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Enrique Juarez Bazarte v. the State of Texas ( 2024 )


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  • Modified and Affirmed and Opinion Filed October 25, 2024
    In The
    Court of Appeals
    Fifth District of Texas at Dallas
    No. 05-23-00313-CR
    ENRIQUE JUAREZ BAZARTE, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the 204th Judicial District Court
    Dallas County, Texas
    Trial Court Cause No. F21-75340-Q
    MEMORANDUM OPINION
    Before Justices Molberg, Breedlove, and Kennedy
    Opinion by Justice Breedlove
    Appellant Enrique Juarez Bazarte was convicted of continuous sexual abuse
    of a child after a jury trial and sentenced by the trial court to 51 years in prison. See
    TEX. PENAL CODE ANN. § 21.02. In a single issue, appellant argues that the trial court
    erred in permitting the forensic examiner to testify as an outcry witness. We
    conclude the forensic examiner meets the statutory requirements because she was
    the first witness to whom the child described the offenses in a discernable manner.
    Accordingly, we affirm the trial court’s judgment as modified.
    BACKGROUND1
    Appellant was charged with having committed continuous sexual abuse of
    A.E. From 2015 to 2017, A.E. lived with her grandmother and grandmother’s
    husband, appellant, along with various other family members. Stephanie Bernadac,
    a Bilingual Forensic Investigator at the Dallas Children’s Advocacy Center (CAC),
    testified that during the time A.E. lived with appellant, he sexually abused her on
    multiple occasions.
    Prior to trial, the trial court held a hearing to determine which of three
    proposed witnesses was the proper outcry witness. Bernadac testified at the hearing
    along with Miriam Aguirre, A.E.’s aunt, and Janet Aguirre, A.E.’s mother.2 After
    hearing the testimony of the three women, the trial court designated Bernadac as the
    outcry witness, holding that while A.E. made statements to multiple people, those
    statements were no more than general allusion, whereas A.E. described to Bernadac
    details of the abuse.
    A jury trial was held on March 8, 2023, and the jury found appellant guilty of
    continuous sexual abuse of a child under 14. After a separate hearing on punishment,
    the trial court assessed punishment at 51 years in prison. This appeal followed.
    1
    The facts of the case are well-known to the parties; therefore, we include only those necessary to
    resolve appellant’s sole issue on appeal. See TEX. R. APP. P. 47.1.
    2
    For clarity, we refer to Miriam and Janet Aguirre by their first names.
    –2–
    STANDARD OF REVIEW AND APPLICABLE LAW
    Article 38.072 of the Texas Code of Criminal Procedure provides an
    exception to the rule against hearsay in that it allows the admission of outcry
    statements if certain requirements are met. TEX. CODE CRIM. PROC. ANN. art. 38.072;
    Sanchez v. State, 
    354 S.W.3d 476
    , 484 (Tex. Crim. App. 2011). One such
    requirement is that the designated outcry witness must be the first person eighteen
    years of age or older that the child victim told about the abuse. TEX. CODE CRIM.
    PROC. ANN. art. 38.072, § 2(a)(3). The first person refers to the first adult who can
    remember and relate at trial the child’s statement that in some discernible manner
    describes the alleged offense. Dobbs v. State, —S.W.3d—, 
    2024 WL 4500938
    , at *4
    (Tex. App.—Dallas, Oct. 16 2024, no pet. h.) (citing Foreman v. State, 
    995 S.W.2d 854
    , 859 (Tex. App.—Austin 1999, pet. ref’d)).
    To be considered the first outcry, the child victim’s statements must be more
    than a general allusion of sexual abuse and must describe the alleged offense in some
    discernible manner. Garcia v. State, 
    792 S.W.2d 88
    , 91 (Tex. Crim. App. 1990). The
    trial court determines in the first instance whether one or more witnesses may be
    designated as outcry witnesses, and we review that determination for an abuse of
    discretion. See Garcia, 
    792 S.W.2d at 92
    ; Rodgers v. State, 
    442 S.W.3d 547
    , 552
    (Tex. App.—Dallas 2014, pet. ref’d). A trial court has broad discretion when
    deciding which witnesses qualify as outcry witnesses. Sims v. State, 
    12 S.W.3d 499
    ,
    500 (Tex. App.—Dallas 1999, pet. ref’d). A court’s designation of an outcry witness
    –3–
    will be upheld when it is supported by the evidence. Mendez v. State, No. 05-23-
    00121-CR, 
    2024 WL 3063628
