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 2006-08

Esequiel Rodarte v. State ( 2006 )


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  • COURT OF APPEALS

    COURT OF APPEALS

    EIGHTH DISTRICT OF TEXAS

    EL PASO, TEXAS

     

    ESEQUIEL RODARTE,                                       )

                                                                                  )     No.  08-04-00176-CR

    Appellant,                          )

                                                                                  )                    Appeal from the

    v.                                                                           )

                                                                                  )     83rd District Court

    THE STATE OF TEXAS,                                     )

                                                                                  )     of Pecos County, Texas

    Appellee.                           )

                                                                                  )     (Pecos TC# P-2525-83-CR)

                                                                                  )     (Crockett TC# 03-12-2253-CR)

     

     

    O P I N I O N

     

    Esequiel Rodarte appeals his conviction for indecency with a child.  A jury found him guilty and he was sentenced to 5 years= imprisonment, probated to 4 years and a $10,000 fine.[1]  Appellant challenges:  (1) the trial court=s ruling admitting out-of-court statements of the complainant as excited utterances; (2) the trial court=s ruling allowing a videotape of the victim=s forensic interview to be admitted into evidence; (3) the trial court=s ruling admitting out-of-court statements of the complainant as prior consistent statements; (4) the trial court=s ruling admitting evidence of a prior extraneous offense; (5) the transfer of venue on the court=s own motion; and (6) the legal and factual sufficiency of the evidence supporting his conviction.  We affirm.

    The complainant, H.B., was a fourteen-year-old female at the time of the instant events.  Appellant was employed as an officer by the Texas Department of Public Safety. Appellant began dating H.B.=s mother when H.B. was about eight years old. They all lived together and another child was born of the relationship.  Appellant and H.B.=s mother had set a wedding date for September 15, 2001.

    On September 10, 2001, Appellant picked H.B. up from school to take her to lunch.  As a result of an eye infection, H.B. did not return to school that day.  After lunch, Appellant asked H.B. if she wanted a massage. H.B. replied that she did because she had a headache caused by allergies.  Appellant retrieved an electric massager and proceeded to H.B.=s bedroom to give her a massage.  H.B. laid on her back and Appellant began to massage her head.  At some point during the massage, Appellant asked H.B. to turn over on her stomach so he could massage her back.  Appellant lifted H.B.=s shirt and began to message her back.  As he massaged H.B.=s back, he began to move towards H.B.=s Abottom.@  H.B. stated that she started feeling Auncomfortable@ and Atensing up@ at this point.  H.B. stated that Appellant left the massager on her Abutt area@ and began to use his hands.

    H.B. stated that Appellant used his hands to massage the inside of her thighs.  She testified that A[Appellant] was massaging me though the inside -- that was outside of my clothes, outside of my bottom.  And then he put -- I just felt his hand go down there.@  The State then asked H.B. specifically where Appellant touched her.  H.B. replied that Appellant touched her Aprivate part.@  Upon further urging by the State, H.B. identified Aprivate part@ as her Avagina.@  The State later asked whether Appellant put his hand under her clothes when he touched her vagina and H.B. indicated that he did.

    After the alleged incident, Appellant tried to turn H.B. over on her back.  She then noticed that her bra was unhooked.  Appellant left her room.  According to H.B., Appellant returned to her room and asked her if he had Awent too far.@  H.B. testified that she told Appellant that he had gone too far and when she did so, Appellant grabbed his chest Alike he was having a heart attack@ and began to hit the walls begging her not to tell anyone.  H.B. told Appellant she would tell and told him to get out of her room.

    At around 2:30 that afternoon, shortly after the alleged offense, H.B. attempted to call her mother.  She first tried to use the telephone in her bedroom but there was no dial tone.  She then went to the kitchen to use the telephone located there.  Just as she finished dialing her mother=s number, Appellant came into the kitchen and told her to stop.  H.B. testified that when her mother came on the line, she was crying and could only utter Amom.@ At this point, Appellant again told her not to tell her mother.  H.B. stated she told Appellant either A[y]ou tell her or I=ll tell her.@  Appellant then Agrabbed@ the phone from her.

    Ms. Margarita Velasquez, H.B.=s mother, stated that when she received the call, H.B. was Acrying, hysterical, couldn=t say anything.@  Ms. Velasquez asked H.B. what was wrong but H.B. just kept crying.  Ms. Velasquez then spoke with Appellant.  According to Ms. Velasquez, Appellant told her he had Amassaged [H.B.] and he had gone -- she believed that he had gone too far.@ Ms. Velasquez asked Appellant if he had gone to far and he replied that he had not.  After speaking with Appellant, Ms. Velasquez decided to return to the family residence.

    Approximately thirty minutes after receiving the first call, H.B. again called her mother to tell her not to drive too fast because she did not want her to get hurt.  According to H.B., Appellant told her that her mother would hurry home and something would happen along the way and it would be Aall her fault.@  H.B. testified that when she spoke with her mother the second time, she told her everything was Aokay@ and asked her to drive home slowly.

