Roberto Navarro v. The State of Texas--Appeal from 341st Judicial District Court of Webb County

Nos. 04-98-00915-CR, 04-98-00916-CR & 04-98-00917-CR
Roberto NAVARRO,
Appellant
v.
The STATE of Texas,
Appellee
From the 341st Judicial District Court, Webb County, Texas
Trial Court Nos. 97-CRS-00600-D3, 98-CRS-00247-D3 & 98-CRS-00248-D3
Honorable Elma Teresa Salinas Ender, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Tom Rickhoff, Justice

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: April 26, 2000

AFFIRMED

Roberto Navarro ("Navarro") appeals his three convictions for aggravated sexual assault of multiple children. In two issues on appeal, Navarro complains the trial court erred in admitting extraneous offense evidence and outcry witness testimony. We affirm the judgments of the trial court.

Factual and Procedural Background

Under the first indictment, the jury convicted Navarro of two counts of aggravated sexual assault of minor victim E.H. The first count alleged that Navarro sexually assaulted E.H. by causing J.E., E.H's minor cousin, to perform sexual acts with E.H. The second count alleged Navarro sexually assaulted E.H. by forcing Navarro's minor son, B.N., to engage in sex acts with E.H. Under the second indictment, the jury convicted Navarro of four counts of sexual assault of J.E. The indictment alleged that on four different occasions Navarro sexually assaulted J.E. by forcing him to have sex with E.H. Finally, the jury convicted Navarro on the third indictment of eight counts of sexual assault of E.H. by J.E.

On December 2, 1998, the trial court entered a judgment sentencing Navarro to twenty-five years confinement to run concurrently and a $5,000 fine for each of the three convictions.

Extraneous Bad Acts

In his first issue, Navarro complains the trial court erred by admitting evidence of an extraneous aggravated sexual assault because the State failed to provide reasonable notice pursuant to Texas Rule of Evidence 404(b), the evidence was improper same transaction contextual evidence, and it was unduly prejudicial.

We review challenges to trial court rulings on admissibility of evidence under an abuse of discretion standard. Mozon v. State, 991 S.W.2d 841, 846-47 (Tex. Crim. App. 1999). In applying this standard, we determine whether the trial court's decision was made without reference to any guiding rules or principles, or whether the decision was arbitrary or unreasonable. Montgomery v. State, 810 S.W.2d 372, 378 (Tex. Crim App. 1990). We will not disturb the trial court's ruling so long as it remains within a "zone of reasonable disagreement." Id. at 391.

Navarro objects to testimony from M.H., E.H.'s sister and J.E.'s cousin, who testified at length to instances of sexual abuse by Navarro. Rule 404(a) of the Texas Rules of Evidence prohibits the introduction of evidence of extraneous bad acts to prove the defendant's character in order to show conformity therewith. Tex. R. Evid. 404(a). Such evidence is admissible, however, for other purposes provided the State extends reasonable notice to the defendant. Tex. R. Evid. 404(b). "Reasonable notice" depends on the facts and circumstances of the case. Webb v. State, No. 14-98-00407-CR, slip op. at 7, 2000 WL 64018, at *6 (Tex. App.-Houston [14th Dist.] 2000, no pet. h.).

Navarro's notice complaint lacks merit. In his brief, Navarro concedes that the State filed multiple notices of intent to introduce M.H.'s testimony at trial. On September 26, 1997, the State filed its first notice of intent to introduce the extraneous evidence in cause number 97-CRS-00600-D3, which related to the first indictment. On July 31, 1998, the State file amended notices of intent for all three indictments. As the State points out in its brief, all motions identified specific cause numbers, county, offense, date of offense, and the identity of M.H. as an extraneous witness, to adequately apprise Navarro of the State's intent to use the evidence. Additionally, Navarro acknowledges a hearing prior to M.H.'s testimony on September 21, 1998, where the trial court considered and overruled Navarro's objections to the State's intent to introduce the evidence. The State contends and we agree, that seven weeks notice of intent to use the evidence satisfies the reasonableness requirement of the rule. See Tex. R. Evid. 404(b); cf. Hernandez v. State, 914 S.W.2d 226, 234-35 (Tex. App.-Waco 1996, no pet.)(holding State's notice of intent to use extraneous evidence given three days prior to trial unreasonable).

We next address Navarro's relevancy objections. M.H. testified her uncle, Navarro, had anal sex with her when she was seven years old. Navarro later forced her to have sexual intercourse and oral sex with him multiple times. M.H. stated Navarro and his wife, M.H.'s aunt, babysat her and the assaults occurred during these instances. M.H. recalled Navarro accomplished the assaults with threats to hurt her aunt, use of tarantulas to scare M.H., and threats to "move on" to E.H. and J.E. After each assault, Navarro took M.H. to get candy as a reward for her compliance.

The State contends M.H.'s testimony is relevant to establish Navarro's intent to commit sexual assault against E.H. and J.E. See Tex. R. Evid. 401. The record supports the State's position. Consistent with M.H.'s testimony, testimony from E.H. and J.E. showed Navarro carried out all of the assaults during the times when he and his wife exercised custody over the children as their babysitters. The State points to identical terror tactics used on all three children such as threats to harm their aunt, use of tarantulas, and instances of placing one of the victims in a chicken coop. See Rankin v. State, 995 S.W.2d 210, 213 (Tex. App.-Houston [14th Dist.] 1999, pet. ref'd)(admitting testimony that appellant sexually molested two girls prior to molesting complainant to show intent). All three victims testified that after each instance, Navarro took them to get candy at a nearby store.

