.3d at 329-30. The evidence must establish the lesser-
included offense as a “valid, rational alternative to the charged offense.” Sweed,
351 S.W.3d at 68.
To make this determination, we review all the evidence introduced during
trial; anything more than a scintilla of evidence entitles the defendant to a lesser-
included offense charge. Tutson, 530 S.W.3d at 330. But although a “scintilla of
evidence” presents a low threshold, it is not enough that the jury may disbelieve
crucial evidence pertaining to the greater offense. Sweed, 351 S.W.3d at 68.
Rather, “‘there must be some evidence directly germane to the lesser-included
4
offense for the finder of fact to consider before an instruction on a lesser-included
offense is warranted.’” Id. (quoting Skinner v. State, 956 S.W.2d 532, 543 (Tex.
Crim. App. 1997)). If some evidence refutes or negates other evidence
establishing the greater offense, or if the evidence presented is subject to different
interpretations, then the standard is met and the instruction is warranted. Id.;
Tutson, 530 S.W.3d at 330.
B. Relevant Evidence
As necessary to this analysis, we summarize the evidence presented at trial
regarding the events that took place between Appellant and Complainant.
Testifying at trial, Complainant said Appellant and one of his friends picked
her up at her mother’s house in Henderson. Complainant said she “brought a
couple of bags” with her because she “didn’t know how long [she] was going to be
there.” According to Complainant, they drove for “a long time” before arriving at
“a white trailer house.”
Complainant said she put her stuff in Appellant’s bedroom after arriving at
the house. Describing Appellant’s bedroom, Complainant said Appellant had “two
guns in the closet and then . . . a gun by the bed.” Complainant also said Appellant
had a “long” knife in the living room that was “kind of like a machete.” At one
point while she was at Appellant’s house, Complainant recalled that Appellant
grabbed the knife and told her “it would be easy for him to be able to cut [her] arm
off with it.”
Complainant testified that, shortly after arriving at Appellant’s house,
Appellant “ended up telling [her] to take [her] clothes off and he made [her] do
oral and anal and regular sex.” Complainant testified that she “didn’t want to”
have sex with Appellant and was “nervous” and “[s]cared.”
5
Afterwards, Complainant said she and Appellant went back to the living
room where Appellant started playing video games with his friend. According to
Complainant, Appellant “played video games for a little bit” before he made her
return to the bedroom with him and have anal sex. Complainant said Appellant
“made [her] take a shower” afterwards. Complainant recalled that she was feeling
“[r]eally upset and wanting to leave” but “was scared to try.” Complainant said
she and Appellant had “oral and vaginal” sex in the shower. Complainant testified
that she and Appellant lay down on Appellant’s bed afterwards and “it ended going
to vaginal sex.”
On her second day at Appellant’s house, Complainant said she “wanted to
go home” and “gave [Appellant] an offer that [she] would text one of [her] friends
and . . . they could meet [Complainant] to pick her up.” Complainant testified that
Appellant messaged her friend to pick Complainant up at a nearby Pizza Hut.
According to Complainant, she, Appellant, and Appellant’s friend drove to the
Pizza Hut, saw a police officer in the parking lot, and returned to Appellant’s
house.
Back at Appellant’s house, Complainant said Appellant’s friend “pulled
[her] into his room” and “made [her] do vaginal [and] oral” sex. Complainant
recalled that she felt “[r]eally upset” and “just wanted to not have to be there
anymore.”
Afterwards, Complainant said Appellant again drove her to the Pizza Hut
and saw a police officer waiting for them. Complainant said the police officer
started following Appellant’s vehicle and Appellant “freaked out, pulled into a
driveway and jumped out and ran.” Complainant waited for the police officer and
rode with him to the police station, where she was met by her aunt. Complainant
said her aunt took her “to the hospital to get the rape kit done.” Complainant said
6
she was “not really in [her] right mind at that point” and “was really upset and []
couldn’t believe that [she] actually was away from there.”
