Opinion
No. 04-15-00311-CR
05-25-2016
Rafael Tellez MENDEZ, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 2012CR9933
Honorable Raymond Angelini, Judge Presiding Opinion by: Marialyn Barnard, Justice Sitting: Marialyn Barnard, Justice Rebeca C. Martinez, Justice Jason Pulliam, Justice AFFIRMED
A jury found appellant Rafael Tellez Mendez guilty of three counts of sexual assault of a child. The trial court sentenced Mendez to forty years' confinement. On appeal, Mendez raises thirteen points of error, asking this court to reverse his convictions. We affirm the trial court's judgment.
BACKGROUND
When D.R. was approximately five-years-old, her mother hired Mendez's wife, Margarita Mendez, to babysit D.R. while she worked in the evenings and early morning hours. One evening D.R. told her mother that Mendez had "given her a massage" earlier that day, which she demonstrated by rubbing her own genitals. After questioning D.R., D.R.'s mother believed Mendez was sexually abusing D.R. D.R.'s mother took D.R. to Southwest General Hospital, where a sexual assault nurse examiner ("SANE") conducted an exam. During the exam, D.R. told the SANE that Mendez "did this to me" and started to rub her genitals with her left hand. D.R. also told the SANE that Mendez "put what he has here ... inside my mouth" as she pointed to her genitals. In addition to speaking to the SANE, D.R. and her mother gave statements to police regarding the sexual abuse.
Mendez was charged by indictment with three counts of sexual assault, specifically aggravated sexual assault of a child, indecency with a child, and continuous sexual abuse of a child. At trial, the trial court determined that then eight-year-old D.R. was competent and allowed her to testify as to the sexual abuse allegations. The jury also heard testimony from D.R.'s mother, the SANE, and Mendez. Ultimately, the jury convicted Mendez of all counts, and the trial court, based on the jury's recommendation, sentenced Mendez to forty years' confinement. Mendez then filed a motion for new trial, which the trial court denied. This appeal followed.
ANALYSIS
On appeal, Mendez raises thirteen points of error, which can be summarized as follows: (1) the trial court erred in admitting D.R.'s testimony into evidence because according to Mendez, she was not competent to testify; (2) the trial court erred when it denied his motion for directed verdict because the evidence is legally insufficient; (3) the trial court deprived him of a fair and impartial jury when it allowed him to be tried by a juror who swore not to follow the law and another juror who was allegedly biased; (4) the trial court made improper comments that imposed a deadline on the trial, thereby violating several constitutional provisions; (5) the trial court erred in excluding certain evidence, which violated his constitutional rights to present a meaningful defense; and (6) the trial court erred in denying his motion for new trial.
Competency of Child Witness
In his first two points of error, Mendez asserts the trial court erred by admitting D.R.'s testimony into evidence because she was not competent to testify. According to Mendez, the trial court did not perform an adequate evaluation of D.R.'s competency, and as a result, the trial court improperly concluded D.R. was competent to testify. Mendez also argues D.R. was not competent to testify because she was unable to differentiate between fantasy and reality, and she could not recollect events or basic information about herself.
We review a trial court's determination that a child witness is competent to testify under an abuse of discretion standard. Broussard v. State, 910 S.W.2d 952, 960 (Tex. Crim. App. 1995); Escamilla v. State, 334 S.W.3d 263, 263 (Tex. App.—San Antonio 2011, pet. ref'd); De Los Santos v. State, 219 S.W.3d 71, 80 (Tex. App.—San Antonio 2006, no pet.). Under this standard, we will not reverse a trial court's decision so long as the trial court's ruling was within the zone of reasonable disagreement. Montgomery v. State, 81 S.W.3d 372, 291 (Tex. Crim. App. 1990); De Los Santos, 219 S.W.3d at 80. To determine whether the trial court's ruling on competency constituted an abuse of discretion, we review the child's entire testimony, including her responses to qualification questions. De Los Santos, 219 S.W.3d at 80 (citing In re A.W., 147 S.W.3d 632, 634 (Tex. App.—San Antonio 2004, no pet.)).
Under Texas Rule of Evidence 601, every person is presumed to be a competent witness except, as is relevant here, "children or other persons who, after being examined by the court, appear not to possess sufficient intellect to relate transactions with respect to which they are interrogated." TEX. R. EVID. 601(a)(2); Broussard, 910 S.W.2d at 960; Escamilla, 334 S.W.3d at 263; De Los Santos, 219 S.W.3d at 80. This rules creates a presumption that a person is competent to testify unless shown otherwise. Hollinger v. State, 911 S.W.2d 35, 38 (Tex. App.—Tyler 1995, pet. ref'd). Under the rule, a child is deemed incompetent to testify only after a trial court examines the child and determines the child does not possess sufficient intellect to relate transactions. The burden of establishing a witness as incompetent is on the party alleging incompetency and seeking to exclude the testimony. Gilley v. State, 418 S.W.3d 114, 120-21 (Tex. Crim. App. 2014).
