Phillip Abel Hernandez v. The State of Texas--Appeal from 263rd District Court of Harris County
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Opinion issued March 17, 2011
In The
Court of Appeals
For The
First District of Texas
————————————
NOS. 01-09-00631-CR
01-09-00632-CR
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PHILLIP ABEL HERNANDEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 263rd District Court
Harris County, Texas
Trial Court Case No. 1066022
Trial Court Case No. 1066023
OPINION
A jury convicted appellant Phillip Abel Hernandez of indecency with a child
(trial court case no. 1066022; appellate court case no. 01-09-00631-CR) and of
aggravated sexual assault of a child under 14 years old (trial court case no.
1066023; appellate court case no. 01-09-00632-CR). See TEX. PENAL CODE ANN.
§§ 21.11, 22.021 (West Supp. 2010). The trial court assessed punishment at
15 years in prison on each conviction, to run concurrently. On appeal, Hernandez
brings one issue relevant to both convictions. Though he made no objection at
trial, he argues now on appeal that the trial court‘s response to a question posed by
the jury during its deliberations was a comment on the weight of the evidence and
improperly lowered the State‘s burden of proof. We conclude that the trial court‘s
instruction was erroneous because it was a comment on the weight of the evidence,
but in light of the entire record, we conclude that Hernandez was not deprived of a
fair and impartial trial. Because we find no egregious harm, we affirm the trial
court‘s judgment.
I.
Factual background
Hernandez was accused of sexually assaulting his daughter, C.H., on two
occasions before her fourteenth birthday. C.H. testified that the first incident
occurred when she was in the fifth grade. C.H.‘s family was temporarily living
with her aunt because Hernandez was unemployed. At that time, C.H. and her
younger brother shared a bedroom with their parents. Ordinarily, C.H.‘s parents
slept in the bed, and C.H. and her brother slept on pallets on the floor beside the
bed. At trial, C.H. drew a diagram of the room, showing the orientation of the
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door, window, furniture, and where she and her brother slept. C.H. testified that
she woke early one morning when she felt a man lying beside her. C.H. said she
could tell it was a man because of his big hands. She recalled the time of day
because she remembered the sun coming up from the window. She testified that
she was lying on her side, and the man was lying beside her, his front touching her
back. C.H. testified that she knew it was her father and not her younger brother by
the size of the man‘s hands and because she later turned and saw him. She said
that Hernandez put his hand under her shirt and began rubbing her breasts. Then
he put his hand inside her underwear and rubbed the outside of her vagina. She
testified that she was confused and scared, so she kept her eyes closed and
pretended to sleep, hoping that her mother, who was sleeping in the bed nearby,
would wake up.
C.H. alleged that the second incident occurred when she was in the seventh
grade. Her parents had been separated for several months, during which time the
children lived with their mother. When the parents reconciled, they moved into an
apartment together. C.H. testified that she was home alone with Hernandez, while
her brother was with a relative who lived nearby. She said that her father had been
assembling bunk beds upstairs while she watched television downstairs in the
living room. When her father came downstairs, they began to wrestle playfully.
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C.H. recalled that she was wearing a black skirt and a pink and black top and that
she ended up sitting on top of his stomach.
While she was straddling his stomach, he commented on how much she had
grown during the preceding months when he had not seen her. He then put his
hands under her shirt and began rubbing her breasts. C.H. testified that he stopped
when she told him to stop, but he then started trying to put his hands up her skirt.
She testified that when she ran from him, he told her to go into the downstairs
bathroom, and she resisted. She said, ―I was scared. I knew what he was going to
do to me in there.‖ She either elbowed him or kicked in the stomach, and ―that‘s
when he let go of me and I ran upstairs to my room.‖ In her room, she changed
into pajama pants and watched television. Soon thereafter, Hernandez came to her
room, grabbed her arms from behind, forced her to her knees, pulled down her
pants and underwear, and put his fingers in her vagina. She testified that she knew
his fingers were there because she ―could feel the long nails,‖ and it hurt. She ran
to the bathroom and cried. C.H. said Hernandez later apologized and said that ―he
wouldn‘t do it again unless I told him to . . . touch me.‖
A couple of weeks later, Hernandez threatened to spank C.H. with a belt
because she had been fighting with her brother. C.H. ran from Hernandez and told
her mother that he had touched her. C.H. testified that she was afraid her mother
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would not believe her, but that she ―didn‘t think he had the right to punish [her] . . .
after what he did.‖ Her mother never called the police or child protective services.
