Opinion
01-21-00323-CR
12-29-2022
MICHAEL GENE WALKER, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish. Tex.R.App.P. 47.2(b).
On Appeal from the 177th District Court Harris County, Texas Trial Court Case No. 1497633
Panel consists of Justices Kelly, Rivas-Molloy, and Guerra.
MEMORANDUM OPINION
Veronica Rivas-Molloy Justice
A jury convicted Appellant Michael Gene Walker of the first-degree felony offense of aggravated sexual assault of a child and sentenced him to life in prison. In his first issue, Appellant argues the trial court erred by allowing two purported outcry witnesses to testify about the alleged assault in violation of Article 38.072 of the Texas Code of Criminal Procedure. In his second and third issues, Appellant argues that outcry testimony is not admissible under the excited utterance exception to the hearsay rule and as a result, the trial court's ruling admitting the outcry testimony of one of the witnesses as an excited utterance was erroneous.
We affirm the trial court's judgment.
Background
Appellant Michael Gene Walker ("Walker") frequented Julia's Mexican Grill. Alma Carrillo ("Carrillo"), the complainant's mother, worked as a server at the restaurant. On occasion, she would take her seven-year-old son ("M.A.") with her to work. On the date of the alleged incident, M.A. accompanied Carrillo to the restaurant and sat at a table in the back while his mother worked.
M.A. went to the men's restroom. Less than a minute later, Walker followed him into a restroom stall. Several minutes later, Carrillo asked her coworker, Julio Aguirre ("Aguirre"), to check the restroom for M.A because he had been gone for several minutes. Aguirre checked the men's restroom twice but could not see M.A. or Walker, because the restroom had locked full-length stall doors. Another coworker, Jeny Iglesias ("Iglesias"), also started looking for M.A.
Soon after Aguirre left the men's restroom for the second time, Walker emerged from the restroom. The sound of Aguirre entering the restroom "spooked" Walker, who told M.A. to be quiet before leaving. Aguirre and Carrillo both saw Walker leave the restroom. Aguirre returned to the restroom and found M.A. buttoning up his pants, in a "shocked" state. Less than a minute later, Carrillo entered the restroom and found M.A. crying. Carrillo did not know what had transpired in the restroom, but she followed Walker out of the restaurant and took a photo of his license plate.
M.A. and Carrillo then sat at a table in the restaurant and M.A. told her that a man had followed him into the restroom and put M.A.'s penis in his mouth. A few minutes later, Iglesias asked M.A. what had happened in the restroom. M.A. told Iglesias that a man had put his mouth on M.A.'s penis.
Iglesias testified that Carrillo was her cousin, but M.A. testified that Iglesias was his aunt.
Walker was apprehended and indicted for aggravated sexual assault of a child. The indictment also alleged a prior conviction for possession of child pornography. Walker pleaded not guilty and the case proceeded to a jury trial.
During the guilt-innocence phase of the trial, Carrillo testified as an outcry witness. She described the conversation she had with M.A. and the nature of the conversation. M.A. told Carrillo what transpired in the restaurant's restroom. Carrillo testified that M.A. told her a man put his mouth on M.A.'s penis, she then called the police, and she was the first person M.A. told about the incident.
Under Texas Code of Criminal Procedure Article 38.072, a person properly designated as an "outcry witness" is permitted to provide hearsay testimony regarding the details of certain types of crimes perpetrated on certain classes of victims. See TEX. CODE CRIM. PROC. art. 38.072. See Sanchez v. State, 354 S.W.3d 476, 484 (Tex. Crim. App. 2011) ("Though the terms do not appear in the statute, the victim's out-of-court statement is commonly known as an 'outcry,' and an adult who testifies about the outcry is commonly known as an 'outcry witness.'").
M.A., who was thirteen years old at the time of trial, testified that he told Aguirre what happened before he told his mother. On cross-examination, M.A. testified that he did not recall what he told Aguirre, other than telling her that a man did "something horrible" to him.
Prior to Carrillo taking the stand, Iglesias testified about the alleged sexual assault. She testified that M.A. was "scared and nervous, and he started crying" after Walker left. She testified that M.A. "didn't want to tell me anything, but I made him talk and tell me." When the State asked Iglesias what M.A. had told her, Walker's counsel objected to the testimony as hearsay. The State responded that Iglesias' testimony was admissible as an excited utterance. After the jury was excused, Walker's counsel argued that the testimony was not an excited utterance, because it was prompted by Iglesias' questioning of M.A. He further argued that there had been no indication prior to her testimony that Iglesias would be testifying about an outcry statement, and that the testimony was inadmissible under Texas Rule of Evidence 403. The trial court held that the excited utterance exception applied to Iglesias' testimony regarding M.A.'s statement to her, and it admitted the testimony.
