Opinion
No. 05-05-00444-CR
Opinion issued July 19, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F04-34184-VI. Affirmed.
Before Justices MORRIS, O'NEILL, and MAZZANT.
OPINION
In this case, Daniel Gonzales Sanchez was convicted of indecency with a child. He now raises seven points of error on appeal contending: the trial court erred in limiting cross-examination of a State's witness; he is entitled to additional back-time credit; the trial court abused its discretion in denying his request to cross-examine the child complainant with Child Protective Services records and refusing to include the CPS records in the evidence for appellate purposes; the evidence is insufficient to prove the second enhancement paragraph; he was denied his right to a speedy trial, and the evidence against him is factually insufficient. We modify the trial court's judgment to reflect the appropriate amount of back-time credit. Concluding appellant's other arguments are without merit, we affirm the trial court's judgment as modified.
Factual Background
K.B., the child complainant in the case, testified that when she was approximately eight years old, appellant touched her vagina with his fingers over her clothes. Appellant was living with and in a relationship with K.B.'s grandmother at the time. According to K.B., she was with her mother and brothers in a car returning from a pep rally when the car overheated. K.B.'s mother stopped at her mother's house. Appellant, a mechanic, saw them there and told K.B.'s mother to go inside for some water. Then he asked the boys if they would like to go inside and get something to drink. When they said they would, he instructed them to go inside as well. K.B. was left alone in the car, wearing her cheerleading uniform. Appellant opened the car door to give her a hug. Then he moved his right hand from her shoulder and put two fingers on the clothing covering K.B.'s vagina. He moved his fingers over her clothed vaginal area until he heard K.B.'s mother come out of the house. As soon as they left in the car, K.B. began crying and told her brother he should not have left her alone in the car. She told her mother what had happened. When they got home, K.B.'s mother called her grandmother to tell her what had occurred. The grandmother refused to believe K.B.'s mother. At the time, K.B. also talked to her grandmother on the phone and told her what had happened. K.B.'s mother asked if she wanted her to call the police. K.B. said that she did. K.B.'s mother also testified at trial. She confirmed K.B.'s outcry to her on the night of the offense. In addition, she stated that when she returned to the overheated car, appellant told her that he had opened K.B.'s car door to tie her shoelace, which was sticking out of the car. The mother explained that this was impossible because K.B. was wearing "wide ties" at the time, so she had no loose shoelaces to tie. She stated that appellant "looked like something was wrong." She also stated that when they were leaving the house, K.B. looked scared, "like something was just really, really wrong." K.B.'s mother did not call the police about the event because she was concerned she would lose custody of her children. K.B.'s mother testified that she was in jail for traffic tickets when the grandmother eventually reported the offense. On a previous occasion, also when she was eight years old, K.B. told her mother appellant had slightly tugged on her tank top and purposely looked down her shirt. At that time, K.B.'s mother also confronted the grandmother about that event but did nothing more. The grandmother told the mother to call the police if she was concerned, but K.B.'s mother did not do so. At that point, K.B.'s mother attempted to "cut all ties" with her family. Eventually, K.B. moved in with her grandmother. At that time, the grandmother asked her about the allegation that appellant had molested her while she was in the car. When K.B. told her grandmother that the allegation was true, the grandmother contacted two lawyers. That same day, she contacted K.B.'s mother in jail and contacted police. She stated that she had done nothing when her daughter had told her about the event because her daughter did not have a good reputation for truthfulness and had lied to damage her mother's romantic relationships in the past. The grandmother testified that she learned appellant had cheated on her long before K.B. talked to her about the molestation. A videotape of K.B.'s interview by a police officer was admitted into evidence. On the tape, one time only, K.B. uses "Raymond," the name of her grandmother's current husband, instead of appellant's name when describing the molestation. She immediately corrects herself and states that she had meant to say appellant's name. Also on the videotape, K.B. states that, in the past, a cousin had touched her vagina over her clothes. At trial, K.B. denied that this had happened.Discussion
