Opinion
NO. 14-15-01051-CR
04-04-2017
JUVENAL RODRIGUEZ-VEDUZCO, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 338th District Court Harris County, Texas
Trial Court Cause No. 1423665
MEMORANDUM OPINION
Appellant Juvenal Rodriguez-Veduzco raises two issues in this appeal of his conviction for continuous sexual abuse of a child. First, he argues that the trial court made an erroneous evidentiary ruling. Second, he argues that there is legally insufficient evidence to support the jury's verdict. We overrule both issues and affirm the trial court's judgment.
Background
Appellant was charged with continuous sexual abuse of a child. Appellant is the father of the complainant's stepfather.
According to the complainant, "D.R.", she was seven years old when the abuse began. She testified appellant would ask her to come into his bedroom. The two of them would be alone, with the door shut. D.R. testified that appellant would tell her to sit in his lap. Sometimes they would lie on the bed. Appellant would touch D.R. with his hand and fingers. First, she recounted, he would touch her crotch over her clothing, and then he would touch her vagina underneath her underwear. She testified that at times she felt pain when he touched her. She testified that appellant told her not to tell her mother.
D.R. and her immediate family (her mother, stepfather, and three siblings) did not live with appellant, but D.R.'s mother testified that the family often would stay at appellant's house on weekends.
D.R. eventually told her mother, Vanessa, that her "grandfather" had touched her. When Vanessa asked D.R. to demonstrate how appellant had touched her, D.R. unbuttoned her pants and put her hand under her underwear on her vagina. Vanessa made a police report and took D.R. to the Children's Assessment Center, which is a multi-agency child abuse advocacy center in Houston. There, a child-abuse pediatrician examined D.R. but did not find any evidence of sexual abuse.
Appellant voluntarily submitted to questioning by a deputy investigator with the Special Victims Unit of the Harris County Sheriff's Office. Appellant admitted that he rubbed D.R.'s vagina with his fingers. When asked if he was curious to see how it felt to touch a little girl, appellant responded, "Well, I think so, but not -- not with the bad intention to penetrate." Appellant also said that D.R. would urinate when she laughed, and he touched her to determine whether she had wet her pants.
D.R. testified that appellant touched her "many times," and the State charged appellant based on four instances. Appellant admitted the first time he touched D.R. was on or about June 1, 2013. The second incident was alleged to have occurred on or about September 1, 2013. A third incident was alleged to have occurred approximately a month later. At least one more incident was alleged to have occurred on or about February 15, 2014.
A jury found appellant guilty of continuous sexual abuse of a child. The trial court assessed twenty-five years' confinement as punishment.
Appellant timely appealed, alternatively seeking either a new trial or a judgment of acquittal.
Analysis
A. Sufficiency of the Evidence
In his second issue, appellant argues that there is legally insufficient evidence to support the jury's finding that appellant is guilty of continuous sexual abuse of a child.
Appellant challenges the sufficiency of the evidence in his second issue. Because this argument pertains to his request for a rendition of judgment of acquittal, we address it first. See Lucas v. State, 245 S.W.3d 611, 612 (Tex. App.—Houston [14th Dist.] 2007, pet. ref'd).
Reviewing courts apply a legal-sufficiency standard in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). Under this standard, we examine all the evidence adduced at trial in the light most favorable to the verdict to determine whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Temple, 390 S.W.3d at 360; Criff v. State, 438 S.W.3d 134, 136-37 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd). This standard applies to both direct and circumstantial evidence. Criff, 438 S.W.3d at 137. Accordingly, we will uphold the jury's verdict unless a rational factfinder must have had a reasonable doubt as to any essential element. Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009); West v. State, 406 S.W.3d 748, 756 (Tex. App.—Houston [14th Dist.] 2013, pet. ref'd).
The jury, as trier of fact, is the sole judge of the credibility of the witnesses and of the strength of the evidence. Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The trier of fact may choose to believe or disbelieve any portion of a witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with conflicting evidence or inferences, we presume the trier of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993).
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. Tex. Penal Code § 21.02(b). The offense of indecency with a child by contact constitutes an act of sexual abuse. Id. § 21.02(c)(2). A person commits the offense of indecency with a child if the person engages in sexual contact with the child. Id. § 21.11(a)(1). To engage in sexual contact means, as relevant here, to touch any part of the child's genitals with the intent to arouse or gratify the sexual desire of any person. Id. § 21.01(2).
D.R. testified that appellant would call D.R. into his bedroom, where they would be alone together with the door shut. D.R. would sit on appellant's lap or in bed with appellant, and he would touch her clothed crotch and put his hand underneath her clothes to touch her genitals. She testified that this happened many times, though she could not specify how many times. D.R. testified that appellant told her not to tell her mother what had happened. D.R. also testified that appellant would wash his hands after touching her because "he didn't want to eat with his hands like that."
