LEROY CHAVEZ v. THE STATE OF TEXAS--Appeal from 148th District Court of Nueces County

NUMBER 13-04-172-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

___________________________________________________________________

 LEROY CHAVEZ, Appellant,

v.

 THE STATE OF TEXAS, Appellee.

___________________________________________________________________

On appeal from the 148th District Court

of Nueces County, Texas.

___________________________________________________ _______________

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

Memorandum Opinion by Justice Rodriguez

Appellant, Leroy Chavez, appeals his conviction of indecency with a child. See Tex. Pen. Code Ann. ' 21.11 (Vernon Supp. 2004-05). A jury found appellant guilty, and the trial court assessed punishment at twenty years in the Institutional Division of the Texas Department of Criminal Justice. The trial court has certified that this case Ais not a plea bargain case, and the defendant has the right of appeal.@ See Tex. R. App. P. 25.2(a)(2). By three issues, appellant argues that the trial court erred in (1) allowing the prosecution to comment on his post-arrest silence and his failure to testify, (2) denying him due process when it allowed the prosecution to present hearsay testimony in violation of his Sixth Amendment right to confront his accuser, and (3) denying him due process when it allowed the prosecution to present irrelevant extraneous offense evidence. We affirm.

I. Background

As this is a memorandum opinion and because all issues of law presented by this case are well settled and the parties are familiar with the facts, we will not recite the law and the facts in this memorandum opinion except as necessary to advise the parties of the Court=s decision and the basic reasons for it. See Tex. R. App. P. 47.4.

II. Analysis

A. Failure To Testify

By his first issue, appellant alleges that the trial court denied him due process by allowing the prosecution to comment on his post-arrest silence and his failure to testify. See U.S. Const. amend. VI; Tex. Const. art I, ' 10; Tex. Code Crim. Proc. Ann. art. 38.08 (Vernon Supp. 2004-05).

In order for the State=s comment to violate this right, "the language must be looked to from the standpoint of the jury and the implication that the language used had reference to such failure to testify must be a necessary one." Swallow v. State, 829 S.W.2d 223, 225 (Tex. Crim. App. 1992) (en banc) (quoting Koller v. State, 518 S.W.2d 373, 375 (Tex. Crim. App. 1975)). "Language that can reasonably be construed to refer to a failure to present evidence other than from the defendant=s own testimony does not amount to comment on failure to testify." Id. "It is not sufficient that the language might be construed as an implied or indirect allusion thereto." Id. (quoting Koller, 518 S.W.2d at 375).

In the present case, during closing arguments, the following statements were made by the State:

The State: The thing I want you guys to focus on is the story is not contradicted. She [the victim] has been consistent. This story if you look at all the witnesses B

Defense Counsel: Your Honor, I=m going to object at this point, Counsel [is] making the comment it=s uncontradicted. That=s a comment on my client not testifying.

The State: It=s not, Your Honor.

Defense Counsel: I ask for a mistrial.

Court: Overruled. This is a closing. Mistrial denied.

We conclude the above statements, viewed in full context, cannot reasonably be construed as a reference to appellant=s failure to testify. See id. Viewed from the jury=s perspective, the above statements are not manifestly intended to be a comment on the accused=s failure to testify but rather highlight the consistency of the victim=s story. See id. The trial court did not abuse its discretion when it overruled appellant=s objection and motion for new trial. See Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004) (providing that appellate review of trial court=s denial of motion for mistrial is abuse of discretion). Thus, appellant=s first point of error is overruled.

B. Confrontation Issues

I. Sixth Amendment Right to Confront

By his second point of error, appellant first contends that the trial court denied him due process when it allowed the prosecution to present hearsay testimony in violation of his Sixth Amendment right to confront accusers. See U.S. Const. amend. VI. However, as a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion. See Tex. R. App. P. 33.1(a)(1)(A). The complaint must have stated the grounds for the ruling that the complaining party sought from the trial court, with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context. Id. In this case, appellant failed to object on the basis that his Sixth Amendment right to confront was violated, thus, he has waived this argument on appeal. See Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App. 2000) (concluding constitutional issues can be waived).

