Opinion
No. 04-03-00045-CR.
Delivered and Filed: May 5, 2004. DO NOT PUBLISH.
Appeal from the 175th Judicial District Court, Bexar County, Texas, Trial Court No. 2002-CR-3771-a, Honorable Mary Román, Judge Presiding. Affirmed.
Sitting Catherine STONE, Justice, Sarah B. DUNCAN, Justice, Phylis J. SPEEDLIN, Justice.
A jury found appellant, Manuel Lalinde, Sr., guilty of two counts of aggravated sexual assault of a child and two counts of indecency with a child by sexual contact. Punishment was assessed at imprisonment for 15 years and 30 years for the two aggravated sexual assault charges, and 10 years each for the two indecency charges. The court ordered the sentences to be served consecutively. On appeal, Lalinde claims the trial court denied him his state and federal constitutional rights to confront the child witness and committed harmful error in admitting hearsay testimony. Lalinde also challenges the factual sufficiency of the evidence and claims the trial court erred in denying his motion for directed verdict on two of the counts. He also complains of the court's decision to impose consecutive sentences on the individual counts. We affirm the trial court's judgment.
Factual Background
M.L. is the child of Manuel Lalinde, Sr., and Rebecca Lalinde. He was born in 1996 and spent much of his time alternating between the care of his parents and his aunt and uncle, Laura and Charles Funderburk. In August 2000, per the recommendation of a Child Protective Services worker, Lalinde signed a voluntary placement agreement giving Charles and Laura custody of M.L. Soon after Laura and Charles took custody of M.L., M.L. began seeing a therapist, Colette Wright, for his aggressive behavior. While living with the Funderburks, M.L. exhibited sexually inappropriate behavior. He attempted to undo Laura's pants explaining that he wanted to "suck her down there" because that's what his mommy would do to him. On another occasion, M.L. explained to Charles before going to bed that it was time to "jack off" as his father had taught him. M.L. also told Charles that his dad had tried to put his "pee-pee in his butt" and that it hurt so bad he began screaming and his dad stopped. After learning of these incidents, Laura called the police and M.L. was taken for a sexual assault exam. The State prosecuted Lalinde on two counts of aggravated sexual assault and two counts of indecency with a child by contact. Brief captions of the counts are as follows:Count I: On or about July 1, 2000, Manuel Lalinde, Sr., intentionally and knowingly caused the sexual organ of M.L. to contact and penetrate the mouth of Manuel Lalinde, Sr.
Count II: On or about July 1, 2000, Manuel Lalinde, Sr., intentionally and knowingly contacted and penetrated M.L.'s anus with his sexual organ.
Count III: On or about July 1, 2000, Manuel Lalinde, Sr., intentionally and knowingly engaged in sexual contact with M.L. by touching part of M.L.'s genitals with the intent to arouse and gratify the sexual desire of Manuel Lalinde, Sr.
Count IV: On or about July 1, 2000, Manuel Lalinde, Sr., intentionally and knowingly engaged in sexual contact with M.L. by touching M.L.'s anus with the intent to arouse and gratify the sexual desire of Manuel Lalinde, Sr.The jury found Lalinde guilty on all four counts and assessed punishment at confinement in the Texas Department of Criminal Justice. The judge ordered the sentences on the individual counts to run consecutively, for a total of sixty-five years.
