No. 04-06-00384-CR
Delivered and Filed: June 20, 2007. DO NOT PUBLISH.
Appeal from the 399th Judicial District Court, Bexar County, Texas, Trial Court No. 1999-CR-4519, Honorable Juanita A. Vasquez-Gardner, Judge Presiding. AFFIRMED.
Sitting: CATHERINE STONE, Justice, KAREN ANGELINI, Justice, STEVEN C. HILBIG, Justice.
KAREN ANGELINI, Justice.
Apolonio Castillo, Jr. ("Castillo") appeals from his conviction for aggravated sexual assault of a child and brings six issues on appeal: (1) the trial court erred in permitting Anita Castillo to testify as the outcry witness and in denying Castillo the right to confront Velia, who was the first adult the child victim reported the assault to; (2) the State improperly designated an outcry witness in its notice; 3) the trial court erred in allowing "an unqualified witness" to testify; 4) the trial court erred in allowing the State to improperly bolster its witnesses; 5) the trial court erred in failing to determine, prior to testimony, that the child victim understood the nature of the oath to tell the truth; and, 6) the evidence is factually insufficient to sustain a judgment against Castillo. We affirm the judgment of the trial court.
An appeal was previously filed in cause number 04-06-00235-CR; however, because it was not timely filed, it was dismissed for lack of jurisdiction. Thereafter, the Texas Court of Criminal Appeals granted Castillo an out-of-time appeal and pursuant to the mandate issued, the trial court subsequently certified Castillo's right of appeal. On June 7, 2006, Castillo filed a second notice of appeal which this court now has jurisdiction to review.
Factual and Procedural Background
Castillo was charged with the offense of aggravated sexual assault of a child and indecency with a child by sexual contact. The alleged victim was Castillo's daughter, C.C., who was fourteen years old at the time of trial and eleven years of age at the time of the offense. At trial, Anita Castillo, the spouse and mother, testified that she first learned C.C. had been abused from her eldest daughter, Velia, in whom C.C. confided in March of 1998. Velia immediately told Anita; however, when Anita confronted C.C., C.C. refused to discuss the matter, but was observed behaving differently and crying a lot. Several months later, C.C. finally told Anita the details of the alleged assault. Specifically, C.C. stated that Castillo was in his bedroom in his underwear and asked her to bring him a glass of water. When C.C. returned with the water, Castillo reportedly told her to take off her clothes. He then forced her to get on top of him and "she felt it go in a little bit." At this point, C.C. hit Castillo on the chest and ran to the bathroom. Anita testified that when C.C. told her about the abuse, C.C. was crying and very upset. C.C. also told her, "Mom, I feel dirty," "my life has changed," and "I'm not a little girl no more." Anita called the police to report the abuse the next day. Anita testified that she did not call the police when Velia first told her because she wanted C.C. to tell her what had happened and knew that if the police came before C.C. was ready to talk, that she would not say anything. Castillo was subsequently found guilty of aggravated sexual assault of a child and was sentenced to twenty-five years confinement. I. Improper Hearsay / Outcry Witness
In his first two issues, Castillo complains that (1) the State improperly designated Anita as the outcry witness in its notice and (2)"[t]he trial court abused its discretion when it allowed the admission of improper hearsay, which denied [Castillo] of his right of confrontation." Specifically, Castillo claims that Velia, and not Anita, was the proper outcry witness; therefore, Anita's testimony regarding what C.C. told her was hearsay. Further, Castillo claims he was denied the opportunity to cross-examine and confront Velia, who was unavailable on the day of trial. However, the record reflects that on November 2, 1999, the State served opposing counsel with its "Notice of Intent to Present Outcry Statement" pursuant to article 38.072 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon 2005). Attached thereto was a narrative summary of Anita's statement, wherein Anita states that Velia told her that C.C. had confided to Velia that Castillo had sexually assaulted C.C. However, the summary also provides that Velia told Anita that C.C. did not go into details about the assault, started crying and became hysterical when Velia asked C.C. about the incident, and that C.C. later told Anita the details of the assault. Further, when the State was examining Anita regarding what C.C. had told her, Castillo's counsel objected to the question because it was leading and called for hearsay. The State responded that an outcry notice had been filed designating Anita as the outcry witness and therefore, any statement in response was admissible notwithstanding the hearsay rule. See Tex. Code Crim. Proc. Ann. art. 38.072 § 2(b) (Vernon 2005). No other objection was made. Initially, we note that Castillo's hearsay trial objection does not