2. Hearsay Objection to Admission of Videotape[1]

Appellant next contends by his second point of error that the trial court erred in admitting the videotape of the victim's testimony as it amounted to inadmissible hearsay.

We review a trial court=s ruling to admit testimony under an abuse of discretion standard. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995); Horner v. State, 129 S.W.3d 210, 216 (Tex. App.BCorpus Christi 2004, pet. ref=d). A court will not reverse a trial court=s ruling if it is within the Azone of reasonable disagreement.@ Horner, 129 S.W.3d at 216.

Hearsay is defined as Aa statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Tex. R. Evid. 801(d). Article 38.072 of the Texas Code of Criminal Procedure provides an exception to the hearsay rule for statements of child abuse victims if, among other things, the child will testify or be available to testify. See Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon 2005).

Appellant acknowledges that because the victim in this case did testify at trial, the procedural requirement set out in article 38.072(b)(3) was met. See id. at art. 38.072(b)(3). However, appellant contends that because the State failed to satisfy one or more of the other required procedural statutory conditions, the trial court erred in admitting the videotape.[2]

The record in this case reveals, however, that the State provided appellant with the notice called for in section 2(b)(1) of article 38.072, including a written summary of the child victim's outcry statement to forensic interviewer, Ricardo Jimenez. The trial court addressed the admissibility of the outcry statement during appellant's pretrial motion-in-limine hearing. At the hearing, the State played the tape for the trial court, and the trial court found that Jimenez was the proper outcry witness. As for the required reliability findings of the trial court, these need not be written and are implied by the trial court's ruling that the videotape was admissible. See Villalon v. State, 791 S.W.2d 130, 136 (Tex. Crim. App. 1990) (en banc). Accordingly, we conclude the State satisfied the procedural requirements of article 38.072. We further conclude the trial court did not abuse its discretion in admitting the victim's videotaped testimony. See City of Brownsville, 897 S.W.2d at 753; Horner, 129 S.W.3d at 216. Appellant=s second point of error is overrruled.

C. Extraneous Offense Evidence

By his third point of error, appellant contends the trial court denied him due process when it allowed the prosecution to present allegedly irrelevant extraneous offense evidence. Appellant contends the court abused its discretion when it admitted evidence of an illegal sexual relationship between appellant and the victim=s fourteen-year-old sister; however, appellant=s argument does not contain record cites regarding the extraneous offense evidence to which he refers. The reviewing court has no duty to search the record to find reversible error. See Torres v. State, 979 S.W.2d 668, 671 (Tex. App.BSan Antonio 1998, no pet.). "The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Tex. R. App. R. 38.1 (h). Accordingly, we conclude that appellant=s last point of error is waived due to inadequate briefing.

III. CONCLUSION

Accordingly, the judgment of the trial court is affirmed.

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this 18th day of August, 2005.

[1]Appellant also generally complains that "on repeated occasions, the State was allowed to have its witnesses relate what it was that the victim had allegedly declared outside the courtroom. These statements were all made over the appellant's timely, overruled, hearsay objections." More specifically, at trial appellant objected to the victim=s mother testifying that the victim told her that defendant touched her breast and to the victim's counselor=s testimony that the victim said she was assaulted at the hospital. However, even assuming that these statements were inadmissible, we conclude that error, if any, in admitting the statements was harmless because the victim and the outcry witness later testified to the same facts. See Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999) (en banc); Huff v. State, 560 S.W.2d 652, 654 (Tex. Crim. App. 1978); see also Tex. R. App. P. 44.2.

[2] The procedural conditions of article 38.072(b) about which appellant complains include the following:

(1) on or before the 14th day before the date the proceeding begins, the party intending to offer the statement:

(A) notifies the adverse party of its intention to do so:

(B) provides the adverse party with the name of the witness through whom it intends to offer the statement; and

(c) provides the adverse party with a written summary of the statement;

(2) The trial court finds, in a hearing conducted outside the presence of the jury, that the statement is reliable based on the time, content, and circumstances of the statement; and

(3) the child testifies or is available to testify at the proceeding in court or in any other manner provided by law.

Tex. Code Crim. Proc. Ann. art. 38.072(b)(1)-(3) (Vernon 2005).