Garza v. State

Full title: JESUS CHARLES GARZA, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Jul 20, 2011

No. 05-10-00229-CR (Tex. App. Jul. 20, 2011)

Opinion

No. 05-10-00229-CR

Opinion issued July 20, 2011. DO NOT PUBLISH Tex. R. App. P. 47.

On Appeal from the Criminal District Court No. 5 Dallas County, Texas, Trial Court Cause No. F09-30636-L.

Before Justices MORRIS, MOSELEY, and FITZGERALD.

OPINION

Opinion By Justice FITZGERALD.

Appellant Jesus Charles Garza was convicted of aggravated sexual assault of a child under the age of fourteen. He raises four issues on appeal. We affirm.

I. Background

The evidence at trial supported the following facts. Appellant is a faith healer. He also has some training in a kind of alternative therapy known as Bowen therapy. He treats his clients by manual manipulation of various parts of the body. In June 2009, appellant was seeing clients in his apartment rather than in an office. He had a room in his apartment set up as an examination room with a hospital bed, a long counter, a microwave, and a sink. In June 2009, the complaining witness, A.B., was twelve years old. She suffered from eczema, a condition that caused dry skin and blisters on her hands and ankles. A.B.'s mother heard about appellant from a neighbor, who told A.B.'s mother that appellant could cure A.B.'s eczema. A.B.'s mother made an appointment with appellant and took A.B. to his apartment on June 12, 2009. Before appellant treated A.B., he performed a demonstration of his technique on her mother. A.B.'s mother lay on the examination table, and appellant rubbed a warm liquid on her stomach. After the demonstration, appellant had A.B. strip to her undergarments and put on a hospital gown. Then he performed a massage on A.B. with her mother in the room. A.B. and her mother testified that A.B. was covered with a sheet or a blanket during the massage, such that A.B.'s mother could not see exactly what appellant was doing. A.B.'s mother testified that A.B. made an outcry to her later that same day, after she and A.B. had returned home. She testified that A.B. told her that appellant had put his finger into her vagina. A.B. also testified at trial, and she testified that appellant touched the inside of her private part with his finger during the massage. A.B.'s mother contacted the police, and appellant was arrested a few days later. Appellant was indicted for aggravated sexual assault of a child under the age of fourteen. A jury found him guilty and sentenced him to sixty-eight years in prison.

II. Analysis

A. Issues on appeal

Appellant raises four issues on appeal. First, he contends that the trial court erred by admitting evidence of an extraneous offense during the first phase of his trial. Second, he contends that the trial court erred by admitting a search warrant and its supporting affidavit into evidence. Third, he contends that the State violated his due-process rights by adducing false testimony during the punishment phase of the trial. And fourth, he contends that the evidence was factually insufficient to support his conviction.

B. Extraneous-offense testimony

In his first issue, appellant contends the trial court erred by admitting evidence of an extraneous offense by appellant. The State called a woman we will refer to as J.C. as a witness during its rebuttal. J.C. was 50 years old at the time of trial in February 2010. She testified that she went to appellant in 2008 to be treated for back pain. J.C. testified that appellant massaged her back, then had her turn over so that he could massage the front of her body. He massaged her lower abdomen and the sides of her legs, and then he digitally penetrated her vagina. J.C. testified that she made a police report after the incident.

1.