Texas Rule of Evidence 403 allows the trial court to "exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence." TEX. R. EVID. 403. Walker does not reurge the rule 403 objection on appeal.
A jury convicted Walker of the charged offense, found the enhancement paragraph true, and sentenced him to life in prison. Walker filed a notice of appeal.
Discussion
In his first issue, Walker argues the trial court erred by admitting Iglesias' testimony because her testimony was an outcry statement and the court failed to conduct an outcry hearing prior to her testimony as required under Texas Code of Criminal Procedure Article 38.072. Walker further argues that Iglesias' testimony should not have been admitted because the State offered testimony from two outcry witnesses-Iglesias and Carrillo-in contravention of Article 38.072. In his second issue, Walker contends the trial court erred by admitting Iglesias' testimony as an excited utterance because M.A.'s statement to Iglesias was elicited after she asked him what happened, and because he appeared to be calm until Iglesias "forced" him to recount what happened in the restroom. Therefore, Walker argues, the statement does not satisfy the criteria for the excited utterance hearsay exception. In his third issue, Walker asserts that because Iglesias' statement qualifies as an outcry statement, the statement should not be admissible as an excited utterance or any other hearsay exception because its admissibility violates the "one-event-one-witness" rule for outcry statements.
The State asserts Walker's first and third issues were not preserved for appeal. In addition, the State argues there is no basis for Walker's argument that an outcry statement by one witness renders other exceptions to the hearsay rule inapplicable for testimony elicited from other witnesses. In response to Walker's second issue, the State contends that Iglesias' statement was properly admitted as an excited utterance because M.A. was "still upset" when he told Iglesias about the incident in the men's restroom.
A. Standard of Review and Applicable Law
We review a trial court's decision to admit or exclude evidence for an abuse of discretion. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003); see also Lawton v. State, 913 S.W.2d 542, 553 (Tex. Crim. App. 1995) (noting admissibility of statement under hearsay exception is within trial court's discretion). We will not disturb the trial court's ruling unless it is outside "the zone of reasonable disagreement." Salazar v. State, 38 S.W.3d 141, 153-54 (Tex. Crim. App. 2001); see also Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008) (stating trial court abuses its discretion only if its decision is "so clearly wrong as to lie outside the zone within which reasonable people might disagree") (citing Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003).
Texas Rule of Evidence 802 precludes the admission of hearsay statements, which are out-of-court statements "offer[ed] in evidence to prove the truth of the matter asserted." Tex. R. Evid. 801(d), 802. Hearsay is not admissible unless it falls within an exception listed under the Texas Rules of Evidence or other rule or statute. Id. 802. The admissibility of an out-of-court statement under a hearsay exception is within the trial court's discretion. Kesaria v. State, 148 S.W.3d 634, 641 (Tex. App.-Houston [14th Dist.] 2004), aff'd, 189 S.W.3d 279 (Tex. Crim. App. 2006).
Two hearsay exceptions are relevant here. First, Article 38.072 of the Code of Criminal Procedure, also known as the "outcry statute," creates an exception to the hearsay rule in cases involving allegations of sexual assault against a child younger than 14 years of age. Tex. Code Crim. Proc. art. 38.072 § 2. The rule allows the admissibility of a child-complainant's out-of-court statements describing the alleged offense "so long as those statements were made 'to the first [adult] person . . . to whom the child . . . made a statement about the offense.'" Bays v. State, 396 S.W.3d 580, 585 (Tex. Crim. App. 2013) (citing Tex. Code Crim. PROC. art. 38.072, § 2(a)(1)-(3)); see also Long v. State, 800 S.W.2d 545, 547 (Tex. Crim. App. 1990). Among other things, the outcry statute requires a trial court to conduct a hearing, outside the presence of the jury, to determine whether "the statement is reliable based on the time, content, and circumstances of the statement," rendering the statement admissible. Tex. Code Crim. Pro. art. 38.072 § 2 (b)(2). "When no hearing is conducted, the statutory requirements [of Article 38.072] have not been met, the [hearsay] exception is not invoked, and the testimony constitutes inadmissible hearsay." Lopez v. State, 315 S.W.3d 90, 98 (Tex. App.-Houston [1st Dist.] 2010), rev'd on other grounds, 343 S.W.3d 137 (Tex. Crim. App. 2011).