Approximately one year later, C.H. and her younger brother evacuated with
their maternal grandparents when Houston was threatened by Hurricane Rita. C.H.
stayed with relatives at a cabin while her parents remained behind in Houston.
One night while evacuated from Houston, C.H.‘s adult half-brother noticed her
sitting alone outside, crying.
He repeatedly asked her what was wrong.
Eventually, she told him that her father had touched her, and she told him not to
tell anyone because she was embarrassed. At trial, her brother testified that C.H.
cried, avoided eye contact, and appeared embarrassed when she spoke to him. He
told his uncle about the disclosure, and the uncle told his wife, C.H.‘s Aunt
Romana.
The next morning, C.H. came to Romana‘s bedroom. Romana, who had
been designated as the outcry witness, testified that she knew something was
wrong based on C.H.‘s demeanor and asked if she was okay. C.H. began crying
and shaking, and Romana reassured her that anything that happened was not her
fault. Romana testified that C.H. kept asking, ―Why?‖ and ―How could he hurt me
like this?‖ Romana said that C.H. told her Hernandez came into her room, pulled
down her pants, and put his fingers inside her vagina. Romana testified that C.H.
said that she then locked herself in the bathroom and that Hernandez later
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apologized and promised never to do it again unless she ―wanted him to.‖ Romana
asked if this was the first time Hernandez had done anything like this, and C.H.
then told her about the first incident. She told Romana that while sleeping in the
same bedroom at her aunt‘s house, Hernandez lay down beside her and fondled her
breasts and vagina while she pretended to sleep.
C.H.‘s relatives contacted her mother, who made Hernandez leave the home.
The police were contacted, and the charges that are the subject of this appeal were
brought against Hernandez.
II.
Procedural background
During voir dire, the court explained to the venire panel the State‘s burden
of proof and the defendant‘s presumption of innocence. The State questioned the
venire panel about the likelihood that a perpetrator would commit a crime in front
of eyewitnesses and whether the jury could convict on the testimony of a single
witness.
State:
Now, the law says that if I prove my case beyond a
reasonable doubt with only one eyewitness, then
what‘s the verdict?
Venireperson:
Guilty.
State:
Come on?
Venire:
Guilty.
State:
Guilty. Does the law tell me who that witness has
to be?
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Venire:
No.
The defense did not object to any of the State‘s voir dire questions about
convicting on the testimony of a single witness, and Hernandez does not challenge
this line of questioning on appeal.
In addition to the testimony of C.H., her older half-brother, and her aunt, the
State presented testimony from Claudia Mullin, the forensic interviewer who
interviewed C.H. at the Harris County Children‘s Assessment Center, and Dr.
Reena Isaac, who conducted a physical and ano-genital examination.
Mullin initially testified about her training and experience in conducting
forensic interviews, noting that she had conducted thousands of such interviews.
C.H. was 13 years old at the time of the interview and ―developmentally on target.‖
Mullen said that children who have been abused on more than one occasion often
have difficulty pinpointing the date or time frame when the abuse occurred. She
said she would not be surprised if the child were wrong by a year or two as to the
date when the abuse occurred.
Based on her training and experience, the judge permitted Mullin to testify
generally about reasons why a person would delay making an outcry of abuse, such
as being in a state of shock or wondering if other people will believe the
allegations.
Mullin testified without objection that she found plausibility,
consistency, appropriate language, and sensory details in C.H.‘s statements during
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her interview. For example, C.H. was tearful during the outcry portion of her
interview, and she provided many sensory clues.