    On her way home, Ms. Velasquez first stopped off at the bank to deposit the money she had collected in her position as drivers= license examiner.  Then she drove to the family=s church looking for Father David Herrera.  When she could not locate Father Herrera, she continued on to her house.  As she approached the home, Appellant stopped her to retrieve a check from his check book which was located in her car.  Ms. Velasquez stated that Appellant was on the way to pick up their younger daughter. Once inside the house, Ms. Velasquez went to her daughter=s room and asked her what had occurred earlier in the afternoon.

    According to Ms. Velasquez, H.B. told her that Appellant first began massaging her legs,  then proceeded to massage her back.  H.B. told her that as Appellant was massaging her back he started Arunning his finger down to her buttocks, from her buttocks down to her vagina.@ She stated that H.B. also told her that Appellant had asked her Aif it feels good.@ H.B. told her that Appellant used his other hand to rub her breast.  Ms. Velasquez testified that when she asked H.B. if it was the first time, H.B. Ashook her head no.@  After speaking with H.B., Ms. Velasquez waited for Appellant to return home so that she could speak to him about the incident.  When Appellant returned, Ms. Velasquez asked him what happened. Appellant replied that he massaged H.B.=s legs and back because she was sore from athletics.

    Ms. Velasquez decided it would be best to have a professional=s opinion and wanted to take H.B. to see Father Herrera.  Ms. Velasquez could not reach Father Herrera so she, H.B., and her younger daughter drove over to Ms. Velasquez=s mother=s home.  Ms. Velasquez and her daughters soon left to find Father Herrera.  Ms. Velasquez first looked for Father Herrera=s home but could not locate it.  She then stopped at the home of a deacon of the church to get Father Herrera=s address.  After getting his address, she drove to Father Herrera=s home.

    Father Herrera testified that Ms. Velasquez and her daughters arrived at his residence at approximately 8:30 p.m.  He stated that when he first saw H.B., her mother was helping her walk.  As they approached his home, he opened the front door to let them inside and they sat down on his couch.  Father Herrera asked H.B. what happened.  H.B. again retold the story of what had happened to her earlier in the afternoon. Father Herrera asked H.B. if she wanted to report the incident and she replied that she did.  Father Herrera then called the Fort Stockton Police Department.

    Approximately five minutes after Father Herrera called the police department, Appellant arrived at his home.  Appellant wanted to speak with Ms. Velasquez and H.B.  Father Herrera told Appellant that it was not a good idea and suggested they take a walk down the street instead.  During the conversation with Father Herrera, Appellant admitted that he had used the massager underneath H.B.=s shirt.  Appellant also demonstrated to Father Herrera where he claimed he had touched H.B.  According to Father Herrera, Appellant touched him two times, once on his back and once on his upper thigh, in order to demonstrate the touching that Appellant claimed had occurred with H.B.  Shortly thereafter, police officers arrived at Father Herrera=s home.

    Officer Louis Hernandez was one of the first officers to arrive at Father Herrera=s home. Approximately fifteen minutes after Officer Hernandez arrived on the scene, the Chief of the Fort Stockton Police Department, Stephen Cantrell, arrived and took over the investigation. Chief Cantrell called Child Protective Services to make arrangements for H.B. to be interviewed by a caseworker. A caseworker was assigned and an interview scheduled for the following day.  On September 11, 2001, Chief Cantrell drove H.B. and her mother to the interview with her assigned caseworker.  The interview was conducted by Eve Flores at the Harmony Home Children=s Advocacy Center in Odessa, Texas. Ultimately, Texas Ranger David Hullum was assigned as the primary investigator in the case.

    At trial, Appellant called several witnesses but did not testify in his own defense.  A mental health expert, Dr. Karen Gold, testified on his behalf.  Dr. Gold performed a Acomprehensive sex offender/defendant evaluation@ of Appellant.  After her evaluation of Appellant, Dr. Gold concluded that there were Ano indications of any of the markers or indicators that we see that would suggest pedophilia.@  After hearing all of the testimony, a jury found Appellant guilty of the offense of indecency with a child.

    Standards of Review

    We review a trial court=s decision to admit or exclude evidence under an abuse of discretion standard.  Torres v. State, 71 S.W.3d 758, 760 (Tex.Crim.App. 2002).  An abuse of discretion occurs when the trial court acts arbitrarily or unreasonably, without reference to guiding rules or principles.   Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App. 1990). We give the trial court wide discretion and latitude in its decision and will not reverse an evidentiary ruling as long as it is within the zone of reasonable disagreement.  Torres, 71 S.W.3d at 760.  A trial court=s ruling on admissibility should not be disturbed under an abuse of discretion standard simply because we might decide a question differently than the trial judge.  West v. State, 121 S.W.3d 95, 100 (Tex.App.--Fort Worth 2003, pet. ref=d), citing Montgomery, 810 S.W.2d at 391.  An appellate court may uphold the trial court=s ruling on the admission or exclusion of evidence on any legal theory or basis applicable to the case.  Martinez v. State, 91 S.W.3d 331, 336 (Tex.Crim.App. 2002).

