Eliazar Rodriguez Leal, Sr. v. State ( 1998 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-96-00566-CR



Eliazar Rodriguez Leal, Sr., Appellant

v.

The State of Texas, Appellee



FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT NO. 95-317-K368, HONORABLE BURT CARNES, JUDGE PRESIDING

Appellant Eliazar Rodriguez Leal was convicted of aggravated sexual assault of a child, and his punishment was assessed by the jury at confinement for life in the Institutional Division of the Texas Department of Criminal Justice. See Tex. Penal Code Ann. § 22.021 (a)(1)(A)(ii), (iii), (a)(2)(B) (West Supp. 1998). In three issues, he contends that the trial court erred: (1) by denying appellant's requested jury instruction concerning conditions of probation in addition to those specified by statute; (2) by giving the jury the statutorily required instruction on parole and good time; (3) by admitting hearsay testimony of a police investigator concerning the victim's statements. We will affirm the conviction.

We will address appellant's third issue first. Appellant contends that the trial court erred in admitting testimony of a police investigator about what the victim told her because it was hearsay and not within any exception provided by the rules of evidence or statute. The State contends that the evidence was admissible on several different grounds. This issue requires a development of the facts of the case.

Background

Appellant abandoned his eight-months pregnant wife and their three handicapped children to go live with another woman. He left on April 27, 1995, and in parting, told his wife that if she ever found out what he had done that she would never forgive him. He also said it would be better for the kids if he left. Shortly after this, on May 3, their oldest child, a four-year-old girl, told her mother that appellant had "hurt me real bad." The mother testified that the child said "He put his private in my mouth" and "he rubbed his wee-wee on my bootie." ⁽¹⁾ The mother already had an appointment with the child's doctor for the next day. At the doctor's office, she asked the doctor to examine the child in relation to the claimed sexual assault. The doctor found no physical evidence of a sexual assault. The doctor reported the possible child abuse and the child's charges were investigated by the police and Child Protective Service workers over the next several days. It was established that the offense had been committed sometime during the month of April 1995 just before appellant left home. The complaining witness's handicaps included what her mother described as a "severe speech impairment." The mother testified that at the time of the offense, over a year prior to the trial, she had to translate about 98 percent of the time for her daughter and that this was the situation during the visit with the doctor. The victim testified at trial and could be understood by those in the courtroom. On cross-examination, the victim was unable to state the names she used for the front part of the male doll and the front part and back part on the female doll, although she had used the words on direct testimony.

During the investigation, appellant responded to a police invitation to come to the station to discuss the charges, and in that interview he made an oral statement that he had rubbed his penis on his daughter's vagina, but denied putting it in her mouth. He made a written statement that "I have admitted to the officer that I did touch my daughter in a sexual manner." In the interview, he was told that his daughter had described his ejaculation and was asked how she could have seen that. He told Officer Dan LeMay that he had not ejaculated on her, but that after rubbing his penis on his daughter, he had gone into the bathroom and masturbated and that his daughter may have followed him, and that might have been how she saw his ejaculate. Appellant did not testify at the trial, but Officer LeMay testified about the written and oral admissions he made.

The child testified that appellant had put his private part in her mouth and in her "bootie." She demonstrated with anatomically correct dolls what her father had done to her. She testified that her father had touched her vaginal part with his penis. She said that it hurt and she had asked him to stop but he would not. She testified that some "juice" came out of his private part.

The mother testified as the outcry witness as the first adult to whom the victim described the offense. See Tex. Code Crim. Proc. Ann. art. 38.072 (West Supp. 1998). The record shows that the mother was a hostile, uncooperative, and unpredictable witness. Shortly before trial she had told the prosecutor that she refused to testify and would not bring the victim to court or allow her to testify. At trial, she testified that the only reason that she was there was that she had been subpoenaed and she understood that the judge would throw her in jail if she did not appear. She testified that she had tried to commit suicide. At the trial, but outside the presence of the jury, the prosecutor had to keep asking her if she was listening, whether she could hear him, and urged her to please act like an adult. The trial court advised her to try to pull herself together and told her that there was no way for her to avoid testifying.

