Cristobal Fuentes v. The State of Texas--Appeal from 290th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-02-00722-CR
Cristobal FUENTES,
Appellant
v.
The STATE of Texas,
Appellee
From the 290th Judicial District Court, Bexar County, Texas
Trial Court No. 2002-CR-1742
Honorable Sharon MacRae, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Sarah B. Duncan, Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: January 21, 2004

AFFIRMED

Cristobal Fuentes appeals the trial court's judgment convicting him of two counts of aggravated sexual assault and three counts of indecency with a child. We affirm.

1. Fuentes first argues that the trial court abused its discretion by allowing M.S.'s father, Gilbert Solano, to testify that Fuentes "informed [Solano] that [the allegation of sexual assault] would be harmful to his career" and that he "allegedly requested [that] Solano ... attempt to get [M.S.] to recant." We disagree.

Fuentes contends that the probative value of the statements was outweighed by their prejudicial effect because he "never actually confessed anything to Solano," "there was so much information indicating the lack of veracity of these statements," and because of Solano's "motivations and biases" in relating the conversation. See Tex. R. Evid. 403. We disagree. The key question for the trial court in performing a Rule 403 balancing test "is not whether the [evidence is] more prejudicial than probative, but rather, whether the probative value of the [evidence] is substantially outweighed by the danger of unfair prejudice." Salazar v. State, 38 S.W.3d 141, 151 (Tex. Crim. App.), cert. denied, 534 U.S. 855 (2001). "Unfair prejudice occurs when the evidence has an undue tendency to suggest decision on an improper basis ...." Vasquez v. State, 67 S.W.3d 229, 240 (Tex. Crim. App. 2002). The inference of guilt apparent from Fuentes's statements was clearly probative; and the absence of an overt admission of guilt does not render the statements unduly prejudicial. Furthermore, with regard to Solano's veracity, we defer to the jury's credibility determinations. See Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000).

Fuentes also asserts that the statements violated his constitutional rights pursuant to Texas Code of Criminal Procedure article 38.23 and the federal and state constitutions. However, he did not object to the evidence on this basis at trial and does not present any argument in support of these contentions in this court; therefore, Fuentes has waived these arguments on appeal. See Tex. R. App. P. 33.1(a)(1); 38.1(h).

2. Fuentes next argues that the trial court abused its discretion in allowing Dr. Shirley Menard, a Ph.D in adult education and pediatric nurse practitioner with the Alamo Children's Advocacy Center, to testify regarding the results of M.S.'s sexual assault exam because she did not perform the exam, and because she is not a medical doctor and therefore rendered an improper medical diagnosis. We again disagree.

Dr. Menard was qualified to interpret the exam, even though she did not administer it, by virtue of her "knowledge, skill, experience, training, [and] education" in performing sexual assault exams. Tex. R. Evid. 702; see Castaneda v. State, 28 S.W.3d 685, 693-94 (Tex. App.-Corpus Christi 2000, no pet.) (no abuse of discretion in allowing a nurse to testify as to medical records that included information gathered by someone else). Dr. Menard testified that she worked at the Alamo Children's Advocacy Center for almost nine years, performed more than 500 sexual assault exams, and completed national and state requirements as a pediatric nurse practitioner. She also testified that, as a nurse practitioner, she is qualified to diagnose and treat illnesses in children and prescribe medications. In addition, her duties at the Center include conducting medical interviews, completing physical exams, formulating an "impression or diagnosis" of children, and "writ[ing] a plan" for treatment.

