Henry Martinez v. The State of Texas--Appeal from 144th Judicial District Court of Bexar County

Opinion by: Paul W. Green, Justice

Sitting: Tom Rickhoff, Justice

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: January 26, 2000

AFFIRMED

Appellant, Henry Martinez, appeals his conviction and sentence for Aggravated Sexual Assault under Tex. Pen. Code Ann. 22.021 (Vernon 1994). In his first issue, Martinez complains that the State failed to give him proper notice of its intent to offer extraneous offense evidence after Martinez' timely request for notice. In his second issue, Martinez complains that the trial court erroneously admitted the hearsay testimony of an improper outcry witness.(1) Because we overrule both of Martinez' points of error, we affirm the judgment of the trial court.

Facts

Henry Martinez was indicted on the charge of Aggravated Sexual Assault of his daughter, A, who was age six at the time of the first offense. Martinez was initially charged in a two count indictment alleging two separate incidents of sexual contact, one occurring in 1993, the other in 1997. Martinez timely requested notice of the State's intent to use extraneous offense evidence at trial. On January 4, 1999, the State provided notice of its intent to use extraneous offense evidence at trial, and indicated it would use evidence of both incidents in its efforts to prove both counts.

On January 5, 1999, the trial court ruled the State's extraneous offense notice was inadequate because it was given too close to the date of trial. However, the trial court also ruled evidence of the incidents alleged in count one and count two of the indictment could be used, because the indictment alone was sufficient to give the defendant notice of the State's intent to present evidence of those occurrences. Subsequently, and immediately before trial, the State waived count two of the indictment. The State gave notice of its intention to use evidence of the 1997 incident (the basis of waived count two) at sentencing. The defense objected, arguing there was insufficient notice since the State's notice of extraneous offense evidence was inadequate, and once the second count of the indictment had been waived, Martinez could no longer be deemed to be on notice of the State's intent to use evidence supporting the waived count. The trial court overruled Martinez' objection and allowed evidence of the 1997 incident to be presented at the punishment phase of trial. Martinez then pled guilty to the remaining count of the indictment and elected to be sentenced by a jury.

At the sentencing phase, the State presented testimony from A about both the 1993 and the 1997 incidents. The State also presented testimony from A's stepfather, Baldemar Guerrero, as an outcry witness, regarding what A told him about these incidents.

Standard of Review We review the trial court's admission of evidence with the abuse of discretion standard. See Montgomery v. State, 810 S.W.2d 372, 378 (Tex. Crim. App. 1990). 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. See id. at 380. We will not disturb the trial court's ruling as long as it is within a "zone of reasonable disagreement." See id. at 391 (op. on reh'g); Gottson v. State, 940 S.W.2d 181, 187 (Tex. App.--San Antonio 1996, writ ref'd). However, when the trial court's admission of evidence rests on the interpretation of a statute, the issue is a question of law and we review the trial court's ruling de novo. See Mitchell v. State, 948 S.W.2d 62, 67 (Tex. App.-Fort Worth 1997), rev'd on other grounds, 982 S.W.2d 425 (Tex. Crim. App. 1998).

Extraneous Offense Evidence

Whether entered with or without an agreed recommendation of punishment by the State, a valid plea of guilty or nolo contendere "waives" or forfeits the right to appeal a claim of error only when the judgment of guilt was rendered independent of, and is not supported by, the error. See Young v. State, No. 1579-96, slip op. at 23, 2000 WL 3955 at *10.(2) Even after such a waiver, the defendant may still challenge the admissibility of the evidence. See id; Hohn v. State, 951 S.W.2d 535, 537 (Tex. App.-Beaumont 1997, no pet.). Martinez properly requested notice of the State's intent to use extraneous offense evidence, and he properly objected to the introduction of that evidence at trial.

Martinez complains the State did not provide reasonable notice of intent to offer extraneous offense evidence at trial. However, the evidence he complains of formed the basis for the second count of the indictment. Allegations in an indictment are sufficient to provide a defendant with notice of the State's intent to present evidence pertaining to those allegations. See Papke v. State, 982 S.W.2d 464, 467 (Tex. App.-Austin 1998, pet. ref'd) (notice of State's intention to seek deadly weapon finding provided by language in indictment that specifically mentions a particular object or substance and its use with respect to death or serious bodily injury). On the day before trial, the State provided notice to Martinez that it intended to offer evidence of the 1997 fondling incident as extraneous offense evidence. This was the same conduct the State had already alleged in count two of the indictment. Therefore, even if the notice was not reasonable under the rubric of "extraneous offense evidence," Martinez clearly had notice of the State's intent to offer the evidence, since the conduct was alleged in the indictment when it was filed on May 13, 1998, nearly eight months before trial.

