Sosa, Miguel v. The State of Texas--Appeal from 416th Judicial District Court of Collin County (memorandum opinion )

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Affirmed as Modified; Opinion Filed Novemher 28. 2012. In The Qtnurt Aprat .FiftiI Oistrirt nf ixa at attai tif No. 05-11 -01294-CR MIGUEL SOSA, Appellant 7. THE STATE OF TEXAS, Appellee On Appeal from the 416th Judicial District Court Collin County, Texas Trial Court Cause No. 416-80189-2011 MEMORANDUM OPINION Before Justices Moseley, Fillmore, and Myers Opinion By Justice Moseley A jury convicted Miguel Sosa of four counts of aggravated sexual assault of a child and one count of indecency with a child. The trial court assessed punishment at forty years imprisonment in each of the aggravated sexual assault cases and ten years imprisonment in the indecency with a child case, with all sentences running concurrently. Sosa appeals and argues the trial court erred by overruling his hearsay objections and denying his motion for a mistrial following an instruction to disregard a hearsay statement. Sosa also argues the evidence is legally insufficient to support one of the aggravated sexual assault convictions. The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. TEx. R. App. P. 47.2(a), 47.4. We modify the trial court s Iudi.ment to reflect the correct punishment in the indecency with a child count and affirm the trial court s judgment as modified. Sosa and his girlfriend shared an apartment with another couple and their nineyear old daughter, M.V. Sosa and his girlfriend went to two parties one evening where Sosa drank ten to twelve beers, smoked marijuana, and used cocaine. When they returned to the apartment. M V was . still awake watching TV in the living room. Sosa and his girlfriend went to their bedroom. M.V. testified that someone came into the living room where she was sleeping that night and turned off the lights. The man took off her pants and began licking her vagina. She could not see his face, but there was enough light from the window that she could see he had a tattoo and a gold necklace. lie pulled her pants up and went outside for a while. She was scared and crying. When he came back inside, he took her pants off again, kissed her anus, and put his penis inside her anus. The man went outside again for a while, then returned, lifted her shirt up and licked her breast. After the man went outside again. MV. ran and told her mother what had happened. MV. testified that the man s penis (lid not touch her vagina. Later the next morning. M.V. was examined by a sexual ass ult nurse examiner who took an oral history from M.V. before conducting a physical examination. M.V. told the nurse, He touched with his pencil, tongue and his finger. He put them inside where I go number one and number two. MV. described the pencil as the male sexual organ. The trial court overruled Sosa s hearsay objection to the nurse s testimony about M.V. s history. The nurse s physical examination of MV. indicated redness, abrasions, and tenderness inside and around M.V. s sexual organ. The record contains photographs of Sosa s tattoos and a gold necklace he was wearing the morning after the offense. A Department of Public Safety forensic scientist testified that DNA collected from M.V. s panties matched Sosa s DNA and the chance of randomly selecting another 2--- person who could be a major contributor of the DNA was one out of a number substantially greater than the population of the world. Sosa s sixth issue challenges the legal sufficiency of the evidence to support his conviction for aggravated sexual assault of a child under count ten of the indictment. That count alleged that Sosa intentionally or knowingly caused M.V. s sexual organ to contact his sexual organ. See TEX. PENAL CoDE ANN. 22.01 (a)(2)(C) (West 2011). We apply the appropriate legal sufficiency standard of review. See Jackson v. Viiginia, 443 U.S. 307, 319 (1979); Adames v State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011), cert. denied, 132 S. Ct. 1763 (U.S. 2012). In a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. At/ames, 353 S.W.3d at 860. This standard recognizes the trier of fact s role as the sole fudge of the weight and credibility of the evidence after drawing reasonable inferences from the evidence. Id. Our review of all of the evidence includes evidence that was properly and improperly admitted. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). In support of his sufficiency challenge, Sosa relies on M,V, s trial testimony that his sexual organ did not touch her sexual organ. However, M.V. told the SANE nurse the morning of the offense that he touched her with his penis, tongue, and finger and put them inside where I go number one and number two. The physical examination showed redness, abrasions, and point tenderness on M.V. s sexual organ. It is the factfinder s duty to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319. We determine whether the necessary inferences are reasonable based upon the combined and 3 cumulative force of all the evidence when viewed in the light most lavorable to the verdict. Ilooper v State. 