The record also reflects the extraneous offense was admissible to rebut the defensive theory that the complainants E.H. and J.E. lied about the assaults. See Tex. R. Evid. 404(b); Self v. State,860 S.W.2d 261, 263 (Tex. App.-Fort Worth 1993, pet. ref'd)(admitting extraneous offense evidence to rebut defensive theory of complainant's fabrication of sexual assault). Navarro introduced testimony from his son, B.N., one of the minors involved in the alleged assaults. B.N. denied the occurrence of any abuse by Navarro. M.H.'s testimony served to rebut B.N.'s testimony, which the jury was freely entitled to believe or disbelieve. See Kapusinski v. State, 878 S.W.2d 248, 249 (Tex. App.-San Antonio 1994, pet. ref'd).

Additionally, M.H.'s testimony demonstrates a common scheme or plan of exploitation and control through the uncle-child relationship. See Tex. R. Evid. 404(b); Mares v. State,758 S.W.2d 932, 937 (Tex. App.-El Paso 1988, pet. ref'd) (admitting evidence of extraneous sexual abuse arising out of teacher-student relationship). To establish a common scheme, a sufficient degree of congruity must exist between the indicted offense and the extraneous offense. Mares, 758 S.W.2d at 936. Here, M.H. testified Navarro used tarantulas to scare her as well as threats to harm her aunt if M.H. disobeyed. Similarly, J.E. testified Navarro used chickens to scare him coupled with threats to kill his aunt. E.H. also testified about Navarro's use of spiders and threats. Both E.H. and J.E. testified Navarro forced them to engage in sexual intercourse with each other under the guise of a "Simon says" child game. As a reward for their obedience, E.H. and J.E. testified Navarro took them for treats at a nearby store. This behavior coincides with M.H.'s testimony to demonstrate a common pattern of abuse.

Navarro finally argues the evidence was inadmissible as same transaction contextual evidence. Even if we assume the trial court erred in admitting the evidence on this ground, any error is harmless. See Tex. R. App. P. 44.2(b); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998)(applying 44.2(b) harm analysis to erroneous admission of evidence). Here, the breadth of properly admitted testimony from the two victim complainants E.H. and J.E. established the same facts introduced during M.H.'s testimony. See Mayes v. State, 816 S.W.2d 79, 88 (Tex. Crim. App. 1991)(holding the admission of otherwise inadmissible evidence harmless where admissible evidence established the same facts). We overrule Navarro's first issue.

Outcry Witness Testimony

In his second issue, Navarro argues the trial court erred in admitting testimony of outcry witness(1) Angela Martinez, E.H.'s school counselor. Navarro complains Martinez failed to meet the outcry witness requirements for admissibility. Specifically, Navarro argues E.H. revealed the abuse first to her mother, not to Martinez.

The record reflects the trial court held an in camera hearing to determine whether Martinez qualified as an outcry witness. See Tex. Code. Crim. Proc. Ann. art. 38.072 2(b)2 (Vernon Supp. 2000); Dorado v. State, 824 S.W.2d 794, 795 (Tex. App.-El Paso 1992), vacated on other grounds,843 S.W.2d 37 (Tex. Crim. App. 1992). The trial court has broad discretion in this regard, and the trial court's exercise of discretion will not be disturbed on appeal unless a clear abuse of that discretion is established by the record. Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990); Reed v. State, 974 S.W.2d 838, 841 (Tex. App.-San Antonio 1998, pet. ref'd).

Navarro complains the outcry testimony fell outside the parameters of the rule because it lacked specificity, and was unreliable based on time and manner. Martinez testified that during her first encounter with E.H. in January of 1997, E.H. revealed her uncle, Navarro, sexually abused both her and her cousins from the time she was three until seven years old. In Navarro's brief, he admits this January discussion, however, he urges the more specific outcry took place in February 1997 to E.H.'s mother. Navarro's argument fails because the rule requires only the outcry statement allege sexual abuse in some discernible manner. See Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon Supp. 2000); Garcia, 792 S.W.2d at 91. Although the specifics of the abuse were not revealed during Martinez's first encounter with E.H., E.H.'s statement identifying the time span of the abuse, the multiple minor victims, and Navarro as the perpetrator, qualify as more than a "general allusion to abuse." See Garcia, 792 S.W.2d at 91.

In any event, even assuming the trial court erred in admitting the testimony of Martinez as an outcry witness, such error was harmless. See Tex. R. App. P. 44.2(b). Admission of inadmissible evidence is harmless error if other evidence that proves the same fact the inadmissible evidence sought to prove is properly admitted at trial. See Mayes, 816 S.W.2d at 88. The testimony received by the court from E.H. sought to establish the same facts contained in Martinez's testimony. Further, the uncorroborated testimony of the victim of a sexual offense is sufficient to support a conviction under Texas Penal Code 22.021 if the victim was under eighteen years of age at the time of the offense. See Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon Supp. 2000). We overrule Navarro's second issue on appeal and affirm the trial court's judgments.

Catherine Stone, Justice

DO NOT PUBLISH

1. An "outcry witness" is the first person of eighteen years or older to whom the child-victim has made a statement about the abuse. Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon Supp. 2000).