Opinion
No. 05-15-01022-CR
07-27-2016
LAURO ARIZPE, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 1 Dallas County, Texas
Trial Court Cause No. F-1430781-H
MEMORANDUM OPINION
Before Justices Bridges, Evans, and O'Neill
Opinion by Justice O'Neill
The Honorable Michael J. O'Neill, Justice of the Court of Appeals for the Fifth District of Texas—Dallas, Retired, sitting by assignment. --------
Lauro Arizpe was charged with the offense of indecency with a child younger than seventeen years of age by sexual contact. A jury found appellant guilty of the charged offense, and the trial court sentenced him to five years in prison. In two issues, appellant asserts the trial court reversibly erred by admitting hearsay testimony from two witnesses.
The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.2(a), 47.4. We affirm the trial court's judgment.
BACKGROUND
When M.W. was thirteen, she began dating Zachary Robinson, who was sixteen. M.W. told Robinson she was fifteen. M.W. became pregnant with Robinson's child, and a school counselor reported her pregnancy to the Grand Prairie Police Department. Brad Makovy, a detective with the Grand Prairie Police Department, was assigned to investigate the potential sexual assault of M.W. by Robinson. As part of his investigation, Makovy referred M.W. to the Dallas Children's Advocacy Center (DCAC) to be interviewed. Yesenia Gonzalez, the supervisor of DCAC's forensics interview program, conducted M.W.'s forensic interview.
Gonzalez testified that she interviewed M.W. about her relationship with Robinson. At the conclusion of the interview, Gonzalez asked M.W. if she had sex with anyone else who was older than her. M.W. told Gonzalez that something happened to her when she was ten or eleven years old. M.W. told Gonzalez about three different incidents involving a next door neighbor she knew as Lotto (appellant). She said the incidents happened when she was in third or fourth grade. In the first incident, she was at appellant's house with her sister and April Bullock, a family friend who lived with them and helped care for M.W.'s mother. M.W. was tired and lay down in appellant's room. When Bullock and M.W.'s sister left the house, appellant came into the room, sat on the bed, and asked M.W. if she wanted him to kiss it. She did not know what he meant but then he started to touch her "down there." M.W. told Gonzalez that appellant put his hand inside the front of her pants and on top of her underwear. M.W. said he moved her underwear to the side and touched her vagina. She said appellant was "trying to go a little bit further" but April and her sister came back and he quickly pulled his hand out of her pants. M.W. said she went home and never told anyone what had happened. M.W. described a second incident when appellant again asked if she wanted him to kiss it. He pulled her close and tried to unbutton her pants. And last, she described a third incident when appellant gave her a back rub and tried to touch her chest and between her legs.
Detective Makovy testified that after viewing the video of M.W.'s forensic interview with Gonzalez, he began investigating M.W.'s allegations about the person M.W. knew as Lotto. Makovy described the steps he took to identify and locate appellant. Appellant was ultimately arrested and charged with indecency with a child younger than seventeen years of age by sexual contact. A jury found appellant guilty of the charged offense, and the trial court sentenced him to five years in prison. This appeal followed.
DISCUSSION
In two issues on appeal, appellant complains that the trial court erred by admitting hearsay testimony from Zachary Robinson and Detective Makovy. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. TEX. R. EVID. 801(d). As a general rule, hearsay is inadmissible except as provided by the rules of evidence or by statute. TEX. R. EVID. 802; Garcia v. State, 868 S.W.2d 337, 339 (Tex. Crim. App. 1993).
We review a trial court's decision to admit testimony over a hearsay objection under an abuse of discretion standard. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003); Coffin v. State, 885 S.W.2d 140, 149 (Tex. Crim. App. 1994). A trial court is in the best position to determine whether evidence should be admitted or excluded. Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007). Consequently, we will not disturb the ruling "as long as the trial court's decision was within the zone of reasonable disagreement." Id.