    We review the legal sufficiency of the evidence in the light most favorable to the verdict in an effort to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979); Hernandez v. State, 946 S.W.2d 108, 110-11 (Tex.App.--El Paso 1997, no pet.).  We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witness, as this was the function of the trier of fact.  See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991).  Instead, our duty is to determine if both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the verdict.  See Adelman, 828 S.W.2d at 421-22.  In so doing, any inconsistencies in the evidence are resolved in favor of the verdict.  Matson, 819 S.W.2d at 843.

    In reviewing the factual sufficiency of the evidence, we must determine whether considering all the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt.  Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004).  Evidence can be factually insufficient if the evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt, or contrary evidence is so strong that guilt cannot be proven beyond a reasonable doubt.  Id. at 484-55.  Our evaluation should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any witness=s testimony.  Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). 


    We will not set aside the judgment unless the evidence supporting the verdict is so weak as to be clearly wrong and manifestly unjust.  Zuniga, 144 S.W.3d at 481.  A clearly wrong and manifestly unjust verdict occurs where the jury=s finding Ashocks the conscience@ or Aclearly demonstrates bias.@ Zuniga, 144 S.W.3d at 481. An opinion addressing factual sufficiency must include a discussion of the most important and relevant evidence that supports the Appellant=s complaint on appeal.  Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003).

    DISCUSSION

    A person commits the offense of indecency with a child if he engages in sexual contact

    with a child younger than 17 years old.  See Tex.Penal Code Ann. ' 21.11(a)(1)(Vernon 2003).  ASexual contact@ is defined to include any touching of the breast or any part of the genitals of a person with intent to arouse or gratify the sexual desire of any person.  See Tex.Penal Code Ann. ' 21.01(2).

    In his first issue, Appellant argues that the trial court erred by ruling that the victim=s out-of-court statements to Father Herrera and H.B.=s mother were admissible as exceptions to the hearsay rule because they were excited utterances.  The State points out that Appellant=s first issue is multifarious in that it embraces more than one issue and attacks several distinct trial court rulings.  See, e.g., Newby v. State, 169 S.W.3d 413, 414 (Tex.App.‑-Texarkana 2005, no pet.).  Although we are not required to, we may address Appellant=s complaint if it is sufficiently developed in the brief.  Foster v. State, 101 S.W.3d 490, 499 (Tex.App.-‑Houston [1st Dist.] 2002, no pet.).  Accordingly, in the interest of justice, we will address the statements of H.B. to both her mother and Father Herrera.  See Sterling v. State, 800 S.W.2d 513, 521 (Tex.Crim.App. 1990).

    The State maintains that the specifically challenged statements were admissible as excited utterances.  An excited utterance is an exception to the rule prohibiting hearsay statements from being admitted as evidence.  See Tex.R.Evid. 803(2).  The excited utterance hearsay exception permits admission of a hearsay statement Arelating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.@  Tex.R.Evid. 803(2); Arzaga v. State, 86 S.W.3d 767, 775 (Tex.App.‑-El Paso 2002, no pet.).

    This exception derives from the belief that such statements are trustworthy, because they are involuntary and do not allow the declarant a sufficient opportunity to fabricate.  Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App. 2003); Gutierrez v. State, 85 S.W.3d 446, 455 (Tex.App.‑-Austin 2002, pet. ref'd). For a statement to qualify as an excited utterance:  (1) the statement must be the product of a startling occurrence; (2) the declarent must have been dominated by the emotion, excitement, fear, or pain of the occurrence; and (3) the statement must be related to the circumstances of the startling occurrence.  Gutierrez, 85 S.W.3d at 455.

    The excited utterances exception was intended to be flexible and no single rigid principle governs the admissibility of statements under the rule.  Bondurant v. State, 956 S.W.2d 762, 765 (Tex.App.‑-Fort Worth 1997, pet. ref'd).  Instead, each case must be considered on its own particular facts.  Arzaga, 86 S.W.3d at 775-76.  AThe exception is based on the assumption that the declarant is not, at the time of the statement, capable of the kind of reflection that would enable [her] to fabricate information.@ Apolinar v. State, 155 S.W.3d 184, 186 (Tex.Crim.App. 2005), citing Zuliani, 97 S.W.3d at 595.  In deciding if a declarant is still dominated by her emotions from viewing or experiencing the startling event, the trial court may consider the following factors:  (1) the length of time between the event or condition and the statement; (2) the nature of the declarant; (3) whether the statement is made in response to a question; and (4) whether the statement is self‑serving.  See Apolinar, 155 S.W.3d at 187, citing Zuliani, 97 S.W.3d at 595‑96.

    It is not dispositive that the statement is an answer to a question or that it was separated by a period of time from the startling event, although these are among the factors to be considered in deciding whether a statement is admissible under the exception.  Salazar v. State, 38 S.W.3d 141, 154 (Tex.Crim.App. 2001).  AThe critical determination is >whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event= or condition at the time of the statement.@  Id., citing McFarland v. State, 845 S.W.2d 824, 846 (Tex.Crim.App. 1992).

    With regard to statements H.B. made to her mother, these statements were made approximately two to two and one-half hours after the alleged incident.[2]  According to H.B., after Appellant touched her, he left her room.  H.B. testified that when she tried to use the phone next to her bed, there was no dial tone.  H.B. stated that when she discovered there was no dial tone, A[she] got scared. [She] was thinking, >Do I go out the window?=  [She] didn=t know what to do.@  H.B. then went to the kitchen to dial her mother=s number.  As she was dialing the number, Appellant came into the room and told her to stop but her mother was already on the phone.

