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recognizing if defendant acquitted of CSA, jury may find defendant guilty of "one or all of the predicate offenses of aggravated sexual assault or indecency with a child," which were submitted as lesser-included offenses
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No. 05-16-01324-CR
04-30-2018
UNG T. LE, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 292nd Judicial District Court Dallas County, Texas
Trial Court Cause No. F-1353089-V
MEMORANDUM OPINION
Before Justices Lang, Brown, and Whitehill
Opinion by Justice Lang
Ung T. Le appeals the trial court's final judgment convicting him of continuous sexual abuse of child younger than fourteen years of age. The jury found Le guilty and assessed his punishment at thirty years of imprisonment. Le raises seven issues on appeal arguing: (1) the evidence is insufficient to support his conviction; (2) the trial court erred when it overruled his objection to the designation of the forensic interviewer as the outcry witness; (3) the trial court erred when it denied his motion for mistrial; (4) the trial court erred when it overruled his request for a limiting instruction for the jury to disregard evidence that was subject to a motion in limine; (5) the trial court erred when it overruled his objection to the admission of the video-recorded forensic interview; (6) the trial court erred when it overruled his objection to inclusion of lesser-included offenses in the jury charge; and (7) the trial court erred when it overruled his objection to the jury charge because it did not require the State to elect the manner and means of the offense it pursued. We conclude the evidence is sufficient to support Le's conviction and the trial court did not err. Also, we modify the judgment to reflect the correct statute. The trial court's final judgment is affirmed as modified.
I. FACTUAL AND PROCEDURAL CONTEXT
On March 1, 2013, T.L., who was thirteen years old, approached Rebecca Brown, a counselor at T.L.'s high school. Initially, T.L. complained that her grandfather was mean and would hit her on the back with a back scratcher. Then, T.L. stated that Le, her father, was also mean to her, would come home drunk in the early morning hours, and would yell at her. However, when T.L. stated that Le would tell her that "it would be quick" and "one time it hurt so bad, she couldn't walk the next day," Brown realized that T.L. was telling her something more. Brown asked if T.L.'s father had been sexually abusing her and if there had been penetration. T.L. responded affirmatively and stated it had been going on since she was eight years old. T.L. also told Brown that her mother took pain medications and was suicidal. Brown contacted the appropriate school officials, who notified the police.
T.L. was taken to the Dallas Children's Advocacy Center where she spoke with a forensic interviewer, Patricia Guardiola, for over an hour. During that interview, T.L. made an outcry of sexual abuse, stating she had been raped by Le for the past five years. She stated it began when she was eight years old and the last incident of sexual assault had occurred two days earlier. T.L. described Le penetrating her vagina, anus, and mouth with his penis, T.L. being made to put her hand on Le's penis, and Le putting his mouth on her vagina. She stated that these incidents occurred frequently, about every other night. T.L. provided Guardiola with sensory details of the sexual assaults, including Le "preparing" her by "licking her vagina," her physical pain during vaginal penetration, feeling like she was "tearing apart" during anal penetration, how it was more painful when Le used a condom, what Le's penis tasted like, and described seeing semen come out of Le's penis. T.L. also described an incident when Le used her bed comforter, which had illustrations of leaves on it, to clean his semen off of her body. T.L. told Guardiola that she was afraid to tell anyone because she was scared for her safety and she was afraid her family would disown her. T.L. stated that her mother would be asleep in the living room, at work, or away from the apartment when the sexual assaults occurred. One incident T.L. described occurred at her grandparents' apartment. Also, T.L. described an incident when her mother walked into T.L.'s bedroom, found Le naked in T.L.'s bed, and demanded to know what was going on. T.L. said that Le answered, "Oh, I'm licking my child's vagina," and, in response, her mother just turned around and walked out.
Seven days after the last reported incident of sexual assault, T.L. was examined by Sandra Onyinanya, a pediatric nurse practitioner and sexual assault nurse examiner (SANE). Onyinanya did not observe any injuries or abnormalities to T.L.'s genital or anal areas. However, she stated that 85-95% of all examinations are normal because the genital area is "made to heal really, really fast." Onyinanya did not do a rape kit because it had been longer than 96 hours since the last sexual assault.
Two or three weeks after T.L.'s forensic interview, Officer Johnsey Vann of the Dallas Police Department obtained a search warrant for the apartment where Le, T.L.'s mother, and T.L. lived. T.L.'s mother told the police that T.L.'s things were in the closet. The police seized a comforter with illustrations of leaves on it, a gold blanket, and a pillow sham from that closet. Forensic testing revealed the presence of seminal fluid and blood on the comforter and blanket. Le was determined to be the contributor of the DNA for the stain on the blanket and there were three possible contributors, including Le, for the stains on the comforter.