Appellant does not dispute that he touched D.R.'s genitals on more than one occasion. Appellant instead argues that no evidence exists to establish that he had any intent to arouse or gratify his sexual desire. Appellant contends that this case is "one based on perception—whether the touching was in care of a child with a problem urinating on herself or whether it was done for some other unstated reason."
On appeal, appellant contends that the State incorrectly characterized his statement to police, in which appellant used the word "curiosity" in response to questioning as to his motive. Appellant gave his statement in Spanish, which then was translated into English. He says that when he told police he was "curious" about touching D.R., he did not mean sexual curiosity, as argued by the State at trial. Instead, appellant says he meant that he was curious about whether D.R. had urinated. We reject appellant's contention that "much was lost in meaning" by translating appellant's statement from Spanish to English. Appellant's attorney cross-examined the deputy who took appellant's statement, and appellant testified on his own behalf; in both instances, appellant's attorney raised this distinction between sexual intent and non-sexual curiosity. Thus, appellant's explanation for his word choice of "curiosity" was before the jury, which could choose to believe or disbelieve any portion of the testimony. See Sharp, 707 S.W.2d at 614.
Appellant offered this defensive theory at trial, testifying that he touched D.R. solely for the purpose of checking if she had urinated. According to appellant, "[D.R.] would wet herself every time she would laugh a lot." Appellant called the family's doctor, Dr. Tellez, as a witness. Dr. Tellez testified that D.R.'s mother asked Dr. Tellez whether "it was normal for children to urinate when they laugh hard because [D.R.] has that problem." Dr. Tellez did not offer any medical records, and she admitted that she never treated D.R. for any type of urinary issue.
We note that appellant admitted that—in all the times he touched D.R. over and under her clothes—she had never wet herself.
Appellant's two daughters (D.R.'s step-aunts) testified that they would check D.R. to see if she had wet her pants. One aunt testified that this occurred when D.R. was five or six years old, but then on re-direct examination that aunt said it also occurred when D.R. was seven years old. Both aunts testified that they would inspect D.R.'s pants or underwear for wetness, but would not touch underneath D.R.'s underwear.
The State countered appellant's version of events. D.R. testified that she accidentally would wet her pants when she was younger, around five or six years old, but that she no longer had such a problem. She said that her grandmother or aunts would check to see if she had urinated in her pants, but she stated, "[Appellant] would not check me. My aunts would check me because he can't check me."
Vanessa, D.R.'s mother, also testified. She said that D.R. did not have a problem urinating on herself. When asked by appellant's attorney whether D.R. occasionally would urinate when laughing hard, Vanessa unequivocally answered it had happened only once: "She just did it once when she was about 4 years of age because my husband was tickling her. . . . It happened only once."
The defense impeached Vanessa's reputation for honesty with two witnesses, who also bolstered appellant's reputation for honesty. The jury is the sole judge of the credibility of the witnesses. See Fuentes, 991 S.W.2d at 271.
We conclude that there is legally sufficient evidence to support the jury's verdict. To the extent that witness accounts (or "perception[s]") conflicted regarding D.R.'s propensity to urinate while laughing, the jury was entitled to believe D.R. and her mother and to reject appellant's explanations and his daughters' testimony. See Turro, 867 S.W.2d at 47; see also Anderson v. State, 701 S.W.2d 868, 872 (Tex. Crim. App. 1985) (evidence is not rendered insufficient "simply because appellant presented a different version of the events"). D.R.'s testimony that appellant touched D.R. while alone in his bedroom with the door closed and that he told her not to tell her mother what had happened is sufficient to support an inference that appellant acted with the requisite intent to arouse or gratify appellant's sexual desire. See Gregory v. State, 56 S.W.3d 164, 171-72 (Tex. App.—Houston [14th Dist.] 2001, pet. dism'd) (specific intent to arouse or gratify the sexual desire of a person can be inferred from conduct, remarks, or surrounding circumstances, including defendant's instruction to complainant not to reveal events to anyone). In fact, D.R.'s testimony alone is sufficient to support the jury's verdict. See Torres v. State, 424 S.W.3d 245, 253 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd) (testimony of a child complainant, standing alone, is sufficient to support a conviction for sexual assault); Tex. Code Crim. Proc. art. 38.07.
We overrule appellant's second issue.
