MARCELO CONSUELO, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed August 15, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-00848-CR
............................
MARCELO CONSUELO, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 265th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F05-55535-NR
.............................................................
OPINION
Before Justices FitzGerald, Richter, and Lang-Miers
Opinion By Justice FitzGerald
        A jury found appellant Marcelo Counsuelo guilty of aggravated sexual assault of a child and assessed his punishment at thirty years' confinement and a $10,000 fine. Consuelo appeals the trial court's judgment, arguing the evidence is factually insufficient to support the jury's verdict and that the trial court erroneously admitted evidence of extraneous offenses and statements by the complainant and the investigating detective. For the reasons set forth below, we affirm the trial court's judgment.
Sufficiency of Evidence
        In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). Of course, the fact finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex. App.-Dallas 2003, no pet.). The indictment in this case charged Consuelo with causing the contact and penetration of the complainant's sexual organ by his sexual organ. See Tex. Penal Code Ann. § 22.021(a)(1) (Vernon 2006). Consuelo asserts the trial testimony establishes that the complainant falsely accused him of sexually assaulting her. He argues the conviction rests upon the complainant's testimony alone and that her testimony was not subject to belief. We disagree.
        J.C., the complainant, is the second of Consuelo's three daughters. At the time of the abuse charged, J.C. was approximately nine years old; she was eleven at the time of trial. Her parents separated when she was seven years old. She and her sisters lived with their mother and would visit their father together. Consuelo lived with his own mother, J.C.'s grandmother. When visiting, the girls would generally stay over on Saturday and Sunday nights and then return to their mother's home.
        J.C. testified that when the sisters visited Consuelo all four of them-the three girls and Consuelo-would sleep in the same bed. She further testified that her father would often leave in the evenings to go drinking at a friend's house. On one of those nights, J.C. awoke to feel someone “getting in” her vagina; she saw it was her father. She described the touching as skin-to-skin contact between his penis and her vagina. Consuelo moved one of J.C.'s legs on top of him and was “moving up and down.” She explained that the contact first felt “rough” and after a while it felt “watery and slippery and slimy.” The next morning, her father took J.C. to a closet in the bedroom and told her that if she told anyone he had touched her, he would go to jail and he would kill her and her mother.
        J.C. testified that after this first time, her father touched her inappropriately every time the sisters returned to visit him. She estimated the abuse lasted through a period of two months, starting during the school year and continuing into summer vacation. She described occasions when her father touched her first with his finger, touching both the inside and outside of her vagina. She described another occasion when she awoke to the feeling of “slimy wetness” on her skin and her underwear. She said she did not feel clean and wanted to bathe; when she did, she saw “white stuff on [her] private part.” On another occasion, J.C. awoke feeling pain in her rectal area: her father, who smelled of alcohol, was using his hands to push his penis into her anus. J.C. stated she was confused by her father's actions, but she did not tell her mother or his sisters because she was scared. However, one evening when the girls were watching television at their mother's apartment, something J.C. saw triggered a response. She became upset and told her older sister what was happening when she was visiting her father. Her sister, despite J.C.'s protests, told their mother. The mother called the police.
        Consuelo's conviction is supportable on the basis of J.C.'s testimony alone. See Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon 2005); see also Tear v. State, 74 S.W.3d 555, 560 (Tex. App.-Dallas 2002, pet. ref'd) (“The testimony of a child victim alone is sufficient to support a conviction for aggravated sexual assault.”). However, Consuelo contends the evidence as a whole shows J.C. falsely accused her father of sexual assault. We disagree.
        Initially, there is significant evidence supporting J.C.'s testimony. J.C.'s mother testified a time came when J.C. appeared nervous before visits and said she did not want to go to see her father.         J.C.'s older sister testified at trial and confirmed several aspects of J.C.'s testimony. She confirmed that their father slept in the same bed with the three girls. She confirmed that sometimes the girls would wake up in different positions than when they had gone to sleep, and that sometimes when they awoke J.C. and her father would be under different covers than the other girls. The older sister confirmed that on one occasion while her grandmother was at church, the sister returned from visiting a neighbor and found her father on the bed, on top of J.C., holding J.C. down by the hands, and “moving up and down.” The sister asked her father why he was on top of J.C.; he did not answer but went immediately into the bathroom.