In appellant's first point of error, he contends the trial court erred in limiting the cross-examination of K.B.'s mother. He specifically complains he was not allowed to elicit testimony from the mother that, at the time of trial, she had an outstanding warrant for a violation of the deferred adjudication probation she was serving. The mother testified outside the presence of the jury that approximately two days before her testimony, her attorney had "pulled [her] jacket" to set up a plea deal with the State. The trial court denied appellant's motion to cross-examine the mother about her outstanding arrest warrant. Afterward, outside the presence of the jury, the prosecutor established through the mother's testimony that she had been informed and understood her testimony against appellant would not cause the State to "help her in any way" in the case against her. Even if the trial court erred in refusing to permit the cross-examination, we conclude any error was harmless. In assessing whether error in limiting cross-examination requires reversal, we must begin with the assumption that the damaging potential of the cross-examination was fully realized. We then consider the following factors: (1) the importance of the witness's testimony to the State's case, (2) whether the testimony was cumulative, (3) the presence or absence of evidence corroborating or contradicting the testimony on material points, (4) the extent of cross-examination otherwise permitted, and (5) the overall strength of the State's case. See Drew v. State, 76 S.W.3d 436, 451 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd). Here, the mother's testimony was helpful, but not crucial, to the State's case. Her testimony was essentially cumulative of K.B.'s testimony; the only real substantive detail the mother provided was appellant's claim that he had been tying K.B.'s shoe. Both K.B. and the grandmother confirmed that the mother had, in fact, contacted the grandmother the night of the offense to confront her about it. The grandmother had not believed her daughter, however, because she thinks that K.B.'s mother is a liar who had previously jeopardized her romantic relationships. On cross-examination, the mother admitted that, despite her belief that appellant had molested K.B., she did not contact police because she did not want to lose custody of her. K.B. was in her grandmother's custody at the time of trial. The mother admitted she was in jail when the grandmother decided to report the case to the police. In addition, the defense was permitted to cross-examine the mother about the fact that her testimony conflicted with her written statement to police. The defense also elicited testimony that the mother had worked as a dancer in a gentlemen's club. The State's case hinged on the testimony of K.B., who steadfastly maintained that appellant had molested her, despite the failure of the adults around her to contact police. Considering all five applicable factors, we conclude appellant was not harmed by the trial court's refusal to allow the defense to cross-examine the mother about her outstanding arrest warrant. See Tex.R.App.P. 44.2(a). We overrule appellant's first point of error. In his second point of error, appellant claims he is entitled to additional back-time credit for the period of time he spent in jail awaiting trial. He specifically claims he should be given back-time credit from March 16, 2004, the date of his indictment, to February 4, 2005, the date of his sentencing. Currently, appellant's judgment provides for back-time credit from May 14, 2004, the date of his arrest, to February 9, 2005. Appellant acknowledges that his sentencing date was February 4, 2005 and therefore the judgment should be modified to reflect this ending date for his back-time credit. Appellant's arrest warrant was not executed until May 13, 2004. Under the Texas Code of Criminal Procedure, a trial judge "shall give the defendant credit on his sentence for the time that the defendant has spent in jail in said cause . . . from the time of his arrest and confinement until his sentence by the trial court." Tex. Code Crim. Proc. Ann. art. 42.03 (Vernon Supp. 2005) (emphasis added). Appellant is not entitled to back-time credit in this case for time he served in jail for any other cause. We modify the trial court's judgment to show back-time credit from May 13, 2004 to February 4, 2005. See Asberry v. State, 813 S.W.2d 526, 529 (Tex.App.