Le was indicted for continuous sexual abuse of a young child. During the jury trial, testimony was heard from several witnesses including T.L., who was seventeen years old at the time of the trial, and Guardiola, who was determined by the trial court to be the outcry witness. In addition to describing the sexual abuse, T.L. testified that she was living in foster care and her parents' natural rights to her had been terminated. The day after T.L.'s testimony concluded, Le moved for a mistrial, arguing T.L.'s testimony relating to the termination of her mother's and Le's parental rights violated a motion in limine, the prejudicial effect of that evidence outweighs its probative value, and, in the alternative, asked for a limiting instruction that all testimony related to the civil matter should be disregarded and not considered for any purpose. The trial court denied the motion. Also, T.L.'s mother and maternal grandmother testified for the defense. T.L.'s mother admitted to having attempted suicide and taking hydrocodone "in February." Further, T.L.'s mother testified that she divorced Le in 2005 and he did not live with her until they resumed their relationship in 2010, she did not see anything that "would be consistent with [Le] abusing [T.L.]," she did not find Le naked in T.L.'s bed, and she did not believe the allegations "[b]ecause [she] did not see in [sic] [her] own eyes. Because without seeing [her] own eyes [sic], [she] don't believe anything." T.L.'s maternal grandmother testified that after her daughter's divorce from Le in 2005, T.L. lived with her grandparents, not her mother, and Le moved to Louisiana and Kansas before returning to Texas in 2010. She also stated that she did not believe the allegation, but if T.L. had said something to her, she would have protected her granddaughter. The jury found Le guilty and assessed his punishment at thirty years of imprisonment.
II. SUFFICIENCY OF THE EVIDENCE
In his first issue on appeal, Le argues the evidence is insufficient to support his conviction. The State responds that the evidence showed that Le committed two or more sexual acts during a period of over thirty days.
A. Standard of Review
When reviewing the sufficiency of the evidence, an appellate court considers all of the evidence in the light most favorable to the verdict to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); State v. Bolles, 541 S.W.3d 128, ___, 2017 WL 4675659, at *4 (Tex. Crim. App. 2017); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.). An appellate court is required to defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given to their testimony. See Jackson, 443 U.S. at 319, 326; Bohannan v. State, No. PD-0347-15, 2017 WL 5622933, at *9 (Tex. Crim. App. Nov. 22, 2017); Brooks, 323 S.W.3d at 899. All evidence, whether properly or improperly admitted, will be considered when reviewing the sufficiency of the evidence. See McDaniel v. Brown, 558 U.S. 120 (2010) (per curiam); Lockhart v. Nelson, 488 U.S. 33, 41-42 (1988); Jackson, 443 U.S. at 319.
B. Applicable Law
A person commits the offense of continuous sexual abuse of a child if, during a period that is thirty or more days in duration, he commits two or more acts of sexual abuse and, at the time of the commission of each act, he is seventeen years of age or older and the victim is a child younger than fourteen years of age. See TEX. PENAL CODE ANN. § 21.02(b) (West Supp. 2017); Garner v. State, 523 S.W.3d 266, 271 (Tex. App.-Dallas 2017, no pet.). Although the exact dates of the abuse need not be proven, the offense requires proof that two or more acts of sexual abuse occurred during a period of thirty days or more. See PENAL § 21.02(d); Garner, 523 S.W.3d at 271. However, the statute does not require that the jury agree unanimously on the specific acts of sexual abuse the defendant committed or the exact dates when those acts were committed. See PENAL § 21.02(d).
The statute defines an "act of sexual abuse" as including indecency with a child under section 21.11(a)(1) and aggravated sexual assault under section 22.021. See PENAL § 21.02(c). Under section 21.11 the offense of indecency with a child occurs when a person engages in sexual contact with a child younger than seventeen years of age or causes the child to engage in sexual contact. See PENAL § 21.11 (West Supp. 2017). Section 22.021 identifies several alternative means of committing aggravated sexual assault, including intentionally or knowingly penetrating the anus or sexual organ of a child, causing the penetration or contact of the mouth of a child with the sexual organ of the defendant, or causing the sexual organ of a child to contact the mouth of the defendant. See PENAL § 22.021(a)(1)(B) (West Supp. 2017). The testimony of a child victim alone is sufficient to support a conviction for continuous sexual abuse of a child. See TEX. CODE CRIM. PROC. ANN. art. 38.07 (West Supp. 2017); Garner, 523 S.W.3d at 271.
C. Application of the Law to the Facts
Le claims the evidence is insufficient because it shows that: (1) T.L. was angry with her father and grandfather for being strict at the time of her outcry, T.L. gave the forensic interviewer conflicting accounts of the sexual assaults, and her timeframe of events did not comport with other testimony; (2) the DNA evidence only shows that Le had "sex on the blankets at some point in time," not that he had sex with T.L.; and (3) although T.L. reported the abuse within a few days of the last alleged incident of sexual abuse, she was not physically examined until it was too late to administer a rape kit and T.L.'s physical examination did not show signs of sexual assault. These arguments go to the jury's assessment of the weight and credibility of the evidence. However, we defer to the jury's credibility and weight determinations because the jury is the sole judge of T.L.'s and the other witnesses' credibility, and the weight to be given to their testimony. See Jackson, 443 U.S. at 319, 326; Bohannan, 2017 WL 5622933, at *9; Brooks, 323 S.W.3d at 899.
T.L.'s testimony plus the other evidence in the record is sufficient to show that the acts of sexual abuse occurred during a period of thirty days or more. The record shows that T.L. gave detailed testimony describing several instances of sexual assault by Le, which she stated happened every other night. T.L. also stated the sexual assault at her grandparents' apartment occurred over a year before the last sexual assault. Further, T.L. stated that, in 2013, when she "told [her] counselor" about the sexual abuse and went to the Children's Advocacy Center she was "13 about to be 14" and in the seventh grade. She stated that Le would "release" his semen on her body and would use anything nearby to wipe it up, including her blanket. The testimony of T.L., a child victim, alone is sufficient to support a conviction for continuous sexual abuse of a child. See CRIM. PROC. art. 38.07; Garner, 523 S.W.3d at 271.