        Dallas Police Detective Abel Lopez was assigned to J.C.'s case after her outcry. He set up and observed the forensic interview of J.C. and her older sister at the Dallas Children's Advocacy Center. He testified that J.C. gave sensory details of Consuelo's conduct. After hearing the details J.C. related during that interview, Lopez decided to file the case against Consuelo.
        Dr. Matthew Cox, a pediatrician at Dallas Children's Hospital, is the director of the REACH program; he evaluates children when there are concerns of physical or sexual abuse or neglect. His evaluation of J.C. included a report that she had experienced pain when urinating and bright red blood in a bowel movement. Cox testified both of these symptoms were consistent with sexual abuse.
        Erica Saldovar is a therapist with Genesis Women's Shelter. She is a licensed professional counselor and she employs play therapy with her clients. She had treated all the sisters at an earlier time, and she treated J.C. for more than a year after her outcry. Salvador described J.C.'s demeanor as anxious and hypervigilant. She reported that J.C.'s play centered on safety and protection themes. J.C. worried whenever there were men in building, and she reacted strongly to noises. J.C. talked to Salvador about her fears that her father or his family would find them and hurt them because she told on him. J.C. expressed anger with her father in her play and creative activities; she expressed no such anger toward the rest of her family. J.C. talked about being embarrassed and ashamed and afraid people would not believe her when she testified in court. Salvador testified all these are typical behaviors of a sexually abused child. Salvador said reports that J.C. had been “acting out” or “rebelling” at home amounted to a “silent way of telling that there's something wrong.”
        Consuelo argues the great weight of the evidence is contrary to J.C.'s allegations against him. Consuelo charges J.C. “was not emotionally stable,” that she argued with her older sister over the chores involved in caring for their younger disabled sister, and that it is not reasonable to believe Consuelo could have sexually assaulted J.C. over a long period of time, while her older sister was in the same bed, without the sister seeing or hearing something. He suggests the sensory details concerning the assaults could have been based on information that J.C. could have received from a friend who went through an experience of sexual abuse. He claims it is possible that the abuse started when J.C. was seeing Salvador under an earlier arrangement, and he argues that, if it did, then it would have been reasonable for J.C. to report the abuse to her at that time. He complains Lopez never went to Consuelo's house and looked for physical evidence of the assaults and that the State offered no DNA evidence. And finally, Consuelo offered his own mother's testimony that Consuelo never slept in the same bed as the girls and that she never saw anything that made her suspicious about her son abusing his daughter.
        Viewing all of this evidence in a neutral light, we conclude the jury was rationally justified in finding guilt beyond a reasonable doubt. See Watson, 204 S.W.3d at 415. The majority of Consuelo's arguments are based on either speculation or the absence of evidence: neither of these is appropriate in our analysis. We look at the evidence admitted and considered by the jury. Id. And as to the evidence from Consuelo's mother, the single witness whose testimony directly conflicted with J.C.'s testimony, the jury was the appropriate judge of her credibility. Harvey, 135 S.W.3d at 717. We conclude the evidence is factually sufficient to support Consuelo's conviction. We decide his first issue against him.
Evidentiary Issues
        We review a trial court's decision to admit evidence under an abuse of discretion standard. See McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005). If the trial court's decision was within the “bounds of reasonable disagreement,” we do not disturb the ruling. See Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim. App. 2005). As a prerequisite to presenting a complaint for appellate review, the record must show appellant made his complaint to the trial court by a timely objection. Tex. R. App. P. 33.1(a). We must disregard any error in admitting evidence that does not affect substantial rights. Tex. R. App. P. 44.2(b).
Extraneous Evidence of Domestic Violence
        In his second issue, Consuelo complains the trial court erroneously admitted evidence of extraneous assaults by Consuelo upon his wife. Evidence of domestic violence was raised initially by the State at a pretrial hearing. The prosecutor notified the trial court she intended to offer evidence of two categories of extraneous offenses: (1) uncharged sexual contacts by Consuelo upon J.C., and (2) examples of domestic violence by Consuelo upon his wife. Defense counsel acknowledged he had received the State's notice as to these categories.   See Footnote 1  When asked if he had any objection to these categories, defense counsel objected only to the sexual offenses, expressing concern about the lack of specificity as to the timing and number of offenses to be offered. No objection was made to the domestic violence evidence at that time.
        At trial, the issue arose toward the end of the State's direct examination of J.C., as follows:
 