Improper admission of evidence is non-constitutional error that we disregard unless the error affects an appellant's substantial rights. TEX. R. APP. P. 44.2(b); Garcia v. State, 126 S.W.3d 921, 927 (Tex. Crim. App. 2004). Under rule 44.2, "an appellate court may not reverse for non-constitutional error if the court, after examining the record as a whole, has fair assurance that the error did not have a substantial and injurious effect or influence in determining the jury's verdict." See Garcia, 126 S.W.3d at 927. Moreover, trial court error due to improper admission of evidence may be rendered harmless if other evidence is admitted without objection and it proves the same fact or facts that the inadmissible evidence sought to prove. See Mack v. State, 928 S.W.2d 219, 225 (Tex. App.—Austin 1996, writ ref'd) (improper admission of evidence not harmful error if same or similar evidence admitted without objection); see also Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003) (error in admission of evidence is cured where same evidence comes in elsewhere without objection).
Testimony of Zachary Robinson
During the State's direct examination of Zachary Robinson, M.W.'s boyfriend, the prosecutor inquired about M.W.'s age when she and Robinson started dating. The following exchange took place:
STATE: Okay. So how old was she actually when y'all started dating?
ROBINSON: Turned out she was 13.
STATE: All right.
ROBINSON: I was 16.
STATE: Did she talk to you about why she told you she was 15?
ROBINSON: She said, you know, when she messaged me on Facebook - - that's - - that's how we met - - and she said pretty much - -
DEFENSE: Objection. Hearsay, Judge.
COURT: Overruled. Go ahead.
ROBINSON: - - she pretty much said, you know, that she had this crush on me for a while, and so she didn't want me to, like, not talk to her or something.
Appellant contends Robinson's testimony was hearsay because it was an out of court statement made by M.W. offered for the truth of the matter asserted—why she told Robinson she was older than she really was. Appellant argues that the trial court's error in admitting this evidence merits a new trial.
Appellant does not explain how evidence that M.W. told Robinson she was fifteen because she had a crush on him affected appellant's substantial rights. The hearsay testimony had nothing to do with the alleged offense. After examining the record, we are reasonably assured that the improper admission of Robinson's hearsay testimony did not influence the jury verdict or had but a slight effect. See Garcia, 126 S.W.3d at 927. As such, any possible error from the trial court's admission of Robinson's testimony is harmless. See TEX. R. APP. P. 44.2(b). We overrule appellant's first issue.
Testimony of Detective Bradley Makovy
Detective Makovy testified that as part of his investigation in appellant's case, he watched the video of M.W.'s forensic interview. The prosecutor asked Makovy if something caught his attention when he was reviewing the video and Makovy replied:
At the end of every interview, the forensic interviewer will do what they call a screening, where after a child either does or does not provide an outcry for the allegation that they're there for, they'll begin to ask the children some additional questions to see if somebody else - - of if that child had experienced something similar or something different at the hands of another individual. And in this case - -Defense counsel objected to hearsay rendition of the video. The trial court overruled the objection and allowed Makovy to continue testifying. Makovy then stated, "[i]n this case, the child made an outcry that a subject by the name of Lotto had violated her and touched her in an area that she did not want to be touched."
Appellant contends that Makovy's testimony was an out of court statement made with the purpose of showing how he first found out about appellant's actions against M.W. He argues the statement was inadmissible hearsay that warrants a new trial. However, according to the record, the substance of Makovy's testimony had already been admitted into evidence through the testimony of M.W. and Yesenia Gonzalez, the State's designated outcry witness who conducted M.W.'s forensic interview. The improper admission of hearsay evidence does not constitute reversible error if the same facts are proved by other properly admitted evidence. See Coble v. State, 330 S.W.3d 253, 282 (Tex. Crim. App. 2010); Prieto v. State, 337 S.W.3d 918, 922 (Tex. App.—Amarillo 2011, pet. ref'd) (error in admitting inadmissible hearsay evidence rendered harmless where victim testified to same evidence without objection). As such, any error in admitting Makovy's statement that M.W. made an outcry that Lotto had touched her inappropriately was harmless and must be disregarded. See TEX. R. APP. P. 44.2(b). We overrule appellant's second issue.
CONCLUSION
Having resolved both of appellant's issues against him, we affirm the trial court's judgment.
/Michael J. O'Neill/
MICHAEL J. O'NEILL
JUSTICE, ASSIGNED Do Not Publish
TEX. R. APP. P. 47 151022F.U05
JUDGMENT
On Appeal from the Criminal District Court No. 1, Dallas County, Texas
Trial Court Cause No. F-1430781-H.
Opinion delivered by Justice O'Neill. Justices Bridges and Evans participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 27th day of July, 2016.