Issue one is decided against Le.
III. OBJECTION TO THE OUTCRY WITNESS
In issue two, Le argues the trial court erred when it overruled his objection to the outcry witness. Le contends that T.L. made specific allegations of sexual assault to Brown before talking to Guardiola. As a result, Le claims that Guardiola should not have been allowed to give hearsay testimony because she was not the first outcry witness. The State responds that Guardiola was the first person over the age of eighteen to whom T.L. gave all the details of her sexual abuse.
A. Standard of Review
An appellate court reviews a trial court's outcry witness designation for an abuse of discretion. See Garcia v. State, 792 S.W.2d 88, 91-92 (Tex. Crim. App. 1990); Rodgers v. State, 442 S.W.3d 547, 552 (Tex. App.—Dallas 2014, pet. ref'd); Sims v. State, 12 S.W.3d 499, 500 (Tex. App.—Dallas 1999, pet. ref'd). Trial courts have broad discretion when deciding which witnesses qualify as outcry witnesses. See Sims, 12 S.W.3d at 500.
B. Applicable Law
Article 38.072 of the Texas Code of Criminal Procedure concerns the admissibility of certain hearsay evidence in specified crimes against a child younger than fourteen years of age or with a disability. See TEX. CODE CRIM. PROC. ANN. art. 38.072 (West Supp. 2017). The legislature enacted article 38.072 because it is often traumatic for children to testify in a courtroom setting, especially about sexual offenses committed against them. See Martinez v. State, 178 S.W.3d 806, 810-11 (Tex. Crim. App. 2005). The child's statement to the adult is commonly known as the "outcry," and the adult who testifies about the outcry is known as the "outcry witness." See Sanchez v. State, 354 S.W.3d 476, 484 (Tex. Crim. App. 2011). Outcry testimony admitted pursuant to article 38.072 is considered substantive evidence, admissible for the truth of the matter asserted in the testimony. See Bays v. State, 396 S.W.3d 580, 581 n.1 (Tex. Crim. App. 2013); Martinez, 178 S.W.3d at 811; see also Duran v. State, 163 S.W.3d 253, 257 (Tex. App.—Fort Worth 2005, no pet.).
Article 38.072 applies to out-of-court statements that: (1) describe the alleged offense; (2) are made by the child; and (3) are made to the first person, eighteen years of age or older, other than the defendant, to whom the child made a statement about the offense. See CRIM. PROC. art. 38.072 § 2(a); Bays, 396 S.W.3d at 581 n.1. To be a proper outcry statement, the child's statement must describe the alleged offense in some discernable manner and must be more than a general allusion to sexual abuse. See Garcia, 792 S.W.2d at 91; Rodgers, 442 S.W.3d at 552; Sims, 12 S.W.3d at 500. If the State presents evidence that a person is a proper outcry witness, the burden to rebut this evidence then shifts to the defendant. See Garcia, 792 S.W.2d at 91-92; Eldred v. State, 431 S.W.3d 177, 184 (Tex. App.—Texarkana 2014, pet. ref'd); see also In re Z.L.B., 102 S.W.3d 120, 123 (Tex. 2003) (applying standard to juvenile trials).
Also, article 38.072 requires that: (1) on or before the fourteenth day before proceedings begin, the adverse party is (a) notified of the State's intent to offer the outcry statement, (b) provides the name of the outcry witness the State intends to offer, and (c) provides a written summary of the statement; (2) the trial court holds a hearing to determine whether the statement is reliable; and (3) the child testifies or is available to testify. See CRIM. PROC. art. 38.072 § 2(b); Bays, 396 S.W.3d at 581 n.1.
C. Application of the Law to the Facts
On appeal, Le's challenge involves the identification of the outcry witness, not whether the State complied with the procedural aspects of the statute. In particular, Le contends that Guardiola, the forensic interviewer, was not a proper outcry witness because T.L. had already revealed the details of the offense to Brown, the high school counselor. Le's argument that Guardiola was not the proper outcry witness is premised on the timing of T.L.'s statements to Guardiola and a legal proposition that "the proper outcry witness is not determined by comparing statements the child gave to different individuals and then deciding which person received the most detailed statement about the offense." See Brown v. State, 189 S.W.3d 382, 386 (Tex. App.—Texarkana 2006, pet. ref'd).
Le was indicted for continuous sexual abuse of a child younger than fourteen years of age. The indictment alleged, in part, that Le committed two or more acts of sexual abuse against T.L. by contact and penetration of her sexual organ, anus, and mouth by Le's sexual organ, by contact of Le's mouth with her sexual organ, and by contact of her hand with Le's sexual organ.
Before trial, the trial court inquired whether Brown, the first witness was the outcry witness. The State answered that, although Brown was listed as one of many outcry witnesses, it was the State's position that Guardiola was the outcry witness because "not enough description was given to [] Brown." Le's counsel responded that he "consider[ed] [Brown] the outcry witness. So from that standpoint, [he] was fully prepared to be able to cross-examine her about everything that was said." The trial court stated that if Brown was not an outcry witness then there was no need for a hearing and that if the State got into anything that T.L. said to Brown it would be subject to all of the hearsay rules.