When evaluating the competency of a child witness, the trial court considers whether the child possesses: (1) the ability to intelligently observe the events in question at the time of the occurrence; (2) the capacity to recollect the events; and (3) the capacity to narrate the facts. Torres v. State, 33 S.W.3d 252, 255 (Tex. Crim. App. 2000); Escamilla, 334 S.W.3d at 263; De Los Santos, 219 S.W.3d at 80; Gilley, 418 S.W.3d at 121. The third element requires the child to have the ability to understand the moral responsibility to tell the truth, to understand the questions posed, and to frame intelligent answers. Torres, 33 S.W.3d at 255; Escamilla, 334 S.W.3d at 263; De Los Santos, 219 S.W.3d at 80. "Although the child need not understand the 'obligation of the oath,' the trial court must impress the child with the duty to be truthful." Torres v. State, 424 S.W.3d 245, 255 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd). Confusing and inconsistent responses from a child are not reasons to determine a child is incompetent to testify; rather, they speak to the credibility of the testimony. Escamilla, 334 S.W.3d at 263; De Los Santos, 219 S.W.3d at 80; A.W., 147 S.W.3d at 634. The trial court's role is to make the initial determination of competency, not to assess the credibility or weight to be given the testimony. Escamilla, 334 S.W.3d at 263; De Los Santos, 219 S.W.3d at 80; A.W., 147 S.W.3d at 634.
To determine whether D.R. was competent to testify, the trial court conducted a competency hearing outside the presence of the jury. At the competency hearing, D.R. showed she had the capacity to narrate basic facts about herself. See Torres, 33 S.W.3d at 255; Escamilla, 334 S.W.3d at 263; De Los Santos, 219 S.W.3d at 80. The trial court asked D.R. a series of basic questions about herself, and D.R. testified she was currently eight-years-old and in the third grade. When asked who she lived with, D.R. stated she lived "with Lourdes, my mom." According to Mendez, D.R. incorrectly answered this question. However, the record reflects D.R. correctly clarified the statement in her next sentence by stating, "No. Lourdes is not my mom" and describing Lourdes as "kind of like my aunt." The trial court then asked D.R. who her mom was, and D.R. correctly stated her mother's first and last name. The record also reflects that during cross examination, when the State asked D.R. who her mom was, D.R. provided the correct answer. See De Los Santos, 219 S.W.3d at 80 (indicating we must review all of child's testimony when evaluating trial court's determination of competency). We conclude any confusion D.R. might have initially expressed goes to her credibility as a witness as opposed to her competency to testify. See Escamilla, 334 S.W.3d at 263; De Los Santos, 219 S.W.3d at 80; A.W., 147 S.W.3d at 634.
A review of the hearing also indicates D.R. understood the difference between the truth and a lie. See Torres, 33 S.W.3d at 255; Escamilla, 334 S.W.3d at 263; De Los Santos, 219 S.W.3d at 80. When asked to explain what a lie was, D.R. provided the following example: "Like I'm wearing a yellow coat." To elaborate on her example, the trial court asked D.R. whether she was wearing a yellow coat, and she stated, "No." In addition to explaining the definition of a lie, D.R. showed she understood the moral responsibility to tell the truth by explaining that when a person tells a lie, "something bad" could happen like "someone can get mad at you." The trial court then instructed D.R., "And you're going to have to tell the truth no matter what. You understand that? You can't tell any lies. You understand that." D.R. answered, "Yes." The trial court then asked, "Is it okay to do that?" D.R. stated, "Yes." According to Mendez, D.R.'s last statement indicates she believed it was "okay" to "tell lies," suggesting she did not understand the moral responsibility to tell the truth. However, when viewed in context, D.R.'s last response was merely an inconsistent statement given she had just testified she understood it was wrong to tell lies. An inconsistent response is not a reason for a trial court to determine a child is incompetent to testify. See Escamilla, 334 S.W.3d at 263; De Los Santos, 219 S.W.3d at 80; A.W., 147 S.W.3d at 634. Thus, based on the foregoing, we conclude the trial court performed an adequate competency hearing as D.R. demonstrated she could narrate basic information about herself as well as the importance of telling the truth. See Torres, 33 S.W.3d at 255; Escamilla, 334 S.W.3d at 263; De Los Santos, 219 S.W.3d at 80.
Moreover, a review of D.R.'s trial testimony reflects D.R. possessed the ability to differentiate between fantasy and reality and observe and recollect events in question. See De Los Santos, 219 S.W.3d at 80. During direct examination, D.R. identified Ms. Maggie as her babysitter and Mendez as Ms. Maggie's husband. D.R. recollected that around the time she was in kindergarten, she would stay at Ms. Maggie's house while her mom was at work "until it was time to go to sleep." D.R. testified she slept on a sofa in Ms. Maggie's living room and Mendez would wake her up to "watch movies" on the computer located in the living room. D.R. testified the movies were of "naked people" and while he watched the movies, he touched her on her "private parts," which she further described as "number one." See Villalon v. State, 791 S.W.3d 130, 133 (Tex. Crim. App. 1990) (holding child victims need not testify using anatomically correct terms); Zuniga v. State, 811 S.W.2d 177, 179-80 (Tex. App.—San Antonio 1991, no pet.) (stating that minor complainant may use unsophisticated language to describe sexual assault). D.R. further testified Mendez touched her parts with his hands and tongue, and he made her touch his private parts — specifically, "his number one" — with her hands and her tongue. See Villalon, 791 S.W.3d at 133; Zuniga, 811 S.W.2d at 179-80. When asked to go into more detail about the abuse, the record reflects D.R. exhibited some difficulty describing it. At one point, D.R. testified, "I'm already confused." Yet, in light of this confusion, D.R. testified she touched Mendez's private part with her tongue and she would see "white stuff." See Torres, 424 S.W.3d at 255 (holding child witness competent even though complainant had difficulty recalling some matters). D.R. added that Mendez made her do this more than once and it was always in the living room at Ms. Maggie's house. According to D.R., Mendez instructed her not to tell anyone.
