Omar Huitron Hernandez v. State ( 2018 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
___________________
NO. 09-16-00388-CR
NO. 09-16-00389-CR
NO. 09-16-00390-CR
___________________
OMAR HUITRON HERNANDEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 359th District Court
Montgomery County, Texas
Trial Cause Nos. 16-09-10158-CR and 16-09-10164-CR (Counts 1 & 2)
__________________________________________________________________
MEMORANDUM OPINION
In twelve issues, Omar Huitron Hernandez argues that his three judgments of
conviction for sexually assaulting Gina,1 his child, should be reversed. Grouped into
1
We identify the victim and all her family members, except her father, with
pseudonyms. See Tex. Const. art. I, § 30(a)(1) (granting victims of crimes “the right
to be treated with fairness and with respect for the victim’s dignity and privacy
throughout the criminal justice process”).
1
topics, Hernandez contends that (1) the judgments of conviction should be reversed
because they are unsupported by evidence sufficient to prove the sexual assaults
occurred, (2) the trial court should not have allowed the jury to consider certain
evidence and testimony during his trial, and (3) the errors in the trial deprived him
of a fair trial and his sentence to life in prison is cruel and unusual. For the reasons
explained below, we affirm.
Background
In June 2014, fifteen-year-old Gina called 911 and told the operator that her
father, Hernandez, had been sexually abusing her for years. Gina, Gina’s mother
“Maria,” and Hernandez, were three of the witnesses who testified in the guilt-
innocence phase of Hernandez’s trial. Together with a specific scientific test result
and the testimony about its significance, the testimony before the jury from
Hernandez, Maria, and Gina is the primary evidence the jury likely used in reaching
its conclusions to find Hernandez guilty of the various sexual assaults.
The parties tried the case in a jury trial in September 2016. During the trial,
Gina testified that Hernandez began abusing her when she “was little.” Gina testified
during the trial that Hernandez penetrated her sexual organ with his penis when she
was eight years old, and that he continued to do so on a regular basis until she
2
reported his conduct to the police. According to Gina, she and Hernandez had sexual
intercourse for the last time in his truck, two days before the day she called 911.
Gina provided detailed descriptions about where the various sexual assaults
that were alleged in the indictments occurred. When asked why she never reported
Hernandez’s sexual misconduct before June 2014, Gina explained that Hernandez
had threatened to kill her and to kill Maria if she ever told anyone about his conduct.
Gina also testified that Hernandez told her that if she told Maria about the fact she
and Hernandez had engaged in sexual acts, he would blame Gina so that “my family
would never want me again.”
Maria testified during the trial about what occurred to precipitate Gina’s
decision to call 911. According to Maria, Gina and Hernandez argued often with
each other about Gina’s internet usage, which Maria explained that Hernandez
believed was interfering with Gina’s grades. Maria explained that just before Gina
called 911, Gina and Hernandez had been arguing because Hernandez had taken
away Gina’s access to the internet. According to Maria, Gina told Hernandez that
“he was a bad father.” Around ten o’clock p.m. that same evening, Maria heard Gina
call 911. When asked why Gina was calling 911, Maria testified that Gina said, “she
was calling them because her dad had been sexually abusing her since she was
around 10-years-old.” Maria also testified that right after Gina told her that
3
Hernandez had been sexually abusing her for years, Maria confronted him about his
alleged sexual misconduct. According to Maria, Hernandez responded to her by
stating: “[Gina] provoked him.” The jury could have reasonably viewed
Hernandez’s statement as a tacit admission that sexual abuse had occurred. After
Hernandez blamed Gina for her role in his alleged misconduct, Maria slapped him
and told him to leave. Maria testified that as Hernandez was leaving, he asked Gina
and Maria “to forgive him.” Maria confirmed that Hernandez fled the house in his
truck before the police arrived in response to Gina’s call to 911.
When Hernandez testified in the trial, he did not dispute that he fled the house
before the police arrived. Hernandez testified that after Gina called 911, he went to
Houston, borrowed a van from his brothers, drove the van to the Mexican border,
left the van in Texas, and entered Mexico on a bus. Hernandez explained that after
he arrived in Mexico, he contacted Gina through an internet messenger service.
Without objection, the trial court admitted into evidence the original Spanish and the
English-translated copies of the messages that Gina received from Hernandez while
he was in Mexico. As translated, one message said: “[My daughter] please forgive
me[.] [My daughter] you have a very big heart and I know you don’t hate me forgive
me[.]” As translated another of the messages states: “[A]nswer me little girl[.] I
know the damage that I did to you but I am sorry. I am alone and I don’t know what
4
to do[.] I lost all my family.” During cross-examination, Hernandez made a
statement relevant to the view the jury likely adopted regarding the significance of
a male-chromosome analysis of the material extracted from a swab linked to the
inside of Gina’s sexual organ. According to Hernandez, he was not claiming that
Gina had engaged in any sexual acts with any of his brothers or his son, the other
male members in his familial line.
Hernandez denied having ever sexually assaulted Gina when he testified at
trial. He sought to explain why he fled his home and went to Mexico, explaining that
he was afraid of the police because he did not have the proper documents to live in
the United States. Hernandez also provided the jury with an innocent explanation for
the messages he sent to Gina while he was in Mexico, indicating that he intended the
messages to convey that he was sorry for telling Gina she was not his daughter.
Hernandez lived in Mexico for around three months before he returned to the
United States. When he returned, he went to Houston where his brothers lived and
got a job. When the police located him, Hernandez saw them raiding the place where
he was working so he tried to flee. Both Hernandez and Louis LaBarge, a United
States Marshall involved in the operation that led to Hernandez’s arrest, described
the unsuccessful efforts Hernandez made to avoid being arrested where he worked.
5
Two Montgomery County Sheriff’s Department Officers, Deputy Zachary
Winford and Detective Fadi Rizk, testified about the investigation that the police
conducted into Hernandez’s case. Deputy Winford went to Gina’s house on the
evening she called 911. According to Deputy Winford, he obtained written
statements that evening from Maria and Gina, he photographed various items in the
home that he thought might be relevant to the case, and he collected the clothing that
Gina suggested she was wearing during the sexual assaults that she alleged had
occurred two days before she called 911. 2 Deputy Winford recalled telling either
Gina or Maria that Gina should get a SANE 3 exam. Although Gina gave Deputy
Winford a written statement and he filled out a police report, neither document was
offered or admitted into evidence during the trial. We also note that Deputy Winford
testified that Gina and Maria told him that the clothing he collected from Gina the
night he went to their home had been washed. Winford described Maria’s and Gina’s
2
Testimony by the forensic scientists who performed DNA tests on various
items of Gina’s clothing revealed that the Crime Lab never tested the clothes that
Deputy Winford collected from Gina for the presence of DNA.
3
During Deputy Winford’s testimony, the prosecutor advised the jury that the
acronym “SANE” stood for a “Sexual Assault Nurse Exam. Rape kit is kind of a
common name - - term used for that.”
6
appearance that evening as “[v]ery upset, crying[,]” but he also stated that he did not
remember much more about the investigation he conducted while at their home.
Detective Rizk is the detective who was placed in charge of the investigation
into Hernandez’s case. During his testimony, he explained that he was present when
Gina gave a forensic interview to a forensic examiner, Mayra Domingue, at
Children’s Safe Harbor. The prosecutor asked the detective about his impression of
Gina in the interview: he stated that he found Gina “to be very believable[.]” Defense
counsel objected to the detective’s response, arguing that Detective Rizk had
improperly commented on Gina’s credibility. The trial court sustained the objection
and instructed the jury to disregard the answer. But when defense counsel requested
a mistrial, the court denied the motion.