During the trial, Brown testified, without objection, that T.L. came into her office and during their conversation:
T.L. said that [Le] would tell her it would be over, you know, it would be quick. It would be over soon. And then [T.L.] did say that it was-one time it hurt so bad, she couldn't walk the next day.Brown also testified that no other details were provided. In addition, Brown stated that T.L. said the sexual abuse had been going on since she was eight years old.
. . . .
I did ask [T.L.] if [Le] had been sexually abusing her. When [T.L.] got to that point of it hurting and being over quick and not being able to walk, I did ask [T.L.] at that point if there had been any penetration and [T.L.] said yes.
After Brown's testimony, but before Guardiola's testimony, the trial court conducted a hearing outside the presence of the jury to determine whether Guardiola was a proper outcry witness. During the hearing, Guardiola testified, in part, that T.L. told Guardiola she had been raped for the past five years. Guardiola testified that T.L. described with sensory details, Le penetrating her vagina, anus, and mouth with his penis, T.L. being made to put her hand on Le's penis, and Le performing oral sex on T.L. In addition Guardiola testified about incidents T.L. related that occurred in T.L.'s room and at her maternal grandparents' apartment. At the conclusion of Guardiola's testimony, Le objected to Guardiola as the outcry witness, arguing that the State failed to meet its burden because Brown's earlier testimony showed that Brown was the first person T.L. told about the offense. Le did not recall Brown in an attempt to rebut the State's predicate or call T.L. to elicit testimony regarding the specifics of her statements to Brown. See Garcia, 792 S.W.2d at 91-92. The trial court overruled Le's objection, concluding that Guardiola's testimony established the required predicate under article 38.072. Guardiola testified as the outcry witness at trial.
Article 38.072 requires a description of the offense. See CRIM. PROC. art. 38.072 § 2(a). The offense in this case is continuous sexual abuse of a child younger than fourteen years of age. See PENAL § 21.02. Brown testified that she asked T.L. if there had been "penetration" and T.L. responded "yes," and T.L. told her it had been going on since she was eight years old. The record does not show that Brown asked or T.L. explained what the term "penetration" meant. Although Brown may have inferred what T.L. meant in response to her question about penetration, T.L.'s lack of explanation at the time does not serve to describe the alleged offense of continuous sexual abuse. It was not until T.L. spoke with Guardiola that she made her allegations of sexual abuse and it became clear that the sexual abuse involved multiple incidents of abuse occurring for a period of thirty days or more. The trial court could have reasonably concluded that T.L.'s statements to Brown were nothing more than a general allusion that sexual abuse was occurring. See Reyes v. State, 274 S.W.3d 724, 728-29 (Tex. App.—San Antonio 2008, pet. ref'd) (although child first acknowledged to social worker she had been abused, trial court did not err when it concluded that acknowledgment did not provide sufficient detail); Smith v. State, 131 S.W.3d 928, 931 (Tex. App-Eastland 2004, pet. ref'd) (child's statement to mother that defendant had been performing oral sex on him did not relay any specific details about charged offense for purposes of determining proper outcry witness); Josey v. State, 97 S.W.3d 687, 692-93 (Tex. App.—Texarkana 2003, no pet.) (child's statement to mother that defendant "fingered" him made only general allusion or insinuation that digital penetration had occurred where child did not explain what being "fingered" meant); Castelan v. State, 54 S.W.3d 469, 475-76 (Tex. App.—Corpus Christi 2001, no pet.) (grandmother was not proper outcry witness because child's statement that defendant "put his thing in through the back" did not relay specific details of abuse). Further, during the hearing, after the State laid the proper predicate that Guardiola was the outcry witness, the defense did not recall Brown in an attempt to rebut this predicate or elicit testimony from T.L. regarding the specifics of the statements she made to Brown. See Garcia, 792 S.W.2d at 91-92; see also Eldred, 431 S.W.3d at 184 (noting standard and that record contained some rebuttal evidence relating to whether witness was proper outcry witness). In the absence of any such clarification or rebuttal, the trial court ruled based on the evidence before it as to the designation of the outcry witness. See Garcia, 792 S.W.2d at 91-92 (noting that defense had opportunity to recall teacher to rebut predicate that child protective specialist was outcry witness or call child to elicit testimony regarding specifics of statements to teacher).
The record shows that Guardiola was the first person to whom T.L. described, in a discernable manner, two or more acts of sexual abuse over a period of thirty or more days. Accordingly, we conclude the trial court did not err when it allowed Guardiola to testify as the outcry witness.
Issue two is decided against Le.
IV. MOTION FOR MISTRIAL AND
REQUEST FOR AN INSTRUCTION TO DISREGARD
In issues three and four, Le argues the trial court erred when it denied his motion for mistrial and overruled his request for an instruction to the jury to disregard evidence that was subject to a motion in limine. Le claims the prejudicial effect of T.L.'s testimony that her parents' natural rights had been terminated was outweighed by its probative value. The State responds that the motion for mistrial and request for an instruction to disregard were untimely because they were made the day following T.L.'s testimony relating to the termination of her parents' natural rights.
