Bueno, Oscar Elicer v. The State of Texas--Appeal from Crim Dist Ct of Dallas Co of Dallas County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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OSCAR ELICER BUENO, ) No. 08-01-00013-CR

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Appellant, ) Appeal from

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v. ) Criminal District Court

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THE STATE OF TEXAS, ) of Dallas County, Texas

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Appellee. ) (TC# F-0070094-QH)

O P I N I O N

Oscar Elicer Bueno appeals from his conviction for aggravated sexual assault of a child, enhanced by a prior felony conviction for indecency with a child. A jury found Appellant guilty and the court assessed his punishment at life imprisonment. We affirm.

FACTUAL SUMMARY

Nine-year-old Savoun Cheap (pronounced AChip@) lived in an apartment with his elderly grandmother, Or Pok, a younger brother, Ty, and his ten-year-old sister, Sophoueth. Appellant, known to Savoun as AFat Joe,@ often visited the family at the apartment. Savoun=s cousins, Juneda and Nita, were present during some of Appellant=s visits. On several occasions while they were seated in the living room on the couch, Appellant unzipped Savoun=s pants and touched his Aprivate parts.@ On other occasions, Savoun saw Appellant=s Aprivate.@ Appellant took his Aprivate@ or Adick@ out and placed Savoun=s hand on it, while instructing him to Amove it up and down.@ Appellant engaged in this behavior even when Pok and Savoun=s siblings and cousins were in the apartment. Some of the other children actually saw the abuse occur but Savoun did not think that his grandmother did. On yet other occasions, Appellant took Savoun into the bedroom and would place his Aprivate@ in Savoun=s mouth. He placed his hand on Savoun=s head and then would Ashake@ his Aprivate part@ in Savoun=s mouth. No one else was present in the bedroom with them. Appellant often gave money to Pok before he left the apartment. Appellant also gave money to Savoun and sometimes took him to eat at Burger King or Pizza Inn. Savoun did not report the abuse to his grandmother because he thought she would get angry. He never told anyone else until Allison White talked to him about it. When Pok found out, she asked Savoun why he had told and attempted to hit him with the vacuum cleaner cord.

Allison White works with a church-related organization which assists Southeast Asian refugees in the Dallas area. Based on the request of many refugees, the organization began an after-school program and summer program for children in the church neighborhood. The organization provides food and other assistance for families settling into the community. White met Savoun through her involvement in this organization. She had seen Savoun and his two siblings being walked to school each day by their elderly grandmother, Or Pok. Staff members became concerned about the welfare of the children and Pok since they never saw the children=s parents. Consequently, White visited the family to determine their needs. Through these visits, she became well acquainted with the family and learned they had many difficulties because of their poverty.

Savoun=s ten-year-old cousin, Juneda Nath, told Sandy Hines, the coordinator of the after-school program, that Appellant had masturbated in front of her, Savoun, and other children, and that he had made Savoun touch his genitals. Hines called White and told her about the sexual abuse allegations. White drove immediately to Savoun=s home and talked to Savoun, Ty, and Sophoueth. When she asked the children whether they knew Appellant, they became noticeably uncomfortable and unhappy. In fact, Savoun attempted to hide. White spoke with them generally about her telephone conversation with Hines. Concerned about the children=s safety, White called the Dallas Children=s Advocacy Center and made a report. The children were taken to the Advocacy Center where they were interviewed and provided with counseling. Based upon her knowledge of Cambodian culture, White was not surprised that Savoun did not report the abuse to anyone because it would be considered shameful and a matter best dealt with by the family. Following the revelation of the abuse, Savoun appeared to be fearful of Appellant.