Error preservation and presentation on appeal

The State contends that appellant did not preserve any error in the trial court. Preservation of error is a systemic requirement on appeal, and we should not address issues that have not been properly preserved for appeal. Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009). To preserve error, a party must timely object and state the grounds for the objection "with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context." Tex. R. App. P. 33.1(a)(1)(A). J.C. testified on the second day of trial. On the first day of trial, during appellant's case in chief, the State let it be known that it intended to call witnesses to testify to extraneous offenses by appellant. Although the State was not calling the witnesses at that time, appellant "objected" to evidence of extraneous offenses because those alleged offenses did not involve child victims and thus were not sufficiently similar to the instant alleged offense. The trial judge opined that the extraneous offenses as described by the State sounded very similar, but he did not rule on the objection. At the end of the first day of trial, appellant reiterated that he objected to all extraneous offenses, repeated that he did not think the extraneous offenses were sufficiently similar, and also argued that "the door was never opened up" for the admission of extraneous offenses. At that point, the trial judge replied, "I'll give you a running objection." The next day, during J.C.'s testimony and before she testified about the extraneous offense, appellant renewed his objection "that this testimony might involve extraneous acts, bad acts, offenses and uncharged conduct." The trial judge replied, "Well, I'll give you a running objection on that." Although appellant's objection was not very detailed, we conclude it was sufficient to preserve an argument that the evidence of the alleged extraneous offense against J.C. was inadmissible under Texas Rule of Evidence 404(b), which forbids the admission of evidence of extraneous offenses in order to prove a person's character and action in conformity with that character. The rule permits the admission of such evidence for other purposes, however, such as proof of motive, knowledge, or identity. See generally Tex. R. Evid. 404(b). We construe appellant's objection to be based on the ground that the alleged offense against J.C. was not relevant except for the inadmissible purpose of proving appellant's character for committing sexual assaults. The State also contends that appellant's first issue is inadequately briefed on appeal. The State points out, correctly, that appellant's argument consists mostly of long block quotations from various cases with very little explanation of how those cases should be applied in this case. But we conclude that appellant's brief is sufficient to raise the issue of whether J.C.'s testimony should have been excluded under the principles stated in Rule 404(b). To the extent appellant's brief may reference other possible objections, those arguments are waived because they do not comport with his argument in the trial court. See Swain v. State, 181 S.W.3d 359, 367 (Tex. Crim. App. 2005) (objection does not preserve error unless it comports with appellant's argument on appeal).

2.

Analysis

Under Rule 404(b), J.C.'s testimony was inadmissible to show appellant's character in order to show action in conformity therewith. Tex. R. Evid. 404(b). It was admissible, however, if it was relevant to prove some other fact such as intent, plan, or absence of mistake or accident. Id.; see also Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003) ("Rebuttal of a defensive theory such as mistake or accident is also one of the permissible purposes for which relevant evidence may be admitted under Rule 404(b)."). Our standard of review is abuse of discretion, Page v. State, 137 S.W.3d 75, 78 (Tex. Crim. App. 2004), so we affirm if the trial court's decision was within the zone of reasonable disagreement, Moses, 105 S.W.3d at 627. The question presented is whether a reasonable trial judge could have concluded that the extraneous-offense evidence was relevant to a material issue other than appellant's character. The State argues that J.C.'s testimony about the extraneous offense was admissible to rebut appellant's defensive theories that A.B. fabricated her accusations against appellant and that appellant was not the kind of person who would commit such a deed because he was a faith healer with a gift from God. The State relies on Bass v. State, in which defendant Bass was convicted of indecency with a child. 270 S.W.3d 557, 557 (Tex. Crim. App. 2008). Bass's attorney asserted in opening statement that the complainant's accusations were "pure fabrication" and also that he was a pastor and minister who was "the real deal and the genuine article." Id. at 557-58. The State introduced evidence of extraneous offenses against Bass, and the court of criminal appeals held that the introduction of the evidence was not an abuse of discretion in light of Bass's defensive theories:

In this case, it is at least subject to reasonable disagreement whether the extraneous-offense evidence was admissible for the noncharacter-conformity purpose of rebutting appellant's defensive theory that the complainant fabricated her allegations against him and of rebutting the defensive theory clearly suggesting that appellant, as a "real deal" and "genuine" pastor, would not engage in the type of conduct alleged in the indictment. . . . It is subject to reasonable disagreement whether this extraneous-offense evidence made these defensive theories less probable. . . . The trial court, therefore, did not abuse its discretion to decide that the extraneous-offense evidence was admissible to rebut these defensive theories.