To be reasonable, notice of intent to introduce extraneous offense evidence must include the date on which the offense occurred, the county where it occurred, and the name of the alleged victim. See Tex. Crim. Proc. Code Ann. art. 37.07 3(g). All of that information was contained in the indictment. The State provided adequate notice of its intent to use evidence of the 1997 incident.

Tex. Code Crim. Proc. Ann. art. 37.07 3(a) (Vernon 1997) [effective for conduct occurring before Sept. 1, 1997](3) governs the admissibility of extraneous offense evidence and requires the extraneous offense evidence to be proven beyond a reasonable doubt. There was sufficient testimony from which the jury in this case could have found beyond a reasonable doubt that the 1997 incident occurred. We overrule Martinez' first issue.

Outcry Witness

In issue two, Martinez complains that the trial court improperly admitted the testimony of Baldemar Guerrero as an outcry witness. The State presented evidence that Guerrero was the first person to whom A disclosed the abuse.(4) Although there was a dispute as to whether her father or mother was the proper outcry witness, there is no dispute that Guerrero was the first adult person to whom A disclosed the abuse. The only question was whether he was the first person to whom she spoke in detail about the abuse. See Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990). After A told Guerrero in general about the abuse while they were driving in Guerrero's car, she told both Baldemar Guerrrero and her mother in detail at the same time. The record shows there were no details to which Guerrero was not privy but A's mother was.

In Foreman v. State, 995 S.W.2d 854, 859 (Tex. App.-Austin 1999, pet. ref'd), the court held that a counselor to whom a child had disclosed abuse was a proper outcry witness, even though the victim's parents were the first to hear a detailed account of the abuse, because neither of the parents, who were both drug abusers, could remember the little girl's disclosure to them. The court reasoned that the societal interest in curbing child abuse would not be served if the "first person" under Tex. Crim. Proc. Code Ann. art. 38.072 could only be the first person to whom the child made the outcry, even if that person had no recollection of the disclosure. See Foreman, 995 S.W.2d at 859.

Applying the reasoning from Foreman, it would hardly serve society's interest if the statute were construed to prevent either of a child's two parents from testifying as an outcry witness because they were told simultaneously about the abuse. Baldemar Guerrero was the first person to be told about the abuse. His decision to notify A's mother before A disclosed the details of the abuse should not prevent his testimony from being admitted. To hold otherwise would produce an absurd result.

Based upon the record, the trial court did not act without reference to guiding rules or principles of law in making its determination. The trial court did not abuse its discretion in admitting the testimony of Baldemar Guerrero as an outcry witness.

Further, if it was error to admit the testimony of Baldemar Guerrero as an outcry witness, such error was harmless. 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 v. State, 816 S.W.2d 79, 88 (Tex. Crim. App. 1991); Mosley v. State, 960 S.W.2d 200, 205 (Tex. App.-Corpus Christi 1997, no writ). The testimony of A was properly admitted and was sufficient to prove the same facts contained in Baldemar Guerrero's testimony. The uncorroborated testimony of the victim of a sexual offense is sufficient to support a conviction under Tex. Pen. Code 22.021 if the victim was under eighteen years of age at the time of the offense. See Tex. Crim. Proc. Code Ann. art. 38.07 (Vernon 1999). Martinez' second issue is overruled.

Conclusion

Having overruled both of Henry Martinez' issues, we affirm the judgment of the trial court.

PAUL W. GREEN,

JUSTICE

DO NOT PUBLISH

1. See Tex. Crim. Proc. Code Ann. art. 38.072 (Vernon 1999)

2. This is a departure from the old "Helms rule" where a plea of guilty, made voluntarily and understandingly, waived all non-jurisdictional defects including claimed deprivation of federal due process. See Helms v. State, 484 S.W.2d 925, 927 (Tex. Crim. App. 1972).

3. Tex. Crim. Proc. Code Ann. art. 37.07 3(a) reads:

"Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding rules 404 and 405 , Texas Rules of Criminal Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act. . . ." [emphasis added]

4. An "outcry witness" is the first person of eighteen years or older to whom the child-victim has made a statement about the abuse. See Tex. Crim. Proc. Code Ann. art. 38.072 (Vernon 1999).