The mother's testimony varied from vague to overly detailed on irrelevant matters. She tended to wander from the questions asked. She was uncertain of the identity of the female police officer who had interviewed her and her daughter. In trying to fix the date of the offense, she thought it was after her fourteenth wedding anniversary and before appellant left on April 27, 1995, but was not sure whether her anniversary was on April 6 or 7. She was not aware that April 15 was a significant date for federal taxes, so she could not remember the events in relation to that date. She initially said that she did not know anything about the victim alleging that appellant had rubbed his penis on the victim's "bootie" until the prosecutor told her about that. When the prosecutor refreshed her memory with a written statement she had made on May 12, 1995, which included reports of both charges that appellant had put his penis in her daughter's mouth and on her "bootie," the mother agreed that she had written that in the statement. She testified that her memory of the time she wrote her statement was "kind of blurry." On cross-examination, the defense attorney asked whether the mother was "on any antidepressants or mood-altering drugs at this time?" She testified that she was on Paxil, Depacon, Drillaco, and Zoloft. She also admitted that when she had talked to the defense attorney and investigator only a few days before trial and they asked her to state the exact words that her daughter had used to describe what had happened, she had not told them the same thing that she was testifying to in court.

Appellant called the victim's doctor as the only defense witness. The doctor testified that the mother had brought the little girl in and that the mother had done all of the talking. He said that he did not speak directly to the child, but got all of his information from the mother. He did an examination for any sign of trauma that might be associated with sexual abuse and found none. He had laboratory tests conducted for sexually transmitted disease and they were all negative.

After the doctor testified and the defense rested, the State called Mary Ryle, a lieutenant in the Criminal Investigations Division of the Round Rock Police Department. She had interviewed the victim at home on May 11, 1995, a week after the victim's visit to the doctor's office. When the prosecutor asked Officer Ryle about talking to the victim, appellant objected on the ground that anything the victim had told her would be hearsay, and that she was not the proper outcry witness under the statute. See Tex. Code Crim. Proc. Ann. art. 38.072 (West Supp. 1998). The objection was overruled. Shortly thereafter, appellant objected again, the objection was overruled and the trial court granted appellant's request for a running objection to anything the witness would relate that the little girl said, and overruled the running objection.

Officer Ryle testified that she spoke to the victim's mother a little bit, and then talked with the victim alone in her bedroom. Officer Ryle asked her where the sexual abuse had happened, and the girl took her into the other bedroom where there was a baby bed and a single bed and pointed to the single bed. When asked what had happened, the girl said that her daddy had put his private on her "bootie." She also demonstrated this with the anatomically correct dolls. When asked if there was anything else, she put her finger in her mouth and then took the penis of the male doll and pointed to that. When asked, "He put it in your mouth?" she said "yes." When asked whether anything came out of it, she said "potty." When asked when he put it in her mouth did something come out, she said, "juice." When asked what color, she said "yellow." When asked what happened, she said, "Daddy got a washrag and wiped it off." The victim used the dolls to demonstrate that she was dressed at the time, that her daddy had pulled her panties down around her ankles, turned her around with her buttocks exposed and laid on top of her from the back. When looking at the male doll, the little girl looked at the testicles and volunteered, "These are balls." Then she looked around it and said, "This is hair." When asked whether she had seen that on anyone before, she said "yeah," and when asked who, she said "Daddy."

Officer Ryle was asked whether she had any difficulty understanding the little girl.

The officer said that she was difficult to understand at that time, and that she had to ask her to repeat answers several times. It took the officer some time before she could figure out what the girl was saying about where her mother was when the incident happened, but finally understood that it happened when her mother went to the store to get milk or get a bottle for the baby.

Hearsay

Appellant contends that Officer Ryle's statement reporting what the child told her about the offense was hearsay. The record does not reflect the reason for the court's admission of this evidence. However, it is a well-settled rule that a trial court's decision will be sustained on any theory of law applicable to the case, especially with regard to the admission of evidence. McDuff v. State, 939 S.W.2d 607, 619 (Tex. Crim. App.), cert. denied, 118 S. Ct. 125 (1997) (citing Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990)).