Id. at 563 (citations and footnote omitted); see also Gaytan v. State, 331 S.W.3d 218, 225-26 (Tex. App.-Austin 2011, pet. filed) (no abuse of discretion in admission of evidence of extraneous offenses to rebut defensive theory of fabrication). The State contends that appellant raised the defensive theory of fabrication during its cross-examination of A.B. The State relies on A.B.'s testimony on cross-examination to the following facts: (1) she was covered with a hospital gown and a sheet, (2) she did not tell her mother what had happened until after they had gone home, (3) she did not like it when appellant hugged her and picked her up, and (4) she generally does not like to be touched. Merely challenging the complainant's credibility on cross-examination does not automatically raise a fabrication theory or open the door to extraneous-offense evidence. Gaytan, 331 S.W.3d at 224. But by eliciting testimony that A.B. did not like being touched, and in particular did not like being hugged and picked up by appellant, appellant arguably introduced evidence of a motive for A.B. to fabricate her accusation. Moreover, during closing argument appellant removed any doubt that he was relying on a defensive theory of fabrication by arguing, "Now, no one, I don't think, can say why [A.B.] would come in here and make up a story, but children do do it." This case is similar to Gaytan, in which defendant Gaytan was convicted of sexually assaulting a child. Id. at 220. During opening statement, Gaytan's counsel asserted that the crime "didn't happen" and further said, "What the evidence is going to show is that [C.R.] got mad at [Gaytan] because he wouldn't play with her anymore." Id. at 224. The trial court admitted extraneous-offense evidence against Gaytan, and the court of appeals affirmed, holding that a reasonable person could conclude that Gaytan's opening statement was sufficient to raise a theory that the complainant was fabricating her story. Id. at 224-25. In the same way, the evidence adduced by appellant in this case that A.B. generally did not like to be touched and specifically did not like it when appellant hugged her and picked her up could suggest to a reasonable person that appellant was relying on a defensive theory of fabrication. The State also contends that appellant raised the defensive theory that because he was a faith healer, he would not have engaged in the conduct alleged by A.B. Appellant called three witnesses who each testified that appellant alleviated their pain by laying his hands on them and manipulating them. One witness testified specifically, "In my opinion, the talent that he has, it's God-given talents." We conclude that this evidence is analogous to the opening statement in Bass, wherein defense counsel asserted that the defendant was "the real deal and the genuine article" as a pastor and minister, and that the complainant's accusations were "not worthy of belief" because they were "so contrary to his character." 270 S.W.3d at 558. Because appellant adduced evidence that he was a faith healer with a gift from God and that the complainant had a motive to fabricate her accusations against him, a reasonable trial judge could conclude that the extraneous-offense evidence was admissible for the limited purpose of rebutting those defensive theories. Finally, we conclude that, despite the difference in the ages of the two alleged victims, the extraneous offense was sufficiently similar to the charged offense to be relevant for the purpose of rebutting appellant's defensive theories. Because the trial judge's decision was within the zone of reasonable disagreement, no abuse of discretion occurred. We resolve appellant's first issue on appeal against him.

C.