comport with the issues raised on appeal that he was denied his right of confrontation and that the State improperly designated Anita, rather than Velia, as the outcry witness. See Penry v. State, 903 S.W.2d 715, 763 (Tex.Crim.App. 1995) (holding that to preserve error for appeal, trial objection must comport with issue raised on appeal). Moreover, to preserve error, "a party must object each time the inadmissible evidence is offered or obtain a running objection. See Tex. R. App. P. 33.1(a)(1); id. An error in the admission of evidence is cured where the same evidence comes in elsewhere without objection." Valle v. State, 109 S.W.3d 500, 509 (Tex.Crim.App. 2003); Penry, 903 S.W.2d at 763. In the present case, Castillo objected initially based on hearsay but did not otherwise object to the State's designation of Anita as the outcry witness, or request a hearing pursuant to article 38.072 § 2(b)(2); thus, Castillo cannot now complain that the trial court abused its discretion in admitting C.C.'s outcry statement through C.C.'s mother, Anita, rather than her sister, Velia. Tex. Code Crim. Proc. Ann. art. 38.072 § 2(b)(2) (Vernon 2005); Penry, 903 S.W.2d at 763; see also Tex. R. App. P. 33.1(a)(1). Additionally, the record reflects that Anita testified that Velia was having gallstone surgery and would not be available to testify; however, Castillo's trial counsel failed to seek a continuance or in any way advise the trial court that he wished to call Velia as a witness . See Tex. R. App. P. 33.1(a)(1); see also Holland v. State, 802 S.W.2d 696, 699 (Tex.Crim.App. 1991) (defendant must make a proper and timely objection at trial to preserve a claim on appeal that the defendant was denied his constitutional right to confront the out-of-court declarant). Castillo likewise failed to advise the trial court that he believed his right to confront Velia was being denied by her absence at trial. See id. Accordingly, we overrule Castillo's first two issues. II. Unqualified Witness
Next, Castillo argues that the trial court erred in allowing Betty Urbanczyk, the registered Sexual Assault Nurse Examiner ("SANE"), to testify. Castillo asserts that Nurse Urbanczyk "might only have been qualified to come in and testify, on a limited basis, to her observances during the sexual assault exam, relevant to the physical issues surrounding sexual assault, but nothing more." Specifically, Castillo complains that Ms. Urbanczyk was permitted to inform the jury that her examination of C.C. revealed a healed cleft tear which indicated prior penetration. Castillo asserts that this testimony was objected to. We disagree. The record reflects that Ms. Urbanczyk was called as a witness and proceeded to testify regarding the events. When asked by the State what the victim told her about the crime, the following exchange took place: THE STATE: Well, if you could refresh your memory from your notes and then once you're done refreshing, just let us know. Actually, it's in evidence so yes, you can. You can. MR. DOMINGUEZ: Your Honor, I'm going to object to any statements that are written in this document made by [C.C.] to the — to Ms. — WITNESS: Urbanczyk. MR. DOMINGUEZ: Urbanczyk as hearsay statements, Your Honor. I'm going to object to them. THE STATE: One, Your Honor, it's already been admitted into evidence, that's an objection that needed to be made at the time of the admission; but two, it's a hearsay exception in that it's a statement made for purposes of medical diagnosis which is an exception under 803.4 of the Code of Criminal Evidence. THE COURT: It's overruled. Thus, Castillo's trial counsel only objected to statements contained in the document reflecting what C.C. told Ms. Urbanczyk. See Penry, 903 S.W.2d at 763. This objection was properly overruled since the medical records had previously been admitted into evidence as a hearsay exception pursuant to Texas Rule of Evidence 803(4). See Tex. R. Evid. 803(4) (providing that statements made for purposes of medical diagnosis or treatment are not excluded by the hearsay rule). And while Castillo previously objected to the introduction of these medical records, Castillo's objection that the records were not originals was properly overruled. Accordingly, we overrule this issue. Id. III. Bolstering of Witnesses
Castillo next asserts that the State was allowed to engage in the improper bolstering of its witnesses and specifically points to testimony by Jevi Rodriguez, an investigator for the Department of Protective Services. The witness testified that after the reported abuse, she contacted Anita and C.C. and based on her interviews, she determined that the allegations had merit. No objections to Ms. Rodriguez's testimony appear in the record. Tex. R. App. P. 33.1(a)(1). We overrule Castillo's issue. IV. Witness's Truthfulness