-Dallas 1991, pet. ref'd). We otherwise overrule appellant's second point of error. Appellant next complains the trial court abused its discretion in refusing to permit him to cross-examine K.B. with Child Protective Services records. He had wanted to cross-examine K.B. about "Raymond." At the time of trial, K.B.'s mother was dating a man named Raymond and her grandmother was married to another Raymond. Appellant contended the CPS records and photographs showed that "Raymond" had abused K.B. and that she is deathly afraid of him. Appellant did not make clear which Raymond was specified in the CPS records. At trial, K.B. testified that neither the Raymond who is her mother's current boyfriend nor the Raymond who is now married to her grandmother had ever touched her in a way that made her feel uncomfortable. On her videotaped police interview, K.B. stated that her "Dad" was a man named Raul, who lived with her at the time. K.B.'s mother testified that charges alleging her former boyfriend Raul Escalante had abused K.B. were dismissed because she had abused K.B., rather than Raul. She testified that CPS photographed K.B.'s injuries in 2002 or 2003. She also stated that her current boyfriend Ramone, who also goes by Raymond, has never been in a live-in relationship with K.B. As a general rule, a party may not impeach a witness on a collateral or immaterial matter. See Delamora v. State, 128 S.W.3d 344, 363 (Tex.App.-Austin 2004, pet. ref'd). A party may not cross-examine a witness on a collateral matter and then contradict the witness's answer. A collateral matter relates to facts irrelevant to the issues at trial. Id. Here, appellant was attempting to cross-examine K.B. about alleged physical abuse that had nothing to do with whether she was molested by appellant. Appellant contends the cross-examination was necessary to show that "Raymond was the real perpetrator of this offense." But even if appellant had been able to introduce evidence that K.B. had been physically abused by some man named Raymond, this evidence would not have made it less probable that appellant committed the charged offense. We conclude the trial court did not abuse its discretion in denying cross-examination on this collateral matter. We overrule appellant's third point of error. In a related point of error, appellant complains the trial court abused its discretion in refusing to admit the CPS records into evidence. Appellant requested the court to admit the records into evidence only for purposes of the appellate record, but the trial court denied appellant's request. Appellant concedes that CPS records are generally confidential and privileged from disclosure under the Texas Family Code. See Tex. Fam. Code Ann. § 261.201(a) (Vernon Supp. 2005). He argues, however, that "the record indicates that the Appellant's trial attorney was aware of the contents of the CPS records." He fails to explain how trial counsel's knowledge of the records necessarily overrides section 261.201's mandate that such records are not subject to public release. Moreover, section 261.201 specifically dictates what steps must be taken for a court to order disclosure of confidential information under the statute. See id. at 261.201(b). Section 261.201(b) states that a court may order disclosure if:(1) a motion has been filed with the court requesting the release of the information;
(2) a notice of hearing has been served on the investigating agency and all other interested parties; and
(3) after hearing and an in camera review of the requested information, the court determines that the disclosure of the requested information is:
(A) essential to the administration of justice; and
(B) not likely to endanger the life or safety of:
(i) a child who is the subject of the report of alleged or suspected abuse or neglect;
(ii) a person who makes a report of alleged or suspected abuse or neglect; or
(iii) any other person who participates in an investigation of reported abuse or neglect or who provides care for the child.Id. In this case, appellant never filed a motion about the CPS records, obtained a hearing about the records, or requested the court to conduct an in camera review of the records. Accordingly, under these facts, we conclude the trial court did not abuse its discretion in denying appellant's request to include the records in the appellate record. We overrule appellant's fourth point of error. In his fifth point of error, appellant complains the evidence against him was insufficient to prove he committed the offense alleged in his second enhancement paragraph. The second enhancement paragraph of appellant's indictment alleged that he had previously been convicted for impersonating a peace officer. The first enhancement paragraph of the indictment alleged he had previously been convicted for indecency with a child. At trial, the State introduced into evidence State's exhibit 12, a certified copy of the judgment and sentence for appellant's previous impersonating a peace officer offense. The exhibit contains the cause number alleged in the enhancement portion of appellant's indictment in this case, F79-1881-R, but it does not contain any fingerprint evidence. Although the State may prove a previous criminal record of a defendant through expert testimony comparing fingerprints contained in certified copies of the judgment and sentence with known fingerprints of the defendant, this method is not the only way the State can meet its burden of proving that the person named in the previous conviction is the same person as the defendant in the case. See Alridge v. State, 732 S.W.2d 395, 396 (Tex.App.