Admission of search warrant and supporting affidavit

The State offered into evidence a copy of the search warrant that was executed at the time of appellant's arrest. The exhibit included the supporting affidavit of Detective Oseguera, in which Oseguera recited in detail what A.B.'s mother told him about A.B.'s accusations against appellant. Oseguera also recited his own recollection that he had previously arrested appellant for a reported sexual assault in 2003. Appellant objected to the exhibit as hearsay, and the trial judge overruled the objection. In his second issue on appeal, appellant contends that this ruling was harmful error. The search warrant and supporting affidavit were plainly hearsay to the extent they were offered to prove the truth of the matters asserted therein, and they should have been excluded. See Tex. R. Evid. 801-802. Almost 80 years ago, the court of criminal appeals remarked that it was "the subject of wonder" that trial courts so frequently committed the error of admitting supporting affidavits into evidence. Hamilton v. State, 48 S.W.2d 1005, 1006 (Tex. Crim. App. 1932). Yet, the erroneous admission of warrants and supporting affidavits continues to occur.¹ On appeal, the State does not argue that the trial judge's ruling was correct; instead, it proceeds immediately to the question of whether the error was harmful. We conclude that the trial judge abused his discretion by admitting the search warrant and affidavit. The admission of inadmissible hearsay is nonconstitutional error. See Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). Thus, the trial judge's error was reversible only if it had a substantial and injurious effect or influence in determining the jury's verdict. See Taylor v. State, 268 S.W.3d 571, 592 (Tex. Crim. App. 2008). Error is harmless if we have fair assurance from an examination of the record as a whole that the error did not influence the jury, or had but a slight effect. Id. Relevant factors in our harm analysis include the strength of the evidence of appellant's guilt, the character of the erroneously admitted evidence, and whether the State emphasized the erroneously admitted evidence. Motilla v. State, 78 S.W.3d 352, 358-59 (Tex. Crim. App. 2002). We may also consider whether the erroneously admitted evidence was cumulative and whether it was elicited from an expert. Douthitt v. State, 127 S.W.3d 327, 337 (Tex. App.-Austin 2004, no pet.). Appellant contends the admission of Oseguera's affidavit was harmful because in the affidavit he repeated A.B.'s mother's account of what A.B. told her appellant had done. Also, the affidavit contained the following passage: On June 17th, 2009 Det. Oseguera was assigned to conduct the follow up to this case. In reading the report, Det. Oseguera remembered Garza from a previous sexual assault report (03-19528 that occurred on June 7th, 2003) in which Det. Oseguera arrested Garza for said offense. . . . At the time, Det. Oseguera established that Garza was not a doctor. A licensed doctor would not practice medicine from a residential apartment. We conclude that the erroneously admitted evidence did not influence the jury or had only a slight effect, and therefore that the error was harmless. Oseguera's account of the offense as told to him by A.B.'s mother was merely cumulative of the live testimony given by A.B. and her mother at trial. His account of appellant's 2003 arrest refers generally to his own recollection of a prior sexual-assault report, but it does not relate any specific details of the basis of appellant's arrest. This brief account occupies only a lines in a five-page document. The first phase of the trial generated almost 300 pages of transcript and involved over 70 exhibits. Also, the trial court gave the jury a limiting instruction governing its consideration of extraneous-offense evidence. Under the instruction, the jury could consider extraneous offenses only if it found those offenses beyond a reasonable doubt and only for purposes of determining motive, opportunity, intent, preparation, plan, knowledge, or absence of mistake or accident. The jury was instructed that it "must not consider the commission of an extraneous offense, if any, as any evidence of guilt." In context, a general reference to a criminal report that resulted in appellant's arrest in 2003, without more, had a minimal impact under the facts of this case. And the State did not mention the evidence of appellant's 2003 arrest or the search warrant in its closing argument. We resolve appellant's second issue on appeal against him.