Dr. Isaac testified that she performed a complete physical examination of
C.H. at the Children‘s Assessment Center. This examination was done nearly six
months after Mullin‘s interview. C.H. provided the social history, telling Dr. Isaac
about both instances of sexual abuse that she alleged against her father. Dr. Isaac
said that C.H. was cooperative, anxious, and tearful during the interview part of the
examination. She noted that C.H. had thoughts of hurting herself but no plan to
carry out a suicidal thought. Dr. Isaac testified that she found nothing abnormal in
C.H.‘s examination. However, she also testified that a normal examination does
not necessarily rule out the possibility of sexual abuse.
Hernandez testified in his own defense, denying having molested or sexually
assaulted C.H., and controverting certain details of her accounts. First, he disputed
C.H.‘s depiction of the bedroom the family shared when she was in fifth grade.
According to Hernandez‘s description, he would have had to crawl over C.H.‘s
mother to get out of the bed when she was sleeping. He also testified that C.H.‘s
mother was a light sleeper and she would have woken up if he crawled over her.
He said he never had lain down beside C.H. when they slept in that bedroom. He
also testified that he and all his children habitually bite their nails.
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Hernandez testified that after his separation from C.H.‘s mother, they
reunited and moved into an apartment with their children. He noticed changes in
C.H.‘s behavior and demeanor: she fought with her brother, she argued with her
mother, and she was generally disrespectful and argumentative. One day, while
Hernandez and C.H.‘s mother were napping, C.H. fought with her brother in the
living room. The mother confronted the children, and when Hernandez came into
the living room, he saw C.H. threatening to punch her mother. Hernandez said that
he got his belt, and he was going to spank her for trying to hit her mother. C.H. ran
upstairs and hid under the bathroom sink. Hernandez said that he ―hit her with the
belt a couple of times to see if she would get out but she didn‘t get out, she just
kept screaming and screaming.‖
C.H. ran downstairs, and when Hernandez
followed, he saw C.H. and her mother talking and crying. The mother yelled and
asked if C.H.‘s allegations were true. Hernandez testified that he believed C.H.
fabricated the allegations against him because she was angry that he tried to spank
her. On cross-examination, he conceded that although he had spanked C.H. with a
belt in the past, she did not accuse him of sexual abuse after those spankings. He
acknowledged that C.H. had told the truth about their living with her aunt when he
was out of work, and that C.H. got excellent marks for behavior during the time
frame when he contends she behaved badly at home.
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Hernandez‘s final witness was his older daughter, Samantha. She testified
that he was a loving father whom she saw every other weekend and some holidays
as a child. She said that he never behaved inappropriately toward her and that bites
his nails and keeps them very short.
After the close of evidence, the trial court instructed the jury as to the
relevant law. The jury charges included instructions about the presumption of
innocence, the State‘s burden of proof, and the jury‘s role as factfinder:
All persons are presumed to be innocent and no person may be
convicted of an offense unless each element of the offense is proved
beyond a reasonable doubt. The fact that he has been arrested,
confined, or indicted for, or otherwise charged with the offense gives
rise to no inference of guilt at his trial. The law does not require a
defendant to prove his innocence or produce any evidence at all. The
presumption of innocence alone is sufficient to acquit the defendant,
unless the jurors are satisfied beyond a reasonable doubt of the
defendant‘s guilt after careful and impartial consideration of all the
evidence in the case.
The prosecution has the burden of proving the defendant guilty
and it must do so by proving each and every element of the offense
charged beyond a reasonable doubt and if it fails to do so, you must
acquit the defendant.
....
You are the exclusive judges of the facts proved, of the
credibility of the witnesses and the weight to be given their testimony,
but the law you shall receive in these written instructions, and you
must be governed thereby.
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During their deliberations, the jurors sent a note to the trial court stating:
Voir Dire
We need the piece of law regarding the ―single witness‖ as it pertains
to evidence. Basically, what the law says.
The trial court responded in writing:
A conviction is supportable on the uncorroborated testimony of the
victim of the sexual offense if you believe the witness beyond a
reasonable doubt.
There is no record of any discussion by the trial court and counsel of the jury‘s
note. The response returned by the trial court does not indicate whether counsel
approved of the response. There is no record that Hernandez objected to this
instruction, and on appeal, he concedes that he did not.