Q.
 
[J.C.], you said earlier that your dad threatened to kill your mom or kill you or hurt you, and that's why you didn't say something. Had you seen your dad hurt your mom before?
 
 
 
A.
 
Lots of times.
 
 
 
Q.
 
What have you seen your dad do to your mom?
 
 
 
A.
 
I've seen him do -
 
At this point, at defense counsel's request, the attorneys approached the bench and the court heard Consuelo's objection that the evidence “was more prejudicial than probative.” The trial court entered its ruling on the record, concluding the evidence was “more probative than prejudicial.”
        The State argues Consuelo waived this complaint by failing to object when the prosecutor first asked for evidence of Consuelo's assaults on his wife. We agree. A defendant must make a timely objection in order to preserve an error in the admission of evidence. Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995). The objection should be made as soon as the ground for objection becomes apparent. Id. If a question clearly calls for an objectionable response, the defendant should make his objection before the witness responds to the question. Id. If the defendant fails to object until after the objectionable question has been asked and answered, and he can show no legitimate reason to justify the delay, his objection is untimely; error is waived. Id. In this case, despite learning before trial that the domestic violence evidence would be raised with this witness, and that it would be raised in the context of Consuelo's threats to her, Consuelo failed to make a timely objection and offers no explanation for his delay. We conclude he has not preserved error on this issue.         Even if Consuelo had preserved error, we would conclude the trial court did not err in admitting the evidence. The trial court's task in evaluating an objection under rule 403 is to balance:
 
(1) the inherent probative force of the proffered item of evidence along with (2) the proponent's need for that evidence against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted.
 
Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006). In this case, J.C.'s testimony that she had seen her father behave violently toward her mother many times served to establish a strong basis for J.C.'s belief that Consuelo's violent threats were serious. That belief, in turn, served to explain J.C.'s delay in making her outcry against him. The evidence took little time to develop and was not presented in a lurid or distracting manner that was likely to suggest to the jury it should decide the sexual assault issue on an improper basis. We discern no abuse of discretion in the admission of this evidence, and we decide Consuelo's second issue against him.
Complainant's Statement to Therapist
        In his third issue, Consuelo argues the trial court erroneously admitted a photograph of a statement J.C. wrote on the chalkboard in a therapy session with Ms. Saldovar. J.C. asked Saldovar not to look at what she had written until J.C. had left the room. When Saldovar complied, she saw that J.C. had written: “My dad had touched my private part in bed, but I didn't want to do it. I'm embarrassed.”   See Footnote 2  When the State offered the exhibit, before the statement was read aloud, Consuelo objected the statement was hearsay, more prejudicial than probative, and improper bolstering.   See Footnote 3  As to the hearsay objection, the State argued the statement was made for purposes of treatment and medical diagnosis. The trial court overruled the objection.
        In this Court, Consuelo argues only the hearsay objection, and he directs his argument at the State's stated exception based on medical diagnosis and treatment. See Tex. R. Evid. 803(4).   See Footnote 4  He argues the statement was not necessary to diagnosis of J.C.'s injury and that the State did not establish how the statement was reasonably pertinent to diagnosis or treatment. Consuelo argues further that the State did not show J.C. understood she was seeing the therapist for purposes of medical treatment and that when she made a statement to the therapist, such as the one at issue here, it would be used for purposes of treatment of the alleged sexual abuse.
        We need not address the rule 803(4) exception in this case because even if J.C.'s statement were admitted erroneously under that exception, its admission was not reversible error. We must disregard a non-constitutional error that does not affect a criminal defendant's substantial rights. See Tex. R. App. P. 44.2(b); Bourque v. State, 156 S.W.3d 675, 677 (Tex. App.-Dallas 2005, pet. ref'd). We may not reverse for non-constitutional error if, after examining the record as a whole, we have a fair assurance that the error did not have a substantial and injurious effect or influence on the jury's verdict. Bourque, 156 S.W.3d at 677. We will not reverse for the admission of evidence where substantially similar evidence is introduced elsewhere at trial. See id. Here, J.C. provided testimony identifying Consuelo and explicitly describing the sexual assault, and her older sister corroborated J.C.'s testimony. J.C. was subject to a thorough cross-examination and the jury was able to judge her credibility. This single, cumulative out-of-court statement could not have had more than a slight effect on the jury's assessment of that credibility. Under these circumstances, we conclude error, if any, did not have a substantial and injurious effect or influence on the jury's verdict. See id. (holding admission of child's out-of-court statements to therapist harmless). We decide Consuelo's third issue against him.
Detectives Statement Concerning Complainant's Statements
        In his fourth issue, Consuelo contends the trial court erred in admitting testimony from Detective Lopez that was “backdoor hearsay.” Consuelo's objection arose in the context of the detective's describing the work of the Children's Advocacy Center. The prosecutor was asking Lopez about the methods used at the Center when the following exchange took place:
 
Q.
 
