ERIC DEJESUS RAMOS, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion filed May 6, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-08-01312-CR
............................
ERIC DEJESUS RAMOS, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 203rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F07-52056-TP
.............................................................
OPINION
Before Justices Moseley, Richter, and Francis
Opinion By Justice Moseley
        A jury convicted Eric Dejesus Ramos of the aggravated sexual assault of his four-year-old daughter, V.R. See Tex. Penal Code Ann. § 22.021(a)(1)(B)(i) & (iii), (a)(2)(B) (Vernon Supp. 2009). The trial court sentenced appellant to fifteen years' confinement and a $1,000 fine. In six issues appellant contends: (1) the evidence is factually insufficient to support his conviction; (2) the trial court abused its discretion by finding the complainant competent to testify; (3) the trial court abused its discretion by overruling his objections to certain testimony and admitting it; and (4) the State's closing argument improperly attacked him by “striking over his counsel's shoulders.” For the reasons set forth below, we resolve appellant's issues against him and affirm the trial court's judgment.
I. BACKGROUND
        At the time of the indicted incident, V.R. was four years old; her brother E.R., Jr. was five years old, and her sister L.R. was two years old. At the trial, appellant was referred to as “Eric, Sr.,” and V.R.'s brother was referred to as “Eric, Jr.” Appellant and Tannia, the children's mother, were separated and living apart, and the children lived with Tannia. Tannia's sister, Liliana Garibay, was the children's nanny, babysitting them while Tannia worked and staying with them when Tannia was out of town.
        On April 30, 2007, Garibay was staying with the children. Appellant picked them up in the afternoon, took them to his apartment, and returned them about 9:00 p.m. While Garibay was giving the children a bath together, E.R., Jr. said something that resulted in Garibay questioning V.R., who made an outcry concerning appellant. Eventually, V.R. was interviewed about the incident. Appellant was arrested, gave an incriminating written statement, and was indicted for the aggravated sexual assault of V.R.
        The trial occurred when V.R. was six years old. Appellant pleaded not guilty. Following his conviction for the aggravated sexual assault of V.R., appellant elected to have the trial court assess punishment. This appeal followed.
II. SUFFICIENCY OF THE EVIDENCE
 
 
 
        In his first issue, appellant challenges the factual sufficiency of the evidence supporting his conviction.
A.
 
Standard of Review and Applicable Law
 
        In a factual sufficiency review, an appellate court views all of the evidence, both direct and circumstantial, whether properly or improperly admitted, in a neutral light to determine whether the fact finder's verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007); Berry v. State, 233 S.W.3d 847, 854 (Tex. Crim. App. 2007); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). Evidence that is legally sufficient to support a verdict of guilt may still be factually insufficient when the verdict seems clearly wrong or manifestly unjust, or it is against the great weight and preponderance of the evidence. See Berry, 233 S.W.3d at 854; Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007); Marshall, 210 S.W.3d at 625. However, the existence of contrary evidence is not enough to support a finding of factual insufficiency. See Goodman v. State, 66 S.W.3d 283, 287 (Tex. Crim. App. 2001). Unless the record clearly reveals a different result is appropriate, we must defer to the fact finder's determination concerning the weight to be given to contradictory testimony. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). We may substitute our judgment for the jury's credibility and weight determinations to a very limited degree. See Roberts, 220 S.W.3d at 524; Marshall, 210 S.W.3d at 625.
        The factual sufficiency of the evidence to support a conviction is measured by the elements of the offense as defined by a hypothetically correct jury charge. Wooley v. State, 273 S.W.3d 260, 268 (Tex. Crim. App. 2008). As relevant here, the State had the burden to prove beyond a reasonable doubt that appellant intentionally or knowingly caused the penetration of V.R.'s sexual organ by his sexual organ or caused her sexual organ to contact appellant's sexual organ, and V.R. was younger than fourteen years of age. See Tex. Penal Code Ann. § 22.021(a)(1)(B)(i) & (iii), (a)(2)(B). Aggravated sexual assault is a first degree felony. Id. § 22.021(e).
B.
 