The jury returned guilty verdicts on both counts, and the trial court assessed
punishment. Hernandez appealed, arguing that the trial court‘s response to the
jury‘s question commented on the weight of the evidence, improperly lowered the
State‘s burden of proof, and deprived him of a fair and impartial trial.
III.
Analysis
A trial court‘s substantive answer to a jury question during deliberations is
considered an additional or supplemental instruction to the jury that is governed by
the requirements of article 36.14 of the Code of Criminal Procedure. Daniell v.
State, 848 S.W.2d 145, 147 (Tex. Crim. App. 1993); see Guajardo v. State, 176
S.W.3d 402, 405 (Tex. App.—Houston [1st Dist.] 2004, pet. ref‘d). Article 36.14
11
requires that the trial court deliver to the jury a ―written charge distinctly setting
forth the law applicable to the case; not expressing any opinion as to the weight of
the evidence, not summing up the testimony, discussing the facts or using any
argument in his charge calculated to arouse the sympathy or excite the passions of
the jury.‖ TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007). ―A charge that
assumes the truth of a controverted issue is a comment on the weight of the
evidence and is erroneous.‖ Whaley v. State, 717 S.W.2d 26, 32 (Tex. Crim. App.
1986); see also Grady v. State, 634 S.W.2d 316, 317 (Tex. Crim. App. 1982)
(observing that ―trial court in its charge to a jury should never give the jury an
instruction which constitutes a comment by the court on the elements of the alleged
offense, or assumes a disputed fact‖).
a. Standard of review
We employ a two-step process to review allegations of jury-charge error.
First, we determine whether error exists in the charge. Ngo v. State, 175 S.W.3d
738, 744 (Tex. Crim. App. 2005). Our review should not be limited to just one
part of the charge standing alone. Selvage v. State, 680 S.W.2d 17, 20 (Tex. Crim.
App. 1984); Ybarra v. State, 890 S.W.2d 98, 106 (Tex. App.—San Antonio 1994,
pet. ref‘d). The meaning of a jury charge ―should be taken from the whole charge,
not just from a certain few instructions read in isolation.‖ Plata v. State, 926
12
S.W.2d 300, 302 (Tex. Crim. App. 1996), overruled on other grounds by Malik v.
State, 953 S.W.2d 234 (Tex. Crim. App. 1997).
If there is error, we then proceed to review the record to determine whether
sufficient harm was caused by the error to require reversal of conviction. Id.
When an appellant claims that a jury-charge error violated a constitutional right,
but he has failed to preserve the error, article 36.19 of the Texas Code of Criminal
Procedure sets out the applicable standard of review. Hutch v. State, 922 S.W.2d
166, 170 (Tex. Crim. App. 1996). That article provides in part that ―the judgment
shall not be reversed unless the error appearing from the record was calculated to
injure the rights of defendant, or unless it appears from the record that the
defendant has not had a fair and impartial trial.‖ TEX. CODE CRIM. PROC. ANN.
art. 36.19 (West 2006). Thus, when the defendant fails to object or states he has no
objection to the charge, the court will not reverse for charge error unless the record
shows egregious harm to the defendant. Ngo, 175 S.W.3d at 743–44.
b. Review of jury charge
In its reply to the jury‘s note asking for ―the piece of law regarding the
‗single witness‘ as it pertains to evidence,‖ the trial court stated: ―A conviction is
supportable on the uncorroborated testimony of the victim of the sexual offense if
you believe the witness beyond a reasonable doubt.‖ The State relies upon Casey
v. State, 215 S.W.3d 870 (Tex. Crim. App. 2007), and argues that the instruction
13
was proper despite the reference to a ―victim‖ because it tracked article 38.07 of
the Code of Criminal Procedure* and therefore was a correct statement of law. We
conclude that Casey is distinguishable from this case for two reasons—the statute
tracked by the court‘s instruction was not relevant law in this trial, and the ―victim‖
reference assumed the truth of the key contested issue.