During cross-examination, D.R. described the sexual abuse as "embarrassing" and happening "all of the days and sometimes no and sometimes yes." D.R. testified she did not tell anyone about the abuse until the day she told her mother. D.R. testified that once she told her mother, her mother called the police and told the police what happened.
After reviewing D.R.'s testimony as a whole, we conclude the trial court did not err in determining she was competent. The record reflects D.R. was able to recall events surrounding the incidents of sexual assault and narrate them to the trial court. See Torres, 424 S.W.3d at 255; Escamilla, 334 S.W.3d at 263. And although the record reveals she had some difficulty recalling certain details about the abuse, it is well-established that any inconsistent testimony about specific events go to a complainant's credibility as opposed to a complainant's competency. See Escamilla, 334 S.W.3d at 263; De Los Santos, 219 S.W.3d at 80; A.W., 147 S.W.3d at 634.
Mendez, however, argues D.R.'s testimony reveals her inability to distinguish between fantasy and reality, calling into question her ability to observe and relate events. Mendez points to parts of D.R.'s testimony during redirect examination when she indicated she did not know what pretend or make-believe was. However, the record reflects that when asked whether she knew the difference between reality and make-believe, D.R. stated, "No," but when given examples of reality and make-believe, she correctly categorized "[t]he things in Frozen" as "make-believe." Mendez also points to D.R.'s testimony in which she first stated she presently lived with her mother and Lourdes, but later stated she also lived with Angel and Cindy in addition to her mother and Lourdes. The evidence shows D.R. lived with all three women at the time of trial, so in essence, D.R. was correct. Thus, we conclude Mendez's complaints concern matters of credibility to be assessed by the jury. See Escamilla, 334 S.W.3d at 263; De Los Santos, 219 S.W.3d at 80; A.W., 147 S.W.3d at 634.
Based on the foregoing, we conclude the record establishes D.R. was competent to testify. See Escamilla, 334 S.W.3d at 263; De Los Santos, 219 S.W.3d at 80; A.W., 147 S.W.3d at 634. Accordingly, we hold the trial court did not abuse its discretion in determining D.R. was competent to testify, and we overrule Mendez's first two points of error.
Motion for Directed Verdict
Mendez next contends, in his third and fourth points of error, the trial court erred in denying his motion for directed verdict. Specifically, Mendez argues the trial court applied the wrong legal test for determining his motion for directed verdict, and under the proper legal test, the evidence was legally insufficient to sustain his conviction of sexual assault.
We review a challenge to a trial court's denial of a motion for directed verdict under the same standard we use to review a legal sufficiency challenge. Hines v. State, 383 S.W.3d 615, 623 (Tex. App.—San Antonio 2012, pet. ref'd); Sony v. State, 307 S.W.3d 348, 353 (Tex. App.—San Antonio 2009, no pet.) (citing Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996)). Under the legal sufficiency standard, we must review all of the evidence in the light most favorable to the verdict to decide whether a rational jury could have found the essential elements of the offense beyond a reasonable doubt. Hines, 383 S.W.3d at 623; Sony, 307 S.W.3d at 353-54; see also Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). The jury is the exclusive judge of the credibility of the witnesses and the weight to be given to testimony, and we must defer to its determinations. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010); Hines, 383 S.W.3d at 623; Sony, 307 S.W.3d at 354. The jury may choose to accept or reject all or part of the testimony, and we must resolve any conflicts or inconsistencies in the evidence in favor of the jury's verdict. Furthermore, we review circumstantial and direct evidence in the same manner, and circumstantial evidence alone can be sufficient to establish a defendant's guilt. Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012) (citing Hooper, 214 S.W.3d at 13); Hines, 383 S.W.3d at 623. After reviewing the evidence in this light, we will uphold the verdict "unless a rational factfinder must have had reasonable doubt as to any essential element." Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009); Hines, 383 S.W.3d at 623.
The record reflects that after the State presented its case, Mendez moved for a directed verdict challenging the sufficiency of the evidence. When determining whether to grant or deny the motion, the trial court stated, "It is not a matter of sufficiency; it is a scintilla of evidence." The trial court then overruled Mendez's motion. As indicated above, we review a challenge to a trial court's denial of a motion for directed verdict using a legal sufficiency standard of review. See Hines, 383 S.W.3d at 623; Sony, 307 S.W.3d at 353. Thus, to determine whether the trial court erred in denying Mendez's motion for directed verdict, we must determine whether the evidence was legally sufficient to sustain the verdict. See Hines, 383 S.W.3d at 623; Sony, 307 S.W.3d at 353.
In civil cases, a trial court may not grant a directed verdict if more than a scintilla of evidence exists to support the grounds underlying the directed verdict. Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 234 (Tex. 2004). "More than a scintilla of evidence exists when it rises to the level that would enable reasonable and fair-minded people to differ in their conclusions." Id. In criminal cases, Texas appellate courts have also recognized the utilization of a "scintilla of evidence" standard used by the trial court when determining whether to grant or deny a motion for directed verdict. See Gill v. State, 111 S.W.3d 211, 217 (Tex. App.—Texarkana 2003, no pet.) (holding counsel not deficient for failing to move for directed verdict if State presents more than a scintilla of evidence to support a guilty verdict). Nonetheless, on appeal, we review a challenge to a trial court's denial of a motion for directed verdict under the standard legal sufficiency analysis. See Hines, 383 S.W.3d at 623.