The State contends that the evidence was admissible on several different grounds. First, the State argues that the officer's testimony was admissible as a prior consistent statement and was offered to counter appellant's contention that the mother and others fabricated the charge and coached the child to make the accusation. See Tex. R. Evid. 801(e)(1)(B). This rule provides that a statement is not hearsay if the declarant testifies and is subject to cross-examination, the statement is consistent with the testimony, and it is offered to rebut the charge of recent fabrication, improper influence, or improper motive in testifying. In addition, a statement offered as a prior consistent statement must have been made before the charged fabrication, improper influence or motive arose. Haughton v. State, 805 S.W.2d 405, 407-08 (Tex. Crim. App. 1990); Campbell v. State, 718 S.W.2d 712, 714-17 (Tex. Crim. App. 1986); Fleming v. State, 819 S.W.2d 237, 246-47 (Tex. App.--Austin 1991, pet. ref'd). See Tome v. United States, 513 U.S.___, 115 S. Ct. 696 (1995) (interpreting federal rule as not applicable to statements made after charged fabrication arose).

The State argues that the testimony was in rebuttal of appellant's defense which charged that the complaining witness's testimony had been fabricated by the mother and was the result of improper influence by the mother, the police, the little girl's therapist, and the prosecutor. The complaining witness testified at trial and was cross-examined by appellant's counsel. Appellant did not request that she be recalled after Officer Ryle's rebuttal testimony nor was there an objection that she was unavailable. The child and her mother were not released as witnesses after they testified, and both testified at the punishment hearing. We assume the availability requirement was met. The statement of Officer Ryle was generally consistent with the child's testimony at trial, and was fully consistent on the material parts. The only inconsistencies were that the child did not remember telling Officer Ryle that appellant wiped off his ejaculate with a washrag, and the number of times that the abuse had occurred. At trial, the victim testified that it happened once, while the officer said the girl told her it happened three times. These minor discrepancies do not make the statement as a whole inconsistent for application of this rule. The requisites for applying the rule exist, unless the requirement that the statement be made prior to the time the motive for fabrication arose excludes the statement.

As a general rule the State is entitled to present on rebuttal any evidence that tends to refute the defensive theory and evidence introduced to support that theory. Flannery v. State, 676 S.W.2d 369, 370 (Tex. Crim. App. 1984); Laws v. State, 549 S.W.2d 738, 741 (Tex. Crim. App. 1977). The defensive theory in the instant case was that the charges against appellant were fabricated by his wife when he left her. In questioning witnesses on cross-examination during the State's case-in-chief and in appellant's closing statement, the defense was made both expressly and by clear implication that the child's testimony had been fabricated by the mother. In closing argument, appellant's counsel imagined the mother reacted to being left for another woman by saying to herself, "I am going to say that this child was molested." Defense counsel then outlined all the possible coaching that could have occurred. The only witness called for appellant was the doctor. The purpose of having him testify was to show that the mother had done all of the talking when she brought the child in and told the doctor what the child said that her father had done, and that the child did not speak clearly enough to be understood. This supported appellant's defensive theory of fabrication. The mother's testimony about having to interpret nearly everything her daughter said at the time the offense occurred also tended to impeach the child's testimony and to support appellant's defense.

Appellant attacked the credibility of the complaining witness by implication with questions on cross-examination of the child about how often she had talked to the prosecutor and whether the prosecutor had coached her to testify as she did. At closing argument, that charge was expressly made. The prosecutor had spoken to the child only once and that was shortly before trial. Appellant raised the issue of whether the prosecutor had improperly influenced the child in her testimony when he spoke to her. In addition, appellant raised the same issue as to the child's therapist. There was little detail about the child's therapy in the record, but there is no indication that it began before the time Officer Ryle interviewed the child.

