Ignacio Martin Gonzalez v. State

Opinion issued December 16, 2014.
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-13-00901-CR
NO. 01-13-00902-CR
NO. 01-13-00903-CR
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IGNACIO MARTIN GONZALEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 184th District Court
Harris County, Texas
Trial Court Case Nos. 1377914, 1377915, 1377916
OPINION
A jury convicted Ignacio Martin Gonzalez of three counts of aggravated
sexual assault of a child younger than age 14.1 In three issues, Gonzalez asks this
Court to reverse his conviction and remand the case for new trial. First, Gonzalez
asserts that the trial court erred by admitting the complainant’s medical records.
Second, he argues that, to the extent his attorney failed to preserve the first issue
for appeal, he was denied effective assistance of counsel. Third, he contends that
the trial court erred by denying his motion for a mistrial after an improper
impeachment. We affirm.
Background
Gonzalez had an ongoing relationship with the mother of the complainant,
B.R., a seven-year-old boy. 2 Eventually, Gonzalez moved into an apartment with
B.R. and B.R.’s mother. Subsequently, B.R.’s mother noticed strange changes in
B.R.’s behavior. One day, B.R.’s mother stepped out of the shower to discover
Gonzalez next to B.R. Gonzalez’s pants were unzipped; B.R.’s mouth was red and
covered in saliva; both appeared startled. B.R.’s mother accused Gonzalez of
sexually assaulting B.R.
Several medical personnel treated B.R., including Dr. William Schmidt, a
psychotherapist. B.R. told Dr. Schmidt that Gonzalez had abused him. During the
1
TEX. PENAL CODE ANN. § 22.021(a)(1)(B), (2)(B) (West Supp. 2014).
2
To protect the complainant’s identity, he will be referred to as B.R.
2
course of his therapy, B.R. also discussed an encounter with two mating dogs that
reminded him of Gonzalez. Dr. Schmidt diagnosed B.R. with Post-Traumatic
Stress Disorder (“PTSD”).
The State charged Gonzalez with three counts of aggravated sexual assault
of a child. 3 During trial, B.R. testified that Gonzalez sexually assaulted him. His
mother testified about B.R.’s changes in behavior and her discovery of the abuse.
An emergency-room nurse testified that she examined B.R. and that B.R. told her
about the sexual assault. The State offered the emergency-room medical records
(with inadmissible hearsay redacted) into evidence; Gonzalez did not object to
those records as tendered. Subsequently, the State called a sexual-abuse
investigator, who testified that B.R. also told her about the assaults.
Finally, the State announced that it intended to call Dr. Schmidt as a witness
and introduce his records of B.R.’s treatment. Pursuant to an agreement between
the parties, the State redacted certain inadmissible portions of the records. Before
Dr. Schmidt took the stand, and outside the presence of the jury, Gonzalez objected
to the admission of Dr. Schmidt’s redacted records. He argued that they were
highly prejudicial or that, in the alternative, the portion related to the dogs was
3
Gonzalez was initially charged with one count of aggravated assault of a child.
The jury could not reach a unanimous verdict, and the trial court declared a
mistrial. Subsequently, Gonzalez was charged with three counts of aggravated
assault of a child. This appeal is from the second trial.
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highly prejudicial and thus inadmissible. The trial court denied the objection.
Counsel re-urged the objection when the State offered the records; the trial court
again overruled the objection and admitted the records.
During Gonzalez’s case-in-chief, he called his son to be a character witness.
On cross-examination, the State asked his son about three prior marijuana
convictions. The trial court sustained an improper-impeachment objection and
instructed the jury to disregard. At Gonzalez’s request, the court gave the jury a
second, sterner instruction to disregard the improper impeachment. Gonzalez then
moved for a mistrial. The trial court denied the motion.
The jury convicted Gonzalez on all three counts. Gonzalez timely appealed.
Admissibility of B.R.’s Medical Records
In his first issue, Gonzalez challenges the trial court’s decision to admit the
records of Dr. Schmidt, a testifying expert, related to B.R.’s treatment for PTSD.
Gonzalez objected that the entire set of records were irrelevant or created a danger
of unfair prejudice that substantially outweighed their probative value. See TEX. R.
EVID. 401–403. He also made an alternative objection on the same legal grounds to
a page in the records that describes B.R. observing mating dogs and thinking about
Gonzalez.
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A. Standard of review
We review a trial court’s ruling on the admission or exclusion of evidence
for an abuse of discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App.