In this case, Mendez was charged with aggravated sexual assault, indecency with a child, and continuous sexual assault. Under the Texas Penal Code, an individual commits the offense of aggravated sexual assault of a child, as it applies to count one of the State's indictment in this case, if he intentionally or knowingly causes the penetration of the mouth of a child by his sexual organ, and the child is younger than 6 years of age. TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(ii) (West 2011). The testimony of a child victim alone may be sufficient to support a conviction for aggravated sexual assault. TEX. CODE CRIM. PROC. ANN. art. 38.07 (West. Supp. 2014); Tear v. State, 74 S.W.3d 555, 560 (Tex. App.—Dallas 2002, pet. ref'd). Furthermore, a child complainant's outcry statement alone can be sufficient to support a conviction for aggravated sexual assault. Kimberlin v. State, 877 S.W.2d 828, 831-32 (Tex. App.—Fort Worth 1994, pet. ref'd) (citing Rodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim. App. 1991)).
A person commits the offense of indecency with a child if the person, with a child younger than seventeen years of age and not the person's spouse, engages in sexual contact with the child or causes the child to engage in sexual contact. TEX. PENAL CODE ANN. § 21.11(a)(1). "Sexual contact" is defined to mean "any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child" with the intent to arouse or gratify the sexual desire of any person. Id. § 21.11(c)(1). The specific intent required may be inferred from a defendant's conduct and remarks and all of the surrounding circumstances. Bazanes v. State, 310 S.W.3d 32, 40 (Tex. App.—Fort Worth 2010, pet. ref'd). And, just as for a conviction for aggravated sexual assault, the testimony of a child victim alone is sufficient to support a conviction of indecency with a child. TEX. CODE CRIM. PROC. ANN. art. 38.07; Gonzalez Soto v. State, 267 S.W.3d 327, 332 (Tex. App.—Corpus Christi-Edinburg 2008, no pet.).
Finally, a person commits the offense of continuous sexual abuse of a child if the person commits two or more acts of sexual abuse during a period that is thirty or more days in duration and the victim is a child younger than age fourteen and the actor is age seventeen or older. TEX. PENAL CODE ANN. § 21.02(a). As relevant here, the statute defines "acts of sexual abuse" as including:
(2) indecency with a child under Section 21.11(a)(1), if the actor committed the offense in a manner other than by touching, including touching through clothing, the breast of a child;
...Id. § 21.02(c)(2)(4). A jury need not agree unanimously on which of the specific acts of sexual abuse the actor committed or the exact date those acts were committed. Id. § 21.02(d). It is sufficient if the jury agrees unanimously that the actor committed two or more acts of sexual abuse during a span of thirty or more days. Id. Moreover, the testimony of a child victim alone is sufficient to support a conviction for continuous sexual abuse of a child. TEX. CODE CRIM. PROC. ANN. art. 38.07. And, a child victim is not required to be specific about the dates of the abuse. Dixon v. State, 201 S.W.3d 731, 736 (Tex. Crim. App. 2006).
(4) aggravated sexual assault under Section 22.021[.]
Here, the jury heard testimony from D.R. regarding the sexual abuse she endured when she was approximately five years old and being cared for by Mrs. Mendez. D.R. testified Mendez repeatedly sexually abused her by touching her genitals with his hands and mouth and making her touch his genitals with her hands and mouth. Such testimony alone is sufficient to support Mendez's convictions for all three offenses. See TEX. CODE CRIM. PROC. ANN. art. 38.07; Dixon, 201 S.W.3d at 736; Gonzalez Soto, 267 S.W.3d at 332; Tear, 74 S.W.3d at 560.
In addition to D.R.'s testimony, the jury also heard testimony from D.R.'s mother and the SANE, Cynthia Garcia. D.R.'s mother testified that when D.R. was around five-years-old, she was working evening and overnight shifts at two jobs, and she would leave D.R. with Mrs. Mendez. The mother testified she learned about the abuse when she was giving D.R. a bath and told D.R. to wash her "pepita." According to the mother, D.R. told her not to rub her very hard because Mendez had "given her a massage" earlier that day. D.R.'s mother testified she asked D.R. to tell her what she meant, and D.R. showed her by rubbing her own private part. The mother stated that when she asked D.R. if anything else had happened, D.R. "told me about the massages. She told me that she also sat in front of the computer and she would look at naked women, and that also that there were men in that video...She told me he would put her on his lap to watch movies and then she would — lay her down on the sofa to give her massages."
The jury next heard testimony from Ms. Garcia, the SANE, who testified she performed a physical exam on D.R., who was five-years-and-nine-months-old at the time of the exam. Ms. Garcia testified D.R. not only told her Mendez touched her genitals, but also demonstrated what Mendez did. Specifically, D.R. told her "he did this to me," and D.R. started to rub her genitals with her own left hand. D.R. also pointed to her genitals and said "he put what he has here ... inside my mouth." Ms. Garcia testified she asked D.R. how many times this happened, and D.R. told her "all of the days and sometimes no and sometimes yes. Because my mom would come pick me up and when I went to school, he didn't do it." Ms. Garcia further testified D.R. told her Mendez made her put her left hand on his genitals and move it up and down. With regard to the physical exam, Ms. Garcia testified D.R. had a scratch near her clitoris, some redness and irritation on the inner parts of her genitals, and displayed some tenderness in the genital region. Ms. Garcia testified she categorized D.R.'s exam as "nonspecific," explaining D.R. may or may not have been sexually abused based on the results of the exam.