As a general proposition, a jury charge that tracks the language of the
relevant statute is sufficient and therefore not erroneous. See Casey, 215 S.W.3d at
*
Article 38.07 of the Code of Criminal Procedure provides:
Testimony in Corroboration of Victim of Sexual Offense
(a) A conviction under Chapter 21 [sexual offenses],
Section 22.011 [sexual assault], or Section 22.021 [aggravated
sexual assault], Penal Code, is supportable on the
uncorroborated testimony of the victim of the sexual offense if
the victim informed any person other than the defendant, of the
alleged offense within six months after the date on which the
offense is alleged to have occurred.
(b) The requirement that the victim inform another
person of an alleged offense does not apply if at the time of the
alleged offense the victim was a person:
(1) 17 years of age or younger;
(2) 65 years of age or older; or
(3) 18 years of age or older who by reason of age
or physical or mental disease, defect, or injury was
substantially unable to satisfy the person‘s need for food,
shelter, medical care, or protection from harm.
TEX. CODE CRIM. PROC. ANN. art. 38.07 (West 2005).
14
886–87; Martinez v. State, 924 S.W.2d 693, 699 (Tex. Crim. App. 1996); Riddle v.
State, 888 S.W.2d 1, 8 (Tex. Crim. App. 1994) (―A jury charge which tracks the
language of a particular statute is a proper charge on the statutory issue.‖). But
article 38.07, titled ―Testimony in Corroboration of Victim of Sexual Offense,‖
was not a relevant statute for purposes of instructing the jury because it was
inapplicable to this case. The provision ―allows a conviction for a sexual offense
to rest on the uncorroborated testimony of the victim only if there is evidence that
she made an outcry to some person other than the defendant within six months of
the offense.‖ Scoggan v. State, 799 S.W.2d 679, 680–81 (Tex. Crim. App. 1990).
Historically, the ―corroboration or outcry‖ requirements of article 38.07 did not
apply to child victims of sexual assaults who could never be accomplice witnesses
to the crime because of their inability to give legally operative consent to sexual
intercourse. See id. (citing Hernandez v. State, 651 S.W.2d 746 , 751–53 (Tex.
Crim. App. 1983) (opinion on rehearing adopting original concurring opinion as
majority opinion)). Moreover, the plain language of the statute exempts from its
requirements a complainant who, as in this case, is 17 years old or younger at the
time of the offense. See TEX. CODE CRIM. PROC. ANN. art. 38.07(b)(1) (West
2005).
Thus, although the trial court‘s instruction to the jury was a correct
statement of the law insofar as it correctly mirrored a provision of the Code of
15
Criminal Procedure, it nevertheless did not apply to this case and therefore was not
the relevant law for purposes of charging the jury in this case.
In addition to approving the use of language directly tracking the relevant
statute, the Court of Criminal Appeals in Casey also noted that it was ―not
persuaded that the charge as written ‗assume[d] the truth of a controverted issue,‘
or that the appearance of the word ‗victim‘ in the charge without the modifier
‗alleged‘ is a comment by the trial court which assumes the truth of a controverted
issue—the issue of consent.‖ Casey, 215 S.W.3d at 887. As noted previously by
this Court in another case involving a jury instruction based upon article 38.07:
It appears that the Court of Criminal Appeals drew a distinction
between the Penal Code provision at issue in Casey and the Code of
Criminal Procedure provision at issue here. In Casey, the Penal Code
provision from which the jury charge language was taken describes an
aggravating factor that elevates a crime from sexual assault to
aggravated sexual assault if the defendant administered a date-rape
drug ―to the victim of the offense with the intent of facilitating the
commission of the offense.‖
TEX. PENAL CODE ANN.
§ 22.021(2)(A)(vi) (West Supp. 2008). The date-rape drug language
forms the second of two prongs of the statute, the first being that a
sexual assault occurred. The ―victim‖ language in Casey did not
assume the truth of a contested issue because, in order to reach the
―victim‖ language, the jury in Casey had to have found that the
complainant was indeed a victim of sexual assault.