    H.B. stated that as she was trying to talk to her mother on the phone, she kept Acrying and crying@ and could only utter Amom.@  H.B. testified that Appellant came into the room and told her not to tell her mother anything.  H.B. stated that after the phone call to her mother, she went to her bedroom.  She testified that she did not have a lock on her door so she was Ascared.@ H.B. also stated that after she called her mother, she went to her room and tried to fall asleep.  During the intervening period between the event and the arrival of her mother, Appellant remained in the home with her.  Shortly before H.B.=s mother arrived, Appellant left to pick up H.B.=s younger sister from day care.

    Ms. Velasquez testified that when H.B. called her, she was Acrying, hysterical, couldn=t say anything.@  Ms. Velasquez stated that while on the phone, she asked H.B. what was wrong but she just kept crying.  When asked about her emotional state, Ms. Velasquez stated that she sounded Ahysterical.@ She also testified that H.B. sounded like she was Aupset, she was hysterical, she was crying; but her crying was like she was hollering for help.@ Ms. Velasquez stated that when she arrived home, she proceeded to H.B.=s room. She stated that the door to H.B.=s room was locked.  Ms. Velasquez testified that H.B.=s eyes were swollen from crying.  Additionally, she stated that H.B. Astill had tears in her eyes.@  Ms. Valesquez entered H.B.=s room and sat on the edge of her bed.  She then asked H.B. what had occurred.  In response, H.B. told her what had transpired earlier.

    We note that when H.B. made the statements to her mother at least two hours had passed since the alleged incident and the statements were made in response to questioning.  However, H.B. was also a fourteen-year-old child at the time of the incident.  After considering the statements in light of the relevant factors, we find that the evidence as a whole is adequate to support the finding that H.B. was still under the emotional and physical stress of the assault.  Thus, the trial court did not abuse its discretion in allowing the out-of-court statements made to Ms. Velasquez into evidence under the excited utterance exception.

    We next turn to the statements H.B. made to Father Herrera.[3]  The State admits in its brief that Athe question of whether [H.B.=s] statements to Father David were excited utterances is a closer call than that regarding the statements she made to her mother earlier.@  Appellant argues that H.B. was Ano longer dominated by the emotions of excitement, fear, or pain of the alleged sexual contact during her conversation with Father Herrera.@  As support, Appellant points to the fact that shortly after the alleged event occured, A[H.B.] had the presence of mind to call her mother . . . and tell her to slow down, not to drive too fast.@  We point out that H.B. was prompted to call her mother a second time in response to Appellant telling her that if something happened to her mother on the drive home it would be her fault.

    Appellant also points to the fact that while waiting for Father Herrera at her grandmother=s home, H.B. Asat and watched television, flipping through the channels@ and Aacted so normal that her grandmother never realized something traumatic had happened to her granddaughter.@  According to Ms. Velasquez, she and her daughters went to her mother=s home because she had planned to dye her mother=s hair for the upcoming wedding.  Because of her mother=s health conditions which included sugar diabetes, high blood pressure, and on one occasion, a nervous breakdown, Ms. Velasquez did not want her to know anything had occurred.  Ms. Velasquez testified that while at her mother=s home, H.B. flipped through channels Alike she was in a daze.@  After spending approximately thirty minutes at her mother=s house, Ms. Velasquez and her daughters left in order to find Father Herrera. 


    Appellant also argues that H.B. was Aout of Appellant=s control and domination for a considerable amount of time prior to talking to Father Herrera@ and thus no longer within Appellant=s Azone of control.@  However, Father Herrera testified that Ms. Valesquez and H.B. arrived at his home at approximately 8:30 p.m., some six hours after the alleged incident.  He stated that when he first saw H.B., her mother was A[s]upporting her.  Helping her walk.@ Father Herrera stated that H.B. had a Arunny nose, sniffling, caused by the crying.@  He testified that at times when H.B. was telling him what had happened, he could not understand what she was saying and had to ask her to repeat herself.  On cross-examination, Father Herrera stated that H.B. Awas very distraught, very emotional, to the point that the mother was offering comfort and support bringing her into my house.@

    Considering the testimony in light of the surrounding circumstances, we conclude that the trial judge=s decision to admit the complained-of evidence was not so clearly wrong as to lie outside that zone within which reasonable persons might disagree.  See Zuliani, 97 S.W.3d at 595-96.  Therefore, the trial court did not abuse its discretion in allowing the out-of-court statements made to Father Herrera to be admitted into evidence under the exception for excited utterances.  Issue One is overruled.

    In Issue Two, Appellant argues that the trial court abused its discretion when it granted the State=s request under Tex.R.Evid. 107 to introduce a videotape of the forensic interview of H.B. conducted by Eve Flores.  He first argues that the State was the proponent of the videotape and cannot rely on the rule of optional completeness to admit the videotape into evidence.  We agree that a party cannot open the door and then rely upon the rule of optional completeness to then pursue an improper line of questioning.  West v. State, 121 S.W.3d 95, 103 (Tex.App.--Fort Worth 2003, pet. ref=d).  However, merely referring to an act, declaration, conversation, writing, or recorded statement does not invoke the rule of optional completeness.  See Goldberg v. State, 95 S.W.3d 345, 386-87 (Tex.App.‑-Houston [1st Dist.] 2002, pet. ref=d).