Lori Langston, a child advocate employed by the Dallas Children=s Advocacy Center, interviewed Savoun. Her purpose in interviewing Savoun was to determine whether abuse had occurred, and if it had, to determine what had happened. The interview process employs five stages: rapport, anatomy identification, touch inquiry, abuse scenario, and closure. Savoun made an outcry to Langston during the interview in which he described three incidents of abuse. He told her that Appellant had touched his penis and that he had touched Appellant=s penis with his hand. Appellant gave Savoun a dollar after each incident, and Savoun gave the money to his grandmother. On another occasion, Appellant placed his penis in Savoun=s mouth and ejaculated.

Savoun was also provided counseling by Madeline McClure, a child therapist who is employed by the Dallas Children=s Advocacy Center.[1] As a child therapist, McClure works with children who have been severely abused and neglected and helps them get over their trauma so that they can function properly. McClure explained that children are typically reluctant to discuss sexual abuse due to embarrassment, shame, and a feeling of ostracism, and they often feel responsible for the abuse. Additionally, they fear retaliation and want to avoid disruption of family life. McClure had worked with Savoun in thirty counseling sessions. As part of her work with him, McClure had Savoun complete several drawings and write a booklet about the abuse and himself. In a written/verbal exercise entitled ATelling Each Other What Happened,@ Savoun related some details of the abuse in response to written questions. In these answers, he told McClure that he was six years old when Appellant began to abuse him. On the first occasion of abuse, Appellant moved Savoun=s hands to Appellant=s pants and penis. Later, the abuse changed and Appellant touched Savoun=s private and faced him or Alied on top@ of him. Appellant abused Savoun on many occasions between the ages of six and eight. Telling others about the abuse scared Savoun because he was afraid Appellant would kill him. Savoun=s drawings depicted his fear of Appellant. In one of these drawings, Appellant chased Savoun while armed with a knife. In another, Savoun ran towards a telephone while saying AHelp me, 911.@

Three witnesses testified on Appellant=s behalf. Paanlel Mean is the stepmother of Savoun=s cousins, Juneda and Nita. Mean went to Pok=s apartment almost every day and she sometimes saw Appellant there. Mean never saw Appellant=s wife at Pok=s apartment. Mean saw Savoun sit on Appellant=s lap and ask him for money, but she never saw Appellant do anything bad to Savoun. Appellant sometimes went into the bedroom with the children. Juneda did not tell Mean about any sexual contact between Appellant and Savoun. Mean knew that Appellant gave money to Pok and to Aeverybody=s children.@

Or Pok knew Appellant because he occasionally came to her apartment. He sometimes bought the children hamburgers and gave her money to buy beer nuts. She never saw Appellant do anything bad with Savoun or the other children and she insisted that Appellant never went into the bedroom with the children.

Ry Han is Appellant=s wife. She knew Pok and occasionally visited in the apartment. Shortly before these allegations were made by the children, Appellant had stopped giving them money.

Sambo Sim testified in rebuttal for the State. As a volunteer through her church, Sim often helped Pok by making sure that she got her medication, by taking her shopping or to church, and by acting as a translator. Shortly after Savoun made these allegations, Sim acted as a translator in a conversation between Pok and two detectives. Pok told Sim and the detectives that she had seen Appellant alone in the bedroom with the children. Sim was sure Pok had said this because she verified each statement with Pok by repeating the question and asking if this was her answer. Sim had never translated anything for law enforcement officers before and she wanted to be sure that she translated it correctly.

The jury found Appellant guilty as charged in the indictment, rejecting Appellant=s defense that the children fabricated these allegations in retaliation for his refusal to give them money. Appellant raises four points on appeal.

FACTUAL SUFFICIENCY

In Point of Error No. One, Appellant challenges the factual sufficiency of the evidence to support his conviction. He contends that the evidence established that he was falsely accused of sexual abuse. In reviewing the factual sufficiency of the evidence to support a conviction, we are to view all the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). Evidence is factually insufficient if it is so weak that it would be clearly wrong and manifestly unjust to allow the verdict to stand, or the finding of guilt is against the great weight and preponderance of the available evidence. Johnson, 23 S.W.3d at 11. Therefore, the question we must consider in conducting a factual sufficiency review is whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the fact finder=s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See id. In performing this review, we are to give due deference to the fact finder=s determinations. See id. at 8 9; Clewis, 922 S.W.2d at 136. Consequently, we may find the evidence factually insufficient only where necessary to prevent a manifest injustice from occurring. See Johnson, 23 S.W.3d at 9, 12; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997).

