Juan Chavez Melchor v. The State of Texas--Appeal from 263rd District Court of Harris County

Opinion issued April 13, 2006

In The

Court of Appeals

For The

First District of Texas

NOS. 01-05-00630-CR

01-05-00631-CR

JUAN CHAVEZ MELCHOR, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 263rd District Court

Harris County, Texas

Trial Court Cause Nos. 996791 and 1000262

MEMORANDUM OPINION

Following a joint jury trial on two separate indictments, appellant Juan Chavez Melchor was convicted of indecency with a child // and aggravated sexual assault // against L.V., the complainant. See Tex. Penal Code Ann. 21.11(a) (Vernon 2003), 22.021(a)(1)(B), (2)(B) (Vernon Supp. 2005). The jury assessed punishment at 10 years confinement, suspended for 10 years of community supervision, for the indecency with a child offense and assessed punishment at 30 years confinement for the aggravated-sexual assault offense. In two points of error, appellant contends that the trial court erred when it (1) overruled his hearsay objection to the State s outcry witness and (2) denied his request to question L.V., regarding a possible motive for her claims of sexual abuse.

We affirm.

Background

Appellant rented a room from L.V. s family. When L.V. was eight or nine, appellant began sexually abusing her. As L.V. later reported, appellant would touch her vagina, breasts, and buttocks through her clothing. On one occasion, L.V. was on her bed watching television when appellant came in, lay down next to her, and pulled her on top of him. L.V. tried to get up, but appellant pulled her back down on top of him. Appellant then touched her vagina through her clothes.

On another occasion, when she was around nine, appellant pulled L.V. into his bedroom, and threw her on his bed. Appellant began rubbing L.V. s body through her clothing. Appellant took off his shirt and pulled his pants and underwear part way down. Appellant felt underneath L.V. s shirt, pushed up her bra, and felt her breasts. Appellant pulled L.V. s shorts and underwear halfway down and rubbed her private parts with his fingers. Appellant then rubbed L.V. s vagina with his penis. Appellant placed his finger in L.V. s vagina. Appellant tried to insert his penis into L.V. s vagina but she pushed him away.

After her father got married, L.V. s family moved to a new house. Appellant continued to reside with the family, living in a room in the garage. In early August 2004, the final incident between appellant and L.V. occurred. L.V., L.V. s brother, and L.V. s friend, were in appellant s room listening to music. As L.V. s friend and L.V. s brother were wrestling, appellant pulled L.V. next to him on the bed. Appellant pinched L.V. s bottom and hugged her tightly. Appellant began rubbing L.V. s breasts and vagina through her clothes. L.V. pinched and slapped appellant and then left appellant s room.

Approximately one week later, on August 8, 2004, L.V. told her sister, Ivelisse, what appellant had done the week before in the garage apartment. L.V. s mother and father also learned about appellant s inappropriate conduct that same day. The family called the police and appellant was arrested that night.

Outcry Witness

In his first point of error, appellant complains that [i]t was error for the trial court to overrule appellant s hearsay objection to the testimony of the forensic interviewer.

L.V. was interviewed by forensic interviewer Aimee McAndrew at the Children s Assessment Center on August 23, 2004. At trial, McAndrew described in detail how L.V. had told her that appellant had touched her vagina, breasts, and buttocks through her clothing and that appellant had touched her vagina with his hands and his penis.

Before McAndrew testified regarding what L.V. had told her during the interview, the following exchange occurred:

[McAndrew]: I asked [L.V.] why she came to the Assessment Center.

[The State]: And who did she mention who had sexually abused her?

[Defense counsel]: Judge, I m going to object to [sic] hearsay grounds, Your Honor, to this whole line of questioning.

[The State]: This is the outcry witness, Your Honor.

THE COURT: It s overruled.