Discussion
 
        On appeal, appellant argues first that although there was evidence V.R. was sexually abused, the record shows that E.R., Jr., not appellant, was the perpetrator. Appellant points to the following evidence: V.R. identified her abuser as her “dad” and said his name was “Eric,” but did not identify appellant at trial as her father or her abuser, answering “no” to the question on direct examination “is there someone in this courtroom that you told me did something to you?”; E.R., Jr. “acted out sexually” with V.R. and his cousins; and the outcry happened when the children were bathing together and Garibay used E.R., Jr.'s genitalia in questioning V.R.
        However, V.R. testified her father took her into his bedroom, removed her clothes, touched her “inside” “down there” (indicating generally female genitalia on a girl's picture) with his “down” (indicating a penis on a boy's picture) while her brother threw his shoe against the closed door of the room. Tannia testified that V.R. was sure her abuser was her father and never said it was “Eric, Jr.” The record also contains appellant's written statement that he “did not put my penis in completely[,] . . . . [i]t was only in contact with her part[, and] I don't believe that I put my penis inside and I never finished.” There was also testimony that abused children may feel “less safe” in the same room with the person who hurt them, so talking in front of the abuser is “an extra added trauma for them.”
        The jury heard all the evidence as to identity, including this evidence, and we must defer to its determination concerning the weight to be given to it. See Lancon, 253 S.W.3d at 705; Goodman, 66 S.W.3d at 287.
        Next, appellant argues his written statement was a lie. He relies on testimony at trial that he suffered from posttraumatic stress disorder because he was subjected as a teenager to police abuse in El Salvador, and, as a result, he was afraid of the police who interviewed him and wrote what he was told to write. However, the jury heard testimony that appellant was “cooperative” and did not “act scared” when he was arrested and wrote his statement in Spanish after being given and initialing statutory warnings. We must defer to the jury's determination concerning the weight to be given to the evidence concerning appellant's written statement. See Lancon, 253 S.W.3d at 705; Goodman, 66 S.W.3d at 287.
        Having reviewed all the evidence, including that detailed above, in a neutral light, we conclude the jury's verdict of guilt was rationally justified and does not seem clearly wrong or manifestly unjust or against the great weight and preponderance of the evidence. See Lancon, 253 S.W.3d at 705; Roberts, 220 S.W.3d at 524; Berry, 233 S.W.3d at 854; Rollerson, 227 S.W.3d at 724. Concluding the evidence is factually sufficient to support appellant's conviction, we resolve his first issue against him.
III. COMPLAINANT'S COMPETENCY TO TESTIFY
        In his second issue, appellant contends the trial court abused its discretion in finding V.R. was competent to testify.
A.
 
Standard of Review and Applicable Law
 
        A trial court's determination that a child witness is competent to testify is subject to the abuse of discretion standard. Broussard v. State, 910 S.W.2d 952, 960 (Tex. Crim. App. 1995); De Los Santos v. State, 219 S.W.3d 71, 80 (Tex. App.-San Antonio 2006, no pet.). The reviewing court considers the child's entire testimony. De Los Santos, 219 S.W.3d at 80-81.
        A child is not competent to testify when, after an examination by the trial court, the child does not appear to possess sufficient intellect to relate the transactions to which the child will testify. Tex. R. Evid. 601(a)(2); Dufrene v. State, 853 S.W.2d 86, 88 (Tex. App.-Houston [14th Dist.] 1993, pet. ref'd). Once a party challenges the competency of a child witness, the trial court must assure itself that the child has: (1) the ability to observe intelligently the events in question at the time of the occurrence; (2) the capacity to recollect the events; and (3) the capacity to narrate the events. Watson v. State, 596 S.W.2d 867, 870 (Tex. Crim. App. [Panel Op.] 1980); Dufrene, 853 S.W.2d at 88-89. B.
 
Discussion
 
        After examining V.R.'s competency in a hearing outside the presence of the jury, the trial court found her competent to testify. Appellant argues V.R.'s testimony was “scripted” and the record shows she “could not independently recall what took place” and “was testifying not from her own recollection but from her belief, however it was arrived at, that these things happened.” He relies on V.R.'s refusal to identify her father in the courtroom; a negative reply when she was asked if she knew what it meant to tell the truth and to tell a lie; and the following exchange on cross- examination:
 
        Q:
 
Okay. But you really don't remember anything what [sic] happened way back then, do you?
 