B. Admission of Medical Records
1. The assessment report
Appellant contends that the trial court erred in admitting State's Exhibit 8, which is a fifteen-page report that details the sexual-abuse examination of D.R. by Dr. Marcella Donaruma on March 7, 2014. Appellant objected at trial that the assessment report was prepared to assist in the prosecution of the case, not for medical diagnosis. The trial court overruled the objection. We uphold that ruling.
Though appellant's attorney did not expressly object to admission of the assessment report as impermissible hearsay, it is apparent from the context of counsel's discussion with the trial court that all parties understood that the State was offering the assessment report as an exception to the rule against hearsay. See Tex. R. Evid. 803(4).
We review a trial court's evidentiary ruling for an abuse of discretion. Zavala v. State, 401 S.W.3d 171, 176 (Tex. App.—Houston [14th Dist.] 2011, pet. ref'd). We will uphold a trial court's evidentiary ruling if it is reasonably supported by the record and correct on any applicable theory of law. Id. If we conclude the court erred, admission of the evidence at issue here would be considered non-constitutional error. See Linney v. State, 401 S.W.3d 764, 780 (Tex. App.—Houston [14th Dist.] 2013, pet. ref'd) (hearsay evidence). We disregard "[a]ny [non-constitutional] error, defect, irregularity, or variance that does not affect [an appellant's] substantial rights[.]" Tex. R. App. P. 44.2(b). Therefore, such error is harmless—and does not require reversal—if, after examining the record as a whole, "we are reasonably assured that the error did not influence the jury's verdict or had but a slight effect." Linney, 401 S.W.3d at 780.
Hearsay—a statement not made by the declarant while testifying at trial that a party offers into evidence for the truth of the matter asserted—is generally inadmissible. Tex. R. Evid. 801(d), 802. There is an exception, however, for statements made for, and reasonably pertinent to, medical diagnosis or treatment that "describes medical history, past or present symptoms or sensations; their inception; or their general cause." Tex. R. Evid. 803(4). This exception may encompass medical records documenting the sexual abuse of a child. See, e.g., Sandoval v. State, 52 S.W.3d 851, 856-57 (Tex. App.—Houston [1st Dist.] 2001, pet. ref'd) (holding trial court did not err in admitting medical records of child complainant's sexual-abuse examination).
Assessment reports from the Children's Assessment Center are regularly admitted as evidence, though often without objection or discussion of admissibility. See, e.g., Taylor v. State, 332 S.W.3d 483, 485-86 & n.4 (Tex. Crim. App. 2011) (CAC report admitted into evidence, no discussion of admissibility); Martinez v. State, 190 S.W.3d 254, 261 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd) (same).
On appeal, appellant argues that the assessment report was not prepared for medical diagnosis or treatment, and so should have been excluded as hearsay for several reasons: (1) the exam was not medically necessary; (2) there was not a medical referral; (3) there was no evidence of accuracy; (4) there were uncorroborated statements included in the report; and (5) the jury received the report immediately before rendering the guilty verdict. We reject each of appellant's contentions.
Medical necessity. The first page of the report indicates the reason for visit as "Sexual Abuse Exam." There are several pages detailing D.R.'s medical history and the results of her physical, vaginal, and anal examinations. Dr. Donaruma testified that she examined D.R. in her capacity as a child-abuse pediatrician and the exam was necessary for medical diagnosis. The doctor examined D.R.'s genital and anogenital areas for signs of injury, though Dr. Donaruma testified that she did not expect to see signs of injury based on the four-week delay between the last alleged conduct and the examination. Dr. Donaruma also encouraged D.R. to begin therapy, as noted in the doctor's final diagnostic impressions and plans. Dr. Donaruma specifically refuted appellant's attorney's suggestion that she was working on behalf of law enforcement.
We conclude that the sexual-abuse examination performed by Dr. Donaruma was necessary for the purpose of medical diagnosis. See, e.g., Beheler v. State, 3 S.W.3d 182, 189 (Tex. App.—Fort Worth 1999, no pet.) ("The object of a sexual assault exam is to ascertain whether the child has been sexually abused and to determine whether further medical attention is needed.").
Medical referral. The assessment report states that the "referral source" was "CPS-CAC," presumably indicating that Child Protective Services referred D.R.'s case. There is no requirement that a medical report be predicated on a referral by a medical professional, nor does appellant direct us to any rule or authority supporting his contention. In fact, cases with child-abuse allegations are often referred to a child-advocacy center like the Children's Assessment Center from Child Protective Services or the Department of Family and Protective Services. See, e.g., Bargas v. State, 252 S.W.3d 876, 885 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (referral from CPS).