    , at *3 (Tex. App.—Dallas June 20, 2024, no pet.)
    (mem. op., not designated for publication) (citing Polk v. State, 
    367 S.W.3d 449
    , 452
    (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d)).
    DISCUSSION
    The State gave appellant notice of its intent to present A.E.’s hearsay
    statements to Janet and Bernadac3 about the abuse. The trial court ruled that
    Bernadac was the proper outcry witness. Appellant contends Bernadac is not the
    proper outcry witness because she was not the first person to whom A.E. disclosed
    the abuse. To review this claim, we must first recount the representations and
    testimony from the outcry hearing.
    Miriam, A.E.’s aunt, testified first. She testified that in November 2020 when
    A.E. was approximately eleven years old, A.E. told her that appellant had touched
    her and that “he would do it in her butt.” She also told Miriam that she “didn’t know
    if it ever went into her vagina.” A.E. told Miriam that it “would happen multiple
    times at night.” Miriam also testified as to what she understood A.E.’s statements to
    mean, but she did not testify as to anything else A.E. told her.
    A.E.’s mother, Janet, testified next. Janet provided multiple conflicting
    accounts throughout her testimony. She testified that in November 2020, A.E. told
    3
    The record does not contain a notice regarding Miriam, but she is listed on the State’s initial trial
    witness list.
    –4–
    her, “I was raped.” She responded, “Yes,” when Janet asked her if she knew what
    rape is, and she told her mother that appellant did it. She testified on direct
    examination that A.E. did not provide her any other details during that conversation.
    On cross-examination, Janet testified that in the time between when A.E. initially
    told her and the time Janet took A.E. into the CAC, A.E. told her that appellant gave
    her money and chocolate. Janet initially testified that A.E. did not go into detail
    about any sexual contact during that time, but then later testified that A.E. told her
    that appellant put his “private part” in A.E.’s “private part” and in her “butt.” Janet
    had previously testified that A.E. did not mention anything “with the butt.” She also
    testified that “she actually did tell me about that” when asked if A.E. had mentioned
    appellant touching or kissing her breasts, but Janet did not provide any specific
    statements or identify when A.E. told her this.
    Bernadac testified last. She testified that she is a Bilingual Forensic
    Investigator at Dallas CAC, where her job is to obtain a statement from the child in
    a way that is developmentally sensitive and legally sound. Bernadac conducted a
    forensic interview with A.E. at the CAC on December 1, 2020, when A.E. was
    twelve years old. Bernadac testified that during the interview, A.E. described
    multiple instances of sexual abuse by appellant, including the following instances
    that Bernadac recalled specifically:
    (1)     Appellant put his penis into A.E.’s vagina at night in A.E.’s grandmother’s
    room while grandmother was in the shower. At this time, A.E.’s mother
    –5–
    was at work and her aunts were out. She described how it hurt, how she
    was on the bed, and talked about how she felt like she wanted to die.
    (2)     On A.E.’s birthday, she asked appellant for money and he said that she had
    to do something for it. He laid her on the floor and put his penis in her butt.
    She described how it hurt. She recalled that the door was open, the lights
    were off, but the light in the hallway was on. He gave her $20 afterward.
    (3)     Another time when A.E.’s grandmother was in the shower, appellant made
    A.E. put her mouth on appellant’s penis. They were by the door in the
    room, and she was on her knees while he was standing. She described how
    it felt nasty and it tasted like rotten eggs.
    (4)     A.E. described a time when appellant kissed her breasts under her clothes
    and that it felt weird.
    Bernadac also testified as to statements appellant made to A.E. during those
    encounters. A.E. told Bernadac that she had told her mother that appellant had put
    his penis in her vagina but that she did not go into much detail when she told her.
    At the end of the hearing, the prosecutor argued Bernadac was the proper
    outcry witness. The defense argued Bernadac was not the proper outcry witness
    because A.E. talked to Janet, Miriam, and a police officer before the forensic