214 S. vV.3d 9, 16 17 ( Fex. Crim. App. 2007). When the record supports conflicting infI.rences, we presume that the Iacttmdcr resolved the conflicts in favor ot the prosecution and therefore defer to that determination Jackson. 443 U.S. at 326. Direct and circumstantial evidence are treated equally: Circumstantial evidence is as probative as direct evidence in establishing the guilt ofan actor, and circumstantial evidence alone can be sufficient to establish guilt. [looper. 214 S.W.3d at 13. Considering all the evidence (including that summarized above) in the light most favorable to the verdict, we conclude a rational trier of fact could have found Sosa guilty of the of tense beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Adarnes, 353 S.W.3d at 860. We overrule Sosa s sixth issue. Sosa s first issue asserts the trial court erred in overruling his hearsay objection to the nurse s testimony about M.V. s oral history. A hearsay statement is admissible under rule 803(4) if it is made fbr the purposes of medical diagnosis or treatment and the statement is reasonably pertinent to diagnosis or treatment See TEx. R. EviD. 803(4). The proponent of the evidence must show (1) the out-of-court declarant was aware the statements were made for the purpose of medical diagnosis or treatment and that proper diagnosis or treatment depended on the truthfulness of the statements, and (2) the particular statement proffered was pertinent to diagnosis or treatment. See Taylor v. State, 268 S.W.3d 571, 589 9 1 (Tex. Crim. App. 2008). The SANE nurse testified that she explains to the child who she is when taking the patient history and asks questions in order to evaluate the child s medical needs. The nurse will refer the child to a physician for medical treatment if necessary. The nurse tells the children she is writing down verbatim what they say because it is so important and it matters what they say. M.V. 5 -4-- examination was conducted at Medical Center of PIano. The nurse testified that MV. was able to tell her what happened and the nurse wrote the history down verbatim. M.V. was quiet at one point, but very cooperative and scared. The trial court could have reasonably concluded in light ot this testimony and the setting for the exammation that MV. was aware that her statements were fbr the purposes of medical diagnosis and treatment and was aware of the importance of being truthful. The trial court could also have reasonably concluded that MV s description of where and how she was touched was pertinent to her medical diaiznosis and treatment, that is, it was reasonable for the nurse to rely on that information in diagnosing and treating M,V. See Beheler v. State, 3 S.W.3d 182, 188 89 (Tex. App. Fort Worth 1999. pet. ref d) ( The object of a sexual assault exam is to ascertain whether the child has been sexually abused and to determine whether further medical attention is needed. Thus, statements describing acts of sexual abuse are pertinent to the victim s medical diagnosis and treatment. ). We conclude the trial court did not abuse its discretion by overmling Sosa s hearsay objection to M.V. s statement. We overrule Sosa s first issue. 1 Issues two, three, and four assert the trial court erred by overruling Sosa s hearsay objections to several statements by police detective Luke Grant. We review these issues under an abuse of discretion standard. See tJasey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). Sosa raised hearsay objections to statements by detective Grant about the description of the suspect given him by the patrol officers at the scene, about M.V. s description of the perpetrator in her interview with Grant, and a report by M.V. s mother that M.V. was hiding in a closet sometime We t reject, however, the States argument that the impoance of the oral histo in guiding the nurse in her collection of evidence brings the statement within the exception for medical diagnosis and treatment. The need lhr collection of evidence for a later trial does not alone justify an exception to the hearsay rule and there is nothing in this record indicating the declarant. MV, was aware of that need or how such awareness gives rise to the same self-interested motive for truthfulness that exists lbr statements made for the purpose of medical diagnosis or treatment. See Taylor v Siale, 268 S.W.3d 571, 580 (Tex. Crim. App. 2008) (discussing rationales behind rule 803(4) exception). after the offense. The State limited its offer of these statements tbr the effect on the listener. The trial court overruled the objections. Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. See TEx. R. Evin. 801(d), Thus, a statement is not hearsay if it is not offered to prove the truth of the matter asserted. See Guidry v. State, 9 S.W.3d 133, 152 (Tex. Crim. App. 1999). For example, if a statement is offered to show the effect on the listener, rather than for the truth of the matter asserted, then the statement is not hearsay. See Young v. State, 10 S.W.3d 705, 712 (Tex. App . Texarkana 1999, pet. ref d) (concluding complainant s out-of-court statements were admissible as evidence of their effect on the listener, rather than of the truth of the matter asserted ); see generally In i e Bexar Cnty Criminal Dist. Attorney s Office, 224 S,W,3d 182, 189 (Tex. 2007) (orig. proceeding) (noting out-of-court statements are not hearsay if offered for their effect on the listener rather than for the truth of the matter asserted ). Police officers may testify to explain how the investigation began and how the defendant became a suspect. Lee State, 29 S.W.3d 570, 577 78 (Tex. App Dallas 2000, no pet.) (officer testified investigation of appellant resulted from interview with victim); see also Dinkins v. State, 894 S.W.2d 330, 347 (Tex. Crim. App. 1995) (victim s appointment book listing defendant s name and patient application listing name similar to defendant s were not hearsay because they were submitted only to show how defendant became a suspect); Short v. State, 995 S.W.2d 948, 954 (Tex. App. Fort Worth 1999, pet. ref d) (complained-of testimony explained why police officer began his investigation); Thornton v. State, 994 S.W.2d 845, 854 (Tex. App. Fort Worth 1999, pet. ref d). An officer s testimony is not hearsay when it is admitted, not for the truth, but to establish the course of events and circumstances leading to the arrest. Thornton, 994 S.W.2d at 854. Grant s statements were offered to show the course ofhis investigation and how Sosa became 6 a suspect. We conclude that the trial court did not abuse its discretion when it overruled Sosa s hearsay objections because the statements at issue were not offered to prove the truth of the matter asserted. We overrule Sosa s second, third, and fourth issues. Sosa s fifth issue argues the trial court erred by denying his motion for mistrial following the court s instruction to disregard a hearsay statement by Grant. Grant testified about his request to the lab supervisor to get the results of DNA testing as soon as possible. F-Ic then said that the supervisor later told him the DNA was a match. Sosa objected to the hearsay statement and the trial court immediately instructed the jury to disregard the answer. The trial court denied Sosa s request for a mistrial. We review the trial court s denial of a motion for mistrial for an abuse of discretion. See Hawkins v State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). [O]rdinarily, a prompt instruction to disregard will cure error associated with an improper question and answer. Ovalle v State, 13 S.W.3d 774, 783 (Tex. Crirn, App. 2000). The trial court here did not abuse its discretion by denying the motion for new trial. The prompt instruction to disregard the answer cured any error and in light of the later testimony of the forensic scientist establishing the DNA evidence, the erroneous statement was not so prejudicial that expenditure of further time and expense would be wasteful and futile. 14 od v State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000). We overrule Sosa s fifth issue. Sosa also points to a clerical error in the trial court s judgment. The trial court pronounced sentence in the indecency with a child count at ten years imprisonment, but the judgment on that count incorrectly states the sentence is forty years imprisonment. We have the authority to reform a judgment to make the record speak the truth when the matter has been called to our attention by any source. French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Asberrv v. State, 813 S.W.2d 526. 531 (Tex App. Dallas 1991, pet. re1d) . Accordingly. we modify the trial courts judgment on the indecency with a child count to reflect the punishment and place of confinement as ten (10) years in the Institutional Division of the Texas Department of Criminal Justice. See Thx. R APP P fl 2(h) A modi ficd u e affirm thL ti ial cout t s judgmcnt / / / * JIM MSELEY JUSTICE Do Not Publish TEX. R. App. P. 47.2(b) 11 1294F.U05 8-- * I Qniirt ti iipci1 fiftI! Jiitrirt uf tt t)a11a JUDGMENT MIGUEL SOSA, Appeflant No, 05l U0I294-CR V. THE STATE OF TEXAS, Appellee Appeal trom the 4 1 6th Judicial District Court otCollin County, Texas. (Tr.Ct.No. 4I680I89-20l I). Opinion delivered by Justice Moseley, Justices Fillmore and Myers participating. Based on the Court s opinion of this (late, Count VII of the judgment of the trial court is MODIFLE.D to reflect the punishment and place of confinement to be TEN (10) YEARS INSTITUTIONAL DIVISION, TDCJ; STAVE ABANDONED COUNTS Iii, IV. V. VI, & IX. As modified, the judgment of the trial court is AFFI RMED. Judgment entered November 28, 2012. JIM MOSELE jUSTICE

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