 
 
        A:
 
No.
 
 
 
        Q:
 
It's just basically what they've been telling you, isn't it?
 
                A:
 
Yes.
 
Further, during this questioning, V.R. admitted she “talked to other people about this” and “they're telling you the same thing, aren't they?”
        However, the series of questions quoted above began with counsel's question, “Do you remember what happened, like you were talking to the nice prosecutor over here, or do you remember that just because you've talked to her a lot about this?” V.R. replied, “I talk about a lot -- a lot about this.” On re-direct, the following exchange occurred:
 
        Q:
 
You don't remember it happening. How do you know it happened?
 
 
 
        A:
 
Because I knowed [sic].
 
 
 
        Q:
 
Because you know. How do you know?
 
 
 
        A:
 
Because I knowed [sic] everything.
 
 
 
        Q:
 
Because you know everything. And how do you know this happened?
 
 
 
        A:
 
Because I just telled [sic] my family.
 
 
 
        Q:
 
Because you told your family it happened. And when you told them it happened, did it really happen?
 
 
 
        A:
 
Yes.
 
        The record of V.R.'s entire testimony shows that she demonstrated her knowledge of facts by identifying her family and colors and counting from one to ten. She also said it was good to tell the truth and “[y]ou get in trouble” “when you tell a lie.” Appellant's reliance on Morrison v. State, No. 02-05-00443-CR, 2007 WL 614143, at *5 (Tex. App.-Fort Worth Mar. 1, 2007, pet. ref'd) (mem. op.) (not designated for publication), is misplaced. Unlike here, the child witness in Morrison consistently responded that he could not remember when asked about the alleged incident of sexual abuse. Here, the court heard conflicting evidence regarding V.R.'s ability to observe intelligently the incident at the time it occurred and the capacity to recollect and to narrate it, and ultimately decided to admit the testimony. See Tex. R. Evid. 601(a)(2); Watson, 596 S.W.2d at 870; Dufrene, 853 S.W.2d at 88-89. Discerning no abuse of discretion, we resolve appellant's second issue against him.
IV. ADMISSION OF EVIDENCE
A.
 
Standard of Review
 
        We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. We will reverse only when the trial court's decision was so clearly wrong as to lie outside the zone of reasonable disagreement and will uphold the trial court's ruling if it was correct on any theory reasonably supported by the evidence and applicable to the case. See Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002).
B.
 
Admission of Mother's Testimony
 
        In his third issue, appellant challenges the admission of testimony from Tannia. Specifically, Tannia testified that, when she asked V.R. to tell her what she had told Garibay, V.R. “told [me] that her father had cleaned her.” Appellant objected that this evidence was “hearsay, bolstering, whatever.” The trial court overruled the objection and admitted the evidence.
        On appeal, appellant argues the trial court abused its discretion by overruling his hearsay objection to this testimony. However, Garibay previously testified without objection that V.R. said in her outcry statement during the bath that her father was “cleaning” her “down there.” Thus, even assuming error, we cannot conclude such error was harmful. See Anderson v. State, 717 S.W.2d 622, 628 (Tex. Crim. App. 1986) (“Inadmissible evidence can be rendered harmless if other evidence at trial is admitted without objection and it proves the same fact that the inadmissible evidence sought to prove.”). We resolve appellant's third issue against him.
C.
 
Admission of V.R.'s Therapist's Testimony
 
        Outside the presence of the jury, the State made an offer of proof of the testimony of Vanessa Sanford, V.R.'s therapist. Appellant objected on the grounds of denial of the right to confrontation and that the prejudicial value outweighed any probative value. The trial court interpreted the first objection as a hearsay objection and ruled the testimony was admissible under rule of evidence 801(e)(1)(B) to rebut an inference of recent fabrication or improper influence and to rebut the defensive theory that E.R., Jr. was the perpetrator. The trial court overruled the objections, and appellant obtained a running objection. At trial, Sanford testified that during therapy: V.R. told her that her “daddy” hurt her; V.R. drew a picture showing V.R. and “her daddy laying on a bed with cream and her brother was knocking on the door with a shoe, trying to get in and help stop what was happening . . . [and L.R.] was standing next to her brother, trying to get in”; V.R. said her daddy was dead or in jail.
         1.
 