Aggravated Sexual Assault

A person commits aggravated sexual assault if he intentionally or knowingly causes the penetration of the mouth of a child by the sexual organ of the actor and the child is younger than fourteen years of age. Tex.Pen.Code Ann. ' 22.021(a)(1)(B)(ii), (2)(B)(Vernon Supp. 2002). The indictment charged Appellant with aggravated sexual assault of Savoun pursuant to this section of the Penal Code. Further, the application paragraph of the jury charge tracked the indictment.

Appellant concedes that there is legally sufficient evidence to establish the elements of the offense, but he argues that the overwhelming weight of the evidence showed that he was falsely accused by Savoun. To support his argument, he first points to the State=s failure to have Savoun=s brother, Ty, corroborate the complainant=s testimony regarding the aggravated sexual assault. Savoun testified that Appellant had placed his penis in Savoun=s mouth on thirty different occasions and Ty had been present during some of the incidents. While Appellant is correct that the State did not call Ty as a witness, the jury was also able to consider Appellant=s failure to present his testimony. Additionally, Appellant argues that Savoun=s story is undercut by Juneda=s testimony that she never saw Appellant place his penis in Savoun=s mouth. However, Savoun=s cousin, Nita, saw Appellant insert his penis in Savoun=s mouth. Appellant also points to Pok=s testimony that Appellant never went into the bedroom with the children; however, Sambo Sim insisted that Pok told her and the detectives just the opposite. Sim verified this statement with Pok.

Appellant also contends that Savoun was shown to be non-credible because he told the therapist, Madeline McClure, that Appellant had molested forty other people, including two friends, three cousins, Ty, and Sophoueth. McClure believed others had been molested by Appellant but that Savoun had exaggerated the number of people. Appellant also points to McClure=s statement that Savoun had not been Acompletely forthright@ in telling her what had happened. A closer review of McClure=s testimony indicates that she believed Savoun had not told her everything that had happened, and had omitted some of the details of the abuse due to his embarrassment and reluctance to discuss it. By the same token, McClure insisted that she did not believe Savoun had lied to her during the eight or nine months she had worked with him.

Undoubtedly, there were conflicts in the testimony which the jury had to resolve while taking into account the credibility of the various witnesses, including Savoun. We are unable to conclude that the jury=s resolution of these issues in favor of the State is contrary to the great weight and preponderance of the evidence. Accordingly, we find that the evidence is factually sufficient to support Appellant=s conviction. Point of Error No. One is overruled.

OUTCRY TESTIMONY

In Point of Error No. Two, Appellant complains of the admission of hearsay statements through Lori Langston because the State failed to establish compliance with Article 38.072 of the Texas Code of Criminal Procedure. More specifically, he argues that White, not Langston, was the first person to whom Savoun made an outcry within the meaning of the outcry statute.

Article 38.072 of the Texas Code of Criminal Procedure allows admission of certain hearsay testimony in the prosecution of offenses committed against children twelve years of age or younger. See Tex.Code Crim.Proc.Ann. art. 38.072 (Vernon Pamph. 2002)(the Aoutcry@ statute). The outcry statute applies only to statements made (1) by the child against whom the offense was allegedly committed, and (2) to the first person, eighteen years of age or older, to whom the child made a statement about the offense. Tex.Code Crim.Proc.Ann. art. 38.0702, ' 2. To be admissible under this statute, the child=s statement to the witness must describe the alleged offense in some discernible manner and must be more than a general allusion to sexual abuse. See Garcia v. State, 792 S.W.2d 88, 91 (Tex.Crim.App. 1990); Sims v. State, 12 S.W.3d 499, 500 (Tex.App. -Dallas 1999, pet. ref=d); Hayden v. State, 928 S.W.2d 229, 231 (Tex.App. -Houston [14th Dist.] 1996, pet. ref=d). A trial court has broad discretion in determining the admissibility of outcry statements pursuant to this statute, and we will not disturb the trial court=s ruling absent an abuse of discretion. See Garcia, 792 S.W.2d at 92. An abuse of discretion occurs only where the trial court=s ruling falls outside the zone of reasonable disagreement. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991)(opinion on reh=g).