Second, Texas Rule of Evidence 803(2) creates a hearsay exception for an "excited utterance." Under the excited utterance exception, a statement is admissible if the statement relates to a "startling event or condition, made while the declarant was under the stress of excitement that it caused." Tex. R. Evid. 803(2). The excited utterance exception stems from an assumption that the declarant is not capable when he makes the statement "of the kind of reflection that would enable him to fabricate information." Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim. App. 2005). The trustworthiness of the statement is founded on the fact that it is the event that speaks through the declarant and not the declarant relating the event. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003).
The excited utterance exception applies only when (1) the statement results from a "startling occurrence that produces a state of nervous excitement in the declarant and renders the utterance spontaneous," (2) the state of excitement dominates the declarant's mind such that there is "no time or opportunity to contrive or misrepresent," and (3) the statement relates to the circumstances of the occurrence preceding it. See Kesaria, 148 S.W.3d at 642. "The critical determination regarding the excited utterance exception is whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event or condition at the time he or she made the statement." Villanueva v. State, 576 S.W.3d 400, 406 (Tex. App.-Houston [1st Dist.] 2019, pet. ref'd) (citing Tyler v. State, 167 S.W.3d 550, 555 (Tex. App.-Houston [14th Dist.] 2005, pet. ref d)).
Challenges to the admissibility of evidence must be preserved with a timely objection at trial. Cisneros v. State, 692 S.W.2d 78, 82 (Tex. Crim. App. 1985). When challenging the admissibility of outcry evidence, we will not disturb the ruling of the trial court "unless the appellate record shows the requisite level of harm emanating from the trial court's error." Padilla v. State, 278 S.W.3d 98, 107 (Tex. App.-Texarkana 2009, pet. refd) (citing Zarco v. State, 210 S.W.3d 816, 832 (Tex. App.-Houston [14th Dist.] 2006, no pet.)). If the challenged evidence "did not influence the jury or had but a slight effect upon its deliberations, such non-constitutional error is harmless." Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010) (citing Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998)).
B. The Outcry Witness: Iglesias' Testimony 1. Preservation of Error
In his first issue, Walker contends the trial court erred by failing to conduct an Article 38.072 hearing on Iglesias' testimony regarding M.A.'s statements to her about the alleged assault. He further argues the trial court erred in allowing two outcry witnesses (Carrillo and Iglesias) to testify. Walker asserts in his brief that "the trial court erred by not following proper outcry procedure before allowing Iglesias to testify" and that the trial court should have conducted a hearing to determine whether Iglesias' so-called outcry statement was "reliable based on the time, content, and circumstances of the statement." Walker further states that the "trial court allowed Iglesias to testify without conducting the appropriate hearing to determine if Iglesias' testimony actually constituted outcry testimony, or if she was the appropriate outcry witness."
Prior to Carrillo taking the stand, Iglesias testified about her conversation with M.A. When the State asked Iglesias to testify about what M.A. told her, Walker's counsel objected to the testimony as hearsay. He further argued that there had been no indication prior to her testimony that Iglesias would be testifying about an outcry statement.
In response to Walker's hearsay objection, the State argued that Iglesias was not an outcry witness. The State argued:
[Iglesias's testimony about her conversation with M.A.] is in no way specific enough to be an outcry statement. The statement . . . does not meet any of those criteria or give an actual manner or means.The day after Iglesias testified, the trial court conducted an Article 38.072 hearing outside the presence of the jury, during which the court determined, and the parties agreed, that Carrillo would be the outcry witness. See TEX. CODE CRIM. PRO. ART. 38.072 § 2 (b)(2). Iglesias' testimony was not discussed during the hearing.
The outcry statement must describe the alleged offense and must be made to the first adult to whom the complainant made a statement about the offense. TEX. CODE CRIM. PROC. ART. 38.072, §2(A). The testimony is admissible as a hearsay exception only if it satisfies the requirements of the statute. Long v. State, 800 S.W.2d 545, 547 (Tex. Crim. App. 1990).
On appeal, the State contends Walker did not object in the trial court to its failure to conduct an outcry hearing with respect to Iglesias' testimony and therefore, the objection was not preserved. See TEX. R. APP. P. 33.1(A); TEX. R. EVID. 103(A)(1); Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003) ("[I]f, on appeal, a defendant claims the trial judge erred in admitting evidence offered by the State, this error must have been preserved by a proper objection and a ruling on that objection.") (quoting Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991)). An objection must be "clear enough to the trial judge so as to permit the trial judge to take corrective action[.]" Lovill v. State, 319 S.W.3d 687, 691 (Tex. Crim. App. 2009).