Accompanied by Gina, Detective Rizk went to several locations where Gina
claimed the various sexual assaults had occurred. While there, he took photographs,
but he explained in the trial that he found no physical items of evidence containing
biological material that could have been subjected to further testing to corroborate
Gina’s claims. Detective Rizk also collected DNA swabs from Hernandez, which he
sent to the crime lab for testing.
Mayra Domingue, the person who conducted Gina’s forensic interview,
testified extensively in the trial about what Gina told her during the interview. The
7
trial court allowed Mayra to relate what Gina told her to the jury after designating
Mayra “as an outcry witness under [article] 38.072.” See Tex. Code Crim. Proc. Ann.
art. 38.072 (West Supp. 2017). During the trial, Mayra testified that Gina “described
[Hernandez] as a child abuser and a sexual abuser, because he used to make her have
sex with him by force.” Gina told Mayra that Hernandez began abusing her when
she was in first or second grade. Gina also gave Mayra a detailed description of the
various sexual assaults, including that Hernandez had touched and penetrated Gina’s
sexual organ. Mayra testified that Gina told her that her sexual encounters with her
father occurred monthly after she became a teenager. Mayra also stated that Gina
told her the sexual assaults had occurred over the years in a house where the family
formerly lived, at an abandoned property, and inside Hernandez’s truck.
Two nurses trained in performing sexual assault exams, Jamie Ferrell and
Kara Temple, discussed the purpose of the examinations they perform in sexual
assault cases on individuals who claim to have been the victim of a sexual assault.
Ferrell testified that she is a certified sexual assault nurse, and the head of forensic
nursing at Memorial Herman Health Systems. When Ferrell testified, she described
the general techniques and purposes of conducting a sexual assault exam. Ferrell
explained that even if a patient has no signs of having suffered a physical injury, the
8
finding of no injury would not necessarily cause her to conclude that no sexual
assault occurred.4
Kara Temple, the nurse who conducted Gina’s sexual assault examination, is
the other nurse who testified in the trial. According to Temple, when she examined
Gina, she was a certified sexual assault nurse. 5 Temple explained that during the
sexual assault examination she performed on Gina, Gina told her that Hernandez
sexually assaulted her three days before the exam. Temple stated that Gina gave her
a history that the last of the assaults occurred when Hernandez penetrated Gina’s
sexual organ with his penis. Temple also testified that Gina told her that Hernandez
had sexually assaulted her one week before the most recent assault, and that he had
been sexually assaulting her for more than ten years.
Temple described the physical examination that she performed on Gina.
According to Temple, she identified nothing to show that Gina had suffered a
physical injury. Temple explained that she collected biological samples from various
locations on Gina’s body, including a swab from the inside of Gina’s sexual organ.
4
On cross-examination, Ferrell agreed that the lack of physical trauma might
also mean that no sexual assault had occurred.
5
Temple was no longer certified as a sexual assault nurse when the trial
occurred. She explained that she still works as a nurse, and that she allowed her
certification to lapse because she decided to change her nursing goals.
9
Temple stated that she put the swabs she collected during her examination of Gina
into a package, which she sealed, and that she then placed the package in an evidence
locker.
Two witnesses from the Department of Public Safety’s crime lab, Adam
Vinson and Kathleen McKinney, described the testing they performed on the various
items they received from the individuals involved in the investigation of
Hernandez’s case. Vinson explained how he used swabs to collect biological
material from the various items of clothing that were collected by the nurse during
Gina’s sexual assault exam. He explained that he made slides from the material that
he collected with the cotton swabs.
McKinney, a forensic scientist at the Texas Department of Public Safety’s
crime lab in Houston, explained that she prepared two scientific reports about the
tests the crime lab performed on the materials tested there. Over Hernandez’s
objections, the trial court allowed the jury to consider the reports McKinney
prepared about the tests the crime lab performed on the various swabs that the chain-
of-custody testimony linked to Hernandez’s case. McKinney explained that the
crime lab performed a DNA test on a swab linked to the underwear that Gina
removed when she was examined by the sexual assault nurse. According to
McKinney, the swab of the inside of Gina’s underwear contained a DNA mixture
10
that came from more than one individual.6 The profiles extracted from that mixture
revealed a high probability that Hernandez could have contributed to the mixture
found on the swab associated with the inside of Gina’s underwear. Yet McKinney
conceded on cross-examination that if the clothes were washed with the clothes of
other family members, the DNA on a washed item of clothing could originate from
a transfer that might have occurred when the clothes were laundered.
McKinney’s main testimony as it is relevant to the appeal concerns the testing
she performed on swabs linked to Gina’s sexual organ. According to McKinney, she
performed a Y-STR chromosome test on the swab linked to the inside of Gina’s
sexual organ, and she described the test as one that analyzes biological material for
the presence of male, Y chromosomes. According to McKinney, the results of the
specialized, Y-chromosome tests revealed “[a] partial Y-STR profile [obtained from
a vaginal swab associated with Gina’s sexual organ, which] is consistent with the Y-
6
The evidence in the trial established that the pair of underwear Gina provided
to the sexual assault nurse examiner was not the pair that Gina was wearing on the
date she testified that she last engaged in sexual intercourse with Hernandez.
Additionally, the State made no effort to prove that the underwear collected during
the sexual assault exam was specifically tied to any of the sexual assaults at issue in
the trial. In contrast, Deputy Winford collected the underwear that Gina claimed she
was wearing when she last had sexual intercourse with Hernandez. While the
Montgomery County Sheriff’s Office examined these, the screening test they
conducted was negative for semen and although the underwear was forwarded to the
crime lab, the crime lab never tested them for reasons that are not explained by the
record.
11
STR profile of Omar Hernandez.” McKinney’s Y-chromosome report concludes by
stating that “any paternally-related male relatives of Omar Hernandez cannot be
excluded as being the contributor of this male DNA profile.”
Issues
For convenience, we divide Hernandez’s twelve issues into three general
topics, (1) Challenges to the Sufficiency of the Evidence, (2) Evidentiary Issues, and
(3) Cumulative Error and Excessive Sentence. The issues that Hernandez raises
challenge his convictions in (1) trial court Cause Number 16-09-10164-CR (Count
II), which addresses Hernandez’s conviction for continuous sexual abuse of a child;
(2) trial court Cause Number 16-09-10164-CR (Count 1), which addresses
Hernandez’s conviction for the aggravated sexual assault of a child; and (3) trial
court Cause Number 16-09-10158-CR, which addresses Hernandez’s conviction on
the charge of sexually assaulting a child. See Tex. Penal Code Ann. §§ 21.02(b),
22.011(a)(2)(A), 22.021(a)(1)(B) (West Supp. 2017).
I. Challenges to the Sufficiency of the Evidence
A. Standard of Review
In issues nine, ten, and eleven, Hernandez challenges the sufficiency of the
evidence supporting each of his convictions. If Hernandez were to prevail on these
issues, he would be entitled to judgments of acquittal. See
12
S.W.3d 893, 898-902 (Tex. Crim. App. 2010). Because these issues would give
Hernandez the greatest relief if they have merit, we begin our discussion with them.
See Tex. R. App. P. 43.3; Campbell v. State, 125 S.W.3d 1, 4 n.1 (Tex. App.—
Houston [14th Dist.] 2002, no pet.) (stating that a reviewing court should first
address the issues affording the appellant the greatest relief).
We review the sufficiency of the evidence to support a conviction under the
standard set forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979). See Brooks, 323
S.W.3d at 895. Under that standard, we view all the evidence the jury considered in
deciding the case in the light that most favors the verdict. Temple v. State, 390
S.W.3d 341, 360 (Tex. Crim. App. 2013) (citing Jackson, 443 U.S. at 318-19). After
considering the evidence in that light, we determine if a rational factfinder could
have found in the State’s favor on all the elements of the offense that it was required
to prove to establish that the defendant committed the charged crime based on a
standard of beyond reasonable doubt. Id.