Furthermore, Dr. Menard testified that she was asked to interpret the exam, rather than administrator Nurse Riley, because Nurse Riley had left the facility. Under this circumstance, had Fuentes wanted Nurse Riley to testify he could have served her with a subpoena and required her to be present at trial. See id. at 694 ("[I]f appellant wanted to cross-examine Dr. Melendez, he could have served the doctor with a subpoena and required him to be present at trial."). Additionally, nothing in the record indicates that Dr. Menard proffered an improper medical diagnosis by testifying that "thickened skin" and a scar near M.S.'s anus, that Nurse Riley found during the exam, were caused by repeated "forceful penetration." During the Center's initial interview with M.S., just prior to the exam, M.S. claimed that Fuentes "would stick his private in my back private. He would put on a condom and put some cream on it. The cream would burn, it would hurt when he did it." M.S. further claimed that this and other events occurred "too many times to remember." After performing the exam, Nurse Riley, in her notes, indicated that the "abnormal examination [is] [c]onsistent with [the] type(s) of sexual acts described." Therefore, Dr. Menard "merely recited on the stand what the jury was free to read for itself, as the medical records had already been properly admitted into evidence" without objection. See Castaneda, 28 S.W.3d at 694; accord Pumphrey v. State, 691 S.W.2d 5, 6 (Tex. App.-Beaumont 1984, pet. ref'd) (no error is considering testimony of nurse explaining medical records because the records were already admitted into evidence). Finally, to the extent Fuentes now argues that "[t]he medical history that was taken for the purposes of examination and treatment[] should have excluded as hearsay," his argument was not preserved for appellate review because he did not object on this basis at trial. See Tex. R. App. P 33.1.

3. Fuentes next argues that the trial court abused its discretion in failing to grant a mistrial based on juror misconduct in violation of Texas Rule of Evidence 606(b) and his federal and state constitutional rights to an impartial jury. We disagree.

After both sides rested, Fuentes moved for a mistrial arguing that "[d]uring the testimony of Mr. Gilbert Solano, I noticed that he nodded to two jurors in particular and acknowledged their presence. ... It's come to my attention that he knows two jurors on the jury and I'm concerned about that because my client feels like he may not get a fair trial ...." Fuentes chose not to initiate an inquiry into the potential misconduct. The trial court denied the motion. Then, during the punishment phase of trial, one of the jurors, Hector Gomez, asked the trial court whether he was disqualified as a juror because he knew Solano and several of the defense's punishment phase witnesses. The trial court informed Juror Gomez that he was not disqualified because neither party inquired during voir dire whether any of the potential jurors knew any of the witnesses, and that although "[i]t's a strange circumstance that you would be on a case where you knew somebody ... [,] [b]ut that in and of itself is not a problem." The trial court denied Fuentes's renewed motion for mistrial.

That Juror Gomez knew Solano, by itself, does not constitute juror misconduct. Rather, misconduct occurs if a juror makes "affirmative misrepresentations to questions actually asked during the voir dire examination, [or if there is] any showing that [the juror] kept silent when [the juror] should have answered any such questions actually asked." Gonzalez v. State, 966 S.W.2d 804, 806 (Tex. App.-Amarillo 1998), affirmed 3 S.W.3d 915 (Tex. Crim. App. 1999). Accordingly, "defense counsel has an obligation to ask questions calculated to bring out [material] information which might be said to indicate a juror's inability to be impartial and truthful." Armstrong v. State, 897 S.W.2d 361, 363-64 (Tex. Crim. App. 1995). "Unless defense counsel asks such questions, the material information which a juror fails to disclose is not really 'withheld.'" Armstrong, 897 S.W.2d at 364. Here, the venire was never asked if they knew any of the potential witnesses; therefore, no juror misconduct occurred.

4. Fuentes argues that the evidence is legally and factually insufficient to support the convictions because M.S.'s testimony was so inconsistent with both her own testimony and that of the other witnesses that "[t]he record is completely devoid of any evidence tending to corroborate [her] statements ...." We again disagree.