The child's statement to Officer Ryle preceded the time when the prosecutor or the therapist had the opportunity to coach the child and influence her testimony. In a case where the defense raised the issue of improper influence by implying that police investigators and the prosecutor had invented testimony of a witness to obtain a conviction, the State was allowed to introduce a prior consistent statement of that witness made before meeting with anyone from the prosecutor's office. In that case, the defense claimed that the witness had been arrested and knew he was subject to a charge of capital murder and thus had a motive to fabricate his testimony at that time. The court looked at the time the alleged improper motive of collusion with the prosecutor arose, and held that even though the prior statement was made after arrest, it was not error to admit it. See Alvarado v. State, 816 S.W.2d 792 (Tex. App.--Corpus Christi 1991), modified (on other grounds) and aff'd, 840 S.W.2d 442 (Tex. Crim. App. 1992). It is not necessary that the prior statement be made before any possible motive to fabricate arose. "[I]n order to satisfy Rule 801(e)(1)(B) it is not necessary that a prior consistent statement have been made before all motives to fabricate arose. The rule requires merely that the witness' prior consistent statement be offered 'to rebut an express or implied charge against him of recent fabrication or improper influence or motive.'" Dowthitt v. State, 931 S.W.2d 244, 263-64 (Tex. Crim. App. 1996). The State's rebuttal evidence was Officer Ryle's testimony which showed that the child's statement shortly after the event was the same as it was at trial, and therefore the inference could be drawn that the prosecutor and therapist had not improperly influenced her testimony. The trial court could have determined that this rebuttal evidence was admissible under Rule 801(e)(1)(B).

Rebuttal Testimony Not Offered for Truth

The State also contends that the testimony of Officer Ryle was properly admitted as rebuttal to counter appellant's attack on both the mother and the child. The State contends that the testimony was properly admitted because it was not hearsay, since it was offered not for the truth of the matter, but to show that the child could communicate well enough to tell another person what had happened to her, and that her mother was not the only person who could understand her about the time of the offense and outcry. The appellant's theory of fabrication has been set out at length above. A part of appellant's defensive theory presented at trial was that the complaining witness could not speak clearly because of her speech impediment and that her mother interpreted for her most of the time. The crucial part of the theory was that in the case of the report to the doctor, the mother made the whole story up herself and no one could dispute the charge because no one else could understand the child.

The doctor's testimony as a defense witness that the mother was the only one who told him about the charged offense and that he had found no physical evidence of sexual abuse seriously impeached the testimony of both the mother and the child. The defensive theory, by necessary implication, included the idea that the child was not a sufficiently competent witness to accurately observe and relate events at and about the time of the offense. Although the State's purpose in offering the testimony and the trial court's reasons for admitting it do not appear in the record, it is a reasonable deduction that the State was desperate to shore up the testimony of the mother, which had been impeached by the defense, the prosecution and the mother herself. Officer Ryle's testimony regarding the statements of the victim were offered at least in part to show that the child could be understood despite her speech impediment. This was an important part of the State's case and was an important fact, completely apart from the truth of the child's statements. Even though Officer Ryle found it somewhat difficult to understand the child, with some patience on the officer's part, the child was able to communicate through both oral statements and demonstrations with the anatomically correct dolls. The child spoke to Officer Ryle outside the mother's presence and this eliminated or reduced the possibility of misinterpretation or fabrication by the mother. We believe that the trial court could have reasonably concluded that the testimony was offered not for the truth of the matter but to rebut the clear implication of the doctor's testimony that it was the mother and not the child who made the accusation. The testimony did this by showing the child's competence and ability to communicate for herself around the time the offense occurred. An extrajudicial statement offered for the purpose of showing what was said rather than for the truth of the matter stated therein does not constitute hearsay. Dinkins v. State, 894 S.W.2d 330, 347 (Tex. Crim. App. 1995); Cormier v. State, 955 S.W.2d 161, 162 (Tex. App.--Austin 1997, no pet.).

There is an analogous case in which an eighty-year-old victim of a robbery at night was impeached by the defense. The defense showed by cross-examination that he had poor eyesight, had cataracts, did not have a practice of wearing his prescription glasses, and had poor night vision. The defense also showed that the witness could not recall how many photo spreads he had seen or when he had seen them. The State called a police officer in rebuttal. The policeman testified that he had shown two photo spreads to the victim who, upon seeing the second one, immediately identified the defendant and exclaimed "that's him, that's him!" The court said that the officer's testimony was not hearsay because it came within Tex. R. Evid. 801 (e)(1)(C) (matters of identification) and "properly rehabilitated the complainant's testimony after his powers of observation were impeached by the defense." Jones v. State, 833 S.W.2d 634, 635 (Tex. App.--Houston [14th Dist.] 1992, pet. ref'd ). Although the instant case does not come within the same rule, Officer Ryle's testimony about the complaining witness's statements to her were similarly rehabilitative as to the witness's ability to observe and communicate.