A. Applicable Law
An appellate court should not address the merits of an issue that has not been preserved for appeal. See Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009). To preserve error for appellate review, the record must show the appellant made a timely request, objection, or motion. See TEX. R. APP. P. 33.1(a)(1). A party's complaint is timely if the party makes the complaint as soon as the grounds for it become apparent. See London v. State, 490 S.W.3d 503, 507 (Tex. Crim. App. 2016); Griggs v State, 213 S.W.3d 923, 927 (Tex. Crim. App. 2007). This means "as soon as the [objecting party] knows or should know that an error has occurred." See London, 490 S.W.3d at 507 (quoting Hollins v. State, 805 S.W.2d 475, 476 (Tex. Crim. App. 1991)). Failure to properly preserve error forfeits the complaint on appeal. See Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008).
B. Application of the Law to the Facts
Before trial, Le filed a motion in limine seeking an order instructing the State to refrain from making any direct or indirect reference at trial relating to "[a]ny information concerning the civil family matter, Cause No[.] 05-09804, involving [Le] and [T.L.], including[,] but not limited to, the final disposition of the civil family law case." The trial court orally granted the motion in limine during a pretrial hearing.
During the trial, the State did not approach the bench before T.L. testified, without objection, on both direct and re-direct examination that her parents' natural rights to her had been terminated. At the end of the day, T.L. was excused, subject to recall. The following day, before the next witness was called to testify, Le sought a mistrial on the basis that the State did not approach the trial court before asking T.L. questions about the termination of her parents' natural rights. With respect to the timeliness of his motion, Le's counsel stated:
I didn't object at that time because at the time [the State] had asked-the way [the State] asked the question, [the State] didn't ask the question such as what was the
status of the care, how did the case turn out. The way [the State] phrased it was basically your mother's rights have been terminated.Also, Le's counsel claimed that there had been no additional witnesses and this was his first opportunity "from when we closed but prior to starting" that he had to bring the matter to the trial court's attention. Further, in the alternative, Le requested the trial court to strike the information relating to the civil matter and instruct the jury to disregard that information. The trial court denied Le's request.
So basically what happened, the harmful effects, the prejudicial information was included in the question. And for me to object strenuously and have a hissy fit would have only emphasized what was being said versus trying to mitigate what had been said.
In accordance with Texas Rules of Appellate Procedure 33.1, Le's motion for mistrial and alternative request for a limiting instruction must be timely and specific. See R. APP. P. 33.1. In order for Le's motion for mistrial and alternative request for a limiting instruction to be timely, Le had to make his complaint as soon as the grounds for it become apparent. See London, 490 S.W.3d at 507; Griggs, 213 S.W.3d at 927. The grounds for Le's motion for mistrial or limiting instruction became apparent during T.L.'s direct examination and again, during re-direct examination, when she testified her parents' natural rights had been terminated. However, Le failed to move for a mistrial until the following morning, after the parties had concluded their direct examination, cross examination, and re-direct examination of T.L. and she had been excused, subject to recall, the previous afternoon. See Griggs, 213 S.W.3d at 927 (motion for mistrial was untimely because grounds became apparent during witness's testimony, but motion was made after that witness and another witness concluded their testimony). Under these circumstances, we conclude that Le's motion for mistrial and alternative request for a limiting instruction were untimely.
Le has failed to preserve his complaints in issues three and four for appellate review.
V. OBJECTION TO THE EVIDENCE
In issue five, Le argues the trial court erred when it overruled his objection to the admission of the video recording of the T.L.'s forensic interview. He contends that the video recording of T.L.'s forensic interview was not admissible under Texas Rule of Criminal Procedure article 38.072 or Texas Rule of Evidence 107. The State responds that when Le questioned Guardiola and T.L. about what was said during the forensic interview and how it was said, the rule of optional completeness allowed the video recording of that forensic interview to be admitted into evidence.
A. Standard of Review
A trial court's decision to admit or exclude evidence is reviewed under an abuse-of-discretion standard. See Henley v. State, 493 S.W.3d 77, 83 (Tex. Crim. App. 2016); Walters v. State, 247 S.W.3d 204, 217 (Tex. Crim. App. 2007). A trial court's decision will be upheld when that decision is within the zone of reasonable disagreement. See Henley, 493 S.W.3d at 83; Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010).
B. Applicable Law
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. See TEX. R. EVID. 801; Pena v. State, 353 S.W.3d 797, 814 (Tex. Crim. App. 2011). Hearsay statements are not admissible unless they fall under a recognized exception to the hearsay rule. See R. EVID. 802; Pena, 353 S.W.3d at 814.
Article 38.072 of the Texas Code of Criminal Procedure creates a hearsay exception for a child-complainant's out-of-court "statements" that "describe the alleged offense," so long as those statements were made "to the first [adult] person . . . to whom the child . . . made a statement about the offense." See CRIM. PROC. art. 38.072; Bays, 396 S.W.3d at 585. Article 38.072 is a hearsay exception statutorily limited to the live testimony of the outcry witness. See CRIM. PROC. art. 38.072; Bays, 396 S.W.3d at 581, 585-88. However, Texas Code of Criminal Procedure article 38.071 provides an exception to the hearsay rule by allowing for the admission of a child's video-recorded statement. See CRIM. PROC. art. 38.071 (West Supp. 2017); Bays, 396 S.W.3d at 589-90. Several requirements must be met in order for the video-recorded statement to be admissible, including that the child must be unavailable to testify at trial. See CRIM. PROC. art. 38.071; Bays, 396 S.W.3d at 589-90.