    The rule is not implicated until a party attempts to have a portion of an act, declaration, conversation, writing, or recorded statement given into evidence.  See Sauceda v. State, 129 S.W.3d 116, 122 (Tex.Crim.App. 2004).  When an opposing party thus makes the attempt to have portions of an act, declaration, conversation, writing, or recorded statement given into evidence, the adverse party is entitled to introduce into evidence the remaining portions of the same necessary to a full understanding of the evidence.  Id.  After reviewing the record it is clear that while the State did refer to the existence of the videotape, at no time did the State inquire into the substance of what was contained on the videotape.[4]

    During the cross-examination of the defense expert Dr. Karen Gold, the State inquired into the existence of the videotape by first asking her if she had received the videotape.  Dr. Gold answered that she had not.  On at least two occasions, the State pointed out that Dr. Gold had not watched the videotaped interview of H.B.  After a break for lunch, the cross-examination of Dr. Gold resumed. The State again pointed out that Dr. Gold had not reviewed the videotape.  However, on this occasion Dr. Gold informed the State that she had reviewed the videotape during the lunch recess.  The State asked only if watching the video had Ashed any light on anything@ and Dr. Gold replied that it had.  The State did not ask Dr. Gold any further questions regarding the videotape.

    It was not until redirect by Appellant that substantive matters contained on the videotape were raised.  Appellant delved into the substance of the videotape by asking specific questions concerning specific statements made by H.B. during the interview as recorded on the videotape.  The following exchange occurred between counsel for Appellant and Dr. Gold:

    Q:        [T]oday at lunch, if you saw any further inconsistencies in [H.B.=s] statement to law enforcement personnel, ma=am.

     

    A:         Yes.

     

    Q:        What were they?

     

    A:         The videotape was quite confusing --

     

    Q:        In what way?

     

    A:         Miss Flores asked her twice if anything like that had ever happened before, and twice she said no.  She said at one -- she used a lot of different verbs, that he -- at one -- she used a lot of different verbs, that he --

     

    Q:        Pertaining to what?

     

    A:         To how she was -- inappropriately >touched= was one of the words she used; that she was touched, she --

     

    Q:        >Touched= meaning the plural sense?  One touching or touched several times:

     

    A:         There was one touch, there was a rub, there was a stroke, there was a pressure on her breast.  There were a lot of different things that she mentioned.  She said that it never happened before on two occasions.  She said it was over her pants, under her underwear, over her underwear during the course of the tape.  And she also said that he touched her vagina privates (sic) with the massager.  So there were a lot of different things in the videotape, and it was very hard to see consistency.  There was none, that I could follow.

    Q:        And when you allude to the stroke part -- what was he stroking?  Did she say on the tape?

     

    A:         Sometimes it was her butt; sometimes it was her back; sometimes it was her head. There was a stroke -- he touched her -- the top of her vagina private (sic) one time, she said.  It was -- it was very difficult.  It was about an hour-long tape, and there were many different allegations throughout the tape.

     

    Q:        So she was in effect, in your opinion, giving different versions of one allegation?

     

    A:         I don=t know what she -- I really am not sure. She said that she was crying and crying, and crying, and then she said she was pretending to be asleep so that he would leave.  I don=t know.

     

    Q:        Well, now, tell us:  Based upon your experience -- and I mean common sense, too -- can you play like you=re asleep and cry at the same time?

     

    A:         Well, she didn=t say that she was pretending to be asleep and crying at the same time.  It was that some of the time she was crying and crying and crying and some of the time she was pretending to be asleep, by her report in the videotape.

     

    During the State=s rebuttal, the State called Eve Flores from Harmony Home to the stand.  After laying the predicate, the State sought to introduce the videotape into evidence under the rule of optional completeness. By inquiring into substantive statements made by H.B. throughout the videotape, Appellant opened the door and thus the trial court did not abuse its discretion in admitting the videotape of the forensic interview to be introduced into evidence. 

    Additionally, Appellant argues that even if the videotape was given into evidence by Appellant, Asuch event did not require the automatic admission of the entire Video Tape.@ By challenging the credibility of H.B. using specific statements contained on the videotape, the entire tape was admissible.  See Credille v. State, 925 S.W.2d 112, 116 (Tex.App.-‑Houston [14th Dist.] 1996, pet. ref'd).  Issue Two is overruled.

    In Issue Three, Appellant argues that the trial court erred in determining that the out-of-court statements made to Texas Ranger David Hullum, the primary investigator assigned to the case, qualified as prior consistent statements.  Prior consistent statements of a witness which are consistent with the testimony presented at trial are generally inadmissible.  However, prior consistent statements may be introduced if:  (1) the declarant testifies at the trial and is subject to cross-examination concerning the statement; (2) the statement is consistent with the declarant=s testimony; and (3) the statement is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive. Tex.R. Evid. 801(e)(1)(B).  Under this rule, the prior consistent statement of a witness is admissible to rebut an express or implied charge of recent fabrication or improper influence or motive if the statement was made before the motive to fabricate arose. Dowthitt v. State, 931 S.W.2d 244, 263 (Tex.Crim.App. 1996).  Appellant apparently concedes that the State established the statements made to Ranger Hullum were consistent with H.B.=s testimony at trial, therefore, we will confine our review accordingly.