“After giving proper deference to the factfinder’s role, we will uphold the
verdict unless a rational factfinder must have had reasonable doubt as to any essential
element” of the crime. Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009).
In assessing whether the evidence is sufficient to support the jury’s verdict, we note
that appellate courts must be deferential to the decisions that juries make since juries
13
are given the responsibility to judge the credibility and the weight that should be
assigned to the evidence that might be admitted during a defendant’s trial. Id.
Generally, the jury may choose to believe some, all, or none of the testimony
admitted into evidence in the trial. Chambers v. State, 805 S.W.2d 459, 461 (Tex.
Crim. App. 1991). And the jury may draw multiple reasonable inferences from a
given set of facts so long as each inference is supported by the evidence before it in
the trial. Temple, 390 S.W.3d at 360. If the record would have allowed the jury from
the inferences that it drew to go either way, we presume the jury resolved any
conflicts that existed in the evidence in favor of the verdict that it reached. Id. Thus,
we defer to the jury’s determination over the inferences that it chose to draw from
the facts proven in the defendant’s trial. Id.
In reviewing a challenge claiming the evidence cannot support the jury’s
verdict, we consider all the evidence admitted during the trial even if the trial court
erred when admitting it. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.
2007). A jury may find either direct or circumstantial evidence to have been
probative of the defendant’s guilt, and “‘circumstantial evidence alone can be
sufficient to establish guilt.’” Temple, 390 S.W.3d at 359 (quoting Hooper v. State,
214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). In a circumstantial evidence case, each
of the facts admitted before the jury need not point directly to the defendant’s guilt
14
so long as the combined and cumulative force of all the incriminating circumstances
warrants the jury’s conclusion that the defendant was guilty of the elements of the
crime with which he was charged. Id.; Hooper, 214 S.W.3d at 13.
In cases involving sexual assaults committed against children, the Texas Court
of Criminal Appeals has determined that a child’s testimony alone is sufficient to
prove that the alleged assault occurred. Garcia v. State, 563 S.W.2d 925, 928 (Tex.
Crim. App. 1978). The Code of Criminal Procedure codifies this concept into the
law since it provides that a conviction for sexually assaulting a child is supportable
by “the uncorroborated testimony of the victim of the sexual offense[.]” Tex. Code
Crim. Proc. Ann. art. 38.07(a) (West Supp. 2017).
B. Analysis, Issue Nine through Eleven
The State charged Hernandez with three crimes alleging that he committed
various sexual assaults, the earliest of which occurred in 2004. In his brief,
Hernandez suggests the evidence admitted during his trial is insufficient to support
his convictions. Mainly, Hernandez argues that the jury should not have accepted
Gina’s testimony because she did not give consistent testimony about the various
details relating to the various assaults, such as how old she remembered being when
the first of the sexual assaults occurred. Also, Hernandez argues that Gina gave
accounts that were not entirely consistent about the details of the assaults to the
15
various individuals she told of the assaults, including the assault Gina claims
occurred several days before she called 911. Finally, Hernandez suggests that
because Gina was angry with him about disciplining her by restricting her internet
use, she retaliated against him by creating a false story to get him into trouble.
Hernandez is also critical of the manner the police handled the investigation
into his case. He noted that Detective Rizk never located any items of physical
evidence that Gina described that might have corroborated Gina’s version about
where the alleged sexual assaults occurred. Hernandez points to the fact that the
sexual assault nurse failed to find any physical injuries on Gina’s body, a lack of
evidence that he argues is important to evaluating the weight of the evidence
regarding that alleged assault. Hernandez suggests an innocent explanation exists for
the fact that his DNA was found inside the underwear Gina gave the sexual assault
nurse, noting that the testimony showed that it had been washed with other family
clothes before it was tested at the crime lab. Hernandez concludes that because Gina
was angry with him, and given the lack of any strong corroborating evidence, a
reasonable jury would have disregarded Gina’s testimony and found him not guilty.
A careful review of the evidence, however, reveals that Hernandez’s
convictions do not rest solely on Gina’s testimony. For example, the Y-STR report
is based on a specimen that the sexual assault nurse obtained from inside Gina’s
16
sexual organ about three days after the last sexual assault. From the testing on that
specimen, the jury could have reasonably concluded that the specimen found inside
Gina’s sexual organ contained a male, Y chromosome, which was consistent with
any male in Hernandez’s direct familial line. Given Hernandez’s own testimony that
he was not claiming that Gina had been having sexual intercourse with any of the
other males in his family line, a reasonable jury could conclude that Hernandez was
the donor of the chromosome profile linked to the swab associated with Gina’s
sexual organ.
As the finder of fact, the jury also could reasonably view the evidence of
Hernandez’s flight from his home after Gina accused him of sexual misconduct as
evidence showing that he knew he was guilty of sexually assaulting her. See Clay v.
State, 240 S.W.3d 895, 905 & n.11 (Tex. Crim. App. 2007) (noting that evidence of
flight suggests a consciousness of guilt). Hernandez fled police not just once but
twice, as he attempted to avoid being arrested when the police came to the location
where he was working to arrest him based on charges the State filed after Gina
reported the alleged sexual assaults. When viewed in the light most favorable to the
jury’s verdict, the evidence that Hernandez fled is circumstantial evidence that
supports the jury’s verdict finding Hernandez guilty of the various sexual assaults.
17
The jury was also entitled to view the messages Hernandez sent Gina as
evidence supporting the findings that it made regarding Hernandez’s guilt. Like
flight, a jury may view an apology as evidence showing a defendant’s guilt. See
Torres v. State, 794 S.W.2d 596, 598 (Tex. App.—Austin 1990, no writ). When
weighing the likely effect of evidence, courts have stated that “consciousness of guilt
is perhaps one of the strongest kinds of evidence of guilt.” Id. (internal quotations
omitted). Thus, even though a defendant has phrased an apology in vague terms, a
jury has the right to view the apology as incriminatory evidence as related to
questions surrounding the defendant’s alleged guilt. See Yost v. State, 222 S.W.3d
865, 877 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d) (concluding that a letter
from accused to victim saying “I am sorry for everything” was a significant
circumstance suggesting guilt).
In a criminal case, juries have a right to decide whether the witnesses who
testified were credible and to decide what weight, if any, should be attached to a
witness’s testimony. See Jackson, 443 U.S. at 319. Ultimately, when the evidence
and inferences available from it are in conflict, appellate courts must presume that
the jury resolved any conflicts that existed in favor of the manner the jury voted to
reach its unanimous verdict. See id., 443 U.S. at 326.
18
In conclusion, while Hernandez points to various conflicts and inconsistencies
that exist in the evidence admitted during his trial, the conflicts that he points out are
not so significant that the jury could not have reasonably decided to credit Gina’s
testimony that the sexual assaults occurred. Id. We conclude that issues nine through
eleven which assert the evidence was insufficient to support the verdict lack merit,
so they are overruled.
II. Evidentiary Issues
A. Standard of Review
In issues one through six, Hernandez complains that the trial court abused its
discretion by admitting various testimony and exhibits during his trial. Before
addressing the specifics of the complaints in detail, we address the standard of
review used to evaluate a trial court’s decisions to either admit or to exclude
evidence in a trial.
To establish that a trial court erred when it admitted or excluded evidence, the
party complaining about the ruling must show in the appeal that the decision the trial
court made constituted an abuse-of-discretion. Carrasco v. State, 154 S.W.3d 127,
129 (Tex. Crim. App. 2005). In contrast, if the trial court’s ruling is correct under
any theory of law that applies in the case, the ruling will not be overturned on appeal.
See Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). To establish that
19
error occurred, a party must establish that the evidentiary ruling at issue “was so
clearly wrong as to lie outside the zone within which reasonable people might
disagree.” Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008) (citing
Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003)).
B. Gina’s 911 call and Maria’s testimony about what Gina told her just
before Gina called 911
In issue one, Hernandez argues that the trial court erred when it admitted
Maria’s testimony about what she heard Gina say just before Gina called 911. During
the trial, Maria told the jury that when she asked Gina why Gina was calling the
police, Gina said that Hernandez had been abusing her since she was ten years old.
The transcript from the trial shows that the trial court admitted Maria’s testimony
about Gina’s statement as excited utterance, which is a recognized type of exception
to the rule that generally prohibits the admission of hearsay in a trial. See Tex. R.
Evid. 803(2) (making statements relating to a startling event or condition, made
while the declarant was under the stress of excitement that it caused, admissible as
exceptions to the general rule that prohibits the admission of hearsay).
The Texas Court of Criminal Appeals applies these three criteria to decide if
a statement was properly admitted at a trial as an excited utterance: “(1) the ‘exciting
event’ should be startling enough to evoke a truly spontaneous reaction from the
declarant; (2) the reaction to the startling event should be quick enough to avoid the
20
possibility of fabrication; and (3) the resulting statement should be sufficiently
‘related to’ the startling event, to ensure the reliability and trustworthiness of that
statement.” McCarty v. State, 257 S.W.3d 238, 241 (Tex. Crim. App. 2008). The
startling event need not be the original event, but “may trigger a spontaneous
statement that relates to a much earlier incident.” Id. at 240 (emphasis in original).
An abuse-of-discretion standard applies to the trial court’s decision to classify a
statement as an excited utterance. See Wall v. State, 184 S.W.3d 730, 743 (Tex.
Crim. App. 2006).
The circumstances that Gina and Maria described in the trial, which led to
Gina’s decision to call 911, allowed the trial court to conclude that Gina was under
significant emotional distress shortly before, during, and immediately after she
called 911. Just before Gina called 911, Maria overheard Hernandez and Gina
arguing after Hernandez told Gina that she was “stupid.” Before Gina made the
statement at issue, she first tried to call 911 with her parents in a nearby room, where
she could have reasonably been concerned that they might overhear her
conversation. Given Gina’s testimony about the threats Hernandez had historically
made over the years the alleged abuse had occurred, together with Gina’s proximity
to her parents on the night she called 911, the trial court could reasonably conclude
that Gina was in an emotionally charged state from a startling event, the argument
21
she had with Hernandez that night, triggered by the sexual assault two days before,
which led to Gina making the statements that Maria heard before, during, and shortly
after Gina called 911. Given the context in which the call occurred, the trial court
could reasonably conclude that Gina was in a charged emotional state when Maria
heard the statements Gina made because she had not had time to reflect on the
comments as they relate to the time frame surrounding the phone call Gina made to
911. See Tex. R. Evid. 803(2).
In his brief, Hernandez views the startling event precipitating the case as one
that related solely to the alleged sexual assault that occurred two days before Gina
called 911. But the circumstances described by the testimony allowed the trial court
to conclude that a combination of startling events, which began with the last sexual
assault, triggered by an emotionally charged argument between a teenager and her
father, was the startling circumstance that gave the statements Maria heard Gina
make the circumstantial guarantee of trustworthiness necessary to satisfy the excited
utterance exception to the hearsay rule. We conclude the trial court did not abuse its
discretion by admitting Maria’s testimony about Gina’s statements immediately
before, during, and after Gina called 911 as excited utterances. We overrule
Hernandez’s first issue.
22
C. Admissibility of Outcry Testimony
In issue two, Hernandez argues that Mayra Domingue was not a proper outcry
witness because Gina was fifteen years old when Gina told her about the various
sexual assaults that occurred prior to 2014. The State does not dispute that Gina was
more than fourteen when Gina first told Mayra about these sexual assaults, but it
argues that the “outcry exception to hearsay applies to statements made by a victim
prior to [the victim’s] eighteenth birthday.” See Tex. Code Crim. Proc. Ann. art.
38.072 § 2(b) (allowing statements that qualify under article 38.072 as exceptions to
the general rule prohibiting hearsay).
The evidence shows that Gina was fifteen years old in June 2014 when she
told others about Hernandez’s alleged sexual misconduct. Thus, Gina made the out-
of-court statements that were the subject of Hernandez’s objections when she was
not yet eighteen. See Eldred v. State, 431 S.W.3d 177, 183 (Tex. App.—Texarkana
2014, pet. ref’d). We conclude that Hernandez’s argument suggesting that Gina’s
statements were not properly admissible based on the requirements in article 38.072
has no merit, and we overrule his second issue.
In issue three, Hernandez argues that Mayra was not a proper outcry witness
because Gina told Deputy Winford about the sexual assaults before Mayra
interviewed Gina about the assaults. We review a trial court’s decision to designate
23
a witness as an outcry witness using an abuse-of-discretion standard. Garcia v. State,
792 S.W.2d 88, 91-92 (Tex. Crim. App. 1990); Rosales v. State, 548 S.W.3d 796,
806 (Tex. App.—Houston [14th Dist.] 2018, pet. ref’d). An appeals court will
uphold the trial court’s designation of the witness if the decision is supported by the
evidence. Id. On appeal, an appellate court will not find that an abuse of discretion
occurred if the trial court’s decision over the designation of the outcry witness was
a decision that falls within the zone of reasonable disagreement. Id.
A proper outcry witness is the first adult to whom the child makes a statement
that “in some discernible manner describes the alleged offense.” Garcia, 792 S.W.2d
at 91. The statement the child makes, however, “must be more than words which
give a general allusion that something in the area of child abuse was going on.” Id.
According to the Court of Criminal Appeals, the statement the child gave to the
outcry witness is one in which the child gave the witness a description or some
details about the alleged offense. See id.
Here, the trial court conducted a hearing outside the presence of the jury to
determine whether Mayra was the person to whom Gina gave a detailed account
about the alleged sexual assaults. Mayra’s testimony from the hearing shows that
Gina told Mayra very specific details about the alleged assaults during her interview.
When Mayra testified in the hearing, outside the presence of the jury, Deputy
24
Winford had already testified before the jury about his ability to recall what Gina
told him when he responded to the report she made when she called 911. The deputy
testified that he could no longer recall the specifics about the conversation that he
had with Gina on the night she called 911. He provided little detail, explaining that
Gina did tell him that the sexual assaults started about ten years earlier, but he
provided no further details about any of those alleged assaults. Deputy Winford
testified he recalled Gina giving him some details “about things that [Hernandez]
allegedly had done to her[,]” 7 but he also testified that he did not ask Gina “for very
many details because she was a juvenile.” Deputy Winford did not relate any of the
details about “the things” he referred to, and he also testified at one point that he
could not recall what Gina told him.
On this record, the evidence shows that Gina told Deputy Winford that
Hernandez had done something to her while she was growing up and that it involved
sexual abuse. That said, the evidence does not show that Gina described the offenses
to Deputy Winford in any significant detail. For example, nothing in the record
shows that Gina told Deputy Winford the details about when, where, or how the
7
No one asked Deputy Winford to define what he was referring to when he
mentioned the “things” Hernandez did to Gina. Thus, it is unclear whether all the
“things” that Deputy Winford was referring to when he testified amounted to
criminal acts.
25
sexual assaults occurred before Gina turned fourteen. We conclude the trial court did
not abuse its discretion by rejecting Hernandez’s argument that Deputy Winford, not
Mayra, should have been designated by the trial court as the appropriate outcry
witness for the trial.8 We overrule Hernandez’s third issue.