Although Walker did not ask the trial court to conduct an outcry hearing or object to the trial court's failure to conduct an outcry hearing for Iglesias' testimony, he did object to Iglesias' statement as hearsay and further complained that the testimony was improper outcry testimony. Walker told the trial court, "[W]e've not been given any notice of this statement and there was no indication that this would be an outcry statement." This objection sufficiently preserved Walker's first issue.
The jury was not present during this exchange.
In Long v. State, 800 S.W.2d 545 (Tex. Crim. App. 1990), the Court of Criminal Appeals held that a defendant who objects to testimony based on hearsay sufficiently preserves error for purposes of Article 38.072. The court held that a hearsay objection raised before an outcry witness's testimony "adequately apprised the trial court of the basis of his complaint regarding the testimony, namely that the evidence was hearsay, thereby preserving his objection for purposes of appellate review." Id. at 548. After the defendant objected to the outcry statement as hearsay, the burden shifted to the State to show the evidence "was admissible pursuant to either the provisions of Art. 38.072 or to some other exception to the hearsay rule." Id. Here, because Walker objected to Iglesias' statement as hearsay and complained that her outcry testimony was not elicited pursuant to Article 38.072, we hold Walker preserved this issue for our review.
2. Briefing Waiver
Although Walker preserved error with respect to his Article 38.072 objection, he does not prevail on his first issue. Even when a trial court abuses its discretion in admitting evidence at trial, an appellant must establish harm. "The erroneous admission of hearsay is non-constitutional error that is subject to a harm analysis under rule 44.2(b) of the Texas Rules of Appellate Procedure." Cordero v. State, 444 S.W.3d 812, 819 (Tex. App.-Beaumont 2014, pet. ref'd) (citing Tex.R.App.P. 44.2(b)); see also Duncan v. State, 95 S.W.3d 669, 672 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd) (requiring harm analysis in connection with admission of outcry witness' hearsay testimony); Zarco, 210 S.W.3d at 832 ("If the State fails to comply with the [Article 38.072] notice requirements, we will not reverse unless that failure caused harm.").
Walker does not address the issue of harm in his brief. He merely requests, without more, that "this Court find the erroneous admission of [Iglesias' hearsay testimony] to have been harmful." To assert an issue on appeal, an appellant's "brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Tex.R.App.P. 38.1(i). An issue is waived on appeal if the appellant "does not adequately brief that issue, i.e., by presenting supporting arguments and authorities." Wilson v. State, 473 S.W.3d 889, 901 (Tex. App.-Houston [1st Dist.] 2015, pet. ref'd) (finding waiver when brief lacked argument regarding purported harm that occurred when certain evidence was admitted); Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000) (holding appellant inadequately briefed points that were not supported by argument and authorities as required by Rule 38.1). Mere conclusory sentences that harm affected appellant's rights result in briefing waiver. Linney v. State, 401 S.W.3d 764, 783 (Tex. App.-Houston [14th Dist.] 2013, pet. ref'd); Vuong v. State, 830 S.W.2d 929, 940 (Tex. Crim. App. 1992) (holding argument waived in absence of "specific constitutional provision, statutory authority, or case law" to support claim); Swearingen v. State, 101 S.W.3d 89, 100 (Tex. Crim. App. 2003) (holding error waived when appellant failed to apply law to facts); see also Alvarado v. State, 912 S.W.2d 199, 210 (Tex. Crim. App. 1995) (stating point of error that is inadequately briefed "presents nothing for our review.").
We considered the harm-waiver issue in Chaves v. State, 630 S.W.3d 541 (Tex. App.-Houston [1st Dist.] 2021, no pet.). In Chaves, the defendant, having been convicted of aggravated assault of a family member, complained of the admission of two exhibits during the punishment phase of his trial. Id. at 544, 556. We concluded the defendant waived his challenge on appeal because he failed to adequately brief his assertion that the alleged error resulted in harm. Id. at 557-58. We held the defendant's brief was inadequate when he "provide[d] only two conclusory sentences, without citation to authority, asserting that he 'suffered harm as a result of the trial court's admission of [two exhibits] because 'the recordings were on the jury's mind while they deliberated.'" Id. at 558. The brief "containe[ed] no argument, explanation, substantive analysis, or citation to authorities to show that he was harmed by the trial court's purported erroneous admission of the State's exhibits." Id. The same is true here. Walker's brief is devoid of any argument or authorities regarding harm. Consequently, his first point of error is inadequately briefed, and he has presented nothing for our review.