At the hospital, Complainant testified that the nurses “measured all the
bruises and things that [were] on [her] body.” Admitted during Complainant’s
testimony were pictures taken by her mother showing bruises and hickeys on
Complainant’s body. Complainant said the bruises were from Appellant and his
friend, who were “rough” with her “[d]uring the sexual acts.” Further describing
Appellant’s actions, Complainant said “he would hold [her] down and force [her]
to do whatever he wanted [her] to do.” Complainant also recalled that Appellant
would “hold[] [her] throat down” with his hand during sex. Complainant said she
asked Appellant “to stop” “[e]very time before he would start” having sex with
her. Complainant said she was “afraid” because of “all the weapons and how
forceful [Appellant] was.”
Testifying at trial, Deputy Sampson said he initiated the traffic stop on
Appellant’s vehicle before Appellant ran away from the scene. Deputy Sampson
testified that he drove Complainant to the police station in his car and recalled that
Complainant was “nervous”, “appeared upset”, and “was scared.” On the way to
the police station, Deputy Sampson said Complainant “became very upset, started
crying, and stated she needed to tell me something.” Complainant told Deputy
Sampson she had sex with Appellant. When Deputy Sampson asked Complainant
if it “was willingly”, Complainant “stated no.”
Emergency room nurse Rachel Fischer performed a sexual assault exam on
Complainant after Complainant arrived at the hospital. Reading from the sexual
assault examination form she filled out during the exam, Fischer provided
Complainant’s account of what occurred while she was at Appellant’s house.
According to Fischer, Complainant told her Appellant had oral, vaginal, and anal
7
sex with her and choked her during intercourse “many different times”. Fischer
also said Complainant told her she “was scared because [Appellant and his friend]
had so many guns and stuff.”
Describing Complainant’s appearance during the exam, Fischer testified that
Complainant “leaned forward hugging her arms around her waist and she looked
down while giving her history. Her voice was shaking. She squeezed her legs
together during the exam.” Fischer also said Complainant “didn’t want to look at
me as she was telling me what happened.” Fischer testified that there were
“various bruises [and] abrasions on [Complainant’s] thighs, the knees, the breasts,
[and] the abdomen.” Fischer said these injuries were consistent with the biting and
choking Complainant reported. Fischer also testified that Complainant had pain in
and abrasions to her genitals. Fischer said the extent of Complainant’s genital
injuries “is very rare to see.”
Finally, forensic DNA analyst Zury Phillips testified with respect to the
testing and analysis done on DNA samples recovered from Complainant and her
clothing. Phillips testified that, based on her analyses of several items of evidence,
there was “very strong support” for the proposition that Appellant was a
contributor to the DNA mixture on swabs taken from Complainant’s genitals, neck,
breasts, and clothing.
C. Application
Turning to the first step in our analysis, the parties correctly agree that, as
charged, sexual assault is a lesser-included offense of aggravated sexual assault.
As relevant here, a person commits sexual assault if, “regardless of whether the
person knows the age of the child at the time of the offense, the person
intentionally or knowingly: . . . causes the sexual organ of a child to contact . . .
[the] sexual organ of another person, including the actor”. Tex. Penal Code Ann.
8
§ 22.011(a)(2)(C). Aggravated sexual assault requires proof of the same elements
except that, as charged, the aggravating factor required proof that Appellant by acts
or words placed Complainant in fear of serious bodily injury. See id.
§ 22.021(a)(1)(B), (a)(2)(A)(ii); see also Junious v. State, No. 14-09-00400-CR,
2010 WL 3946057, at *3 (Tex. App.—Houston [14th Dist.] Sept. 28, 2010, pet.
ref’d) (mem. op., not designated for publication).
For the second step, we examine whether the record contains any evidence
directly germane to the lesser-included offense, such that the lesser-included
offense was a valid, rational alternative to the charged offense. See Sweed, 351
S.W.3d at 68. We conclude that showing is not made here.
Specifically, the record does not contain any evidence showing Complainant
was not in fear of serious bodily injury during the sexual assaults. Complainant
testified that Appellant made her have sex with him numerous times, including
oral, vaginal, and anal sex. Complainant said Appellant was “rough” during the
sexual acts and would “hold[] [her] throat down” with his hand. Complainant said
she asked Appellant “to stop” “[e]very time before he would start” having sex with
her. According to Complainant, at various times she felt “nervous”, “[s]cared”,
and was “[r]eally upset and wanting to leave” but “was scared to try.”