Texas Rule of Evidence 107, which is known as the rule of optional completeness, is also an exception to the hearsay rule. See Pena, 353 S.W.3d at 814; Walters, 247 S.W.3d at 217. Rule 107 provides that:
If a party introduces part of an act, declaration, conversation, writing, or recorded statement, an adverse party may inquire into any other part on the same subject. An adverse party may also introduce any other act, declaration, conversation, writing, or recorded statement that is necessary to explain or allow the trier of fact to fully understand the part offered by the opponent.R. EVID. 107. Rule 107 has been recognized as encompassing the "opening the door" situation. See Fuentes v. State, 991 S.W.2d 267, 279 (Tex. Crim. App. 1999). The purpose of the rule is to reduce the possibility of the jury receiving a false impression from hearing only a part of some act, conversation, or writing, and it "permits the introduction of otherwise inadmissible evidence when that evidence is necessary to fully and fairly explain a matter opened up by the adverse party." See Pena, 353 S.W.3d at 814; Walters, 247 S.W.3d at 217-18.
To be admitted under rule 107, the omitted portion of the statement must be on the same subject and necessary to make it fully understood. See Pena, 353 S.W.3d at 814; Sauceda v. State, 129 S.W.3d 116, 123 (Tex. Crim. App. 2004). More specifically, under Rule 107 the State is entitled to admission of a complainant's video-recorded statement when: (1) the defense attorney asks questions concerning some of the complainant's statements on the video recording; (2) the defense attorney's questions leave the possibility of the jury receiving a false impression from hearing only a part of the conversation, with statements taken out of context; and (3) the video recording is necessary for the conversation to be fully understood. See Mick v. State, 256 S.W.3d 828, 831 (Tex. App.—Texarkana 2008, no pet.); Tovar v. State, 221 S.W.3d 185, 190-91 (Tex. App.—Houston [1st Dist.] 2006, no pet.); Credille v. State, 925 S.W.2d 112, 116-17 (Tex. App.-Houston [14th Dist.] 1996, pet. ref'd).
However, there are two limitations to the scope of rule 107: (1) it is not invoked by the mere reference to a document, statement, or act, so only the parts or items germane to the part or item offered become admissible; and (2) the matter offered on the justification of completeness may be excluded under Texas Rule of Evidence 403 if its prejudicial effect substantially outweighs its probative value. See Pena, 353 S.W.3d at 814; Walters, 247 S.W.3d at 218; Fuentes, 991 S.W.2d at 279. Further, rule 107 does not permit the introduction of a video recording when it is unnecessary to show the context of the statement, such as the absence of a statement by the complainant rather than the existence of any directly contradictory statement. See Sauceda, 129 S.W.3d at 121-24.
C. Application of the Law to the Facts
During the trial, Le's counsel questioned Guardiola and T.L. about specific questions and statements they made during the video-recorded forensic interview. The record shows that the State called Guardiola as a witness and during cross examination, Le's counsel inquired whether Guardiola asked T.L. specific questions and if Guardiola asked follow up questions to clarify certain statements made by T.L. that defense counsel suggested showed inconsistencies. At one point, when Guardiola testified to one of T.L.'s statements, defense counsel asked "Are you sure that's exactly what she said?" and Guardiola responded "I don't know verbatim, but yes." Then, defense counsel asked, "Did she not say 'He pushed in and I'm not used to it?'" Guardiola responded "I'm still looking at the time about 7:16. At 7:16 she said 'Still not used to it even if it happened this long.'"
Also, the State called T.L. to testify and, during cross examination, Le's counsel asked T.L. about statements she made to the forensic interviewer, suggesting her statements were inconsistent with her trial testimony. For example, that cross examination included, inter alia, the following:
Le's counsel: Tell me this. When you testified earlier today when [the State] was asking you questions, you said that you had your pajamas on.
Do you remember that?
T.L.: Yes. Yes, sir.
Le's counsel: Do you remember when you talked with the lady-and you saw Ms. [Guardiola] here today, didn't you? The lady you had the forensic interview with over at the Dallas Children's Advocacy Center?
T.L.: I'm not sure. I don't remember.
. . . .
Le's counsel: But anyway, you told her that you had shorts on that night, didn't you?
T.L.: Yes.
. . . .
Le's Counsel: Now, you testified today that [Le] allegedly was doing this to you if not every night, but every other night; is that right?
T.L.: Yes, sir.
Le's Counsel: But do you remember talking to the lady over at the forensic place, you didn't tell her that, did you?
T.L.: I don't remember talking to her since it's been a while.
Le's Counsel: So you don't remember what you said to her that it just-that it happened just every now and then?
T.L.: No, sir, I don't remember what I said to her.
Further, Le's counsel called Guardiola as a witness. During the State's cross examination, the State sought to admit into evidence the video recording of Guardiola's forensic interview of T.L. Le made two objections, arguing it was irrelevant and "it's not a proper document for introduction it relates to-I haven't opened the door to introduction of the exhibit." The trial court overruled both objections.