D. Due process

In his third issue on appeal, appellant contends that his federal and state due-process rights were violated because the State permitted a witness to give false testimony during the punishment phase of the trial. The court of criminal appeals recently summarized the relevant due-process requirements in Ex parte Ghahremani, 332 S.W.3d 470, 477 (Tex. Crim. App. 2011). A defendant is denied due process if false, material testimony is used against him to procure his conviction or at the punishment phase of a trial. Id. at 477-78. Due process is violated not only if the State elicits the false testimony but also if the State fails to correct testimony it knows to be false. Id. at 477. Moreover, the State does not have to have actual knowledge of the falsity of the evidence; due process is violated as long as the prosecutor should have recognized the misleading nature of the evidence. Id. False testimony is material if there is a reasonable likelihood that the testimony affected the outcome. Id. at 478. This is equivalent to the standard for harm in the context of constitutional error, under which we must reverse unless we are convinced beyond a reasonable doubt that the error did not contribute to the verdict obtained. Id. This issue reaches us in the following manner. The State called a witness, P.G., to testify against appellant during the punishment phase of the trial. She testified to the following facts. In 2003, appellant was officing in the back of a salon. P.G. was in the business of cleaning houses, and appellant invited her to come to his office and give him an estimate of what she would charge to clean his office and the salon. When P.G. went to his office, her womb was swollen or inflamed, and they agreed that he would check out the problem that she had been having. Appellant gave P.G. a massage, and during the massage he touched her vagina and her anus. P.G. made a police report afterwards, and she testified before a grand jury. She testified that she told the grand jury that she could not keep coming to court because her husband did not know about the incident and she did not want him to find out, and that she did not want to go forward with the case at that time because of her husband. Appellant asserts, and the State does not dispute, that the prior case was no billed. During P.G.'s testimony, the State offered into evidence a transcript of P.G.'s grand-jury testimony. Appellant objected on the bases of hearsay and that the State had violated the rule against making a demonstration before the jury. The trial judge excused the jury. The record reflects that the trial judge did not rule on appellant's objections, and the exhibit was not admitted into evidence. Although appellant did not make an offer of proof or a formal bill of exception, the unadmitted grand-jury transcript appears in the reporter's record on appeal. Now, in his third issue on appeal, appellant complains that the grand-jury transcript shows that P.G.'s testimony during the punishment hearing of his trial-specifically her testimony that she told the grand jury that she wanted to drop the charges so her husband would not find out about the incident-was false and went uncorrected by the State, thereby violating his due-process rights. We reject appellant's argument for two reasons. First, he failed to preserve the argument in the trial court by a timely and specific objection as required by Texas Rule of Appellate Procedure 33.1(a)(1). He did not object when P.G. gave the allegedly false testimony. When the State offered into evidence the grand-jury transcript, which allegedly proved the falsity of P.G.'s earlier testimony, appellant still did not object based on due process or the use of false testimony. He objected to the transcript only on grounds of hearsay and demonstration before the jury. On appeal, a party is limited to the grounds he urged in the trial court. See Swain, 181 S.W.3d at 367 (objection does not preserve error unless it comports with appellant's argument on appeal). Thus, appellant failed to preserve his third issue in the trial court. Second, the grand-jury transcript that allegedly shows the falsity of P.G.'s testimony is not properly before us. The transcript was not admitted into evidence, and appellant did not make a bill of exception. See Tex. R. App. P. 33.2 (setting forth procedure for formal bill of exception). So on this record, we have no basis to analyze the issue because we may not rely on an exhibit that was not admitted into evidence or included in the appellate record through a proper formal bill of exception. We resolve appellant's third issue against him.

E. Sufficiency of the evidence

In his fourth issue on appeal, appellant challenges the factual sufficiency of the evidence supporting his conviction. After Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.), the only standard we use in reviewing the sufficiency of the evidence is the standard set forth in Jackson v. Virginia, 443 U.S. 307 (1979). We examine the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Brooks, 323 S.W.3d at 895. "We defer to the jury's determinations of the witnesses' credibility and the weight to be given their testimony because the jury is the sole judge of those matters." Bell v. State, 326 S.W.3d 716, 720 (Tex. App.-Dallas 2010, pet. dism'd, untimely filed). The testimony of a victim, even when the victim is a child, is sufficient to support a conviction for sexual assault. Jensen v. State, 66 S.W.3d 528, 534 (Tex. App.-Houston [14th Dist.] 2002, pet. ref'd). Appellant argues that the evidence raised a reasonable doubt for several reasons. He points out that A.B.'s mother was present in the room at the time of the alleged offense, and that A.B. would have probably said something to her mother at the time if the offense had actually occurred. Also, when A.B.'s mother appeared for the follow-up appointment that had been set up for the purpose of arresting appellant, a chiropractor who was appellant's associate was present and answered the door. Appellant contends that this fact tends to show that he had no plan to isolate or be alone with A.B. Finally, he notes that there was not any scientific evidence corroborating A.B.'s testimony. We must defer to the jury's credibility determinations. See Bell, 326 S.W.3d at 720. A.B.'s testimony about the offense, viewed in the light most favorable to the verdict, was sufficient to support appellant's conviction. See Tex. Penal Code Ann. §§ 22.021(a)(1)(B)(i), (a)(2)(B) (West 2011); Jensen, 66 S.W.3d at 534. We resolve appellant's fourth issue against him.

III. Conclusion

For the foregoing reasons, we affirm the trial court's judgment.