Castillo further complains that "[t]he trial court abused its discretion in failing to determine, prior to testimony, that the complainant understood the nature of the oath to tell the truth and her duty and obligation to tell the truth." As a general rule, every person is competent to be a witness. See Tex. R. Evid. 601. However, Rule 601 further provides that children or other persons who, after being examined by the court, appear not to possess sufficient intellect to relate transactions with respect to which they are interrogated, shall be incompetent to testify. Id. We review a trial court's ruling on whether a child is competent to testify for an abuse of discretion. See Broussard v. State, 910 S.W.2d 952, 960 (Tex.Crim.App. 1995). However, to preserve a complaint for review on appeal, a party must timely and specifically object in the trial court and secure an adverse ruling. See Tex. R. App. P. 33.1; see also Loredo v. State, 159 S.W.3d 920, 923 (Tex.Crim.App. 2004). Here, the record reflects that the trial judge determined that C.C. was fourteen years old at the time of trial. Additionally, since the rule had been invoked, the trial judge made sure C.C. understood that she could not discuss her testimony with other witnesses or be in the courtroom while another witness was testifying. C.C. indicated several times that she understood the judge's instructions. Based on this interaction with the fourteen-year-old witness, as well as her observations of C.C.'s responses and demeanor, the trial judge could have properly found C.C. competent to testify. Moreover, Castillo does not direct this court, nor has our review of the record found, any objection in the record by Castillo regarding the competency of C.C.'s testimony or the lack of an adequate determination by the trial judge. See id. Accordingly, we overrule this issue. V. Factual Insufficiency
Finally, Castillo argues that the evidence was factually insufficient to support the jury's finding that he sexually assaulted C.C. Specifically, Castillo maintains that there was insufficient evidence of penetration. In a factual sufficiency review, we view all of the evidence in a neutral light and will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Prible v. State, 175 S.W.3d 724, 730-31 (Tex.Crim.App.), cert. denied, 126 S. Ct. 481 (2005). A verdict is clearly wrong and unjust if the "jury's finding is `manifestly unjust,' `shocks the conscience,' or `clearly demonstrates bias.'" Id. (quoting Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1997)). In conducting this review, we may not substitute our determination for that of the fact finder. See Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996); Scott v. State, 934 S.W.2d 396, 399 (Tex.App.-Dallas 1996, no pet.). Instead, we defer to the jury's determination concerning what weight to give contradictory testimony. Johnson v. State, 23 S.W.3d 1, 9 (Tex.Crim.App. 2000). Castillo argues that the only evidence of penetration came from hearsay statements by Anita, who learned the details of the assault from Velia, not C.C., and Nurse Urbanczyk. Nevertheless, Urbanczyk testified that C.C. told her Castillo called her into his bedroom, got her down on her back, took his pants and underwear off, and then "[t]ried to get his thing in there all the way" and "got it in halfway." This comports with what C.C. told Anita on a separate occasion. Castillo also maintains that Urbanczyk's testimony that she observed evidence of penetration during her examination of C.C., along with the fact that C.C. told her that she had been sexually assaulted by Castillo, conflict with C.C.'s testimony on cross that she engaged in digital self-penetration. However, although Castillo's trial counsel asked Urbanczyk on cross examination if the evidence of the healed cleft could have been caused by the insertion of fingers, he didn't specify whether he was referring to digital penetration by an adult or by a child. When Urbanczyk responded affirmatively, Castillo's counsel then inquired "whether it would be reasonable to assume or to — to conclude that a man — a grown man inserting his penis into [C.C.] would cause perhaps a — larger tear" to C.C.'s hymen to which Urbanczyk answered, "[n]ot necessarily." Castillo also argues that Anita and Castillo were in the midst of a divorce, and that Anita delayed in reporting the incident initially, and then allegedly informed her divorce attorney before contacting anyone else. However, this argument is unsupported by the record. See Tex. R. App. P. 38.1(h). Finally, Castillo states that he was allowed to continue living at the home, was given consent by Anita to have continued contact with C.C. and, in fact, went to Fiesta Texas with C.C. after the reported incident. After viewing all the evidence before us in a neutral light, we conclude that there is factually sufficient evidence of penetration to support the jury's finding of aggravated sexual assault. See Prible, 175 S.W.3d at 730-31; Vernon v. State, 841 S.W.2d 407, 409 (Tex.Crim.App. 1992) (holding penetration occurs where the contact is more intrusive than contact with the outer labia and even the slightest penetration of the female sexual organ is sufficient to prove penetration); Sherbert v. State, 531 S.W.2d 636, 637 (Tex.Crim.App. 1976). We overrule Castillo's final issue. Conclusion
We affirm the trial court's judgment.