D. Objections to Photographs of Underwear and Lab Reports
In issue four, Hernandez raises three basic complaints about the trial court’s
rulings to admit five exhibits. Three of the exhibits are photographs of a pair of
Gina’s underwear, collected by the sexual assault nurse. The other two exhibits are
lab reports created by the crime lab, which summarize the tests and results on various
swabs tested by the crime lab for the presence of Hernandez’s DNA and for the
presence of any male, Y chromosomes.
First, we address Hernandez’s complaints about the ruling admitting the
photographs of Gina’s underwear. Hernandez argues that because the family had
laundered the underwear that is seen in the photos with other family laundry, the
8
In his brief, Hernandez suggests that the trial court could have concluded
that Maria was an outcry witness. But the transcript of the trial reveals that
Hernandez objected to Maria being the outcry witness because the statements Maria
heard Gina make concerned the sexual assault that allegedly occurred just two days
before Gina called 911. During the hearing, the State conceded that Maria was not a
proper outcry witness, and the trial court admitted Maria’s testimony about the
statements she heard Gina make that night under the excited utterance exception and
not under the outcry exception to the hearsay rule.
26
underwear in the photos was not relevant evidence because nothing in the evidence
tied the underwear to the alleged incidents of sexual assault. In response, the State
argues that the discovery of Hernandez’s DNA on the inside of Gina’s underwear
was highly relevant to Hernandez’s guilt even if his DNA was found there because
the underwear had been laundered with other family laundry. According to the State,
the presence of Hernandez’s DNA on the underwear collected by the sexual assault
nurse is “highly probative to the fact issue of whether [Hernandez] sexually assaulted
[Gina].”
We need not decide if the photographs were inadmissible to resolve issue four.
Generally, appellate court review alleged errors in admitting evidence as non-
constitutional error. Russell v. State, 155 S.W.3d 176, 179 (Tex. Crim. App. 2005).
Therefore, the appellate court must disregard the error (and affirm the verdict) unless
the error “‘has a substantial and injurious effect or influence in determining the jury’s
verdict.’” Id. (quoting Simpson v. State, 119 S.W.3d 262, 266 (Tex. Crim. App.
2003)). The error we have assumed occurred in Hernandez’s trial concerns the
photographs of Gina’s underwear, so the error, if it occurred, is treated as non-
constitutional error. Casey v. State, 215 S.W.3d 870, 885 (Tex. Crim. App. 2007)
(analyzing whether defendant was harmed by erroneous admission of photographs
as non-constitutional error). Non-constitutional errors will not result in a verdict
27
being reversed if the record shows that the error did not influence the jury or had
only a slight affect. Schutz v. State, 63 S.W.3d 442, 444 (Tex. Crim. App. 2001)
(citing Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000)). “In
considering the potential to harm, the focus is not on whether the outcome of the
trial was proper despite the error, but whether the error had a substantial or injurious
effect or influence on the jury’s verdict.” Barshaw v. State, 342 S.W.3d 91, 93-94
(Tex. Crim. App. 2011).
Based on the strong evidence admitted in Hernandez’s case of his guilt, which
was independent from the photographs of the underwear, the trial court’s decision
to admit the three photographs amounts to at most harmless error. The evidence
supporting the jury’s findings includes Gina’s direct testimony about the sexual
assaults. Circumstantial evidence also supports the jury’s verdict, including a
biological test showing that the crime lab found male genetic material from
Hernandez’s familial line inside Gina’s sexual organ, evidence that Hernandez fled
to Mexico after Gina reported him to the police, and evidence showing that while in
Mexico, Hernandez contacted Gina requesting forgiveness for his conduct. Thus,
both direct and circumstantial evidence before the jury during Hernandez’s trial
allowed the jury to conclude that Hernandez was guilty, beyond reasonable doubt.
Given the State’s failure to directly tie the underwear collected by the sexual assault
28
nurse to any specific assault and the concession of the State’s expert that
Hernandez’s DNA on the underwear could be explained by the fact that the family
laundered clothes in the same washer, we harbor strong doubt that the jury would
have placed any weight on the photographs that are the subject of Hernandez’s
arguments in issue four. Thus, we conclude that any error that occurred in admitting
the three photographs was harmless. See Tex. R. App. P. 44.2(b).
Second, we address Hernandez’s complaint that the trial court erred by
admitting the two crime lab reports, which revealed the results the crime lab obtained
from testing the biological material collected during the State’s investigation of
Hernandez’s case. According to Hernandez, neither the DNA report, nor the Y-STR
report, corroborates Gina’s claim that any sexual assaults occurred. He also suggests
that the State had little need for the reports or testimony about them in proving its
case. When addressing the admissibility of the reports, we also address Hernandez’s
argument claiming that the trial court erred in allowing the forensic scientist who
prepared the reports, Kathleen McKinney, to explain the results and significance of
information in the reports to Hernandez’s case.
For convenience, we will first address Hernandez’s complaints about the
admissibility of the Y-STR report and about McKinney’s testimony of that report’s
29
significance in his trial. During the trial, McKinney testified that she signed the Y-
STR report, and she explained what a Y-STR report shows. She testified:
[Y-STR] actually just look[s] at the Y chromosome. That’s all it
is looking [for]. It doesn’t look at any other part of the DNA. And so,
it’s only looking at male DNA. But the only thing with Y-STR is that
it is passed down in the male lines. So, the grandfather, father, son,
they’re all going to have the same Y-STR profile. And this -- if you
want to think back to the DNA steps, extraction, quant and detection,
for this step, I actually just -- I went back to the extract that were already
made for the DNA and I knew the quant. I already knew how much
DNA was there, and so I just took it from the amplification on. I
amplified it from a new kit. It’s a Yfiler kit that only looks at the male
DNA. It’s just focusing on the Y chromosome part of the DNA. And I
got the same type of pictorial representation, but it’s Y-STR profile
instead of a DNA profile.
Then, the prosecutor asked McKinney about the relevance of Y-STR testing in cases
involving claims of sexual assault. She explained:
In a case like this, when you have a sexual assault, it is reasonable
to see a lot of the victim’s DNA, because it is from her body or her
clothing. And DNA if you have a lot of one contributor, can sometimes
mask somebody else that is there. And so, in sexual assaults when
there’s a female/male type of situation, we will tend to do Y-STRs if
we need to go that far to see if we can -- if we can actually detect male
DNA that may not be detected in a regular DNA, because it’s going to
totally discount female DNA.
According to Hernandez, the Y-STR lab report and McKinney’s testimony about the
Y-STR testing lacked relevance to proving that he sexually assaulted Gina.
In our opinion, the trial court could properly find that the Y-STR report and
McKinney’s testimony about it were relevant to proving if Hernandez committed
30
the last sexual assault that occurred in mid-June 2014, just two days before Gina
called 911. The testimony shows that the Y-STR report was based on a swab linked
to biological material removed from the inside of Gina’s sexual organ just three days
after the June 2014 assault was alleged to have occurred. The test is based on a
polymerase chain reaction analysis. The analysis on the fluids extracted by the lab
from the swab associated with the inside of Gina’s sexual organ revealed a Y-STR
chromosome profile that, according to McKinney, tracked Hernandez’s Y-STR
profile. McKinney explained that a test tracking a known Y-STR profile made it
highly probable that a male descendant in that person’s family line contributed to
the profile revealed by the test. Thus, because the Y-STR profile tracked
Hernandez’s profile, and because Hernandez testified that he was not claiming that
Gina had sexual relations with any other male members of Hernandez’s family, 9 the
fit in the chromosome patterns was relevant evidence in proving that Hernandez and
Gina engaged in sexual relations several days before the Y-chromosome profile,
tracking his own, was found inside Gina’s sexual organ. We conclude the trial court
did not abuse its discretion by finding the Y-STR report and McKinney’s testimony
9
Hernandez testified during the guilt-innocence phase of his trial that he was
not claiming that any other male family member had sexual intercourse with Gina.