2011); Walker v. State, 321 S.W.3d 18, 22 (Tex. App.—Houston [1st Dist.] 2009,
pet. dism’d). We will uphold the trial court’s ruling unless it falls outside the “zone
of reasonable disagreement.” Tillman, 354 S.W.3d at 435; accord Walker, 321
S.W.3d at 22. If the trial court’s evidentiary ruling is reasonably supported by the
record and correct on any theory of applicable law, we will uphold the decision. De
La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009); Tarley v. State, 420
S.W.3d 204, 206 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d).
B. Objection to the entire set of records
We begin by examining Gonzalez’s objection to the entire set of Dr.
Schmidt’s records, determining what, if any, probative value they have, and then
weighing their probative value against the danger of unfair prejudice.
1. Probative value
Evidence may not be admitted for consideration by the jury unless it is
relevant, i.e., if it is probative of a fact of consequence to the determination of the
action. TEX. R. EVID. 401–402; Brown v. State, 757 S.W.2d 739, 740 (Tex. Crim.
App. 1988). Generally, during the guilt/innocence phase of a trial, evidence of the
complainant’s medical injuries, including psychological trauma, is probative only
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of the occurrence of the harm. Thus, if the defense concedes that the complainant
was harmed, evidence of the injuries generally is not admissible. Brown, 757
S.W.2d at 740–41.
In Brown v. State, the prosecution sought to admit evidence that a rape
victim suffered intense psychological trauma from the assault. Id. at 740. The
defendant denied that he was the rapist, but he did not deny that the complainant
had been raped. Id. at 740–41. The Court of Criminal Appeals found that the
evidence was not relevant to the guilt/innocence determination because it provided
no information on the identity of the rapist, and only furthered the undisputed
contention that the complainant was raped. Id.In Yatalese v. State, this Court held that the rule in Brown allowed the State
to admit evidence of a child-complainant’s psychological trauma in the
guilt/innocence phase of a trial for aggravated sexual assault of a child. 991
S.W.2d 509, 511 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d). In that case,
the defendant denied that the assault occurred. The trial court did not abuse its
discretion by admitting evidence that the complainant’s behavior changed
drastically after the alleged assault because this evidence tended to support the
assertion that the assault occurred, a disputed fact of consequence to the
guilt/innocence determination. Id.6
This case is more similar to Yatalese than Brown. In Brown, the defense
conceded both that the victim was traumatized and that she was traumatized
because of rape. Here, Gonzalez used evidence that B.R.’s mother hit B.R. to
explain B.R.’s trauma. Thus, while both parties agree that B.R. was traumatized,
they disagree about the cause of the trauma.
The question before us is: Are Dr. Schmidt’s records merely probative of
B.R.’s psychological harm or are they also probative of the injury that caused the
harm? We conclude that they tend to show not only that B.R. was traumatized, but
that sexual assault, not maternal abuse, caused B.R.’s trauma. B.R.’s treatment
included “revisiting experiences of sexual abuse.” Another part of the records state
that “[B.R.] does not know why [Gonzalez] touched him in his private area . . . he
remains sad because of what happened to him.” The records reveal that B.R. feels
embarrassed and ashamed because Gonzalez, a man he trusted, sexually abused
him. They also reflect B.R.’s anger at his family for failing to protect him from
Gonzalez. Dr. Schmidt specifically tailored B.R.’s therapy to “[a]cknowledge and
resolve trauma associated with allegation of overt sexual behavior with mother’s
paramour, [Gonzalez].” Thus the records are probative of whether the assaults
occurred and whether Gonzalez was the assailant.
Gonzalez argues that the records are irrelevant victim-impact evidence. He
relies on Miller-El v. State to support this contention. 782 S.W.2d 892, 895 (Tex.
7
Crim. App. 1990). In Miller-El, the Court of Criminal Appeals ruled that, in a
guilt/innocence phase of an attempted-murder trial, evidence of a victim’s future
suffering was not probative of whether an assailant intended to kill the victim. Id.The records in this case, however, do not concern B.R.’s future suffering, but
rather document the present harm caused by the sexual assault. Regardless, the
issue in this case is whether the records are probative of the actus reus, not of the
mens rea, which was the issue in Miller-El. Id. Thus, Miller-El does not apply.
Because the records are probative of contested facts that are of consequence
to the determination of Gonzalez’s guilt or innocence, our holding in Yatalese
controls; the records are relevant.
2. Prejudicial effect
Relevant evidence is nonetheless inadmissible if its probative value is
substantially outweighed by the danger of unfair prejudice. TEX. R. EVID. 403. The
mere fact that evidence adversely affects a defendant’s case does not by itself
create a danger of unfair prejudice. Moreno v. State, 409 S.W.3d 723, 729 (Tex.
App.—Houston [1st Dist.] 2013, pet. ref’d). “Virtually all evidence that a party
offers will be prejudicial to the opponent’s case, or the party would not offer it.”