Le is correct that article 38.072 of the Texas Code of Criminal Procedure does not permit admission of T.L.'s video-recorded statement. See Bays, 396 S.W.3d 885-92. Also, T.L.'s video-recorded statement was not admissible under article 38.071 because T.L. was available to testify. See CRIM. PROC. art. 38.071; Bays, 396 S.W.3d at 589-90. However, T.L.'s video-recorded statement was admissible under Texas Rule of Evidence 107 because Le's counsel opened the door to the video. He questioned Guardiola and T.L. about some of the questions and statements they made on that video recording. The trial court could have reasonably determined the questions asked by Le's counsel could have left a false impression and misled the jury and the video recording was necessary for Guardiola and T.L.'s forensic interview to be fully understood. Accordingly, we conclude the trial court did not err when it overruled Le's objection to the admission of the video recording of T.L.'s forensic interview.
Issue five is decided against Le.
VI. OBJECTIONS TO THE JURY CHARGE
In issues six and seven, Le argues the trial court erred when it overruled his objections to the jury charge because it included lesser-included offenses and did not require the State to elect the manner and means of the offense it was pursuing. Le claims that he "should be protected from a charge of lesser-included offenses like the State if he objects" and the State should have been required to elect which offense it was going to pursue to avoid the potential for multiple punishments. The State responds that the trial court may sua sponte include lesser-included offenses in the jury charge and there was some evidence that would permit the jury to rationally find that if Le was guilty, he was guilty only of the lesser offense.
A. Standard of Review
An appellate court reviews the trial court's decision to include a lesser-included offense in the jury charge for an abuse of discretion. See Threadgill v. State, 146 S.W.3d 654, 666 (Tex. Crim. App. 2004) (concluding trial court did not abuse discretion when no evidence to support inclusion of lesser-included offence); see also Grey v. State, 298 S.W.3d 644, 656 (Tex. Crim. App. 2009) (Cochran, J., concurring).
B. Applicable Law
Section 21.02(b) lists five elements for the offense of continuous sexual abuse of a child: (1) a person; (2) who is seventeen or older; (3) commits a series of two or more acts of sexual abuse; (4) during a period of thirty or more days; and (5) each time the victim is younger than fourteen. See PENAL § 21.02(b). Section 21.02(c) specifically enumerates the acts of sexual abuse. See Price v. State, 434 S.W.3d 601, 606 (Tex. Crim. App. 2014). Indecency with a child under section 21.11(a)(1) and aggravated sexual assault under section 22.021 are two of the specifically enumerated predicate "acts of sexual abuse" for the offense of continuous sexual abuse. See PENAL § 21.02(c)(2)-(3). The specifically enumerated "acts of sexual abuse" are lesser-included offenses of the offense of continuous sexual abuse. See Price, 434 S.W.3d at 606; Soliz v. State, 353 S.W.3d 850, 854 (Tex. Crim. App. 2011). If there is sufficient evidence to support a conviction on a lesser-included offense, a trial court may submit the lesser-included-offense instruction, even though the defendant did not request the charge and even over the defendant's objection. See Humphries v. State, 615 S.W.2d 737, 738 (Tex. Crim. App. [Panel Op.] 1981); Ford v. State, 38 S.W.3d 836, 840-41 (Tex. App.—Houston [14th Dist.] 1988, pet. ref'd); McQueen v. State, 984 S.W.2d 712, 717 (Tex. App.—Texarkana 1998, no pet.); Cevallos v. State, 699 S.W.2d 334, 335-36 (Tex. App.—Houston [1st Dist.] 1985, pet. ref'd); Rodriguez v. State, 661 S.W.2d 332, 337 (Tex. App.— Corpus Christi 1983, pet. ref'd); see also Grey, 298 S.W.3d at 655 & n.19 (Cochran, J., concurring).
Except in situations where different time periods are at issue, a fact finder can find a defendant guilty of: (1) the offense of continuous sexual abuse; (2) the enumerated act or acts of sexual abuse; or (3) a lesser-included offense or offenses of the enumerated act or acts of sexual abuse. See PENAL § 21.02(e); Price, 434 S.W.3d at 606, 610; Carmichael v. State, 505 S.W.3d 95, 100 (Tex. App.—San Antonio 2016, pet. ref'd) (concluding double jeopardy violated where defendant convicted of both continuous sexual abuse and predicate offense that occurred during the same time period). The statute's legislative intent is plain that it does not permit multiple convictions for continuous sexual abuse and for enumerated acts of sexual abuse unless the latter occurred during a different period of time. See Price, 434 S.W.3d at 606.
C. Application of the Law to the Facts
The record does not show that the State requested the lesser-included offenses to be included in the jury charge. However, the jury charge asked the jury to determine, in the alternative, whether Le was guilty of: (1) continuous sexual abuse of a child; or (2) one or more of the following five lesser-included offenses (a) aggravated sexual assault of T.L. by contact or penetration with her sexual organ by Le's sexual organ, (b) aggravated sexual assault of T.L. by contact or penetration of her anus by Le's sexual organ, (c) aggravated sexual assault of T.L. by contact or penetration of her mouth with Le's sexual organ, (d) aggravated sexual assault by the contact of T.L.'s sexual organ by Le's mouth, or (e) indecency with a child by the contact of T.L.'s hand with Le's genitals. During the charge conference, Le objected to the inclusion of the five counts of lesser-included offenses, arguing those offenses had a "different manner and means" from the offense of continuous sexual abuse, lack of adequate notice because the lesser-included offenses exposed him to five possible convictions, each count had not been separately considered by the grand jury for indictment, and the State should be required to elect the manner and means of the aggravated assault it wanted to pursue. The trial court overruled Le's objections. The jury found Le guilty only of the offense of continuous sexual abuse.