Bratcher v. State, No. 01-08-00610-CR, 2009 WL 1331344, at *11 (Tex. App.—
Houston [1st Dist.] May 14, 2009, pet. ref‘d) (not designated for publication). In
contrast to Casey, the reference to ―victim‖ in this case did embrace a contested
16
issue—whether C.H. was a ―victim‖ of actions allegedly committed by Hernandez,
and thus whether those alleged actions constituted a ―sexual offense.‖
The language used by the trial court to respond to the jury‘s question, at least
when considered in isolation, assumed the premises that the complainant was a
victim and that a sexual offense was committed. Accordingly, to the extent this
aspect of the jury instructions assumed the truth of a controverted issue, it was a
erroneous comment on the weight of the evidence. See id.; see also Talkington v.
State, 682 S.W.2d 674, 674–75 (Tex. App.—Eastland 1984, pet. ref‘d) (jury charge
reference to ―victim‖ in rape case was improper comment on weight of evidence
because there was no dispute that sexual intercourse had occurred and sole issue
whether it was consensual and the complaint was truly a ―victim‖); accord Veteto
v. State, 8 S.W.3d 805 (Tex. App.—Waco 2000, pet. ref‘d); Hernandez v. State,
No. 03-03-00758-CR, 2004 WL 2110396, at *5–6 (Tex. App.—Austin Sept. 23,
2004, no pet.) (not designated for publication).
We conclude that the trial court erred by commenting on the weight of the
evidence. See Whaley, 717 S.W.2d at 32. Because we hold that the trial court
erred by commenting on the weight of the evidence, we need not address whether
the same statements were also erroneous because they were nonresponsive. We
now turn to our harm analysis and consider, among other things, Hernandez‘s
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argument that the trial court‘s error improperly lowered the State‘s burden of
proof.
c.
Harm analysis
Having found error, because there was no objection at trial we must analyze
the error for egregious harm, which exists when a court determines that ―the case
for conviction or punishment was actually made clearly and significantly more
persuasive by the error.‖ Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim. App.
1991). The purpose behind this analysis is to show whether any jury charge error
has actually—not merely theoretically—harmed the accused. Almanza v. State,
686 S.W.2d 157, 174 (Tex. Crim. App. 1984). The actual degree of harm must be
evaluated in light of: (1) the entire jury charge; (2) the state of the evidence,
including the contested issues and the weight of the probative evidence; (3) the
final arguments of the parties; and (4) any other relevant information revealed by
the trial record as a whole. Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App.
2008). A jury-charge error harms a defendant egregiously if it affects the ―very
basis‖ of a case and ―deprives the defendant of a valuable right, or vitally affects a
defensive theory.‖ Id.
1.
Jury charge. Before the jury began its deliberations, the trial court
instructed the jury on each of the two charged offenses. In its jury charges, the
trial court instructed the jury on the presumption of innocence and the necessity to
18
acquit the defendant unless the prosecution has proved ―each and every element of
the offense charged beyond a reasonable doubt.‖ The charges included application
paragraphs properly applying the law to the facts of the case. These charges did
not use the word ―victim.‖ The application paragraphs referred to C.H. by her
name, and although it was clear from context that C.H. was the alleged ―victim‖ of
sexual assault, the instruction the trial court gave the jury in response to its note
was given in the abstract and did not apply the law in relation to this case. The
trial court‘s response to the jury‘s question must be reviewed in the context of the
entirety of the court‘s charge. See Plata, 926 S.W.2d at 302. Viewed in this
context, although the supplemental instruction improperly referred to the
complainant as ―victim,‖ it did not override or contradict the other parts of the
charge that correctly instructed the jury as to the presumption of evidence and the
burden to prove all elements of the charged offenses beyond a reasonable doubt.
2.
State of the evidence. This was not a two-witness case—the jury was
not put to the task of choosing to believe only C.H. or only Hernandez. The State
brought forth other witnesses and circumstantial evidence that corroborated C.H.‘s
testimony. The State introduced C.H.‘s detailed testimony and the video recording
of her interview at the Children‘s Assessment Center.
In addition, the State
presented C.H.‘s brother, who testified that he found her crying and alone and that
she told him her father had inappropriately touched her. The State also presented
19
C.H.‘s aunt Romana, who testified about what C.H. told her as an outcry witness.