-Dallas 1987, pet. ref'd). Here, the State presented expert testimony linking appellant's known fingerprints to the fingerprints found in State's exhibits 7, 8, 9, 10, and 14, documenting many of appellant's other previous criminal offenses. State's exhibit 8 is a judgment and supporting documents showing appellant's previous conviction for indecency with a child. The judgment and included indictment in State's exhibit 8 state that appellant had also pleaded true to an enhancement offense in the case. The enhancement offense appellant pleaded true to was impersonating a public servant, cause number F79-01881-R. Thus, appellant was linked to the previous impersonating a public servant offense through the proof of his previous indecency with a child offense. Furthermore, State's exhibit 12 shows appellant's signature. This signature matches the signature on the fingerprint card taken by the expert witness for the purpose of showing appellant's known fingerprints. The signature also matches appellant's signatures in State's exhibits 7 and 14. The fingerprint expert linked appellant to those offenses as well. And State's exhibit 7 contains a photograph of appellant. Based on all the evidence in this case, we conclude the evidence is sufficient to prove appellant committed the impersonating a peace officer offense alleged in the second enhancement paragraph of his indictment. We overrule appellant's fifth point of error. In appellant's sixth point of error, he complains the trial court violated his right to a speedy trial. We review a trial court's decision on a speedy trial motion under a bifurcated standard of review. We apply an abuse of discretion standard to the trial court's factual findings and a de novo standard to the trial court's legal conclusions. See State v. Jones, 168 S.W.3d 339, 345 (Tex.App.-Dallas 2005, pet. ref'd). Our review is done in light of the arguments, information, and evidence available to the trial court at the time it ruled. We uphold the trial court's ruling if it is supported by the record and is correct under the applicable law. Id. In this case, the trial court made no specific findings. Accordingly, we must view the facts in the light most favorable to the trial court's denial of appellant's motion. See Knisley v. State, 81 S.W.3d 478, 483 (Tex.App.-Dallas 2002, pet. ref'd). In determining whether appellant was denied his constitutional right to a speedy trial, we must review the length of the delay, the reason for the delay, appellant's assertion of his speedy trial right, and any prejudice to appellant resulting from the delay. See Jones, 168 S.W.3d at 346. We measure the length of the delay from the time the defendant was arrested or formally accused. Because only an accused has a right to a speedy trial, we do not consider any pre-indictment delay in our analysis. Id. at 347. Appellant was indicted for this offense on March 16, 2004 and was not tried until February 1, 2005. The State concedes this delay was presumptively unreasonable and therefore sufficient to trigger a speedy trial analysis. The record fails to reveal any particular reasons for the delay. At appellant's speedy trial hearing, the prosecutor argued: "We could have set this trial any time from May until November. They agreed with the State to set the trial in November, and it was a court reset, and I'm not sure they even wanted to try it in November if we could have." The State's only other explanation for the delay in trying appellant consisted of the prosecutor's allegation that there were "other people in jail here awaiting trial out of this court who have been in jail longer who are not entitled to relief either." Nothing in the record shows that appellant ever objected to the trial court resetting the case. Whether and how a defendant asserts his right to a speedy trial is closely related to the other three factors because the strength of his efforts will be shaped by them. Id. at 348. The longer the defendant delays in filing a speedy trial claim, the more likely it is that "a defendant who really wanted a speedy trial would take some action to obtain one." Id. In this case, appellant filed a motion to dismiss based on his speedy trial right in November 2004, eight months after his indictment and six months after his arrest. The fact that appellant requested a dismissal, rather than an actual trial, "potentially weakens [his] claim because it shows a desire to have no trial instead of a speedy trial." Id. In the motion to dismiss, appellant did not request a hearing, and no hearing took place until approximately two weeks before trial. We assess the prejudice to the defendant resulting from the delay in light of the interests the speedy trial right was intended to protect: (1) prevention of oppressive pretrial incarceration, (2) minimizing the defendant's anxiety and concern, and (3) limiting the possibility that the defense will