David Benitez Chavez v. The State of Texas--Appeal from 24th District Court of Calhoun County

NUMBER 13-00-262-CR
 

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

____________________________________________________________

DAVID BENITEZ CHAVEZ, Appellant,

v.

THE STATE OF TEXAS , Appellee.

____________________________________________________________

On appeal from the 24th District Court
of Calhoun County, Texas.

____________________________________________________________

O P I N I O N

Before Chief Justice Valdez and Justices Dorsey and Rodriguez

Opinion by Chief Justice Valdez

Appellant David Benitez Chavez was convicted by a jury of aggravated sexual assault(1) in the 24th Judicial Court of Calhoun County, Texas. As a repeat felony offender, he was sentenced to life in prison. Appellant now raises two issues for our review. We affirm the judgment of the trial court.

J.S., a minor, was spending the night at a friend's house. Appellant is the uncle of J.S.'s friend. Appellant's brother took J.S. back to her parents at about 3:00 a.m. She told her parents that appellant had molested her. Her parents then took her to the police department, where a police officer spoke with her and her family, and made a report. J.S. was visibly upset when she made these statements. After reporting the crime to the police, the family went to the emergency room where J.S.'s pediatrician examined her and made a report. Her pediatrician testified that his examination of her body in the emergency room showed physical evidence of molestation. He also testified that the victim alleged "inappropriate sexual activity."

In his first issue, appellant attacks the legal and factual sufficiency of the evidence. The standard of review for a legal sufficiency challenge is whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). In a legal sufficiency review, we review the evidence in the light most favorable to the jury's verdict. Id. When we review the factual sufficiency of the evidence, we set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. Id. Our duty in a factual sufficiency review is to act as a due process safeguard ensuring only the rationality of the factfinder, not to reweigh the evidence from reading a cold record. Matamoros v. State, 901 S.W.2d 470, 474 (Tex. Crim. App. 1995).

Appellant contends that because the indictment used the word "female sexual organ"(2) and witnesses used the words "private" or "privates" rather than "female sexual organ," the State did not prove what it set out in the indictment. Appellant argues that the words "private" and "privates" are "merely vague terms of convenience."

J.S. and her friend testified. Both used the words "private" and "privates" instead of "sexual organ." The executive director of a child-victim assistance center took the girls' depositions. She testified about the depositions and used a diagram to supplement the testimony of the other child, but not J.S. Appellant argues that the area on the diagram labeled privates does not adequately identify the female sexual organ. The police officer who made the report and J.S.'s mother both quoted the victim's use of the word "privates" instead of "female sexual organ."

Ideally, the phrase "female sexual organ" would have been elicited before the jury. However, the State's reliance on the words "private" and "privates" suffices because the pediatrician testified as to an "abrasion near the vagina [which] was very fresh," the diagram used at trial had clear marks that pointed to the genital area of the figure on the diagram, and it is very clear from the context of each witness's testimony that the words "private" and "privates" were euphemisms for "female sexual organ." See Tex. Code Crim. Proc. Ann. art. 3.01 (Vernon 1977) ("All words, phrases and terms used in this code are to be taken and understood in their usual acceptation in common language, except where specifically defined"); see also Russell v. State, 665 S.W.2d 771, 780 (Tex. Crim. App. 1983) (statutory language not defined by the legislature takes any meaning that ordinary usage allows). We find the evidence factually and legally sufficient. See Johnson, 23 S.W.3d at 7. We overrule appellant's first issue.

Appellant argues in his second issue that the trial court erred by admitting the testimony of two "outcry" witnesses.(3) The first of these witnesses was the police officer who made the report of the incident. The second was J.S.'s mother. Appellant made hearsay objections at trial to the testimony of both witnesses. The testimony of the police officer was admitted as that of an "outcry" witness. The prosecution then attempted to admit the testimony of J.S.'s mother as both an outcry witness and under the excited utterance exception to the hearsay rule.(4) The court admitted J.S.'s mother's testimony without specifying whether it was admitted as outcry testimony or as an excited utterance. Even assuming any error, it was harmless because it did not affect a substantial right of the defendant. Tex. R. App. P. 44.2.(5) If the court admitted the second of the two witnesses's testimony as an excited utterance, it was within the court's discretion to do so. Coffin v. State, 885 S.W.2d 140, 149 (Tex. Crim. App. 1994). We see no abuse of discretion. We overrule appellant's second point of error.

We AFFIRM the judgment of the trial court.

_______________________

Rogelio Valdez

Chief Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed this

the 29th day of March, 2001.

1. Tex. Pen. Code 22.021 (Vernon Supp. 2001).

2. "Female sexual organ" is not defined in the penal code.

3. See Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon Supp. 2001).

4. See Tex. R. Evid. 803(2).

5. Under Texas Rule of Appellate Procedure 44.2, only certain federal constitutional errors labeled by the United States Supreme Court as "structural" are categorically immune to reversible error analysis. Salinas v. State, 980 S.W.2d 219, 219 (Tex. Crim. App. 1998). Structural error exists when a defect at trial affects the framework within which the trial proceeds, as opposed to error within the trial process itself. Arizona v. Fulminante, 499 U.S. 279, 310; 111 S. Ct. 1246, 1265 (1991). "A structural error requires automatic reversal and is not subject to harmless error analysis because it involves a deprivation of a constitutional protection so basic that in its absence, 'a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair.'" Epps v. State, 24 S.W.3d 872, 878 n.3 (Tex. App.--Corpus Christi 2000, pet. denied) (citing Bentley v. Scully, 41 F.3d 818, 823 n.1 (2nd Cir. 1994)); see Fulminante, 499 U.S. at 310. The Supreme Court "has applied harmless-error analysis to a wide range of errors and has recognized that most constitutional errors can be harmless. Fulminante, 499 U.S. at 306; 111 S. Ct. at 1263. The Supreme Court has never classified the admission of two or more outcry witnesses as structural error. Non-structural constitutional errors require reversal of the trial court's judgment unless the reviewing court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment. Tex. R. App. P. 44.2(a). Non-constitutional errors require reversal only if the error affects a substantial right of the defendant. Tex. R. App. P. 44.2(b). A violation of the hearsay rule is statutory error. Tex. R. Evid. 801(d). Here, because there is clearly enough evidence besides this testimony to support a finding of guilt, if this testimony were admitted as outcry testimony, no substantial right of the defendant was disturbed. See Barrera v. State, 10 S.W.3d 743, 746 (Tex. App.--Corpus Christi 2000, no pet.) (improper admission of evidence is not reversible error if the same facts are proved by additional properly admitted evidence).