Finally, the State introduced Mullin, the forensic interviewer, and Dr. Isaac, the
examining doctor. Each witness testified that C.H. had repeated her allegations
and each witness described the allegations to the jury, who was able to determine
how consistent C.H.‘s story remained. In addition, C.H.‘s brother, aunt, Mullin,
and Dr. Isaac all testified about how tearful and upset C.H. was when describing
the alleged sexual assaults. Dr. Isaac testified that C.H. wanted to harm herself.
Hernandez provided controverting evidence about the location of furniture in
the family‘s shared bedroom and the length of his fingernails. He denied the
allegations. However, he conceded that C.H. was telling the truth about some of
her testimony and his story about getting his belt to spank her for fighting with her
brother was consistent with C.H.‘s account of what happened the day she first told
her mother that her father had assaulted her. Moreover, Hernandez‘s testimony
that C.H. had exhibited behavior problems at home was juxtaposed with evidence
that she received excellent marks for her behavior at school during the same time
frame.
Hernandez argues that the trial court‘s response to the jury‘s question invited
the jury to disregard all discrepancies in C.H.‘s story as told to the various
witnesses. Romana‘s testimony arguably conflicted with C.H.‘s, and Hernandez
contends that the trial court‘s instruction precluded the jury from finding
20
reasonable doubt based on this conflict. In particular, Hernandez argues that C.H.
testified that he assaulted her while she was on her knees, but Romana testified that
C.H. told her that Hernandez was sitting on the edge of her bed when he assaulted
her. While such an alleged inconsistency was relevant to the jury‘s determination
of C.H.‘s credibility, the jury was not required to resolve such details in order to
convict Hernandez. Ultimately, the trial court‘s instruction did not invite the jury
to disregard inconsistencies that went C.H.‘s credibility. To the contrary, in order
to convict the instructions expressly required the jury to believe C.H.‘s testimony
on the elements of the charged offenses beyond a reasonable doubt.
3.
Arguments of counsel.
During its closing arguments, the State
referred to the voir dire questions about the one-witness rule. The prosecutor
reminded the jury, ―[E]ach and every one of you promised me that if you believed
the child, the evidence would demand a guilty verdict.‖ The State, however, did
not focus its closing on this argument. Rather, the State‘s closing arguments
summarized the evidence and urged the jury to conclude that C.H. was credible
and to return a guilty verdict. Importantly, the State‘s closing arguments preceded
the error identified by Hernandez‘s appeal, which occurred after the presentation of
all evidence and the final arguments of counsel. There was no opportunity for the
State to present any argument capitalizing on or exacerbating the effect of the trial
21
court‘s error. Accordingly, the arguments of counsel did not cause the erroneous
instruction to become egregious.
4.
Other relevant information. Finally, we note that the State discussed
the so-called one-witness rule with the venire panel during voir dire and reminded
the jury about it during closing arguments. Hernandez did not object in either
instance.
*
*
*
Based on the entire record, we conclude that the trial court‘s error did not
deprive Hernandez of a fair and impartial trial. Because we consider the jury
charge as a whole, we conclude that the additional instruction, which required the
jury to believe C.H. beyond a reasonable doubt, did not lower the State‘s burden of
proof, when read in conjunction with the application paragraph that required the
jury to find every element of the offense proven beyond a reasonable doubt. The
verdict was supported by C.H.‘s direct testimony, circumstantial evidence
supporting C.H.‘s credibility—including her demeanor, thoughts of harming
herself after the assaults, sensory details provided in her story—and the
consistency of her story. The error was not exacerbated by arguments of counsel,
because it occurred after closing arguments. Hernandez did not object to other
instances in which the State talked about the so-called one-witness rule. Having
considered all of these factors, we cannot say that the trial court‘s error actually
22
made the case clearly and significantly more persuasive.
S.W.2d at 692. We overrule Hernandez‘s issue.
Conclusion
We affirm the judgments of the trial court.
Michael Massengale
Justice
Panel consists of Justices Keyes, Sharp, and Massengale.
Justice Sharp, dissenting.
Publish. TEX. R. APP. P. 47.2(b).
23
See Saunders, 817
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