    Appellant argues that at no point did he either imply or suggest that H.B. fabricated her testimony as a result of her therapy sessions with her counselors.  On the contrary, Appellant argues that any questions on cross-examination were Asimply a repetition of [H.B.=s] answers on direct.@  Further, Appellant argues that H.B.=s motive to lie arose prior to her statements to Ranger Hullum.  The State argues that Appellant=s cross‑examination implied that H.B. had been improperly influenced by her counselors which led her to fabricate portions of her statements and the trial court was correct in allowing the statements made to Ranger Hullum.  We must agree with the State.

    In this case, one of the alleged improper influence/motives Appellant spent developing during cross-examination of H.B. was that she may have been influenced as a result of her therapy sessions.  We note specific questions directed at H.B. during re-cross:

    Q:        You could open up more.  So what you=re telling us today is that, as more and more people talked to you about it, would talk with you about it, you=d just start telling them more and more.

     

    Q:        [H.B.,] you told the jury earlier that it wasn=t until you got into therapy that you started recalling and remembering and telling people about acts of prior sexual misconduct by Zeke against you . . . .

     

    After reviewing the record of the cross-examination and re-cross, it is clear to us that counsel for Appellant attempted to demonstrate that H.B. began embellishing her story as a result of therapy in an effort to cast doubt on her testimony.

    A prior consistent statement does not have to be made before all motives to fabricate or improper influences arose.  See Dowthitt, 931 S.W.2d at 264.  Although there may be any number of motives to fabricate in a given case, for the statement to be admissible, it need only be introduced in response to one of those express or implied charges of recent fabrication or improper influence or motive.  See id.  In this case, H.B.=s statements to Ranger Hullum were made prior to an alleged improper influence, i.e., the therapy sessions.  Therefore, the trial court did not abuse its discretion in allowing H.B.=s statements to Ranger Hullum to be admitted as prior consistent statements. Issue Three is overruled.

    In Issue Four, Appellant argues that the trial court erred when it allowed the State to introduce evidence of an extraneous offense allegedly committed by Appellant approximately fourteen to fifteen years prior to the charged offense.  During the cross-examination of Appellant=s expert witness, Dr. Gold, the State sought to question her about the alleged extraneous offense committed by Appellant.  Appellant=s counsel objected to the evidence being admitted arguing that the State had Aopened the door@ and not Appellant.  The trial court overruled Appellant=s objection and allowed the State to question Dr. Gold about an extraneous offense involving improper conduct with Ms. Rechelle Garcia.

    After the State rested, Appellant called Officer Tulon Murphy of the Fort Stockton Sherriff=s Department to refute the alleged extraneous offense.  Officer Murphy testified that he was on duty the night the alleged offense was committed. He stated that he and Appellant were at a local convenience store, the ATown and Country,@ at approximately 10 p.m. when Ms. Garcia drove up and started talking to Appellant.  He stated that after she left, he and Appellant went for a ride in Appellant=s new patrol car.  At some point, Appellant and Officer Murphy pulled off the interstate. They were sitting in the patrol car when Ms. Garcia arrived.

    According to Officer Murphy, after Ms. Garcia arrived, she got out of her car and approached the patrol car.  Officer Murphy stated that Appellant and Ms. Garcia then walked away from the patrol car and started talking.  Officer Murphy testified that Appellant was out of his sight for approximately ten minutes.  He stated that when Appellant and Ms. Garcia returned to the car, he did not notice anything out of the ordinary.

    After Appellant rested, the State called Ms. Garcia to the stand to testify.  Appellant did not object to her testimony.  She testified that Appellant regularly came to the AComanche Springs Truck Stop@ where she worked the graveyard shift.  At the time of the alleged incident, Ms. Garcia was seventeen years old.  On the night in question, Appellant told her to follow him in his patrol car.  Ms. Garcia followed Appellant to a darkly lit location on the Pecos Highway. 


    She testified that the very next thing that she remembered was Appellant having her Apinned down on top of the car@ and kissing her Avery hard on [her] neck.@ She screamed for Appellant to stop and told him that her mother was expecting her home and if she did not show up, her mother would call the police.  Appellant began laughing and told her that Ahe was the police, who was she going to call.@  Eventually, Appellant stopped kissing her and she left.  Ms. Garcia testified that Officer Murphy was also present during the incident. 

