Frank C. Vasquez v. State ( 2006 )

Opinion filed January 5, 2006

Opinion filed January 5, 2006

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-04-00156-CR

                                                     __________

                                    FRANK C. VASQUEZ, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                         On Appeal from the 106th District Court

                                                        Dawson County, Texas

                                                  Trial Court Cause No. 03-6038

                                                                   O P I N I O N

In a multiple count indictment, Frank C. Vasquez was charged with two counts of aggravated sexual assault, two counts of indecency with a child by touching, and one count of indecency with a child by exposure.  The jury convicted appellant on each count and found the enhancement paragraph to be true. The jury assessed appellant=s punishment at confinement for life and a $10,000 fine on each aggravated sexual assault conviction, confinement for life and a $10,000 fine on each  indecency with a child by touching conviction, and twenty years confinement and a $10,000 fine on the indecency with a child by exposure conviction.  We affirm.

In his sole point of error, appellant argues that the trial court erred in admitting the victim=s hearsay statements through two witnesses. At trial, Jo Ann Meraz, the victim=s cousin, testified that the victim said appellant touched the victim inappropriately.   Jo Ann Sarabia, a caseworker with the Children=s Advocacy Center of Midland, testified that she interviewed the victim.  The interview was recorded, and the videotape was played for the jury.  Appellant objected prior to the testimony of both Meraz and Sarabia that the State did not comply with the notice requirements set out in Tex. Crim. Proc. Code Ann. art. 38.072 (Vernon 2005).  Appellant also complains on appeal that the trial court did not conduct a hearing outside the presence of the jury to determine the reliability of the statements.

Article 38.072, section 1 contains an exception to the hearsay rule.  Testimony of a child=s out-of-court statements is admissible if the child is twelve years of age or younger and is the victim of a sexual offense. Article 38.072, section 2 provides:

(a) This article applies only to statements that describe the alleged offense that:

(1) were made by the child against whom the offense was allegedly committed; and

(2) were made to the first person, 18 years of age or older, other than the defendant, to whom the child made a statement about the offense.

(b) A statement that meets the requirements of Subsection (a) of this article is not inadmissible because of the hearsay rule if:

(1) on or before the 14th day before the date the proceeding begins, the party intending to offer the statement:

(A) notifies the adverse party of its intention to do so;

(B) provides the adverse party with the name of the witness through whom it intends to offer the statement; and

(C) provides the adverse party with a written summary of the statement;

(2) the trial court finds, in a hearing conducted outside the presence of the jury, that the statement is reliable based on the time, content, and circumstances of the statement; and

(3) the child testifies or is available to testify at the proceeding in court or in any other manner provided by law.

Once a hearsay objection is made, the State has the burden to prove compliance with Article 38.072.  Long v State, 800 S.W.2d 545 (Tex. Crim. App. 1990).  The record does not show that the State provided appellant with notice of its intent to use the statement of Meraz fourteen days prior to trial or that the trial court determined the reliability of the statement as required by Article 38.072.   The provisions of Article 38.072 are mandatory; therefore, the trial court erred in admitting Meraz=s testimony relating to the statements that the victim made to her.  Long, 800 S.W.2d at 547; Gabriel v. State, 973 S.W.2d 715 (Tex. App.CWaco 1998, no pet.).   Having found error in the admission of the testimony, we must determine whether appellant was harmed by the error.  Tex. R. App. P. 44.2.

The purpose of the notice requirement of Article 38.072 is to prevent a defendant from being surprised at trial by testimony about the victim=s outcry statements. Gabriel, 973 S.W.2d at 719. Courts have considered whether the defendant was surprised by the outcry evidence and whether the defendant was prejudiced by a lack of notice in determining whether the error was harmful. Gabriel, 973 S.W.2d at 720.

The record shows that appellant was provided with a copy of Meraz=s statement more than fourteen days prior to trial.  Appellant only complains that he was not given written notification of the State=s intent to use Meraz=s statement at trial as required by Article 38.072.  Therefore, appellant has not shown that he was surprised by Meraz=s testimony.  Moreover, the victim testified at trial that appellant touched the victim=s Abottom@ with appellant=s Aprivates.@  The victim further stated that appellant told the victim to kiss appellant=s Aprivates@ and Abottom.@ The victim testified that  Meraz was the first person he told about the Abad things@ appellant had done to him.  The State also presented the testimony of Patricia Ann Salazar, a nurse who examined the victim.  Salazar testified that the victim said appellant put his Aprivate@ in the victim=s Abottom@ and that appellant made the victim kiss appellant=s Aprivate.@  Salazar stated that the victim had Aa thickening of the anal skin folds@ which is consistent with anal penetration.  After reviewing the entire record, we believe that the error in admitting Meraz=s testimony did not have a substantial and injurious effect or influence in determining the jury=s verdict.  Rule 44.2; King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997); see Divine v. State, 122 S.W.3d 414 (Tex.App.CTexarkana 2003, pet. ref=d); see also Gabriel, 973 S.W.2d at 720.

Next, we turn to appellant=s complaints that the trial court erred in admitting Sarabia=s testimony.  The jury heard a videotape of Sarabia=s interview with the victim.  Appellant=s attorney stated at trial:

Now, I don=t have an objection to, I guess, the tape being offered, although I - - I do object to it on the basis that it was provided so late in the game.  But I do have an objection to her testifying, and the question being asked whether or not, you know, [the victim] is being truthful, in her opinion, about that. That=s my problem.

The record does not show that the State provided appellant with notice of its intent to use Sarabia=s testimony.  However, Sarabia did not testify on direct examination about any statements the victim made to her, and she did not state her opinion on the victim=s truthfulness.  Article 38.072 is not applicable to the videotape.  Divine, 122 S.W.3d at 419. The record does show that the State made the videotape available to appellant.  Viewing all of the evidence, we find that any error in admitting Sarabia=s testimony or the videotape did not have a substantial and injurious effect or influence in determining the jury=s verdict.  Rule 44.2.  Appellant=s sole point of error is overruled.

The judgment of the trial court is affirmed.

JIM R. WRIGHT

CHIEF JUSTICE

January 5, 2006

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

Panel consists of:  Wright, C.J., and

McCall, J., and Strange, J.