In this case, the evidence showed that Le sexually assaulted T.L. two or more times from the time she was five years of age until she was thirteen years of age by penetrating her vagina, anus, and mouth with his penis, making T.L. put her hand on Le's penis, and by Le putting his mouth on T.L.'s vagina. From this evidence, a rational trier of fact could infer that Le committed two or more acts of sexual abuse and, at the time of the commission of each act, he was seventeen years of age or older and T.L. was younger than fourteen years of age. On the other hand, especially given Le's trial strategy of showing T.L. had some memory lapses and inconsistent statements, another rational trier of fact could have found that Le committed one or all of the predicate offenses of aggravated sexual assault or indecency with a child, which are lesser-included offenses of the offense of continuous sexual abuse. See Price, 434 S.W.3d at 606; Soliz, 353 S.W.3d at 854. Therefore, because there was sufficient evidence to support a conviction on one or all of the lesser-included offenses, we conclude the trial court did not err when, in its discretion, it included the lesser-included-offense instructions, even though Le and the State did not request the charge and Le objected. See Humphries, 615 S.W.2d at 738; Ford, 38 S.W.3d at 840-41; McQueen, 984 S.W.2d at 717; Cevallos, 699 S.W.2d at 335-36; Rodriguez, 661 S.W.2d at 337; see also Grey, 298 S.W.3d at 655 & n.19 (Cochran, J., concurring). Further, the jury charge asked the jury to determine, in the alternative, whether Le was guilty of: (1) continuous sexual abuse of a child; or (2) one or more of the following five lesser-included offenses. Accordingly, we conclude the trial court did not it when it overruled Le's objection that the State should have been required to elect which offense it was going to pursue to avoid the potential for multiple punishments because, in compliance with section 21.02(e), it does not permit convictions for both continuous sexual abuse and the enumerated predicate acts of sexual abuse.
Le urges us to follow the decision of the Eastland Court of Appeals in Michell v. State, 381 S.W.3d 554 (Tex. App.—Eastland 2012, no pet.) and thereby conclude the trial court erred when it submitted a charge that included the lesser-included offenses. Also, Le asserts the submission of the lesser-included offenses in the charge denies him due process. However, Michell is inapposite. In that case, the court of appeals expressly concluded the record included "no evidence . . . that would permit a jury rationally to conclude that, if appellant is guilty, she is guilty only of a lesser included offense." Id. at 365. Unlike the case before the Eastland court of appeals, we have expressly determined above, that the record before us contains some evidence to support the submission of the lesser-included offenses. As to the "due process" contention, Le does not elaborate nor cite case law to support such a position. There is nothing for us to review in that regard.
Issues six and seven are decided against Le.
VII. MODIFICATION OF THE JUDGMENT
Although neither party raises the issue, we observe that the final judgment incorrectly lists the statute for the offense. Le was indicted for the offense of continuous sexual abuse of young child and the jury found Le guilty of that offense. The final judgment lists the offense as "sex abuse continuous chld/14," but lists the statute for that offense as "22.021 Penal Code." Section 22.021 of the Texas Penal Code relates to the offense of aggravated sexual assault. See PENAL § 22.021. However, section 21.02 of Texas Penal Code relates to the offense of continuous sexual abuse of child. See PENAL § 21.02.
An appellate court has the authority to modify an incorrect judgment to make the record speak the truth when it has the necessary information to do so. See R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993) (en banc); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex .App.—Dallas 1991, pet. ref'd). We conclude the trial court's final judgment should be modified to state the correct statute for the offense. See R. APP. P. 43.2(b); Bigley, 865 S.W.2d at 27-28; Asberry, 813 S.W.2d at 529-30. Accordingly, the final judgment should be modified to state the statute for the offense is "21.02 Penal Code."
VIII. CONCLUSION
The evidence is sufficient to support Le's conviction. Le failed to preserve for appellate review his complaints that the trial court erred when it denied his motion for mistrial and overruled Le's request for a limiting instruction for the jury to disregard evidence that was subject to a motion in limine. The trial court did not err when it overruled Le's objections to the designation of the forensic interviewer as the outcry witness, the admission of the video-recorded forensic interview, the inclusion of lesser-included offenses in the jury charge, and the jury charge because it did not require the State to elect the manner and means of the offense it pursued. Further, we modify the judgment to reflect the correct statute for the offense.
The trial court's final judgment is affirmed as modified.
/Douglas S. Lang/
DOUGLAS S. LANG
JUSTICE Do Not Publish
TEX. R. APP. P. 47
161324F.U05
JUDGMENT
On Appeal from the 292nd Judicial District Court, Dallas County, Texas
Trial Court Cause No. F-1353089-V.
Opinion delivered by Justice Lang. Justices Brown and Whitehill participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:
The portion of the judgment that lists the statute for the offense as "22.021 Penal Code" is modified to state the statute for the offense is "21.02 Penal Code."As REFORMED, the judgment is AFFIRMED. Judgment entered this 30th day of April, 2018.