Accuracy and truthfulness. The medical-records exception is based on the assumption that the patient understands the importance of being truthful with the medical practitioner involved to receive an accurate diagnosis and treatment. See Taylor v. State, 268 S.W.3d 571, 588-89 (Tex. Crim. App. 2008). To determine whether a child understood the importance of truthfulness when speaking to medical personnel, the reviewing court looks to the entire record. See Green v. State, 191 S.W.3d 888, 896 (Tex. App.—Houston [14th Dist.] 2006, pet. ref'd). An express statement that the child understood the need to be truthful is not required. Id. Rather, as the Court of Criminal Appeals has stated, "it seems only natural to presume that . . . children of a sufficient age or apparent maturity [] will have an implicit awareness that the doctor's questions are designed to elicit accurate information and that veracity will serve their best interest." Taylor, 268 S.W.3d at 589.
Our review of the entire record supports a reasonable inference that D.R. understood the need to be truthful when responding to Dr. Donaruma's questions. Dr. Donaruma testified about each step of the four-part medical evaluation. For example, the first part, gathering past medical history, allows "the child [to] understand[] the sort of give and take of information;" and the second part, gathering a history of present illness, is when the doctor asks the child "[w]hat brings you here today?" When appellant's attorney asked Dr. Donaruma if it was possible that D.R. had exaggerated, Dr. Donaruma answered that lying or exaggeration would "not be consistent with the entirety of our discussion, with [D.R.] drawing the pictures and using the pictures to help communicate." We note that when asked at trial to explain the difference between a truth and a lie, D.R. said that "[t]he truth is when you tell about something that really happened," and a lie is "[s]omething that you did and you don't want to admit that you did it."
Dr. Donaruma testified that she asked D.R. to draw the body part or parts with which appellant touched her. According to Dr. Donaruma, D.R. drew a rough representation of a hand and wrist, though these drawings are not in the record. When asked if appellant touched D.R. with any other part of his body, D.R. shook her head, indicating "no."
We conclude that the record supports an inference that the statements included in the assessment report were accurate and that D.R. understood the need to be truthful in answering Dr. Donaruma's questions. See Franklin v. State, 459 S.W.3d 670, 677 (Tex. App.—Texarkana 2015, pet. ref'd) (concluding that a court can infer from the record that a complainant "knew it was important to tell . . . the truth in order to obtain medical treatment or diagnosis."); see also Taylor, 268 S.W.3d at 589 (presuming that children are implicitly aware that truthfully answering a doctor's questions will serve their best interests); Green, 191 S.W.3d at 896 (concluding that child's testimony that she knew the difference between truth and lies, and doctor's testimony about procedure, supported finding that child understood need to be truthful).
Uncorroborated statements. Appellant complains about a specific, uncorroborated statement included in the report, allegedly made by D.R. to her caseworker and not to Dr. Donaruma. Corroborating evidence generally has no bearing on whether a statement does or does not satisfy a particular exception to the rule against hearsay. There are twenty-four exceptions to the rule against hearsay. See generally Tex. R. Evid. 803. The Texas Rules of Evidence require "corroborating circumstances" only when a statement against penal interest is offered in a criminal case. Tex. R. Evid. 803(24). None of the other exceptions—and indeed, not even the exception for statements against interest when offered in civil cases—are predicated upon other, corroborating evidence.
Jury deliberation. Appellant contends that the fact that the jury asked to see the assessment report shortly before rendering its verdict "clearly demonstrates the jury considered State's Exhibit 8 to be important." This argument might be relevant to a harm analysis, but is irrelevant to our determination whether the assessment report was admissible as an exception to the rule against hearsay.
None of appellant's grounds convince us that the trial court abused its discretion in admitting the assessment report as an exception to the rule against hearsay. See Tex. R. Evid. 803(4). Nor do we agree with appellant's argument that the assessment report was impermissibly admitted "for purposes of repetition of the allegation." Appellant's proffered authority to support his "repetition" argument is plainly distinguishable. See Sandoval v. State, 409 S.W.3d 259 (Tex. App.—Austin 2013, no pet.). The Austin Court of Appeals held that a patrol officer's testimony about a complainant's statements, the complainant's written statement, and her mother's written statement were all inadmissible hearsay, because they were not offered to explain how the defendant became the focus of a police investigation. Id. at 284; see also id. at 290 & n.21 (holding admission of repetitious hearsay evidence was not harmless error). The court did not analyze the propriety of admitting a medical record like the one at issue here, and we find appellant's argument in reliance upon the case unpersuasive.
We hold that the trial court did not abuse its discretion in admitting the assessment report in its entirety as a statement made for medical diagnosis or treatment. See Sandoval, 52 S.W.3d at 856-57 (holding no error in admission of complainant's examination report in its entirety, which included statements made by complainant's mother regarding complainant's allegations of sexual abuse).