    Even assuming Appellant is correct and the extraneous offense evidence was inadmissible, Appellant waived his earlier objection when the same evidence was later introduced without objection.  See Leday v. State, 983 S.W.2d 713, 717-18 (Tex.Crim.App. 1998); Massey v. State, 933 S.W.2d 141, 149 (Tex.Crim.App. 1996)(if a defendant objects to admission of evidence but the same evidence is subsequently introduced from another source without objection, defendant waives his earlier objection); see also Howland v. State, 966 S.W.2d 98, 100‑01 (Tex.App.‑‑Houston [1st Dist.] 1998), aff'd, 990 S.W.2d 274 (Tex.Crim.App. 1999)(waiver of error in admitting doctor=s testimony and reports about sexual acts performed on child victims where defendant subsequently allowed victim to testify, without objection).  Therefore, any error that might have occurred in initially admitting evidence of the extraneous offense was waived when Appellant failed to object to the subsequent admission of the same evidence.  Issue Four is overruled.

    In Issue Five, Appellant challenges the trial court=s decision to transfer venue to Crockett County, Texas.  This case originated from the 83rd Judicial District of Pecos County, Texas.  On March 20, 2002, the District Attorney Pro Tem filed a motion to change venue under Tex.Code Crim.Proc.Ann. art. 31.02 (Vernon 1989).  On August 7, 2002, the trial court conducted a hearing on the merits of the change of venue motion.[5]  Both Appellant and the State called witnesses and presented evidence at the hearing.

    The trial court ultimately denied the motion of the State. In addition to denying the motion to change venue, the trial court sent a letter to each party informing them of its decision but indicating that Aif, during voir dire, the Court determines that it is not possible to obtain a fair and impartial jury, the Court will not hesitate to re-visit this issue.@  Subsequently, the State filed a supplemental motion to transfer venue under Tex.Code Crim.Proc.Ann. art. 31.02, which the trial court did not rule on.  The State then filed a second supplemental motion to change venue citing Tex.Code Crim.Proc.Ann. art. 31.01, which allows the court, on its own motion, to change venue.  At a hearing held in chambers, the State re-urged its motion to change venue.  The trial court heard arguments and objections from the State and Appellant. Ultimately, the trial court decided to change the venue and entered an order accordingly.

    Appellant argues that he was entitled to a second hearing prior to a change of venue under Tex.Code Crim.Proc.Ann. art. 31.01.  The State argues that Appellant waived this issue because his objection at trial does not comport with his complaint on appeal.  Appellant, in his reply brief, argues that Aprior to the entry of the October 29, 2004 Order, the trial court never informed the parties whether it was transferring venue pursuant to Art. 31.01 or Art. 31.03 (sic).  Thus, defense counsel=s general objection that the requirements to transfer venue under either Art. 31.01 or Art. 31.03 (sic) preserved this issue for appellate review.@[6]

    To preserve a complaint for appellate review, a party must have first presented the complaint to the trial court by timely request, objection, or motion.  Tex.R.App.P. 33.1(a)(1).  Further, the grounds for the desired ruling from the trial court must be stated Awith sufficient specificity to make the trial court aware of the complaint, unless the specific grounds [are] apparent from the context.@  Tex.R.App.P. 33.1(a)(1)(A).  Although Appellant objected to the change of venue on substantive grounds, he never raised the issue of notice or lack of a hearing. Therefore, to the extent Appellant is complaining of either lack of notice or a hearing, that portion of his argument is waived.

    As for the remainder of his complaint, we review a trial court=s decision to transfer venue under an abuse of discretion standard.  Garcia v. State, 75 S.W.3d 493, 499 (Tex.App.‑-San Antonio 2002, pet. ref=d), citing Brimage v. State, 918 S.W.2d 466, 508 (Tex.Crim.App. 1994).  Article 31.01 does not require the trial court to present evidence in support of its own motion but only offers the parties a chance to be heard on the matter.  Garcia, 75 S.W.3d at 499.  Because the trial court can Asatisfy itself from any cause@ that a fair trial cannot be had, a court rarely abuses its discretion in deciding to transfer venue on its own motion.  See Brimage, 918 S.W.2d at 508.

    In this case, the trial court noted the extensive bias of the venire panel, stating Aat least every other member of the remaining panel on initial voir dire had expressed a bias.  I quite frankly didn=t expect to have a panel which clearly has so many individuals that have formed an opinion . . . .@  The court also noted that of the remaining jurors, many Astill showed an unwillingness to serve because they just did not want to be placed in a position of passing; judgment of a friend, or of some other relationship that they may have had with this defendant.@ 

    In the order transferring venue, the trial court indicated that it had reviewed the evidence presented at the earlier hearing on the State=s first motion to change venue, reviewed the pleadings and attachments, and had presided over voir dire.  As a result, the trial court was of the opinion that Adue to the existing combination or influences in favor of the Defendant in Pecos County, Texas, as well as the qualified prospective jurors= knowledge of the parties . . . a trial, alike fair and impartial to the accused and to the State, cannot be had in Pecos County, Texas.@  We find that the trial court did not abuse its discretion in ordering a change of venue on its own motion.  Issue Five is overruled.

    In Issue Six, Appellant challenges the legal and factual sufficiency of the evidence.  Appellant first challenges the sufficiency of the evidence supporting the finding that he acted with the requisite intent to arouse or gratify his sexual desire. Appellant contends there was no corroborating physical evidence and that Aguilt could not be inferred from [Appellant=s] conduct, remarks, or surrounding circumstances on September 10, 2001, or thereafter.@  Additionally, Appellant argues A[t]he bulk of the State=s case against Appellant hinged on [H.B.=s] testimony at trial, her hearsay statements, and her credibility@ and A[t]he record reveals that [H.B.] was simply not a credible witness.@

    With regard to Appellant=s legal sufficiency complaint, the uncorroborated testimony of a child complainant is sufficient to support a conviction under penal code Chapter 21.  Tex.Code Crim.Proc.Ann. art. 38.07 (Vernon 2005); see also Jensen v. State, 66 S.W.3d 528, 534 (Tex.App.‑-Houston [14th Dist.] 2002, pet. ref'd)(testimony of a victim, standing alone, even when the victim is a child, is sufficient to support a conviction for sexual assault).  Indecency with a child is a Chapter 21 offense.  Viewing the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found beyond a reasonable doubt all the essential elements of the offense of indecency with a child.  See Tex.Penal Code Ann. ' 21.11(a).  Thus, we find that H.B.=s testimony is legally sufficient to support Appellant=s conviction.  As to any issues regarding her credibility, we will defer to the jury=s assessment.  See Cain, 958 S.W.2d at 408-09.

    As it relates to Appellant=s factual sufficiency complaint, we note the majority of evidence contrary to the verdict consisted of the conflicting testimony of the witnesses and Appellant=s expert witness testimony regarding her evaluation of Appellant.  The weight to be given conflicting testimony lies within the sole province of the jury, and the reviewing court must show deference to the jury=s determination.  Cain, 958 S.W.2d at 408‑09.  Additionally, Appellant points to the lack of any corroborating physical evidence as support for his sufficiency complaint.  However, lack of physical evidence is merely a factor for a jury to consider in weighing the evidence.  See Johnson v. State, 176 S.W.3d 74, 78 (Tex.App.‑-Houston [1st Dist.] 2004, pet. ref'd).  After a neutral review of all of the evidence, we conclude that the evidence supporting the verdict is not too weak to support the guilty finding beyond a reasonable doubt nor so contrary to the verdict as to be clearly wrong and unjust.

    In addition to his general legal and factual sufficiency challenge, Appellant specifically argues that the evidence was legally and factually insufficient to show beyond a reasonable doubt that he acted with the intent to arouse or gratify his sexual desire.  We disagree.  The conduct alone is sufficient to infer intent.  Wallace v. State, 52 S.W.3d 231, 235 (Tex.App.‑-El Paso 2001, no pet.). When the evidence is viewed in the light most favorable to the verdict, we find that a rational trier of fact could have found beyond a reasonable doubt that Appellant acted with the intent to arouse his sexual desire.

    As for Appellant=s argument that the evidence is factually insufficient to support the finding of intent to arouse or gratify his sexual desire, Appellant does not point to any contradictory evidence, but rather argues there is a complete lack of evidence to support the jury=s finding.  However, as previously stated, intent to arouse may be inferred from Appellant=s conduct, words, and all the surrounding circumstances.  Id. at 234-35.  After viewing the evidence presented in a neutral light, we conclude the evidence supporting the jury=s finding that Appellant touched H.B. with the intent to arouse or gratify his own sexual desire is not so weak that the verdict is clearly wrong and manifestly unjust nor was the contrary evidence so strong that the standard of proof beyond a reasonable doubt could not have been met.  We find that the evidence was both legally and factually sufficient to sustain Appellant=s conviction.  Accordingly, Issue Six is overruled.

    Having overruled all of Appellant=s issues, we affirm the trial court=s judgment.

     

     

    August 4, 2006

    DAVID WELLINGTON CHEW, Justice

     

    Before McClure, J., Chew, J., and Guaderrama, Judge

    Guaderrama, Judge (Sitting by Assignment)

     

    (Do Not Publish)


    [1] Appellant was indicted in Pecos County in cause number P-2525-83-CR.  The trial court transferred venue to Crockett County and the case proceeded under cause number 03-12-2253-CR. After judgment had been entered, the trial court entered an order transferring the case back to Pecos County on July 8, 2004.

    [2] It is not clear from the record exactly how much time passed between the incident and the arrival of Ms. Velasquez. However, the incident occurred shortly before Ms. Velasquez received the first phone call at approximately 2:30 p.m. and Ms. Velasquez arrived home at approximately 4:15 to 4:30 p.m. Appellant returned to the home after picking up the younger child at approximately 5 p.m.  It was after her arrival and prior to the arrival of Appellant when Ms. Velasquez spoke to her daughter about the incident.

    [3] Father Herrera prepared notes after the incident and relied upon them throughout his testimony at trial.

    [4] The existence of the videotaped interview was earlier referenced during the questioning of Ranger David Hullum without objection.

     

    Q:        Okay. To your knowledge, had [H.B.] given any other formal interviews subsequent to your interview that you shared with us.

     

    A:         Yes.  The Harmony Home or advocacy center gave -- took a videotaped child victim interview.

    [5] Appellant indicates in his brief that the hearing of August 7, 2002 was not made a part of the appellate record. However, we have the full record of the hearing conducted by the trial court.

    [6] At the hearing held in chambers, the trial court informed the parties that it Ais going to, on its own motion, order a change of venue.@