To support his contention that the evidence was legally insufficient, Mendez argues there is no physical evidence confirming D.R. was sexually abused because Ms. Garcia concluded D.R.'s exam was "nonspecific." However, Ms. Garcia also testified the majority of exams are usually categorized as nonspecific and that sexual abuse is still possible. Mendez also argues D.R.'s testimony was inconsistent, contradictory, and rehearsed. According to Mendez, D.R.'s testimony that Mendez touched her private part with his hands and tongue was inconsistent and directly contradicted her outcry statement to her mother and the SANE, who each testified D.R. said Mendez "massaged her private part" with his hands as opposed to his mouth. In addition, Mendez argues D.R.'s testimony was rehearsed because at one point during her testimony, she stated, "No. I messed up."
Child victims are afforded great latitude when testifying and describing the assault. See Hiatt v. State, 319 S.W.3d 115, 121 (Tex. App.—San Antonio 2010, pet. ref'd). Moreover, as indicated in the competency analysis, Mendez's arguments regarding D.R.'s inconsistent statements and confusion are matters of credibility to be determined by a jury. See Escamilla, 334 S.W.3d at 263; De Los Santos, 219 S.W.3d at 80; In re. A.W., 147 S.W.3d at 634. Under a legal sufficiency standard, we must defer to the jury's determination of D.R.'s credibility as well as the weight to be given to her testimony. See Brooks, 323 S.W.3d at 899; Hines, 383 S.W.3d at 623; Sony, 307 S.W.3d at 354. In this case, the jury was free to accept D.R. — as well as her mother and the SANE — as a credible witness, and thus attribute weight to her testimony. See Sony, 307 S.W.3d at 354.
Accordingly, when viewing D.R.'s testimony — as well as all of the testimony summarized above — in the light most favorable to the verdict, we conclude there is sufficient evidence to permit a rational jury to find the elements of aggravated sexual assault, indecency with a child, and continuous sexual assault beyond a reasonable doubt. See Hooper, 214 S.W.3d at 13; Hines, 383 S.W.3d at 623; Sony, 307 S.W.3d at 353-54. We therefore hold the trial court did not err in denying Mendez's motion for directed verdict. Accordingly, we overrule points of error three and four.
Fair and Impartial Trial
In his next four points of error, Mendez argues the trial court deprived him of a fair trial by an impartial jury in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article 1, Section 10 of the Texas Constitution. Specifically, Mendez maintains one of the jurors did not take the oath because when the oath was administered to all the jurors, the juror stated, "I won't." Mendez also contends his right to a fair trial was violated by the presence of a biased juror, who stated he would be unable to put a personal experience aside. In response, the State contends Mendez did not preserve these issues for appeal because he did not object at trial. Mendez contends, however, that even in absence of an objection, the trial court's error constitutes reversible, fundamental error.
1. Oath
As indicated above, Mendez contends one of the jurors did not properly take the oath, and as a result, he was deprived of fair trial by an impartial jury. Article 35.22 of the Texas Code of Criminal Procedure requires the trial court to administer an oath to the jury. See TEX. CODE CRIM. PROC. ANN. art. 35.22 (West Supp. 2015). A complete failure by the trial court to administer the oath to the jury constitutes reversible error that may be raised for the first time on appeal. White v. State, 629 S.W.2d 701, 704 (Tex. Crim. App. 1981) (en banc); Brown v. State, 220 S.W.3d 552, 554 (Tex. App.—Texarkana 2007, no pet.). However, if the oath is administered untimely, it is incumbent on the defendant to object at trial in order to preserve the issue for appeal. White, 629 S.W.2d at 704; Brown, 220 S.W.3d at 554. This is because "the untimely swearing of a jury does not render the verdict void and is not reversible error." Brown, 220 S.W.3d at 554.
Here, the record reflects that after voir dire, the trial court administered the oath and dismissed the jury for the day. The following morning, the State notified the trial court that it believed one of the jurors stated, "I won't" after the trial court administered the oath. There is nothing in the record reflecting the juror stated, "I won't." The trial court spoke to the juror and asked him whether he agreed to abide by the oath. The juror responded by stating, "I'll take the oath" and thereafter, the trial court administered the oath to the juror. The juror responded, "I will." At no point did Mendez object.
Mendez argues that as a result of the juror's first response of "I won't," the trial court failed to administer the oath; therefore, the trial court's action constitutes reversible error. We disagree. This is not a case of a complete failure by the trial court to administer the oath. The record reflects the trial court correctly administered the oath as set out in article 35.22 and again after the State brought the juror's alleged comment to the trial court's attention. Thus, it was incumbent upon Mendez to object to preserve any complaint for appeal. See White, 629 S.W.2d at 704; Brown, 220 S.W.3d at 554. Because Mendez never objected at trial, his claims are not preserved for review. See White, 629 S.W.2d at 704; Brown, 220 S.W.3d at 554. Therefore, we overrule Mendez's fifth and sixth points of error.
2. Biased Juror
Mendez next argues he was deprived of a fair trial by an impartial jury because of the presence of a biased juror, and such error constitutes fundamental, reversible error that can be raised for the first time on appeal. In general, "[t]he failure to make a timely objection waives the right to challenge the jury's qualifications." Collum v. State, 96 S.W.3d 361, 366 (Tex. App.—Austin 2002, no pet.) (citing Mayo v. State, 4 S.W.3d 9, 12 (Tex. Crim. App. 1999)). "[E]ven if an absolutely disqualified juror sits on a criminal jury, reversal of the conviction is permitted only if the defendant timely objected at trial or shows significant harm on appeal." Id. However, "fundamental errors affecting substantial rights" may be raised for the first time on appeal. TEX. R. EVID. 103(d); Collum, 96 S.W.3d at 366. "A fundamental error is presented only where an 'appellant can show he was denied a trial by a fair and impartial jury.'" Collum, 96 S.W.3d at 366 (quoting Jones v. State, 982 S.W.2d 386, 391 (Tex. Crim. App. 1998)). An appellant must show that "the jury, as finally constituted, was biased or prejudiced." Id.