In light of the above, we believe the trial court could have properly admitted the challenged testimony either as a prior consistent statement to rebut the charges of fabrication and improper coaching by the prosecutor and therapist, or could have determined that the testimony was most significant as proof of the child's ability to communicate with adults other than her mother at about the time of the offense, without regard to the truth of the statement. We hold that the trial court did not abuse its discretion in admitting Officer Mary Ryle's testimony, and overrule appellant's third point of error.

Refusal to Give Requested Instruction on Punishment

Appellant's first claimed error is the trial court's refusal to give the jury an instruction on punishment requested by appellant. At a conference on the instructions, the trial court gave the attorneys a copy of his proposed charge on punishment and asked for any objections or requested charges. The portion of the charge at issue gives the following instruction on community supervision: "The terms and conditions of community supervision may include, but shall not be limited to, the conditions that the defendant shall: [the charge then lists twenty statutory conditions] . . . ." Appellant's attorney requested a change and the court responded:

[DEFENSE ATTORNEY]: If we can add the language somewhere in here that the Court may impose additional conditions of probation if it so chooses so that the jury would know that the conditions of probation are not simply limited to these twenty.

THE COURT: Well, that objection does come up on occasion, and I've thought about it in the past. I'm worried about trying to make it--add anything to what we have here. I think that that can certainly be argued from this language. I think it's there. It's in legalese, but the thought is there and expressed and can be argued to the jury. So that will be denied.

During argument, appellant's attorney did argue to the jury that the court could set other reasonable conditions of probation beyond the statutory conditions the jury had just heard. Several possible additional conditions were suggested by appellant's attorney as examples to illustrate the court's authority to make the conditions fit the offender. There was no objection to this argument and explanation.

The charge given by the trial court was a statement of the law in the terms of the statute. See Tex. Code Crim. Proc. Ann. art. 42.12, § 11(a) (West Supp. 1998). ⁽²⁾ Appellant's requested charge was simply a rephrasing of the statutory language used by the trial court. When a refused charge is substantially the same as that given, or is adequately covered by the court's charge, there is no harm in failing to give the refused charge. Penry v. State, 903 S.W.2d 715, 753 (Tex. Crim. App. 1995); Hawkins v. State, 660 S.W.2d 65, 81-82 (Tex. Crim. App.1983). Appellant has not shown that there is any substantial difference between the charge given and the one requested. The trial court did not err. Appellant's first issue is overruled.

Parole Instruction

Appellant's second issue is that the trial court gave the jury an instruction on parole and good time. He contends on appeal that this violated his right to due course of law under Article I, Section 19 of the Texas Constitution. ⁽³⁾ At trial, appellant's objection was less specific, and no direct reference was made to either the federal or the Texas constitution. However, appellant's counsel's objection was based on the unfairness of the instruction and its tendency to confuse the jury. We will consider this as a sufficient invocation of the Texas constitutional protection of due course of law. See Martinez v. State, 969 S.W.2d 497, 497 (Tex. App.--Austin 1998, no pet.).

Appellant argues that the trial court's instruction on parole and good time, which conform to the requirements of a statute, invites the jury to speculate about the early release of prisoners and encourages longer sentences than the jury would otherwise assess. Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a) (West Supp. 1998). The same arguments appellant makes here were rejected by the court of criminal appeals in Oakley v. State, 830 S.W.2d 107, 110 (Tex. Crim. App. 1992), and Bruno v. State, 845 S.W.2d 910, 913 (Tex. Crim. App. 1993). See Muhammad v. State, 830 S.W.2d 953, 954-56 (Tex. Crim. App.1992) (the instruction does not violate federal due process). The second issue is overruled.

Having overruled appellant's three points of error, we affirm the judgment of conviction.

Marilyn Aboussie, Justice

Before Chief Justice Yeakel, Justices Aboