Fears, Ronald Blake ( 2015 )

No. PD-598-15
IN THE COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
RONALD BLAKE FEARS
VS.
THE STATE OF TEXAS
Appealed From the 13TH Court of Appeals
No. 13-13-00111-CR
Original Conviction in the
District Court of Cameron County Texas
138th Judicial District Court
Cause No. 2012-DCR-986-B
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
DOUGLAS H. PETTIT
680 East St. Charles St.
Suite 600
Brownsville, Texas
(956) 243-64555
June 25, 2015 (713)-956-9956
Email: dpettitlaw@hotmail.com
ATTORNEY FOR PETITIONER
0
INDEX
TABLE OF AUTHORITIES . . . . . . . 2,3
STATEMENT REGARDING ORAL ARGUMENT . . . 4
STATEMENT OF THE CASE . . . . . . . 5
PROCEDURAL HISTORY . . . . . . . 6
QUESTION PRESENTED FOR REVIEW . . . . . 7
When the victim and the individual reporting the alleged crime to CPS are
known to all parties does Texas Family Code 261.201 as it relates to the
Texas Code Criminal Procedure 39.14 require strict compliance. The
legislature has created an unworkable procedure that denies an accused
access to CPS records for cross examination and the preparation of a
defense.
ARGUMENT or REASON FOR REVIEW . . . . . 8
ARGUMENT AND AUTHORITIES. . . . . . 9
PRAYER FOR RELIEF . . . . . . . . 16
CERTIFICATE OF SERVICE . . . . . . . 17
APPENDIX
1
TABLE OF AUTHORITIES
UNITED STATES CONSTITUTION
U. S. CONST. 6th AMENDMENT . . . . . . 11,12
U. S. CONST. 14th AMENDMENT . . . . . . 11.12
TEXAS CONSTITUTION
TEX. CONST. ART. 1 SECTION 10 . . . . . . 12
TEXAS PENAL CODE
Tex. P. Code Ann. §§ 21.02, 22.011(a)(2), 21.11(a) . . . 5
TEXAS FAMILY CODE
Texas Family Code 261.201 . . . . .7,8,9,11,13,14,15
Texas Family Code 264.408 . . . . . 9,15
TEXAS CODE OF CRIMINAL PROCEDURE
Texas Code Criminal Procedure 39.14 . . . . . . 7,8,15
SUPREME COURT CASES
Dennis v. United States, 384 U.S. 855, 86 S.Ct.1851, 1966 . . 13
Pennsylvania vs. Richie 480 U.S. 39, 59, (1987) . . . . 11
TEXAS CASES
Thomas v. State 837 S.W. 2d. 106,113-114
(Tex Crim. App. 1992) . . . . . . 11
2
OTHER JURISDICTIONS
Commonwealth v. Clancy, 402 Mass 664,
524 N.E.2d 395 (1988) . . . . . . 13
Commonwealth v. Liebman, 388 Mass. 483, 489, 446
N.E.2d 714 (1983) `. . . . . . 13
Commonwealth v. Stockhammer, 409 Mass 867,
570 N.E. 2d, 992 (1991) . . . . . . . . 13
TEXAS RULES OF EVIDENCE
Texas Rules of Evidence 615 . . . . . . . 10
TEXAS RULES APPELLATE PROCEDURE
TEX. R. APP. P. 68.4 . . . . . . . 4
3
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to TEX. R. APP. P. 68.4, if this court grants this Petition for
Discretionary Review, Petitioner requests oral argument in order to expand upon
the arguments herein.
4
STATEMENT OF THE CASE
The Petitioner was charged in a six count indictment with continuous sexual
assault of a child (Count 1); sexual assault of a child (Count 111)1, and indecency
with a child (Counts (IV V, and VI). (C.R. p. 15) Tex. P. Code Ann. §§ 21.02,
22.011(a)(2), 21.11(a). (CR-16)
The Appellant entered a plea of "not guilty" to the indictment and requested
a trial by jury. (R.R. Vol 3 p. 14). The Jury returned a verdict of guilty to Counts I,
III, IV, V, and VI. (CR. p. 19). The Court assessed punishment at 50 years in
Texas Department of Corrections Count I, and 20 years in the Texas Department of
Corrections Counts III, IV, V, and VI. (CR p. 19)
On April 24, 2015 the 13th Court of Appeals filed a Memorandum Opinion
affirming Petitioners case in cause number 13-13-00111-CR. Petitioner filed a
request for an extension to file a PDR with the Honorable Court of Criminal
Appeals. This petition is due on or before June 24, 2015.
1
The State abandoned Count II, aggravated sexual assault of a child, after the close of its case.
The petitioner was charged with continuous sexual assault in Count 1.
5
STATEMENT OF PROCEDURAL HISTORY
A panel of the Thirteenth Court of Appeals affirmed the trial court's ruling,
in a memorandum opinion dated April 23, 2015. The Petitioner did not file a
motion for rehearing in this cause. Petitioner filed an extension to file the PDR
which was granted by this Court on May 19, 2015. This Petition is due to be filed
on or before June 24, 2015.
6
QUESTION PRESENTED FOR REVIEW
1. When the victim and the individual reporting the alleged crime to CPS are
known to all parties does Texas Family Code 261.201 as it relates to the
Texas Code Criminal Procedure 39.14 require strict compliance. The
legislature has created an unworkable procedure that denies an accused
access to CPS records for cross examination and the preparation of a
defense.
7
TO THE COURT OF CRIMINAL APPEALS OF THE STATE OF TEXAS:
COMES NOW, RONALD BLAKE FEARS, Petitioner in the above
entitled and numbered cause, by and through his attorney of record Douglas H.
Pettit and files this Petition for Discretionary Review and, in support of which,
would respectfully show this Honorable Court the following:
QUESTION PRESENTED FOR REVIEW
When the victim and the individual reporting the alleged crime to CPS are
known to all parties, does Texas Family Code 261.201 as it relates to the
Texas Code Criminal Procedure 39.14 require strict compliance. The
Legislature has created an unworkable procedure that denies an accused
access to CPS records for cross examination and the preparation of a
defense.
ARGUMENT or REASON FOR REVIEW
The issue concerns CPS records and the trial court and district attorney‟s
office failure to turn those records over to trial counsel. The State‟s position was
the records were not discoverable under Texas Family Code 261.201. (R.R. Vol 4
p. 187) (R.R. Vol 4 p. 261) (R.R.Vol 5 p. 138) This is conflict with the procedure
set out in Texas Code Criminal Procedure 39.14. District Attorney's continue to
rely on Texas Family Code 261.201 to deny an accused access to CPS records
when the victim is known and the person reporting the alleged crime to CPS is
known.
8
ARGUMENT AND AUTHORITIES
The individual who reported the alleged crime to CPS was also the "outcry
witness" in this case. (R.R. Vol 3 p 78) (R.R. Vol 3 p. 92). The victim of the
alleged abuse was the step daughter of the Petitioner. (R.R. Vol 3. p. 73) Trial
Counsel was not permitted to review the CPS records prior to trial or during cross
examination of the CPS worker. (R.R Vol. 4 p. 190) (R.R. Vol 4 p. 260) It is
further alleged that two audio statements taken by CPS of the victim and her sister
were not turned over prior to the trial.
Reading Texas Code of Procedure 39.14 it expressly refers to Texas
Family Code 264.408, which refers to Texas Family Code 261.201. Texas Code
Criminal Procedure 39.14 indicates that subject to the restrictions listed in
264.408 the information should be turned over. Texas Family Code 264.408
applies to public release of information under Chapter 552, public records
requests and lists that the video tapes should not be copied, not disclosure denied.
Thus the courts must look back to the Texas Family Code 261.201.
The Thirteenth Court of Appeal upheld the trial court‟s ruling holding the
Petitioner was not entitled to view CPS records which contained the investigators
report and oral tape recorded statements of victim and her sister pursuant to Texas
9
Family Code 261.201.2
Petitioner‟s attorney first request for the records came after direct
examination and prior to cross examination of the CPS worker. (R.R. Vol 4 p.190)
The request was made under Texas Rules of Evidence 615 in order to conduct
cross examination of the investigating officer. The records were turned over to the
court after cross examination. (R.R. Vol 4 p. 264) The Trial Court provided a
limited amount of the material for counsel after his examination was concluded.
During the direct examination of the child victim it was learned that
additional information contained within the CPS records had not been given to the
Petitioner's trial attorney. The child victim had been interviewed by CPS worker
and the interview had been audio recorded. (R.R. Vol 5 p. 136) Prior to the cross
examination of child victim by the defendant‟s trial counsel requested that he be
allowed to listen to the audio tape. (R.R. Vol 5 p. 138). The Trial Court first
inquired whether the Defendant‟s attorney had previously had an opportunity to
listen to the tape. (R.R. Vol 5 p. 138) and the State of Texas responded that “they
were not allowed to disclose CPS recordings. (R.R. Vol 5 p. 138) The Court
2
The record submitted to the 13th Court of Appeals also contains CPS records in the possession
of the Assistant District Attorney and these documents have not been reviewed by trial counsel
or appellant counsel but were ordered sealed by the trial court.
10
ordered that those be turned over to trial counsel prior to the cross examination of
the victim. (R.R. Vol 5 p 138)
Petitioner‟s attorney requested three continuances from the Court during the
trial to prepare for cross examination of witnesses and review the CPS records. All
requests were denied.
The Court of Appeals in their opinion stated that “the conflict that can arise
between the State‟s need to keep information related to child abuse investigations
confidential with a defendant‟s need for a fair trial is well recognized” citing
Pennsylvania vs. Richie 480 U.S. 39, 59, (1987). The Thirteenth Court of Appeals
used the example regarding the Crime Stoppers information as stated in Thomas v.
State 837 S.W. 2d. 106,113-114 (Tex Crim. App. 1992) The Court of Appeals also
stated that Texas Family Code section 262.201 provides for exactly the type of
procedure approved in Ritchie and Thomas. . This requires an in camera
inspection of the material by the trial judge; and an ongoing duty to disclose any
confidential material that is relevant; or that becomes relevant during the trial.
The process set up in Tex. Family Code 261.201 for obtaining CPS records
for an accused is unworkable as it relates to criminal prosecution. The Court‟s
opinion is out of touch with the reality of trial work. It infringes on the Defendant‟s
right to confront and cross examine a witness as guaranteed by the 6th and 14th
11
amendment to the United States Constitution and Article I section 10 of the
Texas Constitution.
The procedure is unworkable for two reasons. First it places the emphasis
on the district judge to review and decipher the information. Second it also
demands that the District Attorney actually turn over all the CPS documents to the
trial court for review.
The Federal standard requiring only an in camera review by the trial judge of
privileged records requested by the defendant rests on the assumptions that trial
judges can temporarily and effectively assume the role of advocate when
examining such records; and that the interests of the State and complainant in the
confidentiality of the records cannot adequately be protected in any other way.
Neither assumption withstands close scrutiny.
As to the first assumption, the United States Supreme Court has said that “
„it [is] extremely difficult for even the most able and experienced trial judge under
the pressures of conducting a trial to pick out all of the [information] that would be
useful in impeaching a witness.‟ ... Nor is it realistic to assume that the trial court's
judgment as to the utility of material for impeachment ... would exhaust the
possibilities. In our adversary system, it is enough for judges to judge. The
determination of what may be useful to the defense can properly and effectively be
12
made only by an advocate.” Dennis v. United States, 384 U.S. 855, 874–875, 86
S. Ct. 1840, 1851, 16 L. Ed. 2d 973 (1966 The danger lurking in the practice of ... in
camera review [of privileged documents] by the trial judge is a confusion between
the roles of trial judge and defense counsel. The judge is not necessarily in the best
position to know what is necessary to the defense.” Commonwealth v. Clancy,
524 N.E.2d 395. Commonwealth v. Liebman, 388 Mass. 483, 489, 446 N.E.2d
714 (1983) (“[W]hen a judge undertakes to decide if [evidence] benefits the
defendant's case he is „assuming vicariously and uncomfortably the role of
counsel‟. Commonwealth v. Stockhammer, 409 Mass 867, 570 N.E. 2d, 992
(1991)
In the present case the records were on CD‟s. The trial judge had to have
actually reviewed each disk and know which evidence was to be released. When
The District Attorney in the Appellant‟s case provided the disks to the Court she
left one out. This last disk was not turned over until right before the victim
testified.(R.R. Vol 6 p.6)
The prosecutor consistently though out the trial and on appeal has relied on
Texas Family Code 261.201. She stated on numerous occasions that the
documents should not be turned over to the Defendant that the documents were
protected. The record is clear that the CPS records were contained within the
13
District Attorney‟s file but trial counsel was not allowed to view them. It is further
alleged that the records were sealed and filed in the records of this cause. It is
unknown whether anyone else has ever viewed them.
In reading the Texas Family Code 261.201 the law was set up to protect the
victim and the person who was making the report to CPS. It makes no sense to
deny the records when those facts are known to all parties.
In a sexual assault trial the child or victim is known to all parties, and the
outcry individual in this case was the person that called CPS. The law is being used
by the State of Texas to deny the individual charged with sexual offenses from
access to records that may assist in his defense. To allow the State to hide behind
this statute is not only incorrect but goes against everything that the new discovery
rules are trying to change.
The rights of defendants charged with sexual offenses in the State of Texas
has diminished rightfully or wrongfully based on the heinous nature of the crime.
The legislature has first created a specific crime of continuous sexual assault that
carries a minimum punishment 25 years in the penitentiary. The law further
decrees that the heinous nature of the crime requires that those convicted are not
entitled to parole.
District attorney‟s offices have created special units to prosecute these types
14
of offenses. We must and should protect our children from predators. But in doing
so we also must do so without tromping on the right to a fair and impartial trial.
When the child is known and the individual making the report is known by
all parties and the records are in the possession of the district attorney what is the
purpose of hiding the documents? Allowing the District Attorney to rely on Texas
Family Code 261.201 when the victim is known and the individual reporting to
CPS is known it is not logical or productive for the efficient administration of
justice.
Allegedly all of the CPS documents in Petitioners case have been filed with
the Court of Appeals. It is unknown if anything in the documents would have been
of use to the Petitioner at trial. The only individuals that have viewed them are the
trial court, appellate court, CPS personnel, and the district attorney. It should be the
defendant and his trial counsel who make the determination that the records may or
may not be of any use to him during the trial not the district attorney and the trial
judge.
Petitioner is requesting that the Honorable Court of Criminal Appeals allow
this points of review regarding Texas Family Code 261.201 as it relates to Tex.
Crim. Proc. 39.14. and Texas Family Code 264.408. The issue is not one of how
was the Petitioner harmed it is one of fundamental fairness. It is the right to cross
15
examining a witness and the ability to prepare to cross examine the witness in a
timely and effective manner. It is the right to review of the documents that the
State of Texas intends to use to convict the Petitioner.
PRAYER FOR RELIEF
WHEREFORE PREMISES CONSIDERED, appellant prays this
Honorable Court to consider the ground for review raised herein to grant this
petition for discretionary review, and to order a full and complete hearing on the
merits with briefs.
Respectfully submitted,
/S/Douglas H. Pettit
Douglas H. Pettit
680 East St. Charles Ave
Suite 600
Brownsville, Texas 78520
956-243-6455
Email: Dpettitlaw@hotmail.com
State Bar Number 15861300
ATTORNEY FOR PETITIONER
16
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing instrument has
been served by hand delivery to the Cameron County District Attorney‟s Office.
On this the 24 day of June 2015.
/s/ Douglas H. Pettit
Douglas H. Pettit
This is to certify that a true and correct copy of the foregoing instrument has
been served on the State Prosecuting Attorney by mail on this the 24 day of June
2015.
State Prosecuting Attorney
P.O. Box 12405
Austin, Texas 78711
/s/ Douglas H. Pettit
Douglas H. Pettit
17
NUMBER
13-13-00111-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
RONALD BLAKE FEARS, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 138th District Court
of Cameron County, Texas.
OPINION
Before Justices Rodriguez, Garza, and Longoria
Opinion by Justice Longoria
By fifteen issues, which we have reordered, appellant Ronald Blake Fears
challenges his convictions for sexual abuse of a child (Count I), sexual assault of a child
(Count III),1 and indecency with a child by contact (Counts IV–VI). See TEX. PENAL CODE
ANN. §§ 21.02, 22.011(a)(2), 21.11(a)(1) (West, Westlaw through 2013 3d C.S.). We
affirm.
I. BACKGROUND
A. Initial Statements
During the weekend of October 2, 2011, C.T.,2 the minor complainant in this case,
was sleeping over at the home of her friend Chesney St. John (Chesney) and helping to
babysit Chesney’s younger siblings. At the time, Chesney was sixteen years old and C.T.
was fourteen years old.3 C.T. confided to Chesney that C.T. needed help telling
something to C.T.’s mother, which C.T. evidently found difficult to discuss. Chesney
testified that C.T. typed a message into the text message function of her phone, showed
Chesney what she wished to tell her mother, and then erased it. According to Chesney,
the message revealed that C.T. was being sexually abused by appellant, her stepfather.
Chesney further testified that she learned that the abuse began when C.T. was eight
years old. Chesney called her parents, who returned to the house. Chesney first
repeated some of C.T.’s statements to Chesney’s parents because C.T. was crying too
much to speak.
Chesney’s mother, Natalie, questioned C.T. after Chesney finished speaking and
testified to C.T.’s responses at trial.4 Natalie testified that C.T. stated that appellant forced
1 The State abandoned Count II, aggravated sexual assault of a child, after the close of its case.
2C.T. testified under this pseudonym in the trial court. We will continue to refer to her by it in an
effort to protect her privacy.
3 Chesney was eighteen years old at the time of the trial.
4The trial court certified Natalie as the outcry witness under article 38.072 because she was the
first person older than eighteen years to whom C.T. made a statement about the abuse. See TEX. CODE
2
her to perform oral sex on him and appellant performed oral sex on C.T. The most recent
abuse occurred one week earlier. C.T. told her that the abuse occurred in her parents’
bedroom on multiple occasions, and on one occasion, appellant attempted to vaginally
penetrate her as she lay naked on the bed but stopped after she curled into a fetal position
and began to cry. Natalie called the San Benito Police Department; she and Chesney
accompanied C.T. to the police station and waited while C.T. gave a statement to Officer
Carlos Andrade.
B. C.T.’s Statement to Officer Andrade
Officer Andrade testified that he learned from his interview with C.T. that appellant
“was only touching [C.T.’s] private areas” and that he had not penetrated her with his
fingers or forced her to perform oral sex. However, Officer Andrade further testified that
he did not determine before conducting the interview whether C.T. understood the terms
“penetration” and “oral sex.” Chesney testified that C.T. did not know the meaning of the
term “oral sex” until she and C.T. spoke after C.T. gave a statement to Andrade. Chesney
testified that after explaining the term, she believed that appellant had forced C.T. to
perform oral sex. Andrade also testified that C.T. confirmed that the abuse began when
she was eight years old. Andrade testified that he felt that there was enough evidence to
determine that a crime had been committed and contacted Child Protective Services
(CPS).
C. Interview with Francisco Lopez
CPS Investigator Francisco Lopez testified on direct examination that he was
assigned to the case after CPS received reports from Chesney and Natalie and the San
CRIM. PROC. ANN. art. 38.072, § 2(a)(3) (West, Westlaw through 2013 3d C.S.).
3
Benito Police. On Sunday, October 3, 2011 (the day after C.T. first spoke to Chesney),
Lopez and another CPS investigator went to Chesney and Natalie’s home to interview
C.T. Lopez testified that they would normally bring a child complainant for a forensic
interview at Maggie’s House, the Children’s Advocacy Center, but it was closed that day.
Lopez personally interviewed C.T. and made an audio recording of the interview, which
we will refer to as the “Lopez Recording.”
During the interview, C.T. confirmed that the abuse started when she was eight
years old, that she had recently learned the meaning of the term “oral sex” from Chesney,
that appellant had forced her to perform oral sex, and that appellant had performed oral
sex on her. C.T. clarified to Lopez that she told Officer Andrade that he did not force her
to perform oral sex because she did not know the meaning of the term until she spoke to
Chesney after giving the statement. C.T. also described the specific appearance of
appellant’s genitalia, including whether his pubic hair was shaved or unshaved, that he
had pimples on his thighs, and that she sometimes saw “red dots” on his genital area.
Lopez questioned C.T.’s mother when she arrived to pick up C.T. and testified that C.T.’s
mother gave a similar description of appellant’s genitalia.
Immediately prior to Lopez’s testimony, appellant’s counsel orally moved for a
continuance to review any documents prepared by Lopez during his investigation
because the documents “could be pretty voluminous.” The trial court overruled the motion
as premature. At the beginning of cross-examination by appellant’s counsel, Lopez
confirmed that he had prepared an eight-page report of his investigation, that he used a
copy of the report to refresh his memory prior to testifying, and that he had not provided
the report to the State, the trial court, or appellant because it was confidential by law. See
4
TEX. FAM. CODE ANN. § 261.201 (West, Westlaw through 2013 3d C.S.). Appellant’s
counsel moved under Texas Rule of Evidence 615 that the court order Lopez to turn over
the report and orally moved for a continuance to give him time to review the report before
using it to cross-examine Lopez. See TEX. R. EVID. 615. The trial judge denied both
motions. At the end of Lopez’s testimony, appellant’s counsel again requested the report.
Appellant’s counsel also filed a written motion for continuance and a motion for disclosure
of confidential records. The trial judge never explicitly ruled on the motions but carried
them through the trial. The trial judge also ordered the State to tender the CPS files
generated in the case to the court under seal. After reviewing the records in camera, the
trial judge disclosed a copy of Lopez’s eight-page report to the defense and read two
additional pages into the record.
D. Lopez’s Interview with B.F.
Lopez briefly interviewed B.F., C.T.’s younger sister, on the same day as his
original interview with C.T. Lopez also made an audio recording of that interview. At trial,
the State called B.F. as a witness. During the State’s direct examination, B.F. denied that
she had ever told Lopez that appellant and C.T. were alone “many times” in her parents’
room with the door closed. The State offered into evidence a portion of the audio
recording of Lopez’s interview with B.F. that was inconsistent with this testimony. See
TEX. R. EVID. 613. The trial court judge admitted that portion of the statement into
evidence over appellant’s objections. At the end of the State’s examination, B.F. admitted
that her mother had told her what to say during her trial testimony.
E. C.T.’s Interview at Maggie’s House
The day after the initial interviews, Lopez took C.T. for a forensic interview at
5
Maggie’s House. Lopez described C.T.’s interview, which we discuss in detail below, as
containing more details, but consistent with C.T.’s prior statements. Following the
interview, Detective Manuel Cisneros decided to file charges against appellant.
F. C.T.’s Testimony
C.T. testified on direct examination that the first incident of abuse occurred when
she was eight years old and appellant touched the surface of her vagina with his fingers.
She remembered at least one other incident of appellant doing similar acts around the
same time period. C.T. testified that the abuse escalated in “stages.” On subsequent
occasions, appellant would “play with my nipples or my boobs. He’d suck on them or he’d
put his mouth to my vagina.” C.T. further testified that appellant also forced her to perform
oral sex on him more than ten times. She testified that appellant actually tried to insert
his penis into her vagina on two occasions, in contrast to the single incident that she
described to Natalie, Chesney, Officer Andrade, Lopez, and the interviewer at Maggie’s
House. C.T. explained that at the time of her initial outcry, her “nerves were running very
thin, and like, I was not thinking fully.”
C.T. mentioned during direct examination that she gave a statement to Lopez prior
to the interview at Maggie’s House. At the end of the State’s direct examination, appellant
objected and requested that the court disclose any statements C.T. gave to CPS. After
an in camera review of the sealed CPS files, the trial judge disclosed the existence of two
audio files of C.T.’s interview with Lopez to all parties. The trial judge denied appellant’s
motion for continuance but gave appellant’s counsel time to listen to the recordings before
proceeding with the trial.5 The State moved on redirect to introduce a portion of the video
5 The audio files run approximately twenty-five minutes in total.
6
recording of C.T.’s interview at Maggie’s House. The State argued that it was admissible
to counteract a false impression of C.T.’s tendency to lie that was left in the jurors’ minds
by counsel’s cross-examination. See TEX. R. EVID. 801(e)(1)(c). The trial court admitted
that portion of the video over appellant’s objections.
G. Verdict and Sentence
Following the close of evidence, the jury returned verdicts of guilty on all pending
counts. Appellant opted for the trial judge to assess his punishment. The trial judge
assessed concurrent sentences of fifty years’ imprisonment on Count I and twenty years’
imprisonment on each of the remaining counts. Appellant filed a motion for new trial, and
the trial court denied it by written order. Appellant timely filed a notice of appeal.
II. MOTIONS FOR CONTINUANCE
By his first issue, appellant argues that the trial court erred by denying his three
motions for continuance: first, immediately prior to Lopez’s testimony; second, at the
beginning of his counsel’s cross-examination of Lopez; and third, at the end of his cross-
examination of Lopez. We disagree.
A. Standard of Review and Applicable Law
We review the trial court’s ruling on a motion for continuance for abuse of
discretion. Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007). Requests for a
continuance after the trial has begun are expressly governed by the code of criminal
procedure, which provides:
A continuance or postponement may be granted on the motion of the State
or defendant after the trial has begun, when it is made to appear to the
satisfaction of the court that by some unexpected occurrence since the trial
began, which no reasonable diligence could have anticipated, the applicant
is so taken by surprise that a fair trial cannot be had.
7
TEX. CODE CRIM. PROC. ANN. art. 29.13 (West, Westlaw through 2013 3d C.S.). The
motion must be in writing and fully state sufficient cause for the continuance. Id. art. 29.03
(West, Westlaw through 2013 3d C.S.). The motion must also be sworn to “by a person
having personal knowledge of the facts relied on for the continuance.” Id. art. 29.08
(West, Westlaw through 2013 3d C.S.); see Williams v. State, 356 S.W.3d 508, 521 (Tex.
App.—Texarkana 2011, pet. ref'd). A motion for continuance that is not in writing and not
sworn preserves nothing for review. Dewberry v. State, 4 S.W.3d 735, 755 (Tex. Crim.
App. 1999).
B. Discussion
Appellant’s first and third motions were unwritten and unsworn and so did not
preserve error for our review. See id. Appellant’s second motion, although in writing and
sworn to by counsel, was insufficient to demonstrate that a continuance was warranted.
A motion for continuance must cite an unexpected occurrence that the applicant’s counsel
could not have anticipated by reasonable diligence and show that the “applicant is so
taken by surprise that a fair trial cannot be had.” TEX. CODE CRIM. PROC. ANN. art. 29.13.
Appellant’s motion cited the reason for the request, to review the CPS records, but did
not attempt to show that the existence of the audio recording could not have been
anticipated by reasonable diligence. The motion also does not explain why a fair trial
could not be had without the continuance. See id; Barney v. State, 698 S.W.2d 114, 127
(Tex. Crim. App. 1985) (en banc) (holding that, under article 29.13, “it must appear to the
satisfaction of the court that ‘a fair trial cannot be had’ before a continuance or
postponement is warranted”). Consequently, the trial court did not abuse its discretion in
denying the continuance. See Gallo, 239 S.W.3d at 764. We overrule appellant’s first
8
issue.
III. OBJECTION UNDER TEXAS RULE OF EVIDENCE 615
By his second issue, appellant argues that the trial court erred when it refused his
motion under Texas Rule of Evidence 615 to direct the State to produce a copy of Lopez’s
report to assist appellant’s counsel in cross-examination. We disagree.
A. Applicable Law and Standard of Review
The common-law Gaskin rule provided that, when a State’s witness made a report
or gave a statement prior to testifying, the defendant is entitled on timely request to
inspect the report or statement and to use it for purposes of cross-examination and
impeachment. Cullen v. State, 719 S.W.2d 195, 196 (Tex. Crim. App. 1986) (en banc)
(citing Gaskin v. State, 172 TEX. CRIM. 7, 353 S.W.2d 467 (1961)). This rule is now
codified in Texas Rule of Evidence 615, which provides:
After a witness other than the defendant has testified on direct examination,
the court, on motion of a party who did not call the witness, shall order the
attorney for the state or the defendant and defendant's attorney, as the case
may be, to produce, for the examination and use of the moving party, any
statement of the witness that is in their possession and that relates to the
subject matter concerning which the witness has testified.
TEX. R. EVID. 615. The rule defines a “statement” as “a written statement made by the
witness that is signed or otherwise adopted or approved by the witness.” Id. R. 615(f)(1).
If the defendant timely moves for production of material covered by Texas Rule of
Evidence 615, it is error for the trial court to deny production and access to it. Keith v.
State, 916 S.W.2d 602, 606 (Tex. App.—Amarillo 1996, no pet.).
Section 261.201 of the Texas Family Code provides that “reports,” among other
materials, “used or developed” in an investigation of a report of child abuse or neglect
made under chapter 261 are confidential and may not be released. TEX. FAM. CODE ANN.
9
§ 261.201(a). A court may order the release of information made confidential under
section 261.201 if the following conditions are met: (1) a motion is filed requesting the
release of the information; (2) notice of hearing has been served on the investigating
agency and all interested parties; and (3) the court determines after the hearing and an
in camera review of the requested information that disclosure of the requested information
is essential to the administration of justice and is not likely to threaten the life or safety of
(i) a child complainant, (ii) a person who made a report of alleged abuse, or (iii) any person
who participated in an investigation of abuse or neglect or who provided care for the child.
Id. § 261.201(b).
B. Discussion
Appellant asserts that the trial court erred by refusing to order production of
Lopez’s report at the beginning of his trial counsel’s cross-examination of Lopez as
expressly required by the rule. See TEX. R. EVID. 615. The State responds that the trial
court did not err by denying the motion because Lopez’s report was protected under
section 261.201 of the Texas Family Code, and appellant did not follow the proper
procedure for gaining access to information protected by that section. See id.; see also
TEX. FAM. CODE ANN. § 261.201. We agree with the State.
Appellant’s counsel moved for disclosure of the report under Texas Rule of
Evidence 615, but he did not mention Texas Family Code section 261.201 or attempt to
comply with the procedure for releasing information classified as confidential under that
section. Because appellant did not attempt to comply at that time with the procedures for
releasing it,6 we hold the trial court did not err in overruling appellant’s objection under
6 Appellant’s counsel later filed a Motion for Disclosure of Confidential Records seeking access to
the entire CPS casefile, which we discuss below. However, appellant does not mention that motion under
10
Texas Rule of Evidence 615. See TEX. R. EVID. 615. We overrule appellant’s second
issue.
IV. BRADY VIOLATIONS
Appellant asserts in his third issue that the State violated its duty to disclose
favorable and material information to appellant. See Brady v. Maryland, 373 U.S. 83, 87
(1963). We disagree.
A. Applicable Law
Under United States Supreme Court precedent beginning with Brady, the State is
required to disclose evidence known to it that is favorable or material to a defendant’s
guilt or punishment, whether or not the defendant requests it. Strickler v. Greene, 527
U.S. 263, 280 (1999). This duty encompasses both impeachment as well as exculpatory
evidence. Id. (citing United States v. Bagley, 473 U.S. 667, 676 (1985)). The good or
bad faith of the prosecution is irrelevant. Brady, 373 U.S. at 87.
A defendant must show the following requirements to establish a Brady violation:
(1) the State suppressed evidence; (2) the suppressed evidence is favorable to the
defendant; and (3) the suppressed evidence is material. Stickler, 527 U.S. at 281–82;
accord Harm v. State, 183 S.W.3d 403, 406 (Tex. Crim. App. 2006). “Favorable” evidence
for these purposes is any evidence that, if disclosed and used effectively, “may make the
difference between conviction and acquittal.” Harm, 183 S.W.3d at 406. Evidence is
“material” for Brady purposes “only if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have been
different.” Ex parte Reed, 271 S.W.3d 698, 727 (Tex. Crim. App. 2008) (internal
this issue.
11
quotations omitted). A reasonable probability is one that is sufficient to undermine
confidence in the outcome. Id.
The materiality prong incorporates a requirement that the defendant is prejudiced
by the State’s failure to disclose the evidence. Harm, 183 S.W.3d at 406. When
information is disclosed mid-trial, the prejudice inquiry involves determining whether the
disclosure came in time to make effective use of it at trial. Little v. State, 991 S.W.2d 864,
866 (Tex. Crim. App. 1999). “If the defendant received the material in time to use it
effectively at trial, his conviction should not be reversed just because it was not disclosed
as early as it might have and should have been.” Id.
B. Discussion
Appellant asserts that the State’s failure to disclose Lopez’s report and the Lopez
Recording meets the second prong of the test because “C.T. had given numerous
statements and her credibility was important at the early stage of the trial.” Appellant
reasons that Lopez’s report and the Lopez Recording show a “definite distinction”
between the content of C.T.’s original outcry statements and her statements during the
interview at Maggie’s House. Appellant argues that he should have had access to the
statements “to sufficiently develop cross-examination of C.T.”7
We first address the second prong, the requirement that the suppressed evidence
was favorable. See Harm, 183 S.W.3d at 406. Lopez’s report and the recordings of the
Lopez interview do reveal some inconsistencies between C.T.’s original statements to
7 Appellant also argues that the late disclosure of the audio recording of B.F.’s interview with Lopez
was Brady error. We hold that appellant has waived error, if any, by failing to request a continuance when
the State moved to introduce the recording. See Perez v. State, 414 S.W.3d 784, 790 (Tex. App.—Houston
[1st Dist.] 2013, no pet.) (holding that failure to request a continuance waives Brady error); Young v. State,
183 S.W.3d 699, 706 (Tex. App.—Tyler 2005, pet. ref'd) (same).
12
Natalie and Chesney, Office Andrade, Lopez, and her statement at Maggie’s House. For
example, on the Lopez Recording, C.T. describes an end date for the abuse closer to the
date of her outcry than the end date in her statement to the interviewer at Maggie’s House.
C.T. also told the Maggie’s House interviewer that appellant forced her to perform oral
sex on him more than five times, but did not give a specific number of times to Chesney
or Natalie. C.T. also told the Maggie’s House interviewer that appellant attempted to
vaginally penetrate her twice, while she told Lopez that it occurred only once. However,
the majority of C.T.’s statements on the Lopez Recording are consistent with C.T.’s other
statements; she consistently described the type of acts appellant would force her to
perform and the type of acts appellant would perform on her. C.T.’s statements are also
consistent as to the abuse escalating in stages from vaginal touching, to forcing C.T. to
perform oral sex and receiving oral sex from appellant, to one or more incidents where
appellant allegedly tried to penetrate her vaginally with his penis. Moreover, during the
Lopez Recording, C.T. explained some of the discrepancies: she told Officer Andrade
that appellant did not force her to perform oral sex because she did not know the meaning
of the term at the time of the interview. Appellant also asserts that C.T.’s description in
the Lopez Recording of the identifying features of appellant’s genital area “became an
issue relating to [C.T.’s] credibility,” but Lopez testified that the description of appellant’s
genital area given by C.T.’s mother was similar to C.T.’s statement. The Lopez Recording
and Lopez’s report, if anything, do more to demonstrate the consistency of C.T.’s
statements than to cast doubt on them.
Based on the foregoing, we conclude that the evidence was not favorable to
appellant. Even assuming, arguendo, that the second prong is met, we conclude that the
13
evidence is not material because there is not a reasonable probability that the result of
the trial would have been different if the evidence had been disclosed earlier. See Ex
parte Reed, 271 S.W.3d at 727. When Brady evidence is disclosed during the trial, we
inquire whether the defendant was able to effectively use the material despite the delay.
See Little, 991 S.W.2d at 866. Appellant argues that “it is unclear” how his counsel was
supposed to use Lopez’s report, given that it was only provided at the conclusion of
Lopez’s testimony. In fact, after the end of his cross-examination and before recessing
for the day, the judge asked for Lopez’s phone number and informed him that he was not
released from his subpoena and subject to recall the next day. The trial court expressly
afforded appellant’s counsel an opportunity to continue cross-examination of Lopez the
next day on the basis of the report. If appellant’s counsel wanted to use the report to
effectively cross-examine Lopez, he had the opportunity to do so. Appellant does not
explain why he did not take the opportunity to recall and cross-examine Lopez the next
morning, or why he needed to use the information earlier in the cross-examination for it
to be effective.
Appellant also argues that the audio recordings of C.T.’s interview with Lopez were
material. When denying appellant’s third request for a continuance, this time on the basis
of a need to review the recordings, the trial judge stated on the record that there was no
substantive detail in the Lopez Recording that was not included in Lopez’s report, which
had been disclosed earlier in the trial.8 After reviewing both pieces of evidence, we agree
with the trial judge. The substance of the report is the same as the substance of the
Lopez Recording. Moreover, despite the delayed disclosure, appellant’s counsel’s cross-
8 Two witnesses testified between the disclosure of the report and the beginning of the State’s
direct examination of C.T.
14
examination of C.T. fills over seventy pages of the reporter’s record and dwells almost
entirely on inconsistencies in C.T.’s multiple statements. Appellant does not explain how
a continuance would have enabled his counsel to more effectively use the recordings in
his cross-examination of C.T.
In sum, we conclude that appellant is unable to demonstrate that he was
prejudiced by the late disclosure of Lopez’s report and the Lopez Recording. Appellant
is thus unable to demonstrate the third prong of a Brady claim. See Little, 991 S.W.2d at
866. We overrule appellant’s third issue.
V. BRADY AND SECTION 261.201
By his fourth issue, appellant questions the relationship between the State’s duty
to disclose all favorable and material information under Brady and the confidentiality
requirements of Texas Family Code section 261.201. We understand appellant as
asserting two arguments under this issue. Appellant’s first argument is that:
The balancing test as to whether CPS documents should be turned over to
the Appellant should not have been placed on the trial court or this Court of
Appeals. The State of Texas should play from a point of strength and
provide every defendant with the information they intend to use to convict
them. The State hid behind the premise that CPS records are privileged
information.
Appellant’s second argument is that the trial court abused its discretion by not timely
disclosing the evidence that was the subject of his third issue.
We reject appellant’s argument that it was inappropriate for the trial court to
conduct the Texas Family Code section 261.201(b)(3) balancing test to determine
whether to disclose material that appellant viewed as Brady evidence. The conflict that
can arise between the State’s need to keep information related to child abuse
investigations confidential with a defendant’s need for a fair trial is well recognized. The
15
United States Supreme Court confronted the problem in Pennsylvania v. Ritchie, where
the Supreme Court of Pennsylvania held that the appropriate method of assessing a claim
that information made confidential by statute is material under Brady “was to grant [the
defendant] full access to the disputed information, regardless of the State’s interest in
confidentiality.” 480 U.S. 39, 59 (1987). The United States Supreme Court rejected that
conclusion, holding that the defendant’s interest in “ensuring a fair trial can be protected
fully by requiring that the [state child protection agency] files be submitted only to the trial
court for in camera review.” Id. at 60. Addressing a similar Texas statute, which made
information given to Crime Stoppers confidential, the Texas Court of Criminal Appeals
held that the defendant had the right to require the requested information be tendered to
the trial court for an in camera review, but rejected the argument that the defendant should
be accorded unlimited access to that information. Thomas v. State, 837 S.W.2d 106,
113–14 (Tex. Crim. App. 1992) (en banc). The Thomas Court held that “both the State's
interest and the defendant's interest can be served by providing that crime stoppers
information should be inspected by the trial court in camera.” Id. at 114.
Texas Family Code section 261.201 provides for exactly the type of procedure
approved in Ritchie and Thomas: an in camera inspection of the material by the trial
judge, and an ongoing duty to disclose any confidential material that is relevant or
becomes relevant during the course of the trial. See Ritchie, 480 U.S. at 60; see also
TEX. FAM. CODE ANN. § 261.201. Appellant’s request that this Court “instruct Judges, and
particularly in Appellant’s case, that the CPS Records were essential to the administration
of justice” runs directly contrary to the balance struck by both the United States Supreme
Court and the Texas Court of Criminal Appeals. Bound by that precedent, we reject
16
appellant’s argument. See Ritchie, 480 U.S. at 60; Thomas, 837 S.W.2d at 114.
Regarding appellant’s second argument, he asserts that “[t]he trial court abused
his discretion in failing to timely turn over the audio tapes and documents to the Appellant.
The Appellant was denied the effective assistance of counsel.” The Texas Rules of
Appellate Procedure require that an appellant’s brief “contain a clear and concise
argument for the contentions made, with appropriate citations to authorities and to the
record.” TEX. R. APP. P. 38.1(i). Appellant does not explain his argument further or cite
to any authorities except for the standard of review. We overrule appellant’s second
argument as inadequately briefed. See id. We overrule appellant’s fourth issue.
VI. IMPEACHMENT OF B.F.
Appellant argues in his fifth issue that the State did not lay the proper predicate
before impeaching B.F. with her prior inconsistent statement. We disagree.
A. Standard of Review & Applicable Law
We review a trial court’s decision to admit evidence for a clear abuse of discretion,
and we will not reverse as long as the judge’s decision lies within the zone of reasonable
disagreement. McCarty v. State, 257 S.W.3d 238, 239 (Tex. Crim. App. 2008). We view
the evidence in the light most favorable to the trial court’s decision to admit the statement.
Klein v. State, 273 S.W.3d 297, 304 (Tex. Crim. App. 2008).
Texas Rule of Evidence 613(a) governs the impeachment of witnesses with prior
inconsistent statements, and provides in pertinent part:
In examining a witness concerning a prior inconsistent statement made by
the witness, whether oral or written, and before further cross-examination
concerning, or extrinsic evidence of, such statement may be allowed, the
witness must be told the contents of such statement and the time and place
and the person to whom it was made, and must be afforded an opportunity
to explain or deny such statement.
17
TEX. R. EVID. 613(a); Harris v. State, 152 S.W.3d 786, 795 (Tex. App.—Houston [1st Dist.]
2004, pet. ref’d); Flores v. State, 48 S.W.3d 397, 404 (Tex. App.—Waco 2001, pet. ref’d).
The trial court should not admit the prior inconsistent statement unless the proper
predicate has been laid. Harris, 152 S.W.3d at 795 (citing Moore v. State, 652 S.W.2d
411, 413 (Tex. Crim. App. 1983) (en banc)).
B. Discussion
Appellant argues that the recording of Lopez’s interview with B.F. was improperly
admitted because the State did not give B.F. the chance to “either admit or deny the
testimony.” The following exchange occurred between the State and B.F. before the
State offered the audio recording into evidence:
[State]: That's okay. Was there ever any time that your dad and [C.T.]
were alone?
[B.F.]: No.
[State]: No? And it's okay if you don't but I want to try to refresh your
memory, remember, okay? Do you remember talking with
someone named Frank from Child Protective Services back
in October at the St. John's house?
[B.F.]: Yes.
[State]: Yes? And do you remember talking to him and he was asking
you questions?
[B.F.]: Yes.
[State]: And do you remember that he asked you if you had ever seen
your dad and [C.T.] alone. Do you remember that?
[B.F.]: Yes.
[State]: And do you remember that you told him that you had seen
them alone?
18
[B.F.]: I didn't say that.
[State]: You didn't say that? Do you remember that you told him that
you saw them alone a lot of times?
[B.F.]: No.
[State]: You didn't say that? Do you remember telling him that you
saw them alone in your dad's bedroom?
[B.F.]: No.
[State]: And that the door was closed?
[B.F.]: No.
[State]: Do you remember saying that you and your brother would be
watching television when that happened?
[B.F.]: No.
In the above exchange, the State informed B.F. of the substance of the
inconsistent statement, the time and place in which it was made, and gave her an
opportunity to admit or deny that she made the statement. See TEX. R. EVID. 613(a).
Once B.F. denied that she told Lopez during the interview on October 3, 2011 that
appellant and C.T. were frequently alone together, the State met all of the requirements
of Texas Rule of Evidence 613(a). See id. We overrule appellant’s fifth issue.
VII. LIMITING INSTRUCTION ON IMPEACHMENT EVIDENCE
Appellant argues by his sixth issue that the court erred by denying his request for
a limiting instruction on the audio recording of B.F.’s interview with Lopez. We disagree.
A. Applicable Law
Texas Rule of Evidence 105 provides in pertinent part:
When evidence which is admissible as to one party or for one purpose but
not admissible as to another party or for another purpose is admitted, the
court, upon request, shall restrict the evidence to its proper scope and
19
instruct the jury accordingly; but, in the absence of such request the court's
action in admitting such evidence without limitation shall not be a ground for
complaint on appeal.
TEX. R. EVID. 105(a). The party opposing the evidence must request a limiting instruction
when the trial court admits the evidence or else it is admitted “for all purposes.” Arrington
v. State, 451 S.W.3d 834, 842 (Tex. Crim. App. 2015); Hammock v. State, 46 S.W.3d
889, 894 (Tex. Crim. App. 2001). The reason for requiring a contemporaneous request
for a limiting instruction is that “[a]llowing the jury to consider evidence for all purposes
and then telling them to consider that same evidence for a limited purpose only is asking
a jury to do the impossible.” Hammock, 46 S.W.3d at 894.
B. Discussion
When the State offered the recording of B.F.’s interview with Lopez into evidence,
appellant objected on the basis of relevance, optional completeness, and improper
impeachment of a witness, but, like the defendant in Hammock, did not request a limiting
instruction until the charge conference. See id. at 895. Appellant asserts that his
objection on the basis of improper impeachment was sufficient to put the trial court on
notice that a limiting instruction should be given, but provides no support for this
proposition. Appellant, as the party opposing the evidence, had the burden to request a
limiting instruction at the time the trial court admitted the evidence. See Garcia v. State,
887 S.W.2d 862, 878 (Tex. Crim. App. 1994) (en banc), abrogated in part on other
grounds, Hammock, 46 S.W.3d at 893; accord Reeves v. State, 99 S.W.3d 657, 658 (Tex.
App.—Waco 2003, pet. ref'd); Arana v. State, 1 S.W.3d 824, 829 (Tex. App.—Houston
[14th Dist.] 1999, pet. ref'd). Because appellant did not request a limiting instruction at
the first opportunity, we hold that the court did not err in not giving the instruction. See
20
Arrington, 451 S.W.3d at 842; Hammock, 46 S.W.3d at 895. We overrule appellant’s
sixth issue.
VIII. ADMISSION OF VIDEO FROM MAGGIE’S HOUSE INTERVIEW
By his seventh issue, appellant argues the trial court erred in admitting the video
recording of C.T.’s interview at Maggie’s House because it did not meet the requirements
for admission of prior consistent statements of a witness. See TEX. R. EVID. 801(e)(1)(c).
We disagree.
A. Standard of Review and Applicable Law
We review a trial court’s decision to admit evidence for a clear abuse of discretion,
and we will not reverse as long as the judge’s decision lies within the zone of reasonable
disagreement. McCarty, 257 S.W.3d at 239. We view the evidence in the light most
favorable to the trial court’s decision. See Klein, 273 S.W.3d at 304.
A prior consistent statement of a witness is generally inadmissible except as
provided by Texas Rule of Evidence 801. TEX. R. EVID. 613(c). Under that rule, a prior
consistent statement of a witness is admissible if (1) the witness has testified and is
subject to cross-examination, and (2) the statement is “consistent with the declarant's
testimony and 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)(c). The trial
court has substantial discretion to admit a prior consistent statement even if there has
been “only a suggestion of conscious alteration or fabrication.” Hammons v. State, 239
S.W.3d 798, 804–05 (Tex. Crim. App. 2007) (internal quotation marks omitted). The rule
does not permit courts to admit evidence that would otherwise be hearsay whenever a
witness’s memory or credibility is challenged, but there is no bright-line rule to distinguish
21
between a general challenge to the witness’s memory or credibility and a suggestion of
conscious alteration or fabrication. Id. at 805. The trial court should determine if the
cross-examiner’s questions or the tenor of the questioning would “reasonably imply an
intent by the witness to fabricate.” Id. The implication may be subtle and may come
through the “tone, tenor, and demeanor” of the questioning or the cross-examiner. Id. at
808. Reviewing courts, “in assessing whether the cross-examination of a witness makes
an implied charge of recent fabrication or improper motive, should focus on the purpose
of the impeaching party, the surrounding circumstances, and the interpretation put on
them by the [trial] court.” Id. (brackets and emphasis in the original, internal quotation
marks omitted).
B. Discussion
Two exchanges occurred between appellant’s counsel and C.T. during cross-
examination. The first exchange referenced inconsistencies between C.T.’s previous
statements and those she made during her interview at Maggie’s House regarding the
circumstances surrounding the first incident of abuse:
[Defense]: You said you were eight years old?
[C.T.]: Yes, sir.
[Defense]: The first time it occurred, right?
[C.T.]: Yes, sir.
[Defense]: You also said it happened in Pittsburgh, Texas?
[C.T.]: Yes, sir.
[Defense]: Okay. You said you were in the third grade?
[C.T.]: Yes, sir.
22
[Defense]: Okay. It's also true that you said that you're alleging that you
were touched on your vagina with the fingers; is that right?
[C.T.]: Yes, sir.
[Defense]: So you are saying that this happened before your
grandmother [name omitted] was going to pick you up for a
performance; is that right?
[C.T.]: Yes, sir.
[Defense]: Okay. And after this occurred your grandmother picked you
up; is that right?
[C.T.]: Yes, sir.
[Defense]: [C.T.], isn't it true that you told the interviewer Monica Galvan
at Maggie's House that that was not the first time it occurred?
Didn't you give her a different account of the first time it
occurred?
[C.T.]: I corrected myself at the end of the interview.
[Defense]: You corrected yourself at the end of the interview?
[C.T.]: Yes, sir.
[Defense]: So that would be in that interview if you corrected yourself at
the end of that interview, it would be in that interview that the
state has; is that correct?
[C.T.]: Yes, sir.
[Defense]: Isn't it true that you told the interviewer at Maggie's House the
first time it happened was in fact when you did come home
sick one day from school?
[C.T.]: Yes, sir.
[Defense]: Okay. And you'd agree those are two different statements,
right? Two different recollections of the first time it occurred?
[C.T.]: Yes, sir. But I did correct myself at the end of that video
23
The second exchange referenced inconsistencies between C.T.’s testimony and
her statements at Maggie’s House regarding the time period in which the abuse ceased:
[Defense]: All right. You also talked that he would also touch your
breasts; is that right?
[C.T.]: Yes, sir.
[Defense]: What would he do when he would touch your breast[s]? What
happened then?
[C.T.]: He just moved them around or he’d grab his thumb around my
nipples or he’d suck on them.
[Defense]: When was the last time that occurred that he ever did that?
Do you remember?
[C.T.]: I don’t have an exact date. I don’t remember exactly when.
[Defense]: Did you ever give an estimation to anyone as to when that
may have stopped?
[C.T.]: No, sir.
[Defense]: You never told the interviewer at Monica’s House when it
stopped, at Maggie’s House?
[C.T.]: Not that I can remember.
[Defense]: You never told her that it stopped before July 4th?
[C.T.]: Not that I can remember.
As appellant reiterated multiple times on appeal, his trial counsel’s overriding
strategy was to highlight the inconsistencies in C.T.’s various statements to Chesney,
Natalie, Officer Andrade, Lopez, the Maggie’s House interviewer, and her testimony at
trial. Trial counsel’s cross-examination of C.T. dwelt almost entirely on various
inconsistencies in her statements. In the selections we quoted above, counsel identified
two inconsistencies between the Maggie’s House interview and other statements: C.T.’s
24
description of the first incident of abuse and the time period in which it ceased. The trial
court evidently interpreted the “tone, tenor, and demeanor” of the questioning as raising
a charge of fabrication by commenting that appellant “called the issue of consistency or
inconsistency into issue.” Thus, the purpose of the impeaching party, the surrounding
circumstances, and the trial court’s interpretation of the questioning all support the trial
court’s ruling. See Hammons, 239 S.W.3d at 808. Deferring to the trial court’s
“substantial discretion” to admit prior consistent statements after determining that the
witness’s credibility has been challenged, we conclude that the trial court did not err in
admitting the recording. See id. at 804–05
Appellant presents an additional argument under this issue: even if the State’s
theory is correct, the tape should not have been admitted into evidence because the State
did not segregate the admissible portions of the interview from those containing
inadmissible statements. Appellant objected on hearsay grounds, but he did not request
that the State segregate the inadmissible portions, if any, from what was admissible.
Appellant is correct in his argument that Texas Court of Criminal Appeals precedent is
that if admissible and inadmissible statements are not segregated the trial judge “may
properly exclude all of the statements,” but the Court held in the same case cited by
appellant that the “trial court need never sort through challenged evidence in order to
segregate the admissible from the excludable, nor is the trial court required to admit only
the former part or exclude only the latter part.” Willover v. State, 70 S.W.3d 841, 847
(Tex. Crim. App. 2002) (internal quotation marks omitted); accord Whitaker v. State, 286
S.W.3d 355, 369 (Tex. Crim. App. 2009); Reyna v. State, 168 S.W.3d 173, 178 (Tex.
Crim. App. 2005). Following Willover, we hold that the trial court did not abuse its
25
discretion in admitting the entire portion of the interview because appellant did not request
that the inadmissible and admissible portions of the recording be segregated or specify
which portions were inadmissible. See Whitaker, 286 S.W.3d at 369; Reyna, 168 S.W.3d
at 178; Willover, 70 S.W.3d at 847. We overrule appellant’s seventh issue.
IX. WITNESS COMMENTARY
By his eighth issue, appellant argues that the State elicited improper opinion
testimony from Chesney, Lopez, Detective Cisneros, Sonia Eddleman,9 and C.T.’s
biological father on the credibility of C.T.’s allegations. We disagree.
To preserve error for appellate review, the complaining party must make a timely,
specific request or objection and obtain an adverse ruling from the trial court. TEX. R.
APP. P. 33.1(a); Brewer v. State, 367 S.W.3d 251, 253 (Tex. Crim. App. 2012). Failure to
object to the admission of evidence waives any complaint on appeal. Reyes v. State, 84
S.W.3d 633, 638 (Tex. Crim. App. 2002). Our review of the record shows that appellant
did not object to any of the testimony he now references in his brief. Appellant has not
directed us to any place in the record where he objected. Accordingly, we conclude that
appellant has waived this issue. TEX. R. APP. P. 33.1(a); see Brewer, 367 S.W.3d at 253;
Reyes, 84 S.W.3d at 638. We overrule appellant’s eighth issue.
X. TESTIMONY OF JUSTICE OF THE PEACE DAVID GARZA
Appellant argues by his ninth issue that the trial court erred by refusing to present
Justice of the Peace David Garza as a witness. Appellant’s counsel requested on the
record that the court permit him to call Judge Garza because he wanted to solicit
testimony regarding why Judge Garza found a probable-cause affidavit submitted by
9 Sonia Eddleman, a trained Sexual Assault Nurse Examiner, did not personally examine C.T., but
testified to the contents of C.T.’s medical records after reviewing them.
26
Detective Cisneros to be insufficient to justify issuing a warrant. The trial judge stated
that he would not allow Judge Garza to be subject to subpoena “to testify as to his mental
process on granting or denying anything.” Appellant asserts that the court’s ruling
violated his right to compulsory process to obtain witnesses under the state and federal
constitutions. We disagree.
A. Standard of Review and Applicable Law
Criminal defendants have a right under the state and federal constitutions to
compulsory process to obtain witnesses. See U.S. CONST. amend. VI; TEX. CONST. art. I,
§ 10; see also Williams v. State, 273 S.W.3d 200, 232 (Tex. Crim. App. 2008). But that
right is not absolute. Tope v. State, 429 S.W.3d 75, 83 (Tex. App.—Houston [1st Dist.]
2014, no pet.). We review limitations on the right to compulsory process for an abuse of
discretion. Lawal v. State, 368 S.W.3d 876, 885 (Tex. App.—Houston [14th Dist.] 2012,
no pet.) (citing Drew v. State, 743 S.W.2d 207, 225 n. 11 (Tex. Crim. App. 1987) (en
banc)).
B. Discussion
As a general rule, judges may testify in proceedings over which they are not
presiding if they are competent to do so.10 Hensarling v. State, 829 S.W.2d 168, 171
(Tex. Crim. App. 1992) (en banc). However, courts have refused to issue subpoenas for
judges to testify about the mental processes by which they reached a decision “absent
extreme and extraordinary circumstances.” Gary W. v. State of La., Dept. of Health &
10 A judge may not testify in a proceeding over which the judge is presiding. TEX. R. EVID. 605;
Hensarling v. State, 829 S.W.2d 168, 171 (Tex. Crim. App. 1992) (en banc); State v. Stewart, 282 S.W.3d
729, 736 (Tex. App.—Austin 2009, no pet.). The Texas Supreme Court has held that that this rule applies
not only to judges but also to all persons performing judicial functions. Bradley v. State ex rel. White, 990
S.W.2d 245, 249 (Tex. 1999).
27
Human Res., 861 F.2d 1366, 1369 (5th Cir. 1988) (internal quotation marks omitted). The
Fifth Circuit has explained that permitting “such an examination of a judge would be
destructive of judicial responsibility” because:
While a judge enjoys no special privilege from being subpoenaed as a
witness, it is imperative when he is called to testify as to action taken in his
judicial capacity, to carefully scrutinize the grounds set forth for requiring his
testimony. Should a judge be vulnerable to subpoena as to the basis of
every action taken by him, the judiciary would be open to frivolous attacks
upon its dignity and integrity, and interruption of its ordinary and proper
functioning.
United States v. Anderson, 560 F.3d 275, 282 (5th Cir. 2009) (quoting Gary W., 861 F.2d
at 1369); see United States v. Morgan, 313 U.S. 409, 422 (1941) (suggesting that a judge
cannot be required to testify regarding his mental impressions of a case). The few Texas
courts to address cases where a non-presiding judge was called to testify have all
recognized the federal “mental processes” rule or have spoken of it with approval.
Thomas v. Walker, 860 S.W.2d 579, 582 (Tex. App.—Waco 1993, orig. proceeding)
(citing Morgan, 313 U.S. at 421); Tate v. State, 834 S.W.2d 566, 570 (Tex. App.—Houston
[1st Dist.] 1992, pet. ref'd). When confronted with an appeal challenging an order
quashing a subpoena of a visiting judge who presided over a portion of the defendant’s
case, the First Court of Appeals reasoned as follows:
Texas law has not established circumstances or conditions under which a
judicial official might properly be compelled to articulate his reasons for a
decision in a particular case, and we do not propose to state such a rule
here. However, we conclude that if such a rule were to be established, the
better rule would require, at the very least, a threshold showing of improper
conduct on the part of the judge that would justify compelling him to testify.
Tate, 834 S.W.2d at 570.
We find the Tate Court’s reasoning to be sound and apply it to the situation before
us. Texas law has not established under what circumstances or conditions a non-
28
presiding judge or judicial officer may be called to testify about their mental processes,
but if we were to establish such a rule, it would at least require a threshold showing of
improper conduct on the part of the judge. See id.; Walker, 860 S.W.2d at 582 (requiring
a threshold showing of improper conduct on the part of a judge to justify requiring the
judge to testify regarding his mental processes); see also Sims v. Fitzpatrick, 288 S.W.3d
93, 102 n.5 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (citing Tate and noting that
even if appellants had preserved their general complaint that the assigned judges erred
in quashing subpoenas issued to the trial judge, they still would have to show the
existence of extraordinary circumstances). In this case, appellant has made no showing
of improper conduct on the part of Judge Garza or shown any other extraordinary
circumstance that would justify requiring him to testify. Applying the reasoning of Tate,
we hold that the trial court did not abuse its discretion in refusing to permit appellant to
call Judge Garza as a witness. See Tate, 834 S.W.2d at 570. We overrule appellant’s
ninth issue.
XI. OBJECTIONS UNDER TEXAS RULES OF EVIDENCE 402/403/404
Appellant argues in his tenth, eleventh, and twelfth issues that the trial court
committed reversible error by overruling his objections under Texas Rules of Evidence
402, 403, and 404 to Natalie’s testimony that she warned Chesney not to be in the pool
with appellant because he “acted like a teenage boy and not like a dad in the pool with
the girls.”
A. Standard of Review and Applicable Law
We review a trial court’s decision to admit evidence for a clear abuse of discretion,
not reversing so long as the judge’s decision lies within the zone of reasonable
29
disagreement. McCarty, 257 S.W.3d at 239. We will uphold the ruling if it is correct on
any applicable theory of law even if the trial court relied on an incorrect reason for
reaching its decision. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
B. Discussion
The following exchange occurred during the State’s redirect examination of
Natalie:
[State]: And defense counsel was talking with you about how the
defendant would come over to your house. You said that he
would spend time outside, and you also said that occasionally
when he did [come] into your house you were there, correct?
And defense counsel [sic] said that stated you must be okay
with him being around your children. Is that a correct
statement?
[Natalie]: I'm really careful about who’s around my kids. Like did I have
them babysit or babysit my children, to [?]
[State]: Would you leave your kids alone with him?
[Natalie]: No.
[State]: Did they ever stay alone with him?
[Natalie]: No.
[State]: Did you ever warn your children?
[Natalie]: Yes. I told my daughter to—
[Defense]: Objection, Your Honor, relevance.
[State]: Your Honor, Defense counsel made it clear—
[Trial Judge]: I’m going to overrule that objection.
[State]: You can answer.
[Natalie]: I just told my daughter not to be alone with [Appellant] and
especially, well, I told her never to be in the swimming pool
with him.
30
Appellant’s counsel requested to approach the bench. After a bench conference
off the record, the trial judge held a hearing outside of the presence of the jury to consider
appellant’s renewed objections.11 At the hearing, Natalie testified that her full answer to
the State’s question would have been that she “had seen inappropriate behavior between
him and other girls, and between him and my daughter. Just like you would see from a
teen-age boy trying to accidentally cop a feel only he’s a dad.” The trial judge overruled
appellant’s objections but stated that he would allow the State “to go into it very briefly,
but only very briefly.” The trial judge also instructed that Natalie should not state that
appellant would try to “cop a feel.” The State responded that it would “not go beyond
what has already been said.” Natalie testified in the presence of the jury that she did not
want Chesney to be in the pool with appellant because he “acted like a teen-age boy and
not like a dad in the pool with the girls.” Natalie further testified that she thought this was
“very inappropriate behavior.”
Appellant argues that the court’s ruling was error, but we conclude that the error,
if any, was harmless. We review the erroneous admission of evidence concerning
extraneous offenses or bad acts for harm under Texas Rule of Appellate Procedure
44.2(b). Casey v. State, 215 S.W.3d 870, 885 (Tex. Crim. App. 2007); see TEX. R. APP.
P. 44.2(b). Under this standard, we must disregard the error if, after examining the record
as a whole, we have come to a “fair assurance” that the error did not affect appellant’s
11Texas Rule of Appellate Procedure 33.1 requires a timely and specific objection to appear in the
record. See Tucker v. State, 990 S.W.2d 261, 262 (Tex. Crim. App. 1999) (en banc) (citing TEX. R. APP. P.
33.1). Appellant did not renew his objections on the record. However, during the hearing, after Natalie
answered the judge’s question regarding what her testimony would have been had appellant’s counsel not
asked to approach, counsel responded: “Judge, that’s totally [inadmissible] under [Texas Rules of
Evidence] 402, 403, and 404.” We will treat appellant’s counsel’s statement as a further renewal of his
objections that is sufficient to preserve error. See TEX. R. APP. P. 33.1.
31
substantial rights, see TEX. R. APP. P. 44.2, because it did not influence the jury’s verdict
or had but a slight effect. Casey, 215 S.W.3d at 855. In assessing the likelihood that the
jury’s decision was adversely affected by the error, we pay particular attention to factors
such as the testimony or physical evidence admitted for the jury’s consideration, the
nature of the evidence supporting the verdict, the character of the alleged error, and how
it may be considered in connection with other evidence in the case. Haley v. State, 173
S.W.3d 510, 518 (Tex. Crim. App. 2005). We may also consider the jury instructions, the
State’s theories, any defensive theories, closing arguments, voir dire, and the State’s
emphasis on the error. Id. at 518–19.
After examining the record of the trial as a whole, we conclude that the error, if
any, in admitting this part of Natalie’s testimony did not have a substantial and injurious
effect or influence in determining the jury’s verdict. First, the jury heard substantial
testimony from Chesney, Natalie, and C.T. regarding appellant’s actions. Second, neither
the State nor appellant emphasized this portion of Natalie’s testimony. Third, the alleged
error did not affect appellant’s defensive theory, which was to call into question the
truthfulness of C.T.’s statements as a whole. Given the miniscule part that Natalie’s
testimony played in the State’s case and the State’s lack of emphasis on it, the jury likely
gave it little weight in comparison to the other evidence before it. See id. at 518. Based
on the whole record of the trial, if there was an error in admitting this portion of Natalie’s
testimony, it did not have a substantial or injurious effect or influence in determining the
jury’s verdict. See Casey, 215 S.W.3d at 855. We overrule appellant’s tenth, eleventh,
and twelfth issues.
32
XII. COMMENTS OF THE TRIAL JUDGE AND PROSECUTOR
By his thirteenth and fourteenth issues, appellant argues that the trial judge and
the State committed fundamental error by making improper comments during voir dire.
To preserve a complaint of improper voir dire for appellate review, a party must make a
timely and specific objection and receive an adverse ruling from the trial court. Archie v.
State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007); TEX. R. APP. P. 33.1. Here, because
appellant did not object, he has waived his complaint on appeal except for fundamental
error. See Archie, 221 S.W.3d at 699; McLean v. State, 312 S.W.3d 912, 915 (Tex.
App.—Houston [1st Dist.] 2010, no pet.).
A. Standard for Fundamental Error
The applicable test for determining whether an error during voir dire is
fundamental, and therefore may be raised for the first time on appeal, is whether the error
involves a violation of a right that is “waivable only” or a denial of an absolute, systemic
requirement. Aldrich v. State, 104 S.W.3d 890, 895 (Tex. Crim. App. 2003). This Court
has held in the past that the right to an impartial judge is an absolute, systemic
requirement that may be raised for the first time on appeal if the judge’s comments are
“so egregious as to deem the judge biased.” Hernandez v. State, 268 S.W.3d 176, 185–
86 (Tex. App.—Corpus Christi 2008, no pet.).
B. Discussion
Appellant argues here that the trial judge commented on the evidence and shifted
the burden of proof by saying in reference to the State’s burden that: “[i]t's not a problem.
You wouldn't be here if they didn't think they could prove it . . . .” However, we evaluate
a judge’s comments in the context of the record as a whole. See Lopez v. State, 415
33
S.W.3d 495, 498 (Tex. App.—San Antonio 2013, no pet.). The trial judge’s full remarks
are as follows:
[The prosecutors] have the burden of proving the guilt and that burden never
switches. It's a burden that they welcome. It's not a problem. You wouldn't
be here if they didn't think they could prove it, however, whether they prove
it or not is something that you must be satisfied beyond a reasonable doubt.
Read in context, the trial judge’s remarks did not shift the burden of proof away
from the State. The trial judge specifically reiterated that the State bears the burden of
proof and that the jury is the sole judge of whether the State succeeded in proving its
case beyond a reasonable doubt. We hold that appellant has not demonstrated
fundamental error because he has not shown that the judge’s comments were so
egregious as to deem him biased. See Hernandez, 268 S.W.3d at 185–86.
With regard to the prosecutor’s comments, appellant has not directed us to any
authority that improper arguments or comments during voir dire by a party, as opposed
to the trial judge, rise to the level of fundamental error. However, by arguing the State
shifted the burden of proof, appellant’s argument could be interpreted as going to the
absolute, systemic requirement that a person may only be found guilty of an offense if a
rational trier of fact finds sufficient evidence to prove all of the elements of the offense
beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 362–64 (1970). Assuming,
without deciding, that arguments by the State during voir dire shifting the burden of proof
may rise to the level of fundamental error, we will address appellant’s claims that the
State’s comments shifted the burden of proof to appellant in the interests of justice.12
12 The Amarillo Court adopted this approach when faced with a similar claim. See Huff v. State,
No. 07-10-00174-CR, 2010 WL 4828491, at *3 (Tex. App.—Amarillo Nov. 29, 2010, no pet.) (mem. op., not
designated for publication).
34
Appellant cites the following portions of the State’s voir dire in support of his
argument that the State shifted the burden of proof to appellant:
Without you our system would fall apart. The bottom line is we can have a
case and it can have law enforcement that goes out to the scene, there can
be child protective services involved, we can have forensic interviewers, we
can have medical examiners, we can have prosecutors, we can have
investigators, but it wouldn't be anything without you because at the end of
the day we can bring the case to you that we believe we can prove beyond
a reasonable doubt but if you guys don't go there with us, if you don't sit and
listen to it, we've all done it in vain.
Shortly afterwards, during voir dire, the prosecutor stated:
Sexual abuse of children is a very conflicting topic. It's polarizing. People
don't want to hear about it. Raise your card if you know right now you don't
want to hear about it. So almost everybody. Raise them high. Keep them
up please, 2, 3, 4, 5, 8, 9, 15, 16, 17, 18, 19 and it goes on and on and on.
The truth is I don't blame you. When I started as a prosecutor, I didn't want
to hear about it either. But the truth is if everybody had a strong reaction to
child abuse didn't sit on jury panels, if that was a reason for you to be
excused from jury duty today, then either we wouldn't be able to have these
trials because there wouldn't be anybody to hear them or the people, worse,
the people that heard them would be people who didn't get emotional about
child abuse and what a tragedy that would be.
In the first quoted portion of voir dire, the State emphasized that the role of the jury
is important and that the State believed that it could carry its burden of proving its case
beyond a reasonable doubt. Before voir dire began, the trial judge emphasized that the
burden of proof rests with the State to prove all elements of the charged offenses beyond
a reasonable doubt, and the jury charge reflected that fundamental requirement. In the
second quoted portion, read in context, the prosecutor merely mentions how
uncomfortable many people feel at the thought of sexual abuse of children and asks the
members of the venire to refrain from seeking not to serve because they might feel
uncomfortable hearing the evidence in this case. We find nothing in either argument that
shifts the burden of proof to the defense or asks jurors to convict on the basis of the jurors’
35
emotional repugnance for child abuse rather than the evidence presented in the State’s
case. We hold that State’s comments do not rise to the level of fundamental error. See
Aldirch, 104 S.W.3d at 895. We overrule appellant’s thirteenth and fourteenth issues.
XIII. CUMULATIVE ERROR
By his fifteenth issue, appellant argues that the cumulative effect of all of the errors
raised in his other issues requires reversal. The Texas Court of Criminal Appeals has
observed that “[i]t is conceivable that a number of errors may be found harmful in their
cumulative effect,” but there is no authority that “non-errors may in their cumulative effect
cause error.” Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999) (en
banc). Because we have found no error in all but one of appellant’s issues and here
concluded that that error, if any, was harmless, there is no cumulative error requiring
reversal. See id.; Gallegos v. State, 340 S.W.3d 797, 805 (Tex. App.—San Antonio 2011,
no pet.) (holding that there was no cumulative error requiring reversal when the court of
appeals overruled all but one of the appellant’s other issues). We overrule appellant’s
fifteenth issue.
XIV. CONCLUSION
We affirm the judgment of the trial court.
NORA L. LONGORIA
Justice
Publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
23rd day of April, 2015.
36
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06/25/2015 The petition for discretionary review does not contain a certification of compliance
with T.R.A.P. 9.4(i)(3). The petition for discretionary review does not contain the
Other 04:22:57
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Documents
Lead Document PDR.pdf [Original]
eService Details
Date/Time
Name/Email Firm Service Type Status Served
Opened
Cameron County
Jennifer Avendano 06/23/2015
jennifer.avendano@co.cameron.tx.us District EServe Sent Yes 02:28:05 PM
Attorney's Office
Cameron County
Jennifer M. Avendano 06/23/2015
jennifer.avendano@co.cameron.tx.us District EServe Sent Yes 02:27:27 PM
Attorney's Office
Jennifer Avendano Cameron County 06/23/2015
EServe Sent Yes
Jennifer.Avendano@co.cameron.tx.us District Attorney 02:26:54 PM
State
Lisa McMinn
Prosecuting EServe Sent Yes Not Opened
information@spa.texas.gov
Attorney
State
Lisa C. McMinn
Prosecuting EServe Sent Yes Not Opened
lisa.mcminn@spa.texas.gov
Attorney's Office
Office of the
Lisa C. McMinn State EServe Sent Yes Not Opened
information@spa.texas.gov Prosecuting
Attorney
State
Lisa C. McMinn 06/23/2015
Prosecuting EServe Sent Yes
information@spa.texas.gov 02:30:19 PM
Attorney
State
Lisa McMinn
Prosecuting EServe Sent Yes Not Opened
Lisa.McMinn@spa.texas.gov
Attorney
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