On appeal, appellant contends that, rather than overruling his hearsay objection, the trial court should have conducted a hearing to determine whether McAndrew was a proper outcry witness pursuant to Code of Criminal Procedure article 38.072. Appellant points out that, before trial, the State had served notice on appellant naming two outcry witnesses: McAndrew and L.V. s sister Ivelisse. Appellant also points out that the testimony of various witnesses at trial indicate that L.V. had, to some extent, told other persons, including Ivelisse and the arresting police officer, about appellant s sexual abuse before L.V. was interviewed by McAndrew. Appellant asserts, [i]t is impossible to know who the outcry witness should have been, because the facts were not developed at a hearing.

Code of Criminal Procedure article 38.072 provides a limited exception to the preclusion of hearsay evidence. Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon 2005). The statute defines outcry statements as the victim s statements made to the first person, other than the defendant, 18 years of age or older, which describe the alleged offense. Id. (2)(a). Article 38.072 applies only to certain offenses, including indecency with a child and other sexual offenses under Penal Code chapter 21, when the offense is committed against a child 12 years of age or younger. Id. 1. The statute further requires that the trial court find, in a hearing conducted outside the presence of the jury, that the statement is reliable based on time, content, and circumstances of the statement. Id. 2(b)(2).

Here, the defense s objection that McAndrew s testimony was hearsay properly informed the trial court that the defense was objecting to McAndrew testifying before an article 38.072 hearing had been conducted. // See Long v. State, 800 S.W.2d 545, 548 (Tex. Crim. App. 1990) (holding that defense s hearsay objection to designated outcry witness s testimony served to apprise trial court that counsel was objecting to witness testifying before article 38.072 hearing had been conducted). The provisions of article 38.072 are mandatory and must be complied with for the outcry statement to be admissible over a hearsay objection. See Duncan v. State, 95 S.W.3d 669, 671 (Tex. App. Houston [1st Dist.] 2002, pet. ref d). The trial court commits error if it overrules the hearsay objection without conducting a hearing. See Long, 800 S.W.2d at 848. Thus, the trial court in this case abused its discretion when it overruled the defense s hearsay objection and admitted McAndrew s testimony without first conducting an article 38.072 hearing. // Id.

Because we conclude that the trial court erred by not conducting an article 38.072 hearing, we must now consider whether appellant was harmed by the admission of McAndrew s testimony. See Duncan, 95 S.W.3d at 671. Because such error is non-constitutional in nature, we apply the harm analysis set forth in Rule 44.2(b). See Duncan, 95 S.W.3d at 672; see also Tex. R. App. P. 44.2(b).

Non-constitutional error must be disregarded unless it affects substantial rights of the defendant. Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997); Duncan, 95 S.W.3d at 672. A conviction should not be overturned for such error if this Court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect. Duncan, 95 S.W.3d at 672 (citing Johnson v. State, 410 S.W.2d 410, 417 (Tex. Crim. App. 1998)). Likewise, improper admission of evidence is not reversible error if the same or similar evidence is admitted without objection at another point in the trial. Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998); see Duncan, 95 S.W.3d at 672 (holding improper admission of outcry testimony was harmless error because similar testimony was admitted through complainant, pediatrician, and medical records).

L.V. testified at trial, without objection, that appellant touched her vagina, breasts, and buttocks through her clothing. She also testified that appellant had touched her breasts under her clothing and had touched her vagina with his fingers and his penis. In many respects, L.V. s testimony at trial was more detailed than that of McAndrew regarding the specifics of the sexual contact and the events surrounding the contact. In addition, L.V. s sister Ivelisse testified, without objection, that L.V. had told her that appellant had touched L.V. s private part.

The State did not emphasize McAndrew s testimony regarding L.V. s statements to her, but instead focused on L.V. s live testimony at trial. Lastly, nothing in the record indicates that the defense was surprised by McAndrew s testimony. The State s outcry notice was sent to the defense more than two months before trial and indicated that McAndrew, along with Ivelisse, would testify that L.V. had told them about appellant s sexual abuse. The notice also provided a summary of the content of the statements that L.V. had made to McAndrew and Ivelisse. McAndrew s testimony at trial was consistent with that summary.