31
about the Y-STR report to be relevant evidence in Hernandez’s trial. See Tex. R.
Evid. 401.10
Relying on Rule 403 of the Texas Rules of Evidence, Hernandez also argues
that the Y-STR lab report and McKinney’s testimony about it were unduly
prejudicial. Rule 403 provides: “The court may exclude relevant evidence if its
probative value is substantially outweighed by a danger of . . . unfair prejudice,
confusing the issues, misleading the jury, undue delay, or needlessly presenting
cumulative evidence.” When conducting a Rule 403 analysis, the trial court must
balance:
(1) the inherent probative force of the proffered item of evidence along
with (2) the proponent’s need for that evidence against (3) any tendency
of the evidence to suggest decision on an improper basis, (4) any
tendency of the evidence to confuse or distract the jury from the main
issues, (5) any tendency of the evidence to be given undue weight by a
jury that has not been equipped to evaluate the probative force of the
evidence, and (6) the likelihood that presentation of the evidence will
consume an inordinate amount of time or merely repeat evidence
already admitted.
Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006). While
evidence can be more prejudicial than probative, “there is a presumption that
10
Rule 401 provides that “[e]vidence is relevant if: (a) it has any tendency to
make a fact more or less probable than it would be without the evidence; and (b) the
fact is of consequence in determining the action.” Tex R. Evid. 401. Under Rule 402,
relevant evidence is generally admissible unless another rule or statute provides
otherwise. Tex. R. Evid. 402.
32
relevant evidence is more probative than prejudicial.” Santellan v. State, 939 S.W.2d
155, 169 (Tex. Crim. App. 1997).
In deciding whether the trial court abused its discretion by overruling
Hernandez’s claim that the YSR-report and McKinney’s testimony about it were not
unduly prejudicial, we must determine whether the evidence was unduly prejudicial
“‘in view of all relevant facts.’” Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim.
App. 2006) (quoting Santellan, 939 S.W.2d at 169). The fact that a Y-chromosome
profile that tracked Hernandez’s profile was found in Gina’s sexual organ was highly
relevant to the question of whether Hernandez and Gina had engaged in sexual
relations, claims that Hernandez denied. And the testimony about the Y-STR report
and its significance to Hernandez’s case was not long or time consuming when
viewed in the context of all the testimony in the trial. While this testing is not likely
familiar to ordinary jurors, the Y-STR report and McKinney’s testimony about it
was not so complicated that the testimony would have been confusing to an ordinary
jury. Considering both the relevant factors and all relevant facts in the record, we
conclude that the trial court had the discretion to rule that the probative value of the
Y-STR report and McKinney’s testimony outweighed the prejudicial value, if any,
of that same evidence. See Tex. R. Evid. 403.
33
In issue four, Hernandez also argues the trial court erred when it allowed the
DNA report and McKinney’s explanation of it to be admitted into evidence. Through
McKinney and the DNA report, the prosecutor exposed the jury to the DNA testing
that the crime lab performed on the underwear the sexual assault nurse had collected
from Gina during her sexual assault exam. McKinney concluded that based on the
DNA testing on the underwear, Hernandez could not be excluded as one of the
persons who contributed DNA to the biological mixture found on a swab linked to
Gina’s underwear. Hernandez objected to McKinney’s testimony about the results
of the DNA test on the underwear and the DNA report before the jury heard
McKinney testify about the DNA report and the significance of DNA testing in cases
involving sexual assaults. He claimed the evidence was more prejudicial than
probative on whether he committed the sexual assaults at issue in the trial. See Tex.
R. Evid. 403. On appeal, Hernandez advances the same arguments in claiming the
trial court abused its discretion by admitting evidence related the underwear Gina
removed during her sexual assault exam. According to Hernandez, the report and
testimony did
not tend to corroborate the allegation of [s]exual abuse…the jury would
be irrationally yet indelibly impress[ed] because of the fact the DNA of
[Hernandez’s] lineage was found in one of [Gina’s] panties. At that
point, it would not matter to the jury if it’s because they washed the
clothes in the same washer, [or] if that [the underwear tested] was not
34
the [underwear] that [Gina] was wearing the day she was allegedly
sexually assaulted[.]
In our opinion, the jury likely did not rely on the DNA test report that
addressed the DNA in the underwear given that the Y-STR testing provides a strong
link under the circumstances of this case between Hernandez and Gina’s claim that
he sexually assaulted her. Moreover, there was also direct and circumstantial
evidence supporting the jury’s findings, which consisted of Gina’s testimony about
the assaults and Hernandez’s conduct after Gina reported him to police for sexually
assaulting her. As the factfinder, the jury had the right to credit Gina’s testimony and
to disbelieve Hernandez, as the jury’s verdict is supportable based on Gina’s
testimony alone. See Tex. Code Crim. Proc. Ann. art. 38.07 (West Supp. 2017)
(providing that a child’s testimony alone is enough to support a conviction for
aggravated sexual assault when the child, at the time of the offense, was seventeen
or younger).
Even if we assume the trial court abused its discretion by admitting the DNA
report and McKinney’s testimony about it, the remaining evidence in the record
supporting the jury’s findings causes us to conclude that the error, if any, in
admitting the evidence did not affect Hernandez’s substantial rights. Having
addressed all the arguments that Hernandez advances in his fourth issue, the issue is
overruled.
35
E. Leading Questions
In his fifth issue, Hernandez complains that the trial court allowed the
prosecutor to ask Gina several leading questions while questioning her during the
prosecutor’s direct exam. According to Hernandez, the State then compounded that
error by introducing a timeline on a chart, which the prosecutor prepared from Gina’s
testimony.
We review a trial court’s decision allowing the prosecutor to lead the State’s
witnesses for abuse of discretion. See Hernandez v. State, 643 S.W.2d 397, 400 (Tex.
Crim. App. 1982). The Rules of Evidence allow trial courts the right to control the
manner that the parties use in presenting evidence during a trial. See Tex. R. Evid.
611 (Mode and Order of Examining Witnesses and Presenting Evidence).
Ordinarily, trial courts will not allow a party to lead a witness during the witness’s
direct exam. See Tex. R. Evid. 611(c) (leading questions should not be used on
direct). That said, trial courts retain the right to allow an attorney, in the court’s
discretion, to use leading questions on direct. Id. (allowing leading questions “as
necessary to develop a witness’s testimony”); Wyatt v. State, 23 S.W.3d 18, 28 (Tex.
36
Crim. App. 2000) (noting that while the rules generally prohibit leading questions
“some leading questions are acceptable at the trial court’s discretion”).
The record shows that Gina testified on the second and third days of the trial.
On the third day of the trial, the prosecutor began several of his questions by asking
Gina whether she remembered stating the previous day that she had various sexual
encounters based on a stated age at that time. It appears likely that the prosecutor
chose to examine Gina using do-you-remember questions because given the lengthy
chronological history and similarity between many of the sexual acts, it might have
been difficult for the jury to put Gina’s testimony in the context of the time frame in
which she was claiming the various assaults occurred.
Rather than have Gina essentially repeat the same or similar testimony she
had just given on the second day of the trial, the prosecutor prefaced several
questions with a reference to the dates that Gina had mentioned during her testimony
on the second day of trial. The questions appear to have been intended to allow the
jury to more easily follow the chronology of the various sexual assaults that Gina
claimed had occurred over a ten-year period. The prosecutor also created a timeline
of events as Gina testified on the third day of the trial. In general, the timeline
summarizes Gina’s testimony about when, where, and what types of sexual assaults
she claimed Hernandez had perpetrated on her over a period of about ten years.