Right to Confrontation of the Child Witness
On appeal, Lalinde claims his state and federal constitutional rights to confront and cross examine his accuser were violated because the trial court allowed the child victim to testify via closed circuit television. The Sixth Amendment right to confrontation under the United States Constitution ensures the "`reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.'" Lively v. State, 968 S.W.2d 363, 366 (Tex.Crim.App. 1998) (quoting Maryland v. Craig, 497 U.S. 836, 845 (1990)). The Confrontation Clause indicates a preference for face-to-face confrontation, but sometimes public policy considerations and the necessities of the case outweigh this preference. Marx v. State, 987 S.W.2d 577, 580 (Tex.Crim.App. 1999). Generally, the right to confront one's accuser may be met without a face-to-face confrontation " only when denial of such confrontation is necessary to further an important public policy and the reliability of the testimony is otherwise assured." Id. The State is justified in using a special procedure to allow a child to testify without confronting the defendant face-to-face, if there is an adequate showing of necessity to protect the child from the trauma of testifying. Lively, 968 S.W.2d at 366. The requisite necessity must be determined on a case-by-case basis where the trial court finds the following:(1) the use of the procedure is necessary to protect the welfare of the particular child witness who seeks to testify; (2) the child witness would be traumatized by the presence of the defendant; and (3) the trauma would be more than de minimis, i.e., more than mere nervousness or excitement or some reluctance to testify.Id. If the court makes these three findings, then testifying via closed circuit television does not violate the Confrontation Clause as long as the reliability of the testimony is ensured "`by subjecting it to rigorous adversarial testing and thereby preserv[ing] the essence of effective confrontation.'" Gonzales v. State, 818 S.W.2d 756, 762 (Tex.Crim.App. 1991) (quoting Maryland v. Craig, 497 U.S. 836, 857 (1990)). The requisite reliability of the child witness' testimony may be assured absent a face-to-face encounter through the combined effect of the witness' testimony under oath (or other admonishment, appropriate to the child's age and maturity, to testify truthfully), subject to cross-examination, and the factfinder's ability to observe the witness' demeanor, even if only on a video monitor. Marx, 987 S.W.2d at 580 (citing Maryland v. Craig, 497 U.S. 836, 857-59 (1990)). Nearly a decade before the United States Supreme Court's decision in Craig, the Texas Legislature enacted Article 38.071 of the Texas Code of Criminal Procedure, which also allows alternative forms for a child sexual abuse victim to testify. Lively v. State, 940 S.W.2d 380, 386 (Tex. App.-San Antonio 1997), aff'd, Lively v. State, 968 S.W.2d 363 (Tex.Crim. App. 1998). This statute permits a child to testify via closed circuit television and outlines the procedures to be taken in arranging the child's testimony. Tex Code Crim. Proc. Ann. art. 38.071, § 3 (Vernon Supp. 2004). In determining whether to permit testimony via closed circuit television, the court should consider the child's age, the child's relationship with the defendant, and whether the child would suffer undue psychological or physical harm in confronting the defendant. Id. at § 8(a) (Vernon Supp. 2004). In the instant case during a pre-trial hearing on the State's motion to proceed with closed circuit television equipment, Lalinde's counsel argued that the predicates for testimony via closed circuit television had not been met since the therapist who testified was not an expert. At trial, Lalinde's counsel again objected before M.L. testified via closed circuit television, reiterating that the State had not met its predicate. He restated his argument that the therapist was not qualified as an expert to testify to the factors the court would use in making its findings under article 38.071 of the Texas Code of Criminal Procedure. The trial court overruled the objection and M.L. testified via closed circuit television. The State argues that Lalinde did not preserve error on this issue since his objection at trial (predicate) differed from his objection on appeal (violations of both the United States and Texas Constitutions). The State also claims Lalinde's appellate point is multifarious. We disagree with the State's contentions and reach the merits on this issue. In support of its motion to proceed with closed circuit television, the State presented M.L.'s therapist, Colette Wright. Wright is a licensed master social worker and is certified as an advanced clinical practitioner. She specializes in working with abused and neglected children. Wright testified about the requisite necessity for M.L.'s testimony to be conducted via closed circuit television. Wright explained that M.L. has a high level of anxiety and is hyper vigilant that someone might hurt him, especially his parents. She also stated that M.L. expressed fear when discussing the past sexual abuse since his parents had told him that he would go to jail if he talked about it. Wright informed the court that after a few months of therapy, M.L. felt comfortable enough with her to discuss his past sexual abuse. Wright testified that M.L.'s behavior and aggression had improved, but he would likely regress if he had to confront his parents. She further stated that whenever she mentioned going to court, M.L. lamented that he did not want to