Complainant also recalled that Appellant’s house had numerous guns and a long,
machete-like knife. Complainant said she was “afraid” because of “all the
weapons and how forceful [Appellant] was.”
The fear Complainant described is corroborated by other evidence.
According to Deputy Sampson, during the drive to the police station Complainant
was “nervous”, “appeared upset”, and “was scared.” Deputy Sampson said
Complainant “became very upset, started crying, and stated she needed to tell me
something.” Deputy Sampson testified that Complainant told him she had sex with
9
Appellant against her will.
Likewise, Fischer recalled that, while Complainant was describing the
sexual assault, Complainant said she “was scared because [Appellant and his
friend] had so many guns and stuff.” Fischer also testified that Complainant
“leaned forward hugging her arms around her waist and she looked down while
giving her history. Her voice was shaking. She squeezed her legs together during
the exam.” Fischer testified that there were bruises and abrasions on
Complainant’s body consistent with the biting, grabbing, and choking she reported
experiencing. Fischer also testified that Complainant had pain in and abrasions to
her genitals and that the extent of Complainant’s genital injuries “is very rare to
see.”
No evidence was introduced at trial to refute or negate this evidence
establishing Complainant’s level of fear during her encounters with Appellant.
Similarly, this evidence does not support any alternative conclusions regarding
whether Complainant was in fear of serious bodily injury. Complainant described
several sexual assaults that took place over two days that left her bruised and in
pain; these assaults occurred in an unfamiliar house that contained guns and a
knife. Complainant’s fragile emotional state after the assaults was testified to by
Deputy Sampson and Fischer. Fischer also testified regarding the types of injuries
Complainant sustained and their extent. This evidence would not permit a rational
jury to acquit Appellant of aggravated sexual assault while convicting him only of
the lesser-included offense of sexual assault. See id.; Tutson, 530 S.W.3d at 329-
30. Accordingly, the trial court did not err by denying Appellant’s request for a
jury instruction on the lesser-included offense of sexual assault.
We overrule Appellant’s first issue.
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II. Confrontation Clause
In his second issue, Appellant asserts the trial court erred by overruling his
Confrontation Clause objections to two witnesses’ testimony regarding statements
made by Beth, a non-testifying witness. Specifically, the witnesses testified
regarding Beth’s statements that Appellant sexually assaulted her in an incident
that occurred in August 2016.2
A. Standard of Review and Governing Law
The Sixth Amendment provides that, in all criminal prosecutions, the
accused shall have the right to be confronted by the witnesses against him. See
U.S. Const. amend. VI; Crawford v. Washington, 541 U.S. 36, 51 (2004). The
Sixth Amendment right of confrontation applies not only to in-court testimony but
also to out-of-court statements that are testimonial in nature. Crawford, 541 U.S.
at 51; Langham v. State, 305 S.W.3d 568, 575 (Tex. Crim. App. 2010). The
Confrontation Clause “provides a simple yet unforgiving rule: the State may not
introduce a testimonial hearsay statement unless (1) the declarant is unavailable to
testify and (2) the defendant had a prior opportunity to cross-examine the
declarant.” Lee v. State, 418 S.W.3d 892, 895 (Tex. App.—Houston [14th Dist.]
2013, pet. ref’d). Whether a particular statement is testimonial is a question of law
we review de novo. Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006).
The Court of Criminal Appeals has delineated three types of testimonial
statements: (1) “ex parte in-court testimony or its functional equivalent”, i.e.,
“pretrial statements that declarants would reasonably expect to be used
2
Evidence regarding this extraneous offense was admitted pursuant to Texas Code of
Criminal Procedure article 38.37. See Tex. Code Crim. Proc. Ann. art. 38.37 § 1(b). Prior to
admitting this evidence, the trial court held a hearing outside of the jury’s presence and
concluded the evidence would be adequate to support a finding that Appellant committed this
separate offense beyond a reasonable doubt. See id. art. 38.37 § 2(a).
11
prosecutorially;” (2) “extrajudicial statements contained in formalized testimonial
materials, such as affidavits, depositions, or prior testimony;” and (3) “statements
that were made under circumstances which would lead an objective witness
reasonably to believe that the statement would be available for use at a later trial.”