Pursuant to Article 38.072, ' 2(b), the State provided notices to Appellant that it intended to offer outcry testimony through White and Langston. See Tex.Code Crim.Proc.Ann. art. 38.072, ' 2(b). In a hearing held outside the presence of the jury to determine the admissibility of Langston=s outcry testimony, Langston stated that she was the first person to whom Savoun had related the details of the abuse. Some of Savoun=s statements describing the abuse were made to Langston in response to questions. White also testified in this hearing. According to White, Savoun did not relate any details of the abuse but simply told her that Appellant had done Abad things or something bad.@ In response to a question by the prosecutor asking whether Savoun had told her any details about what had happened, White stated:

Well, that day that I went over there, he had told me that he did that thing to him. And then his sister said, really bad things, or something like that? And he said, Yes.

She reiterated that all Savoun told her was that Appellant had done bad things to him and she did not push him to reveal anything beyond this generalization. At the conclusion of this hearing, the trial court determined that Langston was the outcry witness and admitted her testimony over Appellant=s objection.

Appellant points to White=s testimony which occurred prior to the hearing as evidence that she was the first person to whom Savoun made statements regarding the sexual abuse. White testified that she went to Savoun=s apartment and questioned the children about whether they knew Appellant. The children exhibited obvious discomfort in response to that question, but admitted they knew Appellant. The following exchange then occurred:

[White]: And in reaction to their response, I was concerned. And so I asked them, you know, why were they responding that way, basically? And then they responded to me and told me some things.

[Prosecutor]: Did they tell you -- what was your concern after they told you some things?

[White]: I was concerned for their safety.

[Prosecutor]: Okay. And specifically what kind of safety, I mean, physical safety, mental safety or what?

[White]: Everything.

Later, the prosecutor specifically asked White whether Savoun told her the specific details about the sexual abuse. White replied:

To be honest, I didn=t ask specifically about stuff that happened, that I had been told on the phone. And at that point, none of the details were told to me when I first talked to him.

White clarified that she knew sexual abuse was involved because of what Juneda had told Hines. These details had been provided to White by Hines in the phone call she referred to in her testimony.

Admittedly, the determination of who is the Afirst person@ to whom the child victim made a statement about the offense may sometimes be a difficult one and demands close scrutiny by the trial court. See Garcia, 792 S.W.2d at 91. White=s statement that the children Atold her some things@ does not clearly show what Savoun told her. See Lee v. State, 21 S.W.3d 532, 537 (Tex.App.--Tyler 2000, no pet.)(holding that the evidence must clearly show that the victim described the offense in some discernible manner to the witness). Savoun=s statement to White that Appellant had done Asomething bad@ to him did not describe the offense in some discernible manner but was only a general allusion to sexual abuse. Consequently, the trial court did not abuse its discretion in finding that Langston, not White, was the first person to whom Savoun made a statement about the offense within the meaning of the outcry statute. See Castelan v. State, 54 S.W.3d 469, 475 (Tex.App.--Corpus Christi 2001, no pet.)(because victim did not relay specific details of abuse to grandmother, only stating that appellant Aput his thing in through the back,@ trial judge did not abuse discretion in determining counselor was proper outcry witness, not grandmother); Sims, 12 S.W.3d at 500 (where victim told mother that the defendant had Atouched her private parts@ but made no other statement about the offense, the trial court did not abuse its discretion in finding that the statement was nothing more than a Ageneral allusion@ of sexual abuse, and therefore, the counselor, not the mother, was the proper outcry witness). Point of Error No. Two is overruled.