die. Wright explicitly stated that she did not believe that mere attendance in court would cause M.L to regress. Rather, she stated that he would likely regress because of his fear of being in his parents' presence. Lalinde argues that the trial court did not properly conduct the federal constitutional balancing test under Craig, but only made the statutory findings under Article 38.071 basing them upon insufficient evidence. We disagree. The trial judge made explicit and implicit findings regarding the requisite necessity and reliability under Craig and under Texas law. "Nothing in Maryland v. Craig requires that a trial court make explicit, as opposed to implicit, findings regarding the necessity of a special procedure to protect a child witness in a child abuse case." Lively, 968 S.W.2d at 367. First, the court noted that M.L. is younger than thirteen years old as section 1 of Article 38.071 requires and that the defendants had been charged with aggravated sexual assault and indecency with a child, which are offenses to which Article 38.071 applies. Pursuant to the criteria established by Craig and adopted by the Texas Court of Criminal Appeals, the court found that M.L. was unable to testify in the defendants' presence and would be traumatized if required to testify in their physical presence in the courtroom. In addition, the trial judge stated the closed circuit television procedure was necessary to protect the welfare of M.L. Lalinde also argues the trial court's findings concerning traumatic effects on the child were based on insufficient evidence. A "trial court's findings will be upheld when they are supported by the evidence," and they will be disturbed only when there has been a clear abuse of that discretion established by the record. Garcia v. State, 792 S.W.2d 88, 92 (Tex.Crim.App. 1990). Since Wright's testimony supported the trial court's findings, the court did not abuse its discretion. Further, the requisite reliability of M.L.'s testimony was also met when the child testified via closed circuit television. At the beginning of M.L.'s testimony the trial court discussed the importance of telling the truth. Lalinde argues that M.L. never understood the solemnity and consequences involved in this proceeding since M.L. called an attorney Bugs Bunny and made other silly statements. However, the trial judge asked M.L. if he knew what the truth was by giving him an example and then asked him if he knew the consequences of not telling the truth. M.L. responded affirmatively. The trial court implicitly found that M.L.'s understanding of the proceeding met the requisite reliability, thus there was no abuse of discretion in allowing him to continue. The trial judge's finding of M.L.'s understanding of the proceeding would be disturbed only if a clear abuse of discretion has been established by the record, and such is not the case here. See id. In addition, the defendants' attorneys both cross-examined M.L., and the jury was able to observe M.L. testify through the video monitor. Thus, according to the standards recognized by the Texas Court of Criminal Appeals, this closed circuit television procedure with M.L. met the requisite reliability. Finally, Lalinde contends that Article 38.071 of the Texas Code of Criminal Procedure is an unconstitutional violation of the right to confront witnesses provided by Article I, Section 10 of the Texas Constitution. However, the Texas Court of Criminal Appeals has noted that the "State Constitution has never required that the accused and the witnesses against him come `face-to-face' in the trial court in all situations." Gonzales, 818 S.W.2d at 763. Face-to-face confrontation is not the only method to guarantee the right to confrontation under Article I, Section 10 of the Texas Constitution. Id. at 764. Rather, the right to confrontation must be weighed against policy considerations. Id. A Craig analysis is applied to determine if the Texas constitutional right to confrontation has been violated. Id. We have determined that the Craig factors were met, that Article 38.071 is not unconstitutional as Lalinde suggests, and that allowing M.L. to testify via closed circuit television did not violate Lalinde's federal or state constitutional rights of confrontation. Lalinde's first issue is overruled.
Hearsay Testimony From Child's Therapist
Lalinde argues that Wright's testimony repeating that M.L. told her that his father anally penetrated him and that it hurt him was objectionable hearsay. Twice the State attempted to elicit testimony from Wright concerning past sexual abuse between M.L. and his father, and both times Lalinde's counsel objected to hearsay and the judge sustained his objections. During recross, counsel asked Wright if she was aware of any medical evidence of anal penetration and she said no. Following in redirect, the State asked Wright about the alleged anal penetration again:Q. Mr. Montgomery [defense counsel] was saying that this child talked about being anally penetrated by his father.
A. Uh-huh.
Q. Did this child actually describe pain in relation to that as well?
A. I believe — let me look on my notes. I think he said that it hurt; he did not ask him to do it. But let me make sure.
Q. So if —
Defense Counsel: Your Honor, I object to the testimony as hearsay. I did not reference any statement the child made to Mrs. Wright. I referenced statements that the Funderburks made to Mrs. Wright in the course of her taking a history. But I did not talk about anything the child purportedly said to Mrs. Wright.
The Court: That's overruled.
. . .