Langham, 305 S.W.3d at 576.
The following principles are helpful in determining whether particular
statements are testimonial: (1) testimonial statements are official and formal in
nature, (2) interaction with the police initiated by a witness or the victim is less
likely to result in testimonial statements than if initiated by the police,
(3) spontaneous statements to the police are not testimonial, and (4) responses to
preliminary questions by police at the scene of the crime while police are assessing
and securing the scene are not testimonial. Amador v. State, 376 S.W.3d 339, 342-
43 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d); Dixon v. State, 244 S.W.3d
472, 482 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d).
A Confrontation Clause violation is a constitutional error that requires
reversal unless we conclude beyond a reasonable doubt that the error was harmless.
See Davis v. State, 203 S.W.3d 845, 849 (Tex. Crim. App. 2006); Smith v. State,
436 S.W.3d 353, 372 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d); see also
Tex. R. App. P. 44.2(a). The critical inquiry is not whether the evidence supported
the verdict absent the erroneously-admitted evidence, but rather “the likelihood
that the constitutional error was actually a contributing factor in the jury’s
deliberations.” Scott v. State, 227 S.W.3d 670, 690 (Tex. Crim. App. 2007).
To determine whether the admission of the statement was harmless beyond a
reasonable doubt, we consider (1) the importance of the statement to the State’s
case; (2) whether the statement was cumulative of other evidence; (3) the presence
or absence of evidence corroborating or contradicting the statement on material
12
points; and (4) the overall strength of the State’s case. Davis, 203 S.W.3d at 852;
Smith, 436 S.W.3d at 372. We also may consider the source and nature of the
error, the extent of the State’s emphasis on the evidence, the relative weight the
jury may have assigned to the evidence as compared with the balance of remaining
evidence relevant to the issue, and any other factor contained in the record that
may shed light on the probable impact of the evidence on the minds of average
jurors. Cone v. State, 383 S.W.3d 627, 637 (Tex. App.—Houston [14th Dist.]
2012, pet. ref’d).
B. Relevant Evidence
For our analysis of this issue, we focus on evidence pertaining to the
extraneous offense involving Appellant and Beth.
Nurse Fischer testified regarding the sexual assault examination she
performed on Beth on August 8, 2016, and the forensic examination report she
completed during the examination. According to Fischer, Beth was 15 years old
when she came in for the examination. Discussing Beth’s medical history, Fischer
read her record of Beth’s statements regarding the assault. According to Fischer,
Beth said she met Appellant on an online dating application, met up with him once,
and had consensual sex with him in his car. Fischer said Beth discussed that she
met Appellant for a second time a few days later and told him she did not want to
have sex. Beth stated that Appellant pointed a gun at her and said “he was gonna
get what he wants.” Beth told Fischer that Appellant forced her to have oral sex
with him in the car before driving her to an abandoned house. Once in the house,
Beth recalled that Appellant forced her to have oral, vaginal, and anal sex with
him; Beth said she tried to scream but Appellant told her to “[s]hut up or he will
kill” her and repeatedly “[c]hok[ed] [her] every time [she] made a noise.”
Fischer also testified regarding the injuries on Beth’s body, including bruises
13
on her neck, chest, and arms. Fischer said the bruises were consistent with Beth’s
statements regarding what occurred between her and Appellant. Fischer also noted
that Beth had “a hoarse and raspy voice” as she was talking along with neck pain
and pain while swallowing, which were consistent with her reports that she was
choked. In addition, Fischer testified regarding the injuries to Beth’s genitals.
Next, forensic DNA analyst Jessica Powers testified with respect to the
testing and analysis done on DNA samples recovered from Beth and her clothing.
Phillips testified that, based on her analyses of the genetic material recovered from
Beth’s genitals, the probability that Appellant was a contributor to that genetic
material was significantly higher than if the material had come from another
individual.3
Finally, Officer Eason testified about his interactions with Beth the day of
the assault. According to Officer Eason, he received a call in the early-morning
hours of August 8, 2016, regarding an assault and proceeded to the reported
location. Officer Eason testified that he found Beth sitting outside on the curb;
Officer Eason recalled that Beth was “visibly upset” and “crying, shaking.”