37
Based on Gina’s testimony, the chart ties various dates of the alleged assaults that
occurred over a period of ten years to the locations where the assaults allegedly
occurred and to the types of sexual acts that occurred in those locations.
When the prosecutor offered the chart into evidence, Hernandez’s counsel
objected to the exhibit claiming the prosecutor created the chart based on Gina’s
answers to the prosecutor’s leading questions. In response, the State argues that the
manner the prosecutor employed when questioning Gina did not suggest what her
answer should be. For that reason, the State contends that the questions at issue were
not leading.
The trial court overruled Hernandez’s objection to the exhibit. In response to
the ruling, Hernandez’s counsel asked for and the trial court granted his request for
a “running objection” to questions about whether Gina remembered specific
testimony from the prior day of the trial. In ruling on Hernandez’s request, the trial
court told Hernandez’s counsel that, as phrased, the prosecutor’s questions did not
suggest how Gina should answer the questions and instead asked Gina whether she
could remember “something she just testified to [yesterday].”
Generally, the rules of evidence allow trial courts to exercise discretion over
the method an attorney is using when interrogating witnesses. Tex. R. Evid. 611(a).
Given the context in which the do-you-remember questions occurred, reasonable
38
people might disagree about whether the questions suggested the answer.11 Given
the discretion afforded trial court’s in controlling the manner that a party presents its
evidence, the trial court’s decision to overrule Hernandez’s objections to Gina’s
testimony and its decision to admit the exhibit were discretionary calls, and both fell
inside the zone of reasonable disagreement. See Wyatt, 23 S.W.3d at 28. We overrule
the arguments presented in issue five.
F. Impeachment Evidence
In issue six, Hernandez argues the trial court erred by allowing the State to
impeach him by asking him, in cross-examination, whether he knew that “while [he]
lived with [Gina] that she was suicidal because of what you did to her?”, that his son
became aggressive toward Gina after Hernandez left the house, and whether
Hernandez knew that Gina had hallucinated, which had caused her to relive the
sexual assaults.
11
Hernandez has not argued that the exhibit summarizing Gina’s testimony
was not a relevant or accurate summary or claimed that the prejudicial value of the
exhibit outweighed the exhibit’s relevance. See generally Coble v. State, 330 S.W.3d
253, 282 (Tex. Crim. App. 2010) (noting that trial court errors in admitting evidence
are not reversible if the same evidence is admitted elsewhere in the trial); Wheatfall
v. State, 882 S.W.2d 829, 839-40 (Tex. Crim. App. 1994) (concluding that error
occurred when the trial court admitted a five-page handwritten summary of the
defendant’s violent criminal history, but the error was harmless because the
underlying evidence on which the summary was based was also admitted in the trial).
39
The State contends that Hernandez opened the door to the impeachment by
testifying in the trial that he was concerned about Gina’s well-being, was involved
in her life and activities, and that he actively monitored and disciplined his children.
During the trial, Hernandez’s counsel objected when the State tried to impeach
Hernandez with questions designed to allow the jury to determine how well he
actually knew and cared for Gina. Hernandez also claimed that the prosecutor’s
questions about these matters were speculative, argumentative, and assumed facts
not in evidence. When the trial court overruled Hernandez’s objections, Hernandez
answered: “I hadn’t done anything to her. What did I do?”
On appeal, the State argues that the questions were proper because Hernandez
opened the door by representing to the jury that he is a good father who supports his
family and disciplines his children. According to the State, because Hernandez
presented evidence designed to give the jury a false impression about his parenting
abilities, it was entitled to respond by asking him whether he knew about several
matters that a jury could reasonably have expected a caring parent to know.
In a criminal trial, “if the defendant offers evidence of his good character, the
prosecution can introduce its own character evidence to rebut the implications of the
defendant’s character evidence.” Harrison v. State, 241 S.W.3d 23, 27 (Tex. Crim.
App. 2007); see Tex. R. Evid. 404(a)(2)(A) (in a criminal case, if the defendant
40
offers evidence pertinent to a defendant’s trait, the prosecutor may offer evidence to
rebut it). Once a defendant opens the door to evidence pertinent to his traits, trial
courts may permit the State to introduce testimony, including cross-examination,
designed to show specific instances of conduct that would impeach the defendant’s
testimony about the trait at issue. See Wilson v. State, 71 S.W.3d 346, 350 (Tex.
Crim. App. 2002). Therefore, we agree with the State’s argument that by portraying
himself as a caring and loving parent, Hernandez opened the door to questions like
those that are at issue here, if the questions were asked in good faith. While
Hernandez argued at trial that no good faith basis existed for the questions, he did
not advance that argument in his appeal, nor does the record show that he asked the
trial court to require the prosecutor to state the factual basis for the questions that he
is complaining about in this issue. Because a caring father’s lack of actual knowledge
about his child’s well-being opened the door to impeachment on a variety of specific
matters that would be relevant to the impression Hernandez tried to create in the
jury’s mind, we hold the trial court did not abuse its discretion by allowing the
questions Hernandez has challenged in issue six. See generally Tex. R. Evid.
404(a)(2)(A).
Hernandez also argues that the did-you-know questions were impermissible
because the State failed to lay a proper predicate before asking the questions phrased
41
in the did-you-know form. Yet the proof of a predicate fact is not required when the
door is opened to a party’s right to ask did-you-know types of questions, as the
purpose of the questions is to impeach the witness’s own testimony. See generally
Tex. R. Evid. 608(b) (unless the evidence is to prove that a person has been
previously convicted of a crime, a party may not offer extrinsic evidence to rebut the
witness’s answer to a did-you-know type of question when the question’s purpose
was to impeach the witness’s testimony about his character).
Hernandez also suggests that allowing the prosecutor to impeach him with
did-you-know questions violated his right to confront whomever served as the
source of the prosecutor’s information for the questions. Hernandez, however, failed
to preserve this argument for review on appeal, since he made no Confrontation
Clause objections to the first four of the five questions at issue. Here, the record
shows that Hernandez answered four questions in response to did-you-know types
of questions before Hernandez asserted a Confrontation Clause claim. Because his
Confrontation Clause objection was untimely, we do not reach it in resolving issue
six. See Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005) (concluding
that because the defendant failed properly to preserve his Confrontation Clause
claim, he forfeited his right to appellate review on that claim); see also Tex. R. App.
P. 33.1 (requiring a party to preserve error for appellate review by showing that he
42
made a timely request, objection, or motion). Because the arguments Hernandez
raises in issue six either lack merit or were not properly preserved for appellate
review, issue six is overruled.
G. Detective Rizk’s testimony that Gina appeared to be reliable when she
told Mayra about the assaults
In issue seven, Hernandez argues the trial court abused its discretion by
denying his motion seeking a mistrial after the prosecutor asked Detective Rizk
about the impression he had of Gina based on his observations of her during her
interview at Children’s Safe Harbor. In response to the question, Detective Rizk
responded: “I found her to be very believable[.]” At that point, Hernandez’s counsel
interrupted, and objected to Detective Rizk testifying about Gina’s credibility. The
trial court sustained the objection and instructed the jury to disregard the detective’s
answer. When Hernandez’s counsel followed that ruling up with a request for a
mistrial, the trial court denied the request.
We review a trial court’s decision to deny a motion for mistrial using an abuse-
of-discretion standard. See Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App.
2009). Mistrials are rare, as “[a] mistrial is an appropriate remedy in ‘extreme
circumstances’ for a narrow class of highly prejudicial and incurable errors.” Id.;
(quoting Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004)). “Whether
43
an error requires a mistrial must be determined by the particular facts of the case.”
Id.