be impaired. Id. at 349. The third interest is the most serious. The accused has the burden to make some showing of prejudice that was caused by the delay of trial. Once the accused makes some showing of prejudice, the burden then shifts to the State to show that no prejudice actually resulted. See id. Affirmative evidence of particularized prejudice is not required because excessive delay "presumptively compromises the reliability of a trial in ways that neither party can prove or even identify." See id. This presumption of prejudice, however, can be extenuated by the defendant's acquiescence in the delay." Id. Here, appellant was already jailed for a separate offense at the time of his indictment. As discussed previously in point of error two, he was in jail awaiting for this offense for approximately nine months. Appellant did not testify at the speedy trial hearing about any anxiety or concern he had felt due to the delay in trying the case. As for appellant's defense, the indictment alleged appellant had committed indecency with a child, K.B., on or about September 7, 2001 "by contact between the hand of the defendant and the genitals of the complainant." K.B. was the grandchild of appellant's former girlfriend. He was familiar with her family and thus any potential witnesses to the alleged offense. Indeed, by July 26, 2004, appellant had filed a pro se affidavit essentially claiming that on the date of the alleged offense, to the best of his recollection, he had been secretly drinking Jack Daniels outside of K.B.'s grandmother's house when K.B. and her brothers got into their mother's car to go home. Appellant claimed that after he moved away from kissing K.B.'s brother on the forehead, he bumped the back of his head on the clothes hook of the car door and lost his balance. According to appellant, he never intended to "touch or feel either of the children" as he lost his balance. He claimed it "may have indeed happen[ed] but it was certainly never intentional." He further claimed he felt "dizzy" afterward. Also in the affidavit, appellant claimed that when K.B.'s grandmother visited him in jail sometime between October 11, 2001 and December 8, 2001, the grandmother asked him if he had "inappropriately touched [K.B.] in any way or form." Appellant stated, "My answer then and is still now no!! It may have been [an] accident yes, I have no way [of] knowing 100% but intentional I know it did not, had not happen[ed]!" By October 26, 2004, the State had served appellant's defense attorney with its notice of outcry statement. That statement summarizes K.B.'s outcry statement as follows:
The complaining witness said that she was sitting in the backseat of her mother's car, which was parked at her grandmother's home, when the defendant, Daniel Sanchez, approached the car, opened the door, and leaned forward into the car and hugged the complaining witness. The defendant then took his hand and touched the complaining witnesses [sic] leg and then moved his hand to her" private part" and started rubbing the complaining witnesses [sic] vagina over her clothes with his hand.These facts belie appellant's claim that his defense was hampered by the delay in trial. Viewing the facts in the light most favorable to the trial court's ruling, we conclude the record fails to show appellant's right to a speedy trial was violated. Accordingly, we overrule his sixth point of error. Finally, in his seventh point of error, appellant contends the evidence against him is factually insufficient to support his conviction for indecency with a child. Appellant argues that K.B.'s mother and grandmother were biased against him and there was no physical evidence in the case. He further contends there was a "plausible explanation" that he was tying K.B.'s shoes. In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). Evidence can be factually insufficient if it is too weak to support the finding of guilt beyond a reasonable doubt, or if contrary evidence exists that is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. at 484-85. We defer to the fact finder as the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). From the date of the offense to the time of trial, the child complainant in this case consistently claimed appellant had molested her. K.B. told her most trusted family members what had occurred; these family members refused to take the case up with police. Later, she told a police detective about the offense in a videotaped interview. She testified at trial, and at that time, her testimony was supported by the testimony of her mother and her grandmother. After viewing all the evidence in a neutral light, we conclude the evidence is factually sufficient to support appellant's conviction for indecency with a child. We resolve appellant's seventh point of error against him. We modify the trial court's judgment to show back-time credit from May 13, 2004 to February 4, 2005. As modified, we affirm the trial court's judgment.