Even if Walker had not waived his first issue, we would still affirm the trial court's ruling. As the Texas Court of Criminal Appeals has clarified, the erroneous admission of evidence is harmless when "other such evidence was received without objection, either before or after the complained-of ruling." Coble, 330 S.W.3d at 282 (quoting Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998)); see also Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999) ("[A]ny error in admitting the [testimony as a present sense impression] was harmless in light of other properly admitted evidence proving the same fact."). Specifically, the improper admission of testimony involving an outcry statement is harmless when similar testimony is offered through other witnesses or the complainant. See Duncan, 95 S.W.3d at 672 (holding improper admission of outcry testimony was harmless when similar testimony was elicited from victim and physician without objection); Lee v. State, 639 S.W.3d 312, 317 (Tex. App.- Eastland 2021, no pet. h.) (holding failure of trial court to conduct Article 38.072 hearing was harmless because "improper admission of evidence is harmless when the same facts are proven by other properly admitted evidence"); Estrada v. State, 313 S.W.3d 274, 302 n. 29 (Tex. Crim. App. 2010) (noting that error regarding admission of evidence was harmless in light of "very similar" evidence admitted without objection).
Walker concedes that Iglesias' testimony was cumulative of Carrillo's testimony, stating Iglesias' testimony "was a duplicate of the actual outcry witness' testimony." Iglesias testified that M.A. "told [her] that [Walker] put [M.A's] penis in his mouth." Carrillo's testimony was the same. She testified that M.A. told her "that [Walker] put his mouth on his penis." Iglesias' testimony also was cumulative of M.A.'s testimony. M.A. testified that Walker entered the stall and "goes right to my penis and puts his mouth on it." Thus, the erroneous admission of Iglesias' testimony was harmless because "other such evidence was received without objection."
We overrule Walker's first issue.
C. The "Excited Utterance" Exception
In his second and third issues, Walker argues the trial court erred in admitting Iglesias' hearsay testimony as an excited utterance (1) because an outcry statement does not qualify as admissible beyond the parameters of Article 38.072; and (2) the testimony does not qualify as an excited utterance. Here again, we note that in considering alleged evidentiary errors, we cannot reverse a trial court's judgment unless the defendant was harmed by the trial court's error. See TEX. R. APP. P. 44.2 (setting forth standards for constitutional and non-constitutional harm); Coleman v. State, 428 S.W.3d 151, 162 (Tex. App.-Houston [1st Dist.] 2014, pet. ref'd) ("The erroneous admission of a hearsay statement constitutes nonconstitutional error that is subject to a harm analysis.") (citation omitted); Moon v. State, 44 S.W.3d 589, 594 (Tex. App.-Fort Worth 2001, pet. ref'd) (conducting harm analysis concerning statements that were erroneously admitted as excited utterances); Oliva v. State, No. 01-09-00978-CR, 2011 WL 5428965, at *3 (Tex. App.-Houston [1st Dist.] Nov. 10, 2011, pet. ref'd) (mem. op., not designated for publication) ("Even if the trial court errs in admitting hearsay evidence under the excited utterance exception, such error is subject to harm analysis."); Rivera-Reyes v. State, 252 S.W.3d 781, 786 (Tex. App.-Houston [14th Dist.] 2008, no pet.) ("The admission of inadmissible hearsay constitutes non-constitutional error subject to the harm analysis rule under Texas Rule of Appellate Procedure 44.2(b)[.]").
Walker does not explain how the admission of Iglesias' testimony as an excited utterance, if erroneous, resulted in harm. He merely states that he "requests that this Court find the erroneous admission of the evidence to have been harmful." This lone sentence is insufficient to establish Walker was harmed by the admitted testimony. See Chaves, 630 S.W.3d at 558; Alvarado v. State, 912 S.W.2d at 210. Given the well-settled principle that harm must be established to find reversible error if hearsay testimony is improperly admitted, and in the absence of a "clear and concise argument" with citation to authorities establishing harm, we hold that Walker waived his second and third issues. See Cordero, 444 S.W.3d at 819; Tex.R.App.P. 38.1(i).
Finally, as noted, given the cumulative nature of Iglesias' testimony, even had the trial court erred in admitting the evidence as an excited utterance, the error was harmless. See Duncan, 95 S.W.3d at 672; Lee, 639 S.W.3d at 317.
We overrule Walker's second and third issues.
Conclusion
We affirm the trial court's judgment.