After examining the record as a whole, we are fairly assured that admitting McAndrew s testimony did not influence the jury or had but a slight effect; thus, we hold that the error was harmless.

We overrule appellant s first point of error.

Motive for L.V. s Allegations of Abuse

Appellant frames his second point of error as follows: It was error for the trial court to deny the defense the opportunity to question the complaining witness regarding a possible motive for her claims of sexual abuse. In this regard, appellant cites to the following exchange, which occurred during the defense s cross-examination of L.V.:

[Defense counsel]: So you started living with your dad since you were six years old you said?

[L.V.]: Yes.

[Defense counsel]: Do you know why you were not able to live with your mom anymore?

[The State]: Your Honor, I m going object. That s not relevant.

THE COURT: Sustained.

[Defense counsel]: Do you know if you or your sister made a claim that the new your stepfather was touching one of your sisters and that s why you had to return to your father?

[The State]: I m going to object that that is not relevant.

THE COURT: Sustained.

On appeal, appellant contends that the trial court erred in sustaining the State s objections because if the complainant was unhappy living with her father, and wished to live with her older sister, that fact could well be a motive for fabricating an allegation of abuse, especially if she was aware that an earlier allegation by her sister did in fact result in the complainant and her sister being moved out of the residence where the offender was. Appellant asserts that [d]efense counsel was certainly entitled to explore this motive or interest on the complainant s part. It was clearly established at trial that [L.V.] was afraid of her father, and that she wished to live with her sister.

Appellant points out that [a] witness may be cross-examined on any matter relevant to any issue in the case, including credibility. Tex. R. Evid. 611(b). Appellant argues that his cross-examination of L.V. regarding the reason that she and her sister went to live with her father was proper under Rule of Evidence 613(b) because it showed motive with regard to her allegations against appellant. See Tex. R. Evid. 613(b) (permitting impeachment of witness by proof of circumstances or statements showing his or her bias or interest).

The State contends that appellant did not preserve the Rule 613(b) complaint for review. We agree.

A party offering evidence has the burden to establish admissibility and, when the theory of admissibility is not presented to the trial court, argument is not preserved for appellate review. Johnson v. State, 963 S.W.2d 140, 142 (Tex. App. Texarkana 1998, pet. ref d). Appellant did not argue to the trial court that he was relying on the provisions of Rule 613(b) as a basis for eliciting testimony from L.V. that her sister had made allegations of sexual abuse and that, as a result of those allegations, the sisters went to live with their father. Appellant also did not request the trial court to rule on the admissibility of the sister s allegations of sexual abuse as impeachment to show a motive for L.V. s testimony against appellant. See Dixon v. State, 2 S.W.3d 263, 273 (Tex. Crim. App. 1999) (op. on reh g) (concluding that objection under Rule 608(b) did not preserve a complaint under former Rule 612(b), now Rule 613(b)); Loredo v. State, 32 S.W.3d 348, 351 (Tex. App. Waco 2000, pet. ref d) (concluding that appellate argument that excluded testimony would have shown bias or motive was not preserved for appeal because appellant had neither presented such argument to trial court nor obtained a ruling).

Moreover, [e]rror in the exclusion of evidence may not by urged unless the proponent perfected an offer of proof or a bill of exceptions. Guidry v. State, 9 S.W.3d 133, 153 (Tex. Crim. App. 1999). Appellant did not make or request the opportunity to make an offer of proof or bill of exception to include what the excluded testimony would have been. Absent a showing of what such testimony would have been, or an offer of a statement concerning what the excluded evidence would show, nothing is presented for review. See id.; see also Tex. R. App. P. 33.2; Tex. R. Evid. 103(a)(2).

We hold that appellant did not preserve error as to his second point of error, and we need not address its merits. We overrule appellant s second point of error.

Conclusion

We affirm the judgments of the trial court.

Laura Carter Higley

Justice

Panel consists of Justices Taft, Higley, and Bland

Do not publish. Tex. R. App. P. 47.2(b).