"Evidence is legally insufficient if, viewed in the light most favorable to the prosecution, no rational jury could find the defendant guilty beyond a reasonable doubt." Bustamante v. State, 106 S.W.3d 738, 740 (Tex. Crim. App. 2003); accord Cardenas v. State, 115 S.W.3d 54, 59 (Tex. App.-San Antonio 2003, no pet.). "Evidence is factually insufficient if, viewed without the prism of 'the light most favorable to the verdict,' the evidence supporting the verdict is so weak or so against the overwhelming weight of contrary evidence as to render the verdict clearly wrong and manifestly unjust." Bustamante, 106 S.W.3d at 740 (quoting Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)). "In other words, [we must] ask[] whether 'a neutral review of all the evidence ... demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Zuliani v. State, 97 S.W.3d 589, 593-94 (Tex. Crim. App. 2003) (quoting Johnson, 23 S.W.3d at 11).

M.S. testified that when she was in the "fourth or fifth grade" Fuentes sexually abused her on numerous occasions while her parents worked at Fuentes's gas station. According to M.S.: "I was touched inappropriately. It was usually in the walk-in, like a big freezer where all the beer and sodas were. I used to go there when it was really hot weather. And I think that's the first time I remember .... [H]e would touch me on my bottom or on my breasts." She further testified that she remembered Fuentes's penis penetrating her anus. M.S. also testified that she would occasionally accompany Fuentes on errands in his car, and that "[h]e would slip his hand underneath my pants or whatever I was wearing" and "[h]e would touch me there, on my vagina." According to M.S., the abuse ended when she started the sixth grade "[b]ecause the store closed down." M.S. finally decided to tell someone about the abuse when she was in the eighth grade because she saw Fuentes's car parked at her house and she was afraid "it would start happening again." M.S. also admitted that she lied when she recanted her allegation just prior to trial because she "didn't want anybody to get hurt." M.S.'s testimony was corroborated by the sexual assault exam, the testimony of Dr. Menard, and the testimony of Rosie Zavala, the outcry witness.

On cross-examination, M.S. testified that she would arrive at the store after she got out of school at 3:00 in the afternoon and leave around 8:00 or 9:00. She also testified that during those time periods there were various adults in the store at various times, including her mother, father, grandmother, grandfather, her uncle Ernie, Fuentes, Fuentes's stepson Louis Martinez, and a high school student named Jerome. Nevertheless, she maintained that when the abuse occurred "[the adults] weren't there" because "they worked different hours and everything."

Fuentes presented the testimony of three witnesses on his behalf, his stepson Louis Martinez, M.S.'s mother Gloria Solano, and himself. Martinez testified that "[t]here was always about a total of about five or six people in the store between the hours of like 2:00 o'clock all the way up until about 5:00 or 7:00." He also testified that M.S.'s grandfather would "traditionally stay in the back area" near the walk-in freezer during the day. In addition, Martinez testified that "everything was arranged to where - I don't know if [M.S.] was special or what, but everyone always kept an eye on her."

Gloria Solano testified that there were always other people in the store when Fuentes arrived. She also testified that, after Nurse Riley performed the sexual assault exam, "[s]he told my husband, my daughter and myself that there was no physical evidence of penetration. And we even asked her twice and she said there was no physical evidence and even if there had been, it was way too long of a time period." On cross-examination, Gloria confirmed that she would occasionally leave M.S. with Fuentes and that she "[didn't] remember him being by himself." Fuentes testified that, when he would arrive at the store, there would be "five to seven" other people in the store. He denied that he was alone with M.S. in the freezer. He also denied that he asked Solano to try to get M.S. to recant her story.

Although there were apparent inconsistencies between M.S. and the defense witnesses regarding whether or not M.S. was ever left alone with Fuentes, we defer to the jury's determinations on the weight and credibility of the conflicting testimony. See Johnson, 23 S.W.3d at 9; Tear v. State, 74 S.W.3d 555, 559-60 (Tex. App.-Dallas 2002, pet. ref'd), cert. denied, 123 S. Ct. 1753 (2003) ("The jury is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony[, and] is free to accept or reject all or any part of a witness's testimony."). After considering all the evidence, we conclude the evidence is legally and factually sufficient.

The trial court's judgment is affirmed

.

Sarah B. Duncan, Justice

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