    interview and gave details about the abuse. But Miriam’s and Janet’s testimonies
    established A.E. provided only general statements about abuse to them. In contrast,
    the statements made to Bernadac were detailed and described instances of sexual
    abuse with particularity. The trial court ruled Bernadac was the outcry witness on
    the instances of abuse to which she testified during the article 38.072 hearing. The
    trial court’s ruling is supported by the record. Because A.E. provided Janet and
    Miriam only with a general allusion to appellant’s sexual abuse and Bernadac was
    –6–
    the first witness to whom A.E. describe the alleged offense in a discernible manner,
    the trial court did not abuse its discretion by designating Bernadac the outcry witness
    in this case. See Garcia, 
    792 S.W.2d at
    91 We overrule appellant’s sole issue.
    MODIFICATION OF JUDGMENT
    In a cross-issue, the State contends this Court should modify the trial court’s
    judgment to include an affirmative finding that the victim was younger than fourteen
    at the time of the offense. The judgment contains the statement, “(For sex offender
    registration purposes only) The age of the victim at the time of the offense was 14
    years.” The judgment correctly reflects the offense for which appellant was
    convicted, “SEX ABUSE CONTINUOUS CHILD UNDER 14” and the “Statute for
    Offense,” § 21.02 of the penal code.
    The State argues that appellant’s conviction makes him subject to the sex
    offender registration requirements of criminal procedure code Chapter 62. A
    conviction based on a violation of penal code § 21.02, continuous sexual abuse of
    young child, is a “reportable conviction or adjudication” under code of criminal
    procedure art. 62.001(5)(A). Under code of criminal procedure art. 62.051, a person
    who has a “reportable conviction or adjudication” “shall register . . . with the local
    law enforcement authority in any municipality where the person resides or intends
    to reside for more than seven days.” TEX. CODE CRIM. PROC. ANN. arts.
    62.001(5)(A), 62.051(a). The judgment must reflect this information. “In the event
    of conviction of an offense for which registration as a sex offender is required under
    –7–
    Chapter 62,” the judgment “shall reflect” a “statement that the registration
    requirement of that chapter applies to the defendant and a statement of the age of the
    victim of the offense.” TEX. CODE CRIM. PROC. ANN. art. 42.01, § 1(27).
    Appellate courts may modify a trial court’s judgment and affirm it as
    modified. See TEX. R. APP. P. 43.2(b); Bigley v. State, 
    865 S.W.2d 26
    , 27–28 (Tex.
    Crim. App. 1993). This Court “has the power to correct and reform the judgment of
    the court below to make the record speak the truth when it has the necessary data
    and information to do so.” Asberry v. State, 
    813 S.W.2d 526
    , 529 (Tex. App.—
    Dallas 1991, writ ref’d). Appellate courts may reform trial court judgments where
    “the evidence necessary to correct the judgment appears in the record.” 
    Id.
     Here, the
    record contains all the necessary information required to modify the judgment.
    Therefore, we modify the judgment to reflect that at the time of the offense, the
    victim was under 14 years of age.
    CONCLUSION
    We modify the trial court’s judgment and affirm as modified.
    /Maricela Breedlove/
    230313f.u05                                MARICELA BREEDLOVE
    Do Not Publish                             JUSTICE
    TEX. R. APP. P. 47.2(b)
    –8–
    Court of Appeals
    Fifth District of Texas at Dallas
    JUDGMENT
    ENRIQUE JUAREZ BAZARTE,                      On Appeal from the 204th Judicial
    Appellant                                    District Court, Dallas County, Texas
    Trial Court Cause No. F21-75340-Q.
    No. 05-23-00313-CR          V.               Opinion delivered by Justice
    Breedlove. Justices Molberg and
    THE STATE OF TEXAS, Appellee                 Kennedy participating.
    Based on the Court’s opinion of this date, the judgment of the trial court is
    MODIFIED as follows:
    Add the word “under” before “14” in the section of the judgment
    following “(For sex offender registration purposes only)”.
    As REFORMED, the judgment is AFFIRMED.
    Judgment entered this 25th day of October, 2024.
    –9–
    

Document Info

Docket Number: 05-23-00313-CR

Filed Date: 10/25/2024

Precedential Status: Precedential

Modified Date: 10/30/2024