Officer Eason also stated that Beth had “bruising around her neck.”
According to Officer Eason, Beth told him “that she was raped” and that
“the suspect penetrated both her anus and vagina.” Officer Eason said Beth
reported that she was raped at two different locations: first “down the street from
where she was picked up from” and later at the location to which Officer Eason
3
Specifically, for the first tested vaginal swab, Phillips said Appellant could not “be
excluded as a possible contributor to the foreign male DNA profile deduced from this mixture.
The probability that a randomly chosen, unrelated individual would be included as a possible
contributor to the foreign male DNA profile deduced from this mixture is approximately one in
55 quintillion individuals.” For the second tested vaginal swab, Phillips testified that Appellant
also could not “be excluded as a possible contributor to the major component. The probability
that a randomly chosen unrelated individual would be included as a possible contributor to the
major component is approximately one in 26 octillion individuals”.
14
responded. Officer Eason testified that Beth informed him the suspect had a gun
that he threatened her with during the assault. According to Officer Eason, Beth
also told him the suspect had choked her. After gathering this information, Officer
Eason said he drove Beth to the hospital.
C. Application
Appellant’s Confrontation Clause issue challenges the testimony from
Fischer and Officer Eason regarding what Beth told them about the assault. We
consider these individuals’ testimony separately.
1. Fischer
As discussed above, nurse Fischer testified regarding the sexual assault
examination she performed on Beth and read Beth’s account of the sexual assault
directly from her forensic examination form.4 Appellant asserts that these
constitute testimonial statements and, because Beth did not testify at trial, the
statements should have been excluded under the Confrontation Clause.
In Melendez-Diaz v. Massachusetts, the United States Supreme Court held
that medical records, created for treatment purposes, are not “testimonial” in nature
within the meaning of Crawford. 557 U.S. 305, 312 (2009). Following this line of
reasoning, “[v]irtually all Texas courts that have considered the issue have
concluded that when a patient gives a verbal history to a sexual assault nurse
examiner or other medical professional during a sexual assault exam for the
purpose of receiving medical treatment, the history is not considered testimonial
within the context of Crawford.” Ervin v. State, No. 08-15-00025-CR, 2017 WL
4Before Fischer began this line of testimony, defense counsel objected and raised several
grounds for the testimony’s exclusion, including the Confrontation Clause. The trial court
overruled defense counsel’s objection, thereby preserving Appellant’s Confrontation Clause
challenge for appellate review. See Tex. R. App. P. 33.1(a)(1).
15
3614237, at *11 (Tex. App.—El Paso Aug. 23, 2017, pet. ref’d) (not designated for
publication); see id. (collecting cases); see also Dobbs v. State, No. 02-17-00246-
CR, 2018 WL 3060093, at *3 (Tex. App.—Fort Worth June 21, 2018, pet. ref’d)
(mem. op., not designated for publication) (noting that “[v]irtually all” Texas
Courts have concluded that, when a patient gives a verbal history during a sexual
assault exam, the history is not considered testimonial within the context of
Crawford).
The Austin Court of Appeals recently addressed a similar issue in a sexual
assault case, in which a sexual assault nurse examiner testified regarding
statements made by the complainant regarding the assault. See Murray v. State,
597 S.W.3d 964, 973-74 (Tex. App.—Austin 2020, pet. ref’d). There, the
complainant was admitted to the hospital for a suspected drug overdose and, two
days after she was admitted, underwent a sexual assault exam. Id. at 968-69.
During the exam, the complainant told the nurse she had been sexually assaulted
by the defendant. Id. at 969.
On appeal, the defendant argued that the nurse’s testimony regarding the
complainant’s statements violated his Confrontation Clause rights. See id. at 973.
Citing Melendez-Diaz, the court of appeals rejected this argument and noted that,
because the nurse’s testimony “establishe[d] that the primary purpose of [the
complainant’s] statements during the patient history was for medical treatment,
making the statements was non-testimonial.” Id. at 974; see also Bohanna v. State,
No. 14-19-00936-CR, 2021 WL 1917663, at *6 (Tex. App.—Houston [14th Dist.]
May 13, 2021, no pet. h.) (mem. op., not designated for publication) (adopting
Murray’s reasoning in a similar case).
Guided by these authorities, we conclude that Beth’s statements to Fischer
during the sexual assault examination were non-testimonial. Beth arrived at the
16
hospital shortly after the assault occurred and underwent a sexual assault exam
administered by Fischer. Testifying at trial, Fischer stated that she collected from
Beth information about the assault “for medical purposes” and “[t]o properly
diagnose and treat” Beth. Broadly describing her role in this process, Fischer
testified that “a sexual assault nurse examiner is a registered nurse that has been
trained to provide comprehensive care to sexual assault patients, trauma informed,
able to do the health and welfare needs of the patient while taking a trauma-
informed approach for someone who has gone through a trauma such as sexual
assault.” Similar to Murray, this evidence shows that the primary purpose of
Beth’s statements to Fischer was for medical treatment; therefore, the statements
are non-testimonial. See Murray, 597 S.W.3d at 973-74; see also Bohanna, 2021
WL 1917663, at *5-6 (evidence of two extraneous sexual assaults was admitted
during the punishment phase of the appellant’s trial; concluding the nurses’
testimony regarding the extraneous-offense complainants’ statements about the
assaults was non-testimonial, this court noted that “the examinations and
obtainment of a verbatim history from each complainant was for the purpose of
diagnosis and treatment”).
We overrule Appellant’s Confrontation Clause issue with respect to
Fischer’s testimony.
2. Officer Eason
As discussed above, Officer Eason testified about Beth’s statements to him
when he responded to the call reporting the assault. Specifically, Officer Eason
testified that Beth told him she was raped, that the suspect choked her during the
assault, and that the suspect threatened her with a gun. Appellant asserts that these
were testimonial statements and, because Beth did not testify at trial, the trial court
17
erred by not sustaining his Confrontation Clause objection.5
We presume without deciding that the trial court erred by overruling
Appellant’s Confrontation Clause objection to Officer Eason’s testimony regarding
Beth’s statements to him. We nonetheless conclude beyond a reasonable doubt
that the error was harmless. See Tex. R. App. P. 44.2(a).
First, this testimony addressed an extraneous offense rather than the
aggravated sexual assault for which Appellant was on trial. The jury was
instructed as follows with respect to the extraneous offense:
You are further instructed that if there is any evidence before you in
this case regarding the defendant’s [sic] committing an alleged
offense or offenses other than the offense alleged against him in the
indictment in this case, you cannot consider such evidence for any
purpose unless you find and believe beyond a reasonable doubt that
the defendant committed such other offense or offenses, if any, and
even then you may only consider the same in determining intent,
preparation or plan, if any, in connection with the offense, if any,
alleged against him in the indictment and for no other purpose.
See also Tex. Code Crim. Proc. Ann. art. 38.37 § 2(a)(1).
Officer Eason’s statements regarding what Beth told him were cumulative of
other evidence pertaining to the extraneous offense. Specifically, Fischer testified
to the same regarding Beth’s account of what transpired between her and
Appellant. Both Fischer and Officer Eason testified about Beth’s injuries and
Officer Eason noted that, when he first arrived on the scene, Beth was “visibly
upset” and “crying, shaking.” Numerous photographs of Beth’s injuries also were
admitted into evidence. DNA analyst Powers testified that, based on her analyses
5
Before Officer Eason began this line of testimony, defense counsel objected and raised
several grounds for the testimony’s exclusion, including the Confrontation Clause. The trial
court overruled defense counsel’s objection, thereby preserving Appellant’s Confrontation
Clause challenge for appellate review. See Tex. R. App. P. 33.1(a)(1).
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of the genetic material recovered from Beth, the probability that Appellant was a
contributor to that genetic material was significantly higher than if the material had
come from another random individual. This evidence, considered in conjunction
with the challenged statements, supports the conclusion that the challenged
statements were not a contributing factor in the jury’s deliberations.
Moreover, the overall strength of the State’s case with respect to the charged
offense was strong. Complainant testified about her interactions with Appellant
and said he repeatedly sexually assaulted her over a two-day period; Complainant
identified Appellant in court as the person who assaulted her. Complainant also
said Appellant choked her during the assaults and left bruises and abrasions on her
body. Numerous photographs were admitted into evidence showing bruises on
Complainant’s body.
