Francisco Javier Pedraza v. State

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-14-00042-CR
FRANCISCO JAVIER PEDRAZA, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 69th District Court
Moore County, Texas
Trial Court No. 4903, Honorable Ron Enns, Presiding
January 16, 2015
MEMORANDUM OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Appellant, Francisco Javier Pedraza, appeals the trial court’s judgment by which
he was convicted of continuous sexual abuse of a young child and sentenced to life
imprisonment as punishment.1 On appeal, he contends that the State’s attorney
improperly commented on the presumption of innocence. He also contends that the
cumulative effect of that error and several other errors concerning the trial court’s
admission of evidence were harmful. We will affirm.
1
See TEX. PENAL CODE ANN. § 21.02 (West Supp. 2014).
Motion for Mistrial
Appellant first contends that the trial court erred by denying his motion for mistrial
made in connection with the following exchange:
STATE’S ATTORNEY: You haven’t taken responsibility for it; have you?
APPELLANT: Responsibility [for] what?
DEFENSE COUNSEL: Objection, Your Honor. That’s an improper
question. It’s assuming the defendant is guilty.
STATE’S ATTORNEY: Yes, I do assume he’s guilty, and that’s a question
I can ask.
DEFENSE COUNSEL: That’s a speaking objection as well.
THE COURT: I’ll sustain both objections. You may ask your next
question.
DEFENSE COUNSEL: Objection, Your Honor. The statement by counsel
that she assumes he’s guilty changes the burden of proof in this case and
we ask for a mistrial.
THE COURT: I will overrule that objection. I’m going to instruct the jury to
disregard the statement of counsel about any assumption that she has
that somebody is guilty. You may proceed.
Mistrial is an extreme remedy that is reserved for a very narrow classification of
circumstances involving highly prejudicial and incurable errors. See Ocon v. State, 284
S.W.3d 880, 884 (Tex. Crim. App. 2009). A mistrial is used to halt proceedings when
the error involved makes the expenditure of further time and expense wasteful and
futile. Id. A trial court’s decision to deny a motion for mistrial is reviewed under an
abuse of discretion standard. Coble v. State, 330 S.W.3d 253, 292 (Tex. Crim. App.
2010); Ocon, 284 S.W.3d at 884. The denial of a motion for mistrial must be upheld if it
was within the zone of reasonable disagreement. See Coble, 330 S.W.3d at 292; Ocon,
284 S.W.3d at 884.
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The decision to grant a mistrial is governed by the particular facts of the case.
Ocon, 284 S.W.3d at 884. “Only in extreme circumstances, where the prejudice is
incurable, will a mistrial be required.” Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim.
App. 2007) (quoting Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004) (en
banc)). “[O]rdinarily, any injury from improper jury argument is obviated when the court
instructs the jury to disregard, unless the remark is so inflammatory that its prejudicial
effect cannot reasonably be removed by such an admonishment.” Long v. State, 823
S.W.2d 259, 269–70 (Tex. Crim. App. 1991) (en banc) (quoting Bower v. State, 769
S.W.2d 887, 907 (Tex. Crim. App. 1989) (en banc), and reviewing motion for mistrial
based on prosecutor’s comment in same manner as one based on improper jury
argument). If the trial court’s instruction can be said to have removed the prejudicial
effect of the improper question or remark, no error will result from denial of the motion
for mistrial. See Richards v. State, 912 S.W.2d 374, 378 (Tex. App.—Houston [14th
Dist.] 1995, pet. ref’d). In determining whether an exception exists to the general rule
that an instruction renders the error harmless, again, we look at the “particular and
unique facts” of each case. See Williams v. State, 643 S.W.2d 136, 138 (Tex. Crim.
App. [Panel Op.] 1982).