HEARSAY

Appellant next presents two related points of error regarding the admission of hearsay through the therapist, Madeline McClure. In Point of Error No. Three, Appellant contends that the trial court abused its discretion in overruling his hearsay objection and admitting State=s Exhibit 13 which is a written questionnaire answered by Savoun while in therapy. In Point of Error No. Four, Appellant argues that the court erred in permitting McClure to testify as to Savoun=s statement that he feared Appellant would kill him. The State responds that all of the evidence is admissible pursuant to Rule 803(4) which establishes an exception for statements made for purposes of medical diagnosis or treatment. See Tex.R.Evid. 803(4). We agree with the State.

State=s Exhibit 13 is a written exercise completed by Savoun as part of therapy. It is entitled ATelling Each Other What Happened@ and it included such questions as AWho molested you?,@ ATell about the very first time you were molested,@ and AHow did it feel to tell about what happened?@ Savoun answered each of the questions asked of him and McClure testified in detail about the statements Savoun made in State=s Exhibit 13.

McClure also testified regarding State=s Exhibit 11 (a drawing by Savoun entitled AA Picture of My Scary Thoughts@) and State=s Exhibit 15 (a ALetter to the Perpetrator@). State=s Exhibit 11 depicted Appellant, armed with a knife, chasing Savoun. McClure testified that Savoun was, in his own words, afraid that Appellant would kill him. Savoun was unable to complete the letter to Appellant because he was too terrified. As evidence of his terror, McClure pointed to State=s Exhibit 11.

Rule 803(4) of the Texas Rules of Evidence is an exception to the hearsay rule for statements Amade for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.@ Tex.R.Evid. 803(4). This exception has repeatedly been applied to allow admission of statements by a suspected victim of child abuse as to the causation and source of the child=s injuries. See Puderbaughv. State, 31 S.W.3d 683, 685 (Tex.App. Beaumont 2000, pet. ref=d)(Rule 803(4) applied to testimony of clinical social worker regarding the child victim=s statements regarding the sexual abuse by the defendant); Behelerv. State, 3 S.W.3d 182, 189 (Tex.App. Fort Worth 1999, pet. ref=d)(Rule 803(4) applied to testimony by sexual assault examiner of child=s statements describing sexual abuse and the identity of the defendant); Gohringv. State, 967 S.W.2d 459, 461 (Tex.App. Beaumont 1998, no pet.)(Rule 803(4) applied to testimony by play therapist regarding sexual abuse of child by her father); Macias v. State, 776 S.W.2d 255, 258 59 (Tex.App. San Antonio 1989, pet. ref=d) (statements by a psychologist admissible under Rule 803(4) because they were made for the purpose of medical diagnosis and treatment). Further, Texas courts have allowed non physicians to testify under the medical diagnosis and treatment exception to the hearsay rule. See Puderbaugh, 31 S.W.3d at 685 (clinical social worker); Gohring, 967 S.W.2d at 461 (play therapist); Macias, 776 S.W.2d at 258 59 (psychologist).

The State established through McClure that the purpose of the exercises giving rise to her testimony was to assist Savoun with the emotional trauma of the sexual abuse. Further, she relied on Savoun=s statements to diagnose his emotional problems and to treat him. As such, it was important for her to discover the source of those problems. Based upon this evidence, the State established that the out of court statements were reasonably pertinent to medical diagnosis or treatment. Therefore, the trial court did not abuse its discretion in overruling Appellant=s hearsay objection and admitting the testimony. Points of Error Nos. Three and Four are overruled. Having overruled each of Appellant=s points of error, we affirm the judgment of the trial court.

August 29, 2002

ANN CRAWFORD McCLURE, Justice

Before Panel No. 4

Barajas, C.J., Larsen, and McClure, JJ.

(Do Not Publish)

[1] Madeline McClure is unrelated to the author.