During voir dire, the State asked whether any of the panel members had a close friend or family member who had been a victim of sexual misconduct. Panel Member 23, along with other panel members, raised his card, indicating yes. The State further asked, "How many of you because of this experience ... will be unable to put that experience aside, meaning that this experience, you will use in your deliberations and will either hold it against the State or hold it against the defense." Panel Member 23 raised his card. At no point did Mendez raise an objection challenging Panel Member 23. Thus, we must determine whether Mendez established fundamental error in order for his claim to be preserved. See TEX. R. EVID. 103(d); Collum, 96 S.W.3d at 366.
Mendez argues the record establishes Panel Member 23 was biased as a matter of law, and therefore, he was denied a trial by a fair and impartial jury. We disagree. Panel Member 23's responses do not establish he was biased as a matter of law against the accused or to the extent that he was incapable of being fair. See Henson v. State, 173 S.W.3d 92, 99 (Tex. App.—Tyler 2005, pet. ref'd) (holding fundamental error not established when no argument or evidence venire member is biased against accused). Bias alone is not sufficient to establish error, much less fundamental error. See id. (explaining bias by itself is not sufficient for challenge for cause, much less fundamental error). Rather, one must show a juror is biased against the accused or biased to the extent he was incapable of being fair. See id. To establish such bias, it is incumbent upon counsel to ask questions to bring out information that might indicate a juror is unable to be impartial. See id. (citing Armstrong v. State, 897 S.W.3d 361, 364 (Tex. Crim. App. 1995).
Here, the record reflects that during individual voir dire examination, the State questioned Panel Member 23 about his response concerning knowing a victim of sexual abuse and how he may be unable to put that experience aside. Panel Member 23 stated the victim was his brother, who was accused of drug charges, but was treated fairly. There is nothing in Panel Member 23's response that explains how his brother's victimization or drug charge would make him biased against Mendez or biased to the extent that he was incapable of being fair. See id. Thus, we conclude Mendez did not establish Panel Member 23 was biased as a matter of law and he was therefore denied a fair and impartial trial. As a result, Mendez failed to preserve any complaint with regard to this issue for our review. See TEX. R. EVID. 103(d); Collum, 96 S.W.3d at 366.
Comment by the Trial Court
Mendez next asserts, in his ninth and tenth points of error, that the trial court erred by making comments that imposed upon the jury a deadline, requiring the jury to reach a verdict by the end of the week. According to Mendez, these comments had a coercive effect on the jury, constituting fundamental error because they contributed to his conviction and deprived him of due process and a fair trial. In response, the State argues Mendez did not properly preserve this complaint for review because no objection regarding the comments was made to the trial court and Mendez failed to establish fundamental error.
In general, to preserve error, a defendant must object to a trial court's comments, even if the comments infringe constitutional rights. TEX. R. APP. P. 33.1; Unkart v. State, 400 S.W.3d 94, 98-99 (Tex. Crim. App. 2013); Jasper v. State, 61 S.W.3d 413, 420-41 (Tex. Crim. App. 2001); see also Blue v. State, 41 S.W.3d 129, 133 (Tex. Crim. App. 2000) (plurality op.). If no objection is made, then a defendant waives the right to challenge the trial court's comments unless the comments amount to fundamental error. TEX. R. EVID. 103(d); Unkart, 400 S.W.3d at 99; Powell v. State, 252 S.W.3d 742, 744 (Tex. App.—Houston [14th Dist.] 2008, no pet.). A trial court's comments do not constitute fundamental error unless they rise "to such a level as to bear on the presumption of innocence or vitiate the impartiality of the jury." Jasper, 61 S.W.3d at 421.
Mendez argues the following comments imposed a "Friday" deadline. First, when the trial court told the venire, "Most of you will be gone this afternoon, 12 of you will be here through Friday and get through this case." And second, when the trial court told a potential juror he should be done with jury duty by Friday after that potential juror had informed the trial court he was going to be deployed that weekend. Mendez argues the trial court reiterated this "Friday" deadline when it also told the selected jury members that "one gentleman has got to be out of here anyway [by Friday], no matter what. So that will cause a great problem if we're not done." However, because Mendez did not make a timely or specific objection to any of the trial court's comments, he is only entitled to appellate review if the trial court's comments constitute fundamental error. See TEX. R. EVID. 103(d); Unkart, 400 S.W.3d at 99; Powell, 252 S.W.3d at 744.
Here, the record reflects the trial court made the comments set out above when it was trying to determine if any potential jurors had scheduling conflicts that prevented them from serving as jurors. The trial court's intention to ascertain scheduling conflicts is supported by its additional comments, informing the panel that the selected jurors they would "need to be back here the rest of the week" . . . "working more or less 9:00 to 5:00ish" . . . depending "on where we are on evidence and that kind of thing." In addition, the trial court's remark that one juror had to be done by Friday "no matter what" was followed by the trial court advising the jury, "I can't guarantee anything in the world. And the prosecution can't guarantee anything and the defense can't guarantee anything. So but we'll do our best." Thus, when the trial court's comments are viewed as a whole, it is clear the court was merely advising the jurors about the trial process. Nothing in the trial court's comments suggest the imposition of a deadline for deliberations — particularly given the trial court's statement that it could not guarantee the trial court would be completed by Friday.
Accordingly, we hold such comments do not bear on the presumption of innocence or vitiate the impartiality of the jury. See Jasper, 61 S.W.3d at 421. It is a well settled principle that "[a] trial court has broad discretion in maintaining control and expediting a trial." Id.; see, e.g., Salazar v. State, 298 S.W.3d 273, 280-81 (Tex. App.—Fort Worth 2009, pet. ref'd) (holding trial court's comment to defense counsel to provide "very concise legal basis" for future motions were made in attempt to expedite and maintain control over trial). Here, the complained of comments were aimed at explaining the trial process and estimated length of time potential jurors might need to commit to fulfill their civic duty. See id. (pointing out that comments aimed at clearing up confusion did not rise to fundamental error). Accordingly, because we conclude the trial court's comments fall within its discretion to maintain control and expedite the proceeding, we hold the comments do not rise to the level of fundamental error. See Jasper, 61 S.W.3d at 421. Therefore, Mendez has not preserved this complaint for appeal.
Mendez points to Hollie v. State, 967 S.W.2d 516 (Tex. App.—Fort Worth 1998, pet. ref'd) to support his contention the trial court's comments imposed a deadline, which had a coercive effect of directing the jury to return a verdict by Friday. In Hollie, the court of appeals cautioned that trial courts should avoid imposing deadlines due to their unpredictable and potentially undermining effects. Id. at 524. In that case, the trial court gave a deadlocked jury a time limit of an hour to report on its progress. Id. The court of appeals held that under the facts of the case, the comment was not coercive, but rather considerate because it was intended to relieve anxiety among jurors who felt captive. Id. Mendez's reliance on Hollie is misplaced because Hollie does not involve a preservation of error analysis. Before determining whether the trial court's comment was coercive — as in Hollie — we must first address whether Mendez preserved his complaint for appeal. See TEX. R. EVID. 103(d); Unkart, 400 S.W.3d at 99; Powell, 252 S.W.3d at 744. Here, as explained above, because Mendez did not object to the trial court's comments, he must show the trial court's comment rose to the level of fundamental error before we can address whether the comment was coercive. See TEX. R. EVID. 103(d); Unkart, 400 S.W.3d at 99; Powell, 252 S.W.3d at 744. As indicated above, Mendez did not meet this burden. Accordingly, we overrule Mendez's ninth and tenth points of error.
Doctrine of Chances
In points of error eleven and twelve, Mendez argues the trial court abused its discretion by excluding evidence concerning instances where D.R. falsely accused other children of hurting her. According to Mendez, the exclusion of this evidence prevented him from raising a defensive theory known as doctrine of chances. Mendez argues that as a result, he was denied the right to a defense under the Sixth and Fourteenth Amendments to the United States Constitution and Article 1, Section 10 of the Texas Constitution. In response, the State argues Mendez failed to preserve this issue for appeal because he did not make a bill of exception regarding what the evidence would have shown.
Texas courts have accepted the doctrine of chances as a viable defensive theory. Fox v. State, 115 S.W.3d 550, 559-61 (Tex. App.—Houston [14th Dist.] 2002, pet. ref'd). The theory is based on the concept of logical implausibility; specifically, it focuses on the repetition of similar or unusual events and the unlikelihood such similar events would occur. See id. A defendant may use the theory defensively "if the series of unusual events, alone or with other evidence tends to negate the defendant's guilt of the crime charged." Id . at 561.
We agree with the State that Mendez failed to preserve this issue for appeal. If an appellant does not perfect a bill of exception or proffer proof to show what the excluded testimony would have been, then nothing is preserved for review. Hiatt v. State, 319 S.W.3d 115, 127 (Tex. App.—San Antonio 2010, pet. ref'd) (citing Guidry v. State, 9 S.W.3d 133, 153 (Tex. Crim. App. 1999)). In this case, when Mendez asked Mrs. Mendez and Maria Sanchez, a former caretaker of D.R., whether D.R. accused other children of hurting her, the State objected and the trial court sustained each objection. At no point did Mendez make an offer of proof or a bill of exception and provide the trial court with a summary of the testimony he expected to elicit. Thus, there is nothing in the record to show Mrs. Mendez or Ms. Sanchez would have answered "yes" to Mendez's inquiry in support of Mendez's defensive theory. Accordingly, we hold any error in the exclusion of evidence was not preserved for appeal, and we overrule Mendez's eleventh and twelfth points of error. See id.
Motion for New Trial
Finally, Mendez contends the trial court abused its discretion when it denied his motion for new trial. Specifically, Mendez contends the trial court erred in denying his motion because: (1) D.R. was not competent to testify; (2) newly discovered medical evidence regarding his erectile dysfunction established he was physically incapable of committing the alleged acts; and (3) newly discovered evidence revealed D.R. exhibited signs of sexual abuse prior to any contact with Mendez.