The report was submitted with a business-records affidavit, but the record does not reflect that the State argued at trial that the report was admissible under the business-records exception, a separate hearsay exception from the medical-records exception. Compare Tex. R. Evid. 803(4) (medical-records exception), with Tex. R. Evid. 803(6) (business-records exception). At least one court has held a complainant's medical records admissible under rule 803(6) as records of a regularly conducted activity. See Perez v. State, No. 01-99-00911-CR, 2003 WL 1849222, at *9 (Tex. App.—Houston [1st Dist.] Apr. 10, 2003, pet. ref'd) (published op. on reh'g). Because we resolve appellant's issue under rule 803(4), we need not decide whether the trial court's ruling would be proper under rule 803(6). See Bowley v. State, 310 S.W.3d 431, 434 (Tex. Crim. App. 2010) (evidentiary ruling will be upheld on any theory of law applicable to the case, even if the trial court failed to give any reason or used the wrong reason for the ruling).
2. Statement within the assessment report
Appellant relatedly complains about one specific statement within the assessment report. Dr. Donaruma noted in the report, "[D.R.] confirmed some of the contents of the referral from her caseworker: The child disclosed genital to genital penetration and penile to anus penetration." Appellant does not identify or explain the basis for this complaint. Because appellant's brief does not contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record, appellant has waived his argument. See Tex. R. App. P. 38.1(i). Even if appellant had briefed the issue adequately, we would hold that appellant waived his complaint by failing to object at trial.
The State offered five exhibits (State's Exhibits 4-8) during Dr. Donaruma's testimony. Exhibit 8 is the assessment report. Appellant's counsel initially asked to take the doctor on voir dire:
[Defense]: We ask to take her on a brief voir dire, Your Honor.
[Court]: Approach.
(At the bench, on the record.)
[Court]: Voir dire about what?
[Defense]: The reason for it, Your Honor, is I wasn't going to object to any other portion of this [Exhibit 8] except for this statement portion. And I wanted to voir dire on that she prepared these things for trial.
[Court]: Well, you can ask those questions on cross-examination with regard to that.
[Defense]: Yes, sir. But this being the only portion that I was going to object to, I think that's the basis for my objection and that's why I wanted to take her on voir dire.
* * *
[Court]: So I'll allow a few more questions with regard to it.
[Prosecutor]: I'll hold on this [Exhibit 8] and then I'll reoffer. I'll offer that [Exhibits 4, 5, 6, and 7] now.
[Defense]: I have no objections to that.
* * *
(In open court.)
[Court]: 4, 5, 6, and 7 are admitted without objection.
The prosecutor then asked Dr. Donaruma several questions, laying the foundation for introducing Exhibit 8 as a record made for the purpose of medical diagnosis or treatment. The State introduced Exhibit 8 again and the following exchange occurred:
[Prosecutor]: Your Honor, at this time I offer State's 8.
[Defense]: I would have the same concerns.
[Court]: Do you have an objection?
[Defense]: Yes, Your Honor.
[Court]: What is your objection?
(At the bench.)
[Defense]: Well, the objection is that her --
[Court]: Let me see it.
[Defense]: . . . The objection is that the purpose for [D.R.] going to this doctor as opposed to a regular hospital is so that she could prepare the case for trial.
[Court]: That objection will be noted. It's overruled. 8 will be admitted.
(In open court.)
[Court]: 8 is admitted.
The record makes clear that appellant never objected to any specific statement within the assessment report as impermissible hearsay. Appellant objected solely to the report being offered in its entirety on the grounds that the report was prepared for trial and not for medical diagnosis. This objection was not sufficiently specific to make the trial court aware of a separate complaint challenging any particular statement contained within the report. See Tex. R. App. P. 33.1(a); Washington v. State, 905 S.W.2d 665, 668 (Tex. App.—Houston [14th Dist.] 1995, pet. ref'd) (holding that to preserve error with respect to hearsay-within-hearsay, trial court must be placed on notice as to each layer of hearsay). Any appellate complaint regarding an alleged statement made by D.R. to her caseworker is not preserved. See id.
Having concluded the trial court did not err in admitting the assessment report, we need not engage in a harm analysis. See Sakil v. State, 287 S.W.3d 23, 26 (Tex. Crim. App. 2009).
We overrule appellant's first issue.
Conclusion
Having overruled appellant's two issues, we affirm the trial court's judgment.
/s/ Kevin Jewell
Justice Panel consists of Chief Justice Frost and Justices Brown and Jewell.
Do Not Publish — Tex. R. App. P. 47.2(b).