Q. Well, is it true that the child said it hurt really bad?
A. Uh-huh. Yes.
Q. And that putting his pee-pee, meaning Mr. Lalinde, Senior putting his pee-pee in my butt, it hurt really bad?
A. Yes. That's correct.The State argues this testimony relates to statements made for purposes of medical treatment or diagnosis and thus is an exception to hearsay under Texas Rule of Evidence 803(4). Alternatively, the State claims the testimony is not hearsay under Texas Rule of Evidence 801(e)(1)(B) because it is a prior consistent statement. To the contrary, Lalinde argues not only was it error to admit this testimony, but it was harmful error contributing to his conviction. Even if we assume the trial court erroneously admitted this testimony, the error is harmless since "it is well settled that an error in admission of evidence is cured where the same evidence comes in elsewhere without objection." Hudson v. State, 675 S.W.2d 507, 511 (Tex.Crim.App. 1984). Before Wright testified, both Charles Funderburk and M.L. testified without objection about M.L.'s claim that Lalinde anally assaulted M.L., and that it hurt so badly that M.L. screamed. Wright merely repeated information that Charles Funderburk and M.L. had both already stated when testifying; therefore, any possible hearsay error was harmless. We will not overturn a criminal conviction for non-constitutional error if, after examining the record as a whole, we have "fair assurance that the error did not influence the jury or had but a slight effect." Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998); see Tex.R.App.P. 44.2(b). We overrule Lalinde's second issue. See Brooks v. State, 990 S.W.2d 278, 287 (Tex.Crim.App. 1999) (holding "any error in admitting the evidence was harmless in light of other properly admitted evidence proving the same fact."); Moore v. State, 82 S.W.3d 399, 405 (Tex. App.-Austin 2002, pet. ref'd) (holding error in admitting testimony was harmless when both victim and appellant testified to the same incident).
Denial of Directed Verdict
In his third issue, Lalinde contends the trial court erred in denying his request for a directed verdict on Counts I and III. A complaint about the denial of a directed verdict is treated as a challenge to the legal sufficiency of the evidence. Williams v. State, 937 S.W.2d 479, 482 (Tex.Crim.App. 1996). When reviewing the legal sufficiency of the evidence, the appellate court must view the evidence in a light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Whitaker v. State, 977 S.W.2d 595, 598 (Tex.Crim.App. 1998); Johnson v. State, 103 S.W.3d 463, 464 (Tex. App.-San Antonio 2003, no pet.). "A determination that the evidence is `legally insufficient' means that the case should never have been submitted to the jury." Clewis v. State, 922 S.W.2d 126, 132-33 (Tex.Crim.App. 1996). Count I of the indictment alleged that Lalinde committed aggravated sexual assault when he caused the sexual organ of M.L. to contact and penetrate Lalinde's mouth. Shirley Menard, a pediatric nurse practitioner at the Alamo Children's Advocacy Center, testified pertaining to the allegations in Count I as follows:Q. Okay. So, Doctor Menard, [M.L.] told you he was there because my mom was sucking my pee-pee?
A. That's correct.
Q. Okay. Were you able to talk to him a little bit further than that?
A. A little bit. States this happened, quotation marks, when my daddy did it, too, end quotation marks. Quotation marks, my mom was doing that to the gang members, end quotation marks. . . . At about that point, this child became very, very active. He started going from place to place in the room. He started being very aggressive with toys, totally distracted, and really was not able to give me a whole lot more.This testimony from Menard that "my daddy did it, too" is evidence of the oral penetration allegation in Count I. "The jury is the sole judge of the weight of the evidence and may choose to believe all, some, or none of it." Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex.Crim.App. 1995). The jury chose to believe Menard's testimony, and thus found Lalinde guilty of Count I. Viewing the evidence in the light most favorable to the verdict, we hold that a rational trier of fact could have found that the allegations in the first count were true. Accordingly, Lalinde's motion for directed verdict on Count I was properly denied. A directed verdict on Count III was also properly denied. Count III alleged that Lalinde touched part of M.L.'s genitals with the intent to arouse and gratify the sexual desire of Lalinde. Although there does not appear to be any direct evidence of this allegation, "[c]ircumstantial evidence is no less trustworthy or probative than direct evidence." Jiminez v. State, 953 S.W.2d 293, 297 (Tex. App.-Austin 1997, pet. ref'd). The same standard of review applies to both direct and circumstantial evidence, thus we still look at the evidence in the light most favorable to the verdict. See Beckham v. State, 29 S.W.3d 148, 151 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd). The jury heard testimony that M.L. had learned how to "jack off" from his father in addition to testimony concerning M.L.'s behavioral and aggression problems as indicators of sexual abuse. Thus, the jury could rationally infer that Lalinde touched part of M.L.'s genitals. Therefore, the evidence is legally sufficient and Lalinde's motion for directed verdict on Count III was properly denied. Lalinde's third issue is overruled.