Complainant’s testimony was corroborated by testimony from other
witnesses. First, Deputy Sampson testified regarding his interactions with
Complainant after he found her in Appellant’s vehicle. Deputy Sampson recalled
that Complainant was “nervous”, “appeared upset”, and “was scared.” According
to Deputy Sampson, Complainant told him she had sex with Appellant against her
will.
Second, nurse Fischer testified regarding the sexual assault exam she
performed on Complainant. Fischer said Complainant provided the same account
regarding what occurred between her and Appellant. Fischer also testified
Complainant told her she “was scared because [Appellant and his friend] had so
many guns and stuff.” According to Fischer, Complainant had bruises, abrasions,
and pain on her body consistent with the injuries she had reported.
Finally, DNA analyst Phillips testified regarding her analyses of several
items of evidence and concluded there was “very strong support” for the
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proposition that Appellant was a contributor to the DNA mixture on swabs taken
from Complainant’s genitals, neck, breasts, and clothing. The strength of this
evidence pertaining to the charged offense reinforces our conclusion that Officer
Eason’s testimony regarding Beth’s statements to him was likely not a contributing
factor in the jury’s deliberations.
We overrule Appellant’s Confrontation Clause issue with respect to Officer
Eason’s testimony.
III. Motion for Mistrial
In his final issue, Appellant asserts the trial court erred by denying his
motion for mistrial during the punishment phase. Appellant moved for a mistrial
after one of the State’s experts testified regarding the significance of Appellant’s
tattoos.
A. Standard of Review and Governing Law
We review the denial of a motion for mistrial for an abuse of discretion.
Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). When deciding
whether the trial court abused its discretion, we examine the particular facts of the
case. Green v. State, 554 S.W.3d 785, 790 (Tex. App.—Houston [14th Dist.]
2018, no pet.) (citing Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)).
“A mistrial is an appropriate remedy in ‘extreme circumstances’ for a narrow class
of highly prejudicial and incurable errors.” Ocon, 284 S.W.3d at 884 (quoting
Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004) (en banc)).
In deciding whether to grant a mistrial, the trial court undertakes an appellate
function and “determin[es] whether improper conduct is so harmful that the case
must be redone.” Hawkins, 135 S.W.3d at 77. Our review of the trial court’s
ruling on a motion for mistrial balances three factors: “(1) the severity of the
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misconduct (prejudicial effect), (2) curative measures, and (3) the certainty of the
punishment assessed absent the misconduct (likelihood of the same punishment
being assessed).” Id.With respect to witness testimony, ordinarily a prompt instruction to
disregard will cure any error associated with an improper question and answer.
Green, 554 S.W.3d at 790 (citing Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim.
App. 2000) (en banc)). Similarly, “inadmissible evidence can be rendered
harmless if other evidence is admitted at trial without objection and it proves the
same fact that the inadmissible evidence sought to prove.” Harris v. State, 164
S.W.3d 775, 783 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) (internal
quotation omitted).
B. Relevant Evidence
Seven witnesses testified at Appellant’s punishment hearing. The first
witness, Anne, testified regarding an incident in which Appellant sexually
assaulted her. Four other witnesses testified with respect to this incident, including
Anne’s father, Anne’s sexual assault nurse examiner, the forensic DNA analyst
who analyzed the evidence in the case, and the investigating detective.
Officer Moore, a canine supervisor with the Harris County Sheriff’s Office,
was the sixth witness to testify. According to Officer Moore, he and his dog
helped apprehend Appellant after Appellant ran from his vehicle the day he was
attempting to drop Complainant off at Pizza Hut. Officer Moore testified that
Appellant was found hiding under a trailer home and arrested at the scene. During
Officer Moore’s testimony, numerous photographs of Appellant taken shortly after
his arrest were admitted into evidence. The photographs show several tattoos on
Appellant’s body including: (1) “MS X3” on his lower back; (2) “Thug” on his
upper left arm; (3) “No Bitch Feel My Pain” on his lower right arm; (4) “M S” on
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his chest; (5) a hand folded into a sign resembling horns with “13” on the middle
knuckles on the left side of his chest; and (6) “Original Killa From Honduras” on
his lower abdomen.