Casey v. State, 215 S.W.3d 870, 883 (Tex. Crim. App. 2007). There is no danger
of unfair prejudice unless the evidence has “an undue tendency to suggest a
decision on an improper basis, commonly an emotional one.” Id.8
In evaluating the relative probative value and unfairly prejudicial effect of
evidence, 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). In this
case, the records do contain extraneous, irrelevant details. Some of these details
may be unfairly prejudicial; one example is the record of B.R. thinking of
Gonzalez while looking at two mating dogs. Further, any evidence of sexual
misconduct involving children is inherently distressing.
Although the records invite some danger of unfair prejudice, this danger
must substantially outweigh probative value of the evidence; otherwise, the records
are admissible. See Casey, 215 S.W.3d at 882. This case turned on what caused
B.R.’s trauma, and these records clearly point to sexual assault by Gonzalez. Thus,
the evidence has a strong probative force. Although other witnesses provided
substantial evidence of Gonzalez’s guilt, only Dr. Schmidt diagnosed and treated
B.R. for PTSD, and thus his records are uniquely probative of the cause of B.R.’s
trauma. Considering the strong and unique probative force of the records, we
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conclude that the trial judge’s decision to admit the records was not an abuse of
discretion. See TEX. R. EVID. 403.
C. Alternative objection
As discussed above, Gonzalez also objected, in the alternative, to a page of
the treatment records describing B.R.’s reaction to seeing two mating dogs.
Assuming, without deciding, that the trial court abused its discretion by admitting
that page, Gonzalez must show that any error was not harmless. Alexander v. State,
740 S.W.2d 749, 765 (Tex. Crim. App. 1987). Error is harmless unless there is a
“reasonable probability that [the error] might have contributed to the conviction or
affected punishment.” Id.Gonzalez does not meet this requirement. Neither side emphasized the
entry—it was never mentioned in Dr. Schmidt’s testimony or in closing argument.
More importantly, B.R.’s reaction to the dogs comprised only an insignificant part
of the substantial evidence of Gonzalez’s guilt. The other records of Dr. Schmidt
indicated that B.R. was sexually traumatized by Gonzalez. Two other medical
personnel testified that B.R. told them about the sexual assaults. B.R. gave
testimony describing how Gonzalez would tie him up and sexually assault him.
B.R.’s mother testified that B.R. had severe behavioral problems and was afraid to
be alone. She also testified that she caught Gonzalez with his pants unzipped next
to B.R., who had saliva on his mouth. Because the entry was not emphasized and
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because it was such an insignificant addendum to the substantial evidence of
Gonzalez’s guilt, any error in its admission was harmless.
Because Gonzalez does not demonstrate reversible error with respect to
either of his objections, we overrule Gonzalez’s first issue.
Ineffective Assistance of Counsel
In his second issue, Gonzalez contends that, to the extent that his lawyer
failed to preserve his objections to Dr. Schmidt’s records, he was denied the
effective assistance of counsel. We evaluate claims of ineffective assistance of
counsel under the standard set forth in Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 2064 (1984). Under Strickland, a defendant must show that
(1) counsel’s performance fell below an objective standard of reasonableness, and
(2) but for counsel’s unprofessional error, there is a reasonable probability that the
result of the proceedings would have been different. Id. at 687–94, 104 S.Ct. at2064–68; Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).
To satisfy the second prong of the Strickland test, defendant must show that,
if the issue were preserved, there would be a reasonable probability that an
appellate court would rule in his favor. Ex Parte Moore, 395 S.W.3d 152, 158
(Tex. Crim. App. 2013). Here, both parties agree that Gonzalez’s attorney properly
objected to Dr. Schmidt’s records. But we do not need to reach the preservation
issue because, as discussed in our analysis of Gonzalez’s first issue, there is no
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reversible error in the admittance of Dr. Schmidt’s records into evidence. See id.We overrule Gonzalez’s second issue.
Denial of Motion for Mistrial
In his third issue, Gonzalez contends that the trial court erred by denying his
request for a mistrial after the improper impeachment of his son with prior
misdemeanor marijuana convictions. He urges that the convictions left an
“indelible mark” on the jury’s evaluation of the son’s credibility that was not cured
by the trial court’s prompt instruction.
A. Standard of review
We review a trial court’s denial of a motion for mistrial for an abuse of
discretion. 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 v. State, 284 S.W.3d 880, 884 (Tex. Crim.
App. 2009). A prompt instruction from the trial judge is usually enough to cure the
error and avoid the need for a mistrial. Wesbrook v. State, 29 S.W.3d 103, 115
(Tex. Crim. App. 2000). Whether an error requires a mistrial must be determined
by the particular facts of the case. Ladd, 3 S.W.3d at 567.