And you said that sometimes they demonstrate with bunnies or stuffed animals that are in the room.
 
 
 
A.
 
Correct.
 
 
 
Q.
 
Did [J.C.] - was she actually able to demonstrate if it called for that?
 
 
 
A.
 
Yes, she gave a good demonstration of what occurred.
 
 
 
Q.
 
And the details that she gave, were those adult-like details?
 
At this point defense counsel objected to “back-dooring the hearsay rule.” The trial court overruled the objection. Lopez went on to testify:
 
A.
 
Yes, she gave details.
 
 
 
Q.
 
And the details - What types of details are you looking for in a forensic interview? As a detective who's going to make a decision to file a case?
 
 
 
A.
 
Usually, it's mostly sensory details. The sight and -
 
 
 
Q.
 
What's a sensory detail?
 
 
 
A.
 
Like sight, hearing, feeling, smells, things like that.
 
 
 
Q.
 
Why are those things important?
 
 
 
Q.
 
Usually because people can give better descriptions when they actually experience something.
 
 
 
Q.
 
And did Jessica give sensory details.
 
* * * *
 
 
A.
 
Yes, she did.
 
Consuelo argues that Lopez's response “allowed the jury to infer that the complainant had fully and accurately described the sexual acts that allegedly occurred.”
        The State argues that Consuelo has failed to preserve this issue just as he failed to preserve his second issue. We agree. Three pages before the above-quoted exchange took place, the prosecutor and Lopez were discussing the nature of a forensic interview and this exchange occurred:
 
Q.
 
And so, the whole purpose is a fact-finding mission to talk with the child.
 
 
 
A.
 
Exactly.
 
 
 
Q.
 
And not to put any ideas in their mind.
 
 
 
A.
 
Correct.
 
 
 
Q.
 
And was that done with [J.C.]?
 
 
 
A.
 
Yes.
 
 
 
Q.
 
And, in fact, was she able to give very detailed accounts of what her dad did to her?
 
 
 
A.
 
She gave very good details.
 
 
 
Q.
 
Okay. And, in fact, very descriptive details.
 
 
 
A.
 
Yes.
 
Consuelo lodged no objection to these questions or responses, which were, in effect, identical to those he objected to some minutes later. Thus, his objection was untimely and failed to preserve error. See Dinkins, 894 S.W.2d at 355.         But on this issue as well, if the objection had been preserved, we would conclude the trial court's ruling was not erroneous. The detective's testimony quoted above confirmed only that J.C. had given detailed responses to questions about the assault in her forensic interview. The testimony did not inform the jury of the substance of her detailed responses. In this vein, the statements were not unlike those addressed in Head v. State, 4 S.W.3d 258 (Tex. Crim. App. 1999), where an officer was allowed to testify over a hearsay objection that two witness statements were “consistent” with the facts related by a third witness. In that case, the court concluded that “the disputed testimony revealed only that the three statements related basically the same facts; it did not reveal the substance of what those facts were.” Id. at 262 (emphasis in original). We conclude the trial court's admission of Detective Lopez's statement over the defense's hearsay objection was not an abuse of discretion. We decide Consuelo's final issue against him.
Conclusion
        We have decided each of Consuelo's issues against him. We affirm the judgment of the trial court.
 
 
                                                          
                                                          KERRY P. FITZGERALD
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
070848F.U05
 
Footnote 1 Actually, the State had notified Consuelo of nine categories of offenses it considered offering at trial. But by pretrial, the list had been narrowed to the two discussed here. The domestic violence notice stated:
 
 
On or about 1995 until 2000, Defendant would commit the offense of Assault Causing Bodily Injury on complainant's mother, Maria Isabell Martinez, by hitting, punching, kicking, and pushing her. Said offense occurred in the presence of the minor children [J.C.] and [J.C.'s older sister].
Footnote 2 The exhibit contained the statement with J.C.'s spelling and punctuation errors. It is reproduced here as it was in the record, when Saldovar read the message aloud.
Footnote 3 Consuelo's objections were limited to the statement itself and not to its presentation in photographic form.
Footnote 4 This provision excepts from the hearsay exclusion:
 
 
 
Statements for Purposes of Medical Diagnosis or Treatment. Statements made 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).