Hearsay
 
        In his fourth issue, appellant contends the trial court abused its discretion in overruling his hearsay objection to Sanford's testimony.
                 a.
 
Applicable Law
 
        Hearsay is “a 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). Hearsay is generally not admissible unless excepted by the rules of evidence, a statute, or a rule prescribed pursuant to statutory authority. Tex. R. Evid. 802. A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive. Tex. R. Evid. 801(e)(1)(B). A trial court has discretion to admit evidence of a prior consistent statement even if the statement and trial testimony are not completely congruent. Wisdom v. State, 143 S.W.3d 276, 281-82 (Tex. App.-Waco 2004, no pet.)
                 b.
 
Discussion
 
        Appellant argues V.R.'s statement to Sanford was not consistent with her trial testimony because she told Sanford her “daddy” abused her, but she did not identify him in the courtroom, stating that “Eric” hurt her. Appellant argues Sanford's testimony cures a deficiency in the trial testimony. However, even though there were some inconsistencies between the two statements, the statements were largely consistent and further, the prior statement to Sanford rebutted an implied charge that E.R., Jr. was the perpetrator. Wisdom, 143 S.W.3d at 281-82. V.R. testified at the trial and was subject to cross-examination. See Tex. R. Evid. 801(e)(1)(B). Discerning no abuse of discretion in overruling appellant's hearsay objection and admitting this evidence, we resolve appellant's fourth issue against him.
         2.
 
Unfairly Prejudicial
 
        In his fifth issue, appellant contends the trial court abused its discretion in overruling his objection that Sanford's testimony was unfairly prejudicial.
                 a.
 
Applicable Law
 
        Otherwise relevant evidence may be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, or needless presentation of cumulative evidence.” Tex. R. Evid. 403. Evidence is unfairly prejudicial when it has “an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” Vasquez v. State, 67 S.W.3d 229, 240 (Tex. Crim. App. 2002) (citation omitted). A rule 403 analysis should include, but is not limited to, the following factors: (1) how probative the evidence is; (2) the potential of the evidence to impress the jury in some irrational but nevertheless indelible way; (3) the time the proponent needs to develop the evidence; and (4) the proponent's need for the evidence. Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App. 2006).
                 b.
 
Discussion
 
        The record shows that Sanford's testimony tended to prove the issue of the identity of the perpetrator in light of appellant's contesting this issue. Sanford's evidence corroborated V.R.'s outcry evidence of appellant as the perpetrator in light of her failure to identify him in the courtroom. Although appellant argues the jury would be impressed by Sanford's position as a therapist, a medical professional, he does not argue that such impression would be improper, emotional, or irrational. See Vasquez, 67 S.W.3d at 240. Appellant acknowledges the evidence did not occupy a significant part of the record. We conclude the trial court did not abuse its discretion in concluding Sanford's testimony was not unfairly prejudicial and admitting it. See Tex. R. Evid. 403; Shuffield, 189 S.W.3d at 787; Vasquez, 67 S.W.3d at 240. Accordingly, we resolve appellant's fifth issue against him.
V. JURY ARGUMENT
        During the State's closing argument, it argued that “in a few seconds” “mud” and “anything and everything” would be thrown at “a glass wall” in front of the jury which was “going to try to prevent you from seeing the truth.” In his sixth issue, appellant contends this argument improperly attacked him by striking over defense counsel's shoulders. However, the record shows that appellant did not object to this argument and has therefore failed to preserve error. See Threadgill v. State, 146 S.W.3d 654, 667 (Tex. Crim. App. 2004); see also Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996); Tex. R. App. P. 33.1(a). We resolve appellant's sixth issue against him.
VI. CONCLUSION
        Having resolved appellant's issues against him, we affirm the trial court's judgment.
 
 
                                                          
                                                          JIM MOSELEY
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
081312F.U05