When we review an action on a motion for mistrial, “[d]eterminations of
historical fact and assessment of witness credibility and believability are left
almost entirely to the discretion of the trial judge, and where there is conflicting
12
evidence there is no abuse of discretion if the motion is overruled.” Hughes v.
State, 24 S.W.3d 833, 842 (Tex. Crim. App. 2000). An appellate court views the
evidence in the light most favorable to the trial court’s ruling. Webb v. State, 232
S.W.3d 109, 112 (Tex. Crim. App. 2007). The ruling must be upheld if it is within
the zone of reasonable disagreement. Id.B. Instruction to disregard
The witness, Gonzalez’s son, testified that Gonzalez was a loving, caring
parent, both as a father to the witness and as a surrogate father to B.R. On cross-
examination, the State improperly impeached Gonzalez’s son with several
misdemeanor marijuana convictions. Gonzalez objected to the impeachment, but
only after the witness admitted to the prior convictions. The trial court sustained
the objection, and then instructed the jury to “disregard the last question and
answer and consider it for no purpose.” At the request of defense counsel, the trial
court added an additional instruction: “Possession of marijuana is not a crime of
moral turpitude and this is not permitted for purposes of impeachment . . . it is not
allowed in determining credibility. The question should not have been asked.”
Gonzalez then moved for a mistrial, which the court denied.
To determine if the trial court abused its discretion by denying a mistrial
motion after a prompt instruction to disregard, we use the three-factor test
announced in Mosley v. State, 983 S.W.2d 249, 259–60 (Tex. Crim. App. 1998).
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We look to three factors: (1) the severity of the misconduct, (2) the measures
adopted to cure the misconduct, and (3) the certainty of conviction absent the
misconduct. Carballo v. State, 303 S.W.3d 742, 748 (Tex. App.—Houston [1st
Dist.] 2009, pet. ref’d); see also Archie v. State, 340 S.W.3d 734, 740 (Tex. Crim.
App. 2011) (applying the Mosley factors to the denial of a motion for mistrial).
Turning to the first factor, we examine “the severity of the misconduct, or in
other words, the magnitude of the prejudicial effect of the prosecutor’s
[misconduct].” Archie, 340 S.W.3d at 740. The prosecutor’s impeachment was
clearly improper. See TEX. R. EVID. 609(a). She inappropriately emphasized the
inadmissible convictions by asking the witness if he had been convicted “three
times” and then listing for the jury each conviction date in a second improper
question. She further underscored the improper impeachment by saving it for the
very end of her cross examination. These actions magnified the prejudicial effect
of the error.
With respect to the second factor, “the reviewing court considers the
character of the measures adopted to cure the misconduct.” Archie, 340 S.W.3d at
741. Gonzalez contends that the judge’s prompt action could not have cured the
taint left in the jurors’ minds by the improper impeachment. We disagree. An
instruction to disregard is presumed effective unless the particular facts imply
otherwise. Waldo v. State, 746 S.W.2d 750, 754 (Tex. Crim. App. 1988). In this
14
case, the trial court sustained Gonzalez’s objection, and then instructed the jury to
disregard twice. In its second instruction, the trial court repeated the need for the
jury to disregard, explained why the law required the jury to ignore the
convictions, and clearly assigned error to the State. These facts support the
presumption that the instruction to disregard was effective.
In examining the third factor, “the reviewing court looks to the certainty of
conviction absent the misconduct.” Archie, 340 S.W.3d at 741. Gonzalez asserts
that, absent the improper impeachment, conviction was far from certain because
his entire defense was based on his credibility as established through his son. But
Gonzalez’s defense relied on more than just evidence of his good character; it also
pointed out the lack of forensic evidence and offered the misconduct of B.R.’s
mother as an alternate explanation for B.R.’s trauma. These arguments by the
defense are wholly unscathed by the improper impeachment. Further, although the
prosecutor should not have brought the marijuana convictions to the jury’s
attention, the convictions do not speak to the quality of the witness’s relationship
to Gonzalez, which was the substance of his testimony. Finally, as discussed in our
analysis of Gonzalez’s first issue, there was substantial evidence of Gonzalez’s
guilt. Therefore, we conclude that there was a high probability of conviction absent
the improper impeachment.
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Although the prosecutor magnified the prejudicial effect of the improper
impeachment, the error was swiftly dealt with by the trial court, and a guilty
verdict was very likely even without the misconduct. While we do not condone the
prosecutor’s actions, we hold that the trial court did not abuse its discretion by
denying the motion for mistrial. Accordingly, we overrule Gonzalez’s third issue.
Conclusion
We affirm the judgment of the trial court.
Harvey Brown
Justice
Panel consists of Justices Massengale, Brown, and Huddle.
Publish. TEX. R. APP. P. 47.2(b).
16