Generally, an attorney’s asking a witness “an improper question will seldom
call for a mistrial, because, in most cases, any harm can be cured by an instruction
to disregard.” Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999) (citing
Hernandez v. State, 805 S.W.2d 409, 414 (Tex. Crim. App. 1990)). To obtain a
mistrial due to an allegedly improper question, the party complaining about the
question must demonstrate in his appeal that he was prejudiced, and that the
prejudice is of “such character as to suggest the impossibility of withdrawing the
impression produced on the minds of the jurors.” Id. In Hernandez’s case, the record
shows that the trial court instructed the jury to disregard the detective’s answer.
The Court of Criminal Appeals has identified three factors in evaluating
whether a mistrial is required. Archie v. State, 340 S.W.3d 734, 739 (Tex. Crim.
App. 2011). The factors considered concern (1) the severity of the misconduct, (2)
the measures the trial court adopted to cure the misconduct, and (3) the certainty of
conviction without the misconduct. Id. The question posed to Detective Rizk does
not appear to be one the prosecutor intentionally designed to elicit a response about
the victim’s credibility. Instead, the question, as it was posed, was open-ended, and
the trial court as well as the prosecutor likely expected the detective to answer by
44
stating that Gina appeared to be calm, nervous, or frightened while being interviewed
at Children’s Safe Harbor. The trial court apparently did not view the witness’s
response as the one that was expected, and without more, the fact the prosecutor
asked an open-ended question is not evidence showing that prosecutorial misconduct
occurred.
The record also fails to establish that the detective’s response was incurably
prejudicial. When Hernandez objected to the detective’s response, the trial court
quickly instructed the jury to disregard the detective’s answer. We find nothing in
the record to suggest that the jury disregarded the trial court’s instruction, so we must
presume the instruction was followed. See Gamboa v. State, 296 S.W.3d 574, 580
(Tex. Crim. App. 2009) (relying on the presumption that the jury followed the
judge’s instructions).
Finally, the record establishes that the jury would have convicted Hernandez
regardless of Detective Rizk’s testimony that he thought Gina gave a believable
interview during her forensic exam at Children’s Safe Harbor. Gina testified during
Hernandez’s trial, and we have no doubt that the jury formed its own impressions
about whether she was a believable witness based on the testimony she gave during
the trial. Moreover, the jury’s verdict in this case does not rest solely on Gina’s
credibility, as the Y-STR report shows that the crime lab found a Y-chromosome
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profile that tracked Hernandez’s profile in Gina’s sexual organ. We also note that
there was strong circumstantial evidence supporting the jury’s findings of guilt, as
Hernandez fled twice from the authorities and apologized to Gina for what the jury
could reasonably have viewed as sexually criminal misconduct.
We conclude the jury either disregarded Detective Rizk’s comment about
Gina being credible or if not, the answer he provided was not harmful. We hold the
trial court did not abuse its discretion by denying Hernandez’s motion for mistrial.
Issue seven is overruled.
III. Cumulative Error and Excessive Sentence
A. Cumulative Error
In issue eight, Hernandez argues that the various errors he claims the trial
court committed during his trial resulted in an unfair trial. See Tex. R. App. P.
44.2(b). We disagree with Hernandez’s claim that he received an unfair trial based
on the evidentiary errors we have assumed occurred in his trial. We have already
explained why those errors had either no or but slight effect on the jury’s decisions
finding Hernandez guilty on the elements of the assaults, as those crimes are alleged
in the indictments relevant to his trial. See Johnson v. State, 967 S.W.2d 410, 417
(Tex. Crim. App. 1998) (citing King v. State, 953 S.W.2d 266 (Tex. Crim. App.
1997)). We must disregard the errors that we have assumed, but not decided,
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occurred based on our conclusion that the errors we have identified had no effect on
Hernandez’s substantial rights. See Tex. R. App. P. 44.2(b); Johnson, 967 S.W.2d at
417. Issue eight is overruled.
B. Length of Sentence
In issue twelve, Hernandez argues that a life sentence for the crime of
continuous sexual assault of a child constitutes a cruel and unusual punishment,
which he claims violates the Eighth and Fourteenth Amendments to the United
States Constitution. See U.S. CONST. amend. VIII; amend. XIV. We conclude,
however, that Hernandez waived his right to complain about the alleged
unconstitutionality of his sentence because he failed to raise these claims at trial.
To preserve an error for review on appeal, the defendant must present both a
timely objection and secure a ruling from the trial court about the complaint that he
desires to pursue in an appeal. See Tex. R. App. P. 33.1(a). Stated another way, “[t]he
point of error on appeal must comport with the objection made at trial.” Clark v.
State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012) (citing Thomas v. State, 723
S.W.2d 696, 700 (Tex. Crim. App. 1986)).
The offense for the continuous sexual abuse of a child carries a potential life
sentence. Tex. Penal Code Ann. § 21.02(h) (West Supp. 2017). Thus, the sentence
Hernandez received in the punishment hearing for the crime of continuous sexual
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abuse is in the range the Legislature authorized for the crime the jury found
Hernandez committed. Id. The record from the trial court shows that Hernandez
never objected to his sentence on any grounds, much less those that he argues in his
brief. Tex. R. App. P. 33.1. Moreover, even claims alleging constitutional violations
are generally subject to the rules that apply to preserving error for an appeal. Garza
v. State, 435 S.W.3d 258, 260-61 (Tex. Crim. App. 2014) (explaining that “all
errors—even constitutional errors—may be forfeited on appeal if an appellant failed
to object at trial”); Diamond v. State, 419 S.W.3d 435, 440 (Tex. App.—Beaumont
2012, no pet.) (explaining that the defendant’s failure to object to a sentence claiming
the sentence was cruel and unusual when the defendant was in the trial court resulted
in a waiver of that argument upon appeal).
The Legislature authorized juries to impose the sentence at issue, life in
prison, upon being found guilty of the crime of continuously sexually assaulting a
child. Tex. Penal Code Ann. § 21.02(h). We hold that Hernandez forfeited his right
to complain that his sentence is cruel and unusual because he failed to object on that
basis when he was sentenced. Tex. R. App. P. 33.1. Therefore, we overrule
Hernandez’s twelfth issue.
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Finally, we note that a clerical error exists in the judgment in trial court Cause
Number 16-09-10158-CR. 12 Neither party pointed this error out in their briefs. The
error in this case is an error in one of the recitals in the judgment that reflects that
the trial court assessed Hernandez’s ten-year sentence, but the record reveals that the
jury decided to sentence Hernandez to prison for ten years.
We have the authority to reform judgments to make the record speak the truth.
See Tex. R. App. P. 43.2(b); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App.
1992). We may act sua sponte to reform an incorrect judgment, and we may have a
duty to do so. See French, 830 S.W.2d at 609; Asberry v. State, 813 S.W.2d 526,
530 (Tex. App.—Dallas 1991, pet. ref’d). To correct the clerical error that we
identified in trial court Cause Number 16-09-10158-CR, we reform the judgment by
deleting the language stating that the trial court assessed punishment to make it state
that the punishment was assessed by the jury in that cause.
12
The judgment of conviction in Cause Number 16-09-10164-CR, Count 1,
and in Cause Number 16-09-10164-CR, Count 2, states that the jury assessed
Hernandez’s punishment in those cases. In contrast, the judgment in Cause Number
16-09-10158-CR, which assesses a ten-year sentence, states the trial court assessed
the punishment in that case. The record shows, however, that the jury assessed all
three of Hernandez’s punishments and that the trial court pronounced those
punishments in the punishment phase of his trial.
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Conclusion
For the reasons explained above, we affirm the trial court’s judgments.
AFFIRMED.
______________________________
HOLLIS HORTON
Justice
Submitted on March 13, 2018
Opinion Delivered October 10, 2018
Do Not Publish
Before McKeithen, C.J., Kreger and Horton, JJ.
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