JOSE CARMEN SAAVEDRA, Appellant v. THE STATE OF TEXAS, Appellee

REVERSE and REMAND and Opinion Filed January 3, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-01450-CR
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JOSE CARMEN SAAVEDRA, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 292nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F-04-34309-V
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MEMORANDUM OPINION
Before Justices O'Neill, Richter, and Lang
Opinion By Justice O'Neill
        Appellant Jose Carmen Saavedra pleaded not guilty to aggravated sexual assault of a child by contact of his penis with the child's mouth. The jury found him guilty and sentenced him to twelve years' confinement. In his first issue, appellant argues the trial court allowed improper hearsay testimony from a police officer regarding the abuse. He also challenges the factual sufficiency of the evidence to support his conviction. We reverse and remand for a new trial.
Factual Background
        In September 2003 complainant and her mother got into an argument because complainant missed her curfew. After complainant's mother slapped her, she left and walked to her aunt's house. Her mother then called the police and reported her as a runaway. When the police arrived at the aunt's house, complainant told Officer Kevin Burkleo she did not want to go home because appellant had molested her. She alleged the abuse began when she was about six years old and continued until she was twelve.   See Footnote 1  It began with appellant fondling her breast and then steadily progressed to him forcing her to perform oral sex on him.
        After the outcry, the Irving police arranged a meeting with appellant. Through an interpreter, Detective James Sears informed appellant of the allegations. Appellant admitted to the interpreter he may have accidentally touched complainant inappropriately, but he denied forcing her to perform oral sex. Detective Sears testified at trial to what the interpreter told him.
        Complainant later recanted the allegations at trial and denied appellant forced her to perform oral sex. She admitted she did not want to testify because she was worried her younger sisters would grow up without a father. Her mother also testified she did not believe the allegations, and appellant never admitted the abuse to her.
        Several witnesses testified for the State to impeach the mother's credibility; however, the trial court instructed the jury such testimony was not to be considered for the truth of the matter asserted-that appellant abused complainant. The jury also heard testimony from Officer Burkleo regarding complainant's outcry statement on the night she ran away. The jury found appellant guilty and sentenced him to twelve years' confinement. This appeal followed.
Hearsay Testimony
        In his first issue, appellant contends the trial court abused its discretion by allowing Detective James Sears to testify that appellant admitted to a Spanish interpreter he abused his step- daughter. See Trevino v. State, 228 S.W.3d 729, 748 (Tex. App.-Corpus Christi 2006, pet. ref'd) (abuse of discretion standard applies to review of a trial court's admission of hearsay evidence). Detective Sears admitted he could not understand Spanish and did not know what appellant said to the interpreter. The interpreter did not testify at trial. Appellant argues such testimony is hearsay, not subject to any exception, and resulted in harm because complainant denied the charge at trial, the State emphasized the hearsay during closing argument, and it relied almost exclusively on the testimony to get a conviction.
        The State first urges us to revisit our holding in Durbin v. Hardin, 775 S.W.2d 798 (Tex. App.-Dallas 1989, writ denied), in which he concluded a police officer may not testify as to an interpreter's translation because it violates the hearsay rule. It encourages this Court to overrule its precedent and join the Houston and Austin courts of appeals that have adopted the “language conduit rule,” which allows an officer to testify to an interpreter's translation if it meets certain requirements. See Cassidy v. State, 149 S.W.3d 712, 715 (Tex. App.-Austin 2004, pet. ref'd); Gomez v. State, 49 S.W.3d 456, 459-60 (Tex. App.-Houston [1st Dist.] 2001, pet. ref'd). We decline the State's invitation to revisit our holding in Durbin. Durbin, 775 S.W.2d at 800 (“A person conversing with a third person through an interpreter is not qualified to testify to the other person's statements, because he knows them only through the hearsay of the interpretor.”). Until the Court of Criminal Appeals speaks to this issue, we are bound by our own precedent. Castillo v. State, 899 S.W.2d 391, 395 (Tex. App.-Houston [14th Dist.] 1995, no writ). Thus, the trial court erred by allowing Detective Sears to testify to what the interpreter told him.
        Having found error, we must now determine if admission of the hearsay harmed appellant. Admission of inadmissible hearsay constitutes non-constitutional error. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).   See Footnote 2  A criminal conviction should not be overturned for non- constitutional error if the appellate court, after examining the record as a whole, has fair assurance the error did not influence the jury or had but a slight effect. Id.; see also Tex. R. App. P. 44.2(b). When making this determination, we consider everything in the record, including testimony and physical evidence, the nature of the evidence supporting the verdict, and the character of the error and its relationship to other evidence. Schutz v. State, 63 S.W.3d 442, 444 (Tex. Crim. App. 2001).
Error in the admission of evidence is generally deemed harmless if the same or similar evidence is subsequently introduced without objection. Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998).