We review a trial court's ruling on a motion for new trial for an abuse of discretion. Ford v. State, 444 S.W.3d 171, 182 (Tex. App.—San Antonio 2014), aff'd, 477 S.W.3d 321 (Tex. Crim. App. 2015) (citing Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007)); Jones v. State, 234 S.W.3d 151, 157 (Tex. App.—San Antonio 2007, no pet.) (citing Keeter v. State, 74 S.W.3d 31, 37 (Tex. Crim. App. 2002)). Under this standard, we view the evidence in the light most favorable to the trial court's ruling, and we will uphold the trial court's ruling so long as it was within the zone of reasonable disagreement. Ford, 444 S.W.3d at 182 (citing Webb, 232 S.W.3d at 112); see Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004). We will not substitute our judgment for that of the trial court, but instead we will decide whether the trial court's decision was unreasonable or arbitrary. Ford, 444 S.W.3d at 182 (citing Webb, 232 S.W.3d at 112); see Wead, 129 S.W.3d at 129.
1. Competency of Child
Mendez first argues the trial court abused its discretion by denying his motion for new trial because D.R. was not competent to testify. In addition to reiterating his previous argument regarding competency, Mendez points to the testimony of Dr. Daphny Ainslie from the motion for new trial hearing. Dr. Ainslie testified she is a licensed psychologist who observed one of D.R.'s interviews. According to Dr. Ainslie, aspects of the interview were troubling because the interviewer failed to build rapport with D.R., asked D.R. open-ended and compound questions, and did not ascertain the reasons D.R. was unable to recount certain information. According to Dr. Ainslie, the interview did not establish D.R. was competent to testify. Furthermore, Dr. Ainslie testified because D.R. heard her mother tell police about the abuse, D.R. may have, during trial, merely repeated the sexual abuse allegations she overheard. Mendez contends that based on this testimony, the trial court should have granted his motion for new trial because D.R. was not competent to testify, and the State relied solely upon D.R.'s testimony to prove its case.
However, as set out above, the trial court did not err in determining that D.R was competent to testify. Moreover, Dr. Ainslie's testimony regarding D.R.'s competency merely questions the Child-Safe interview techniques, and at the time of trial, the trial court conducted an independent competency hearing to determine whether D.R. was competent to testify. Thus, we conclude Dr. Ainslie's testimony was not sufficient to establish that D.R. was incompetent and therefore, to compel a new trial.
2. Newly Discovered Evidence
Mendez next argues he should have been given a new trial because of newly discovered evidence. "To establish an abuse of discretion for failure to grant a motion for new trial based on newly discovered evidence, the appellant must show: (1) the evidence was unknown or unavailable to him before trial; (2) his failure to discover the evidence was not due to a lack of diligence; (3) the new evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching; and (4) the new evidence is probably true and its materiality will probably result in a different outcome following a new trial." Jones, 234 S.W.3d at 157 (citing Keeter, 74 S.W.3d at 37). A trial court does not abuse its discretion by denying a motion for new trial if the appellant fails to establish any one of these elements. Id.
Mendez first contends he presented newly discovered medical evidence establishing he was physically incapable of sexually abusing D.R. because he suffered from erectile dysfunction. At the motion for new trial hearing, Mendez presented evidence that he had diabetes, was a heavy smoker, was at risk for heart disease, and took Lisinopril. Mendez also presented evidence from Dr. Shelley Hancock who testified men who had medical problems like Mendez were more likely to suffer from erectile dysfunction. According to Mendez, his trial counsel was not aware his medical issues could contribute to erectile dysfunction, and as a result, trial counsel did not raise an impossibility defense.
However, the evidence underlying Mendez's "newly discovered medical evidence" argument is not newly discovered evidence. In fact, Mendez states in his brief that his trial counsel was aware of Mendez's medical conditions and tendered medical records to the court during sentencing. Mendez's trial counsel even mentioned that Mendez was taking Lisinopril. Thus, even if trial counsel may have been unaware of the effects of the potential side effects of Mendez's medical problems, "[r]eaching new and different opinions from the same foundational evidence does not render the evidence newly discovered." See Ford, 444 S.W.3d at 183.
Mendez next contends that during the hearing on his motion for new trial, he presented newly discovered evidence that D.R. exhibited signs of sexual abuse prior to any contact with him. Specifically, Mendez contends D.R. exhibited the following behaviors prior to any contact with him: self-mutilation, self-biting, hypervigilance, and advanced sexual knowledge. According to Mendez, each of those behaviors were indicative of sexual abuse. To support his argument, Mendez presented testimony from Dr. Ainslie, who confirmed such type of behavior was indicative of sexual abuse. To show D.R. exhibited such behaviors prior to any contact with Mendez, Mendez presented testimony from two of D.R.'s previous babysitters, Marcella Flores and Dolores Sanchez, who each testified they observed that D.R. would not play with other children, would bite herself and mutilate herself, and exhibited advanced sexual knowledge. Mendez also presented testimony from D.R.'s father, who testified D.R. exhibited sexually advanced behavior.
Again, the evidence Mendez argues is "new" evidence is not newly discovered evidence. See id. Each of the witnesses listed above had the opportunity to testify at trial regarding D.R.'s behavior. In fact, Dolores Sanchez testified at trial as to D.R.'s behavior. Moreover, Mendez's trial counsel asked Ms. Sanchez and D.R.'s mother about D.R.'s self-biting and self-mutilation prior to her contact with Mendez. Mendez seems to suggest that Dr. Ainslie's opinion that such behavior is indicative of sexual abuse makes the evidence "newly discovered." However, as indicated above, "[r]eaching new and different opinions from the same foundational evidence does not render the evidence newly discovered." See id.
Accordingly, we hold the trial court did not abuse its discretion in denying Mendez's motion for new trial. We therefore overrule Mendez's thirteenth point of error.
CONCLUSION
Based on the foregoing analysis, we overrule Mendez's complaints and affirm the trial court's judgment.
Marialyn Barnard, Justice Do Not Publish