Detective Rivas was the last witness to testify. Detective Rivas said that he
has worked in the Houston Police Department’s gang division for eight years and
“specifically investigate[s] MS-13 members”. Detective Rivas said “MS-13 stands
for ‘Mara Salvatrucha trece,’ which translates to the Salvadorian gang. The 13
represents their allegiance to the Mexican Mafia.”
Detective Rivas said MS-13 “follow[s] a motto [that] includes kill, rape, and
control”. Discussing the requirements for MS-13 members, Detective Rivas
testified that “MS-13 recognizes members of homeboy, hold a rank of homeboy,
and above. They don’t take into consideration the guys that are trying to achieve
that rank. And to become a homeboy, you have to have many murders under your
belt.” Detective Rivas testified that MS-13 members may be identified by “tattoos,
their slang, [and] certain words that they use within the members.” Discussing the
MS-13’s “recruitment process,” Detective Rivas testified that “[a] lot of it is they
try to see if they are true to their barrio, which refers to their neighborhood and if
they are willing to conduct these killings as well and identifying rival gang
members.” When asked what makes MS-13 “so dangerous compared to other
gangs”, Detective Rivas said it is the gang’s “willingness to conduct these
gruesome murders”.
Based on Appellant’s tattoos, Detective Rivas opined that Appellant is a
member of MS-13. Viewing specific photographs of Appellant’s tattoos, Detective
Rivas testified that the “M S” on Appellant’s chest and the hand gesture on the left
side of Appellant’s chest reference MS-13. When asked what these tattoos
“mean”, Detective Rivas said: “For me it means these tattoos that he ha[s] on
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there, he has to hold the rank of homeboy and above to have them and which, as I
stated earlier, requirements are that he has a couple of murders under his belt . . . .”
Defense counsel objected to this response. Sustaining the objection, the trial court
instructed the jury to “disregard the testimony with regard to murders.” The trial
court denied defense counsel’s motion for a mistrial.
On cross-examination, defense counsel asked Rivas if he was “saying that
everybody that is a MS-13 member is a killer?” Rivas replied: “Who has the tats,
yes; and they are trying to achieve the rank of homeboy, yes.”
C. Application
We conclude the trial court’s denial of Appellant’s motion for mistrial does
not constitute an abuse of discretion. See Ocon, 284 S.W.3d at 884.
First, after the trial court sustained Appellant’s objection to Rivas’s
testimony opining that Appellant “has a couple of murders under his belt”, the trial
court promptly instructed the jury to disregard the testimony with regard to the
referenced murders. A prompt instruction to disregard generally is sufficient to
cure any error associated with witness testimony. See Green, 554 S.W.3d at 790;
see also Herrero v. State, 124 S.W.3d 827, 836 (Tex. App.—Houston [14th Dist.]
2003, no pet.) (“A prompt instruction to disregard will ordinarily cure error
associated with an improper question and answer regarding extraneous offenses.”).
Second, the substance of the objected-to response was admitted through
other evidence to which Appellant did not object. See Harris, 164 S.W.3d at 783.
Detective Rivas testified that MS-13 “follow[s] a moto” that includes killing and,
in contrast to other gangs, evidences a “willingness to conduct these gruesome
murders.” According to Detective Rivas, MS-13 only recognizes “a rank of
homeboy[] and above” and, to become a “homeboy”, “you have to have many
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murders under your belt.” Detective Rivas said that members of MS-13 may be
identified by their tattoos and, based on Appellant’s tattoos, he opined that
Appellant is a member of MS-13, i.e., a “homeboy”. This unobjected-to line of
testimony permits the inference that Appellant, as a member of MS-13, has
committed murders.
Similarly, on cross-examination, defense counsel asked Rivas if he was
“saying that everybody that is a MS-13 member is a killer?” In response, Rivas
said “[w]ho has the tats, yes”.
Based on this record, we conclude the trial court’s denial of Appellant’s
motion for mistrial does not constitute an abuse of discretion.
CONCLUSION
We affirm the trial court’s judgment.
/s/ Meagan Hassan
Justice
Panel consists of Chief Justice Christopher and Justices Hassan and Poissant.
Do Not Publish — Tex. R. App. P. 47.2(b).
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