        Here, Detective Sears testified, over objection, that appellant admitted to the interpreter that one time he accidentally came up from behind, and while in a hug, rubbed complainant's breast and vagina. He also admitted to another incident when he touched her over her underwear beside her vagina. Appellant denied the oral sex allegations.
        Despite the State's repeated coaxing, complainant was an unwilling witness at trial and denied she performed oral sex on appellant. Complainant's mother likewise testified she did not believe her daughter's accusations because “she lies a lot.” She further denied ever telling anyone appellant confessed to her regarding the allegations.
        The State put on several witnesses who claimed the mother told them appellant confessed to her about the abuse. The State acknowledges the trial court instructed the jury this testimony was for impeachment purposes only and was not to be considered for the truth of the matter asserted, specifically that appellant had abused complainant. However, the State contends the same evidence came in without objection through Cindy Irwin, the CPS supervisor. The State argues appellant objected to Irwin's testimony as hearsay, but failed to request a limiting instruction regarding impeachment. Because appellant failed to make this request, the State claims her testimony was admitted for all purposes; therefore, the jury heard substantially the same evidence about appellant's confession. Thus, any error in admitting Detective Sear's testimony regarding appellant's confession to the interpreter was harmless.
        We cannot agree with the State's conclusions. First, Irwin's testimony was not admitted for all purposes. Texas Rule of Evidence 105 states when evidence is admissible for one purpose but not admissible for another purpose, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. Tex. R. Evid. 105. The party opposing the evidence has the burden of requesting the limiting instruction at the introduction of the evidence. Martin v. State, 176 S.W.3d 887, 899 (Tex. App.-Fort Worth 2005, no pet.). Once evidence is received without a limiting instruction, it becomes part of the general evidence and may be used for all purposes. Id.
        Appellant objected to Irwin's testimony as hearsay, and the trial court overruled the objection. The court then stated “[t]his is for impeachment. . . . So I overrule the objection for impeachment purposes.” We conclude appellant was not required to request a further limiting instruction because in light of the record as a whole and the trial court's prior instructions, the statement adequately informed the jury the testimony should be considered for impeachment only and not for the truth of the matter asserted. Thus, the State's argument that Irwin's testimony was admitted for all purposes is without merit.
        Although admission of evidence is harmless if the same or similar evidence is subsequently introduced without objection, the record is void of any properly admitted evidence regarding whether appellant confessed to anyone else that he committed the abuse. Although Officer Burkleo testified complainant admitted to him the abuse happened, we cannot conclude the outcry of a complainant, who recanted her statement at trial, is the same or similar evidence as a confession to a police officer. We recognize appellant did not confess to the oral sex allegations to the interpreter; however, the jury heard testimony from Detective Sears that it is typical for a defendant to minimize his actions when talking to police. “You're saying part of it, but you're not saying all of it. You're saying what makes you seem a little more innocent.”
        The State also relied heavily on appellant's confession during closing argument. The prosecutor argued “. . . and you know [complainant's] telling the truth about all those things because of what the defendant told the detective.” He further argued “[w]hat do defendants do when they're talking about the crimes they commit? They minimize. They do. . . . This man minimized the entire thing because that's what defendants do when they are finally confronted with what they did.” The State further emphasized the specific instances of inappropriate contact appellant admitted to and told the jury it could consider them in determining guilt.
        Essentially, the jury had before it an uncooperative complainant who denied appellant forced her to perform oral sex, a mother who did not believe her daughter's allegations, and Detective Sears's improperly admitted hearsay testimony regarding an alleged confession to an interpreter. The only evidence of guilt before the jury was the alleged outcry statement to Officer Burkleo. Consequently, the hearsay evidence and argument therefrom, that appellant allegedly admitted he inappropriately touched complainant and minimized the mouth-to-penis offense, likely influenced the jury. Therefore, after examining the record as a whole, we do not have fair assurance the hearsay testimony had but a slight effect.
        We sustain appellant's first issue and reverse the judgment of the trial court and remand for a new trial. Having sustained appellant's first issue, we need not consider his factual sufficiency argument. Tex. R. App. P. 47.1.
 
 
                                                          
                                                          MICHAEL J. O'NEILL
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
061450F.U05
 
 
Footnote 1 Complainant was fourteen at the time of her outcry and seventeen when the case went to trial.
Footnote 2 Appellant includes in his brief arguments for a harm analysis under both appellate rule 44.2(a) for constitutional error and 44.2(b) for non- constitutional error. Because review of inadmissible hearsay is non- constitutional error, appellant's arguments applying the factors for constitutional error are not proper.