Assuming for the sake of our analysis that defense counsel’s objection to the
State’s comment was rightly sustained because the comment was error, we look to
whether the trial court’s denial of defense counsel’s motion for mistrial was reversible
error. We note that immediately after the trial court sustained defense counsel’s
objection and denied his motion for mistrial, the trial court sua sponte instructed the jury
with regard to the comment from the State’s attorney: “I’m going to instruct the jury to
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disregard the statement of counsel about any assumption that she has that somebody is
guilty. You may proceed.”
As the State points out in its brief to this Court, it could hardly be shocking to the
jury that the State’s attorney believed appellant to be guilty; surely, if the State believed
otherwise, it would not be prosecuting appellant for the offenses charged. Nonetheless,
the statement is an irresponsible one and care should be taken to keep the State’s
attorney’s personal opinion out of the matter. Here, though, the trial court took prompt
action without placing too much emphasis on the comment and redirected the jury to
disregard that comment. Additionally, the jury was later charged properly on the
presumption that appellant is innocent and the proper placement of the burden of proof
beyond a reasonable doubt on the shoulders of the State. The trial court’s instructions
were sufficient to render harmless any error presented by the State’s comment
regarding her assumption of appellant’s guilt. See Long, 823 S.W.2d at 269–70;
Richards, 912 S.W.2d at 377–78. Though unprofessional, the State’s comment was not
of such character as to suggest the impossibility of withdrawing the impression
produced on the minds of the jury. See Richards, 912 S.W.2d at 378. Based on the
record as it stands before us, we are able to say that the instruction removed the
prejudicial impact of the State’s comment, and we, therefore, cannot say the trial court
abused its discretion by denying the motion for mistrial. We overrule appellant’s first
point of error.
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Cumulative Error
Appellant next contends that error associated with the State’s improper
comment, when considered with a variety of alleged evidentiary errors, constituted
cumulative reversible error.
Standard of Review
We review the trial court’s decision to exclude or admit evidence for an abuse of
discretion. Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990) (en
banc) (citing Marras v. State, 741 S.W.2d 395, 404 (Tex. Crim. App. 1987) (en banc)).
The test for abuse of discretion is whether the trial court acted without reference to any
guiding rules and principles. Id. at 380. We will uphold the trial court’s ruling “so long
as the result is not reached in an arbitrary or capricious manner.” Id. Further, we will
sustain the trial court’s decision if that decision is correct on any theory of law applicable
to the case. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990) (en banc).
Statement to Responding Officer
Appellant contends that complainant A.P.’s statement to police officer Cammi
Clark that appellant raped her was not an excited utterance and was, therefore,
inadmissible hearsay. We look to the evidence that, when the statement was made to
officer Clark, Clark had been called in response to a report that ten-year-old A.P. was
planning on running away from home. Clark testified that A.P. was crying, upset, and
“very emotional” when she told Clark that her father had raped her. We cannot say that
the trial court abused its discretion when it admitted Clark’s testimony over appellant’s
hearsay objection. Further, any error in the admission of Clark’s testimony would be
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harmless in light of the fact that A.P. testified to the very same facts later. See Lane v.
State, 151 S.W.3d 188, 192–93 (Tex. Crim. App. 2004) (holding that any error in
admission over hearsay objection of the victim’s out-of-court statements was harmless
when same evidence was introduced several times elsewhere without objection).
Post-examination Statements to Sexual Assault Nurse Examiner
Appellant agrees that sexual assault nurse examiner Becky O’Neill was the
properly identified outcry witness and that most of her testimony is admissible because
she was such. There is testimony, however, that appellant maintains was outside the
scope of O’Neill’s capacity to testify as an outcry witness. That testimony revolves
around A.P.’s statements to O’Neill that A.P. was glad to have told about the abuse but
that she feared what would happen to her father now. Appellant contends that O’Neill,
as the outcry witness, could only testify to A.P.’s statements describing the alleged
offense and cites in support of his contention Gallegos v. State, 918 S.W.2d 50, 56
(Tex. App.—Corpus Christi 1996, pet. ref’d).
However, O’Neill was also the sexual assault nurse examiner who examined A.P.
and, as such, was qualified to testify to A.P.’s statements as they related to the proper
medical diagnosis and treatment. See TEX. R. EVID. 803(4) (providing exception to the
hearsay rule for “[s]tatements made for purposes of medical diagnosis or treatment and
describing medical history, or past or present symptoms, pain, or sensations, or the
inception or general character of the cause or external source thereof insofar as
reasonably pertinent to diagnosis or treatment”). The State responds that A.P.’s
statements reveal her fragile state of mind and also speak to the need for further
medical treatment for A.P. in the form of counseling. Indeed, O’Neill’s testimony
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regarding A.P.’s statement not only spoke to the source of A.P.’s injuries but also was
relevant to developing a plan for follow-up medical treatment for her. See Burns v.
State, 122 S.W.3d 434, 438–39 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d)
(concluding that challenged testimony from examining doctor regarding reason for not
reporting abuse earlier was relevant to victim’s “emotional issues” and “would help
determine her future course of treatment”). We cannot say that the trial court abused its
discretion by admitting the challenged portion of O’Neill’s testimony.
Social Media Post
Appellant posted a dirty joke on social media on the day of or the day after the
date of an alleged instance of assault of one of his daughters, and the State sought to
admit the post. Appellant objected at trial that the post was irrelevant and more
prejudicial than probative. At trial and on appeal, the State contends that the joke,
posted at a time very near one of the alleged assaults, was relevant to appellant’s state
of mind.
“Relevant evidence” means evidence having any tendency to make the existence
of any fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence. TEX. R. EVID. 401. “Although
relevant, evidence may be excluded if its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, or needless presentation of cumulative evidence.” TEX.
R. EVID. 403. When called on to analyze evidence in light of a Rule 403 objection, the
trial court must balance the following considerations: (1) the inherent probative force of
the proffered evidence along with (2) the proponent’s need for that evidence against (3)
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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).
The substance of the posted joke has, according to the State’s theory of
admissibility, some—albeit minimal—probative value in that it could be said to be
relevant to intent. Perhaps the timing of the post is the most valuable aspect of the
evidence in that regard. The State maintains that, because appellant denied the
allegations that he sexually assaulted his daughters, it had a great need for the
evidence to undermine his alternative theory of why the daughters were making the
accusations. The State had other, more probative evidence, however, in the form of the
daughters’ testimony and medical evidence. The State’s need for the only somewhat
probative evidence was minimal. Appellant contends that the State confused the issue
to which the dirty joke was relevant by emphasizing that one of appellant’s daughters
might have had access to the joke on his social media page. This fact, appellant
maintains, could have misled the jury and suggested that the jury rendered its verdict on
an improper basis: that appellant was a careless father who permitted his daughter
access to a dirty joke on social media. Much more likely, however, is that the jury was
able to assign the proper value to the social media post as it considered the entirety of
the evidence before it. Though the parties spend a fair amount of time at the bench
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arguing about the admissibility of the evidence, neither party spent an extraordinary
length of time on the topic before the jury. All things considered, the evidence was
probably of minimal value and minimal prejudice; it was, at least, within the zone of
reasonable disagreement to find that it is admissible.
Even if we were to assume otherwise—that admission of the social media post
was erroneous—such error would have been harmless in light of the other evidence
before the trial court, including direct testimony from the complainants and evidence
from the sexual assault examination. Our review of the record gives us fair assurance
that any assumed error associated with the social media post would not have influenced
the jury, or it would have had but a slight effect. See Taylor v. State, 268 S.W.3d 571,
592 (Tex. Crim. App. 2008); see also TEX. R. APP. P. 44.2(b) (providing that “[a]ny
[nonconstitutional] error, defect, irregularity, or variance that does not affect substantial
rights must be disregarded”).
With that, we overrule appellant’s second point of error relating to the cumulative
effect of the admission of certain items of evidence.
Conclusion
Having overruled both of appellant’s points of error, we affirm the judgment of the
trial court. See TEX. R. APP. P. 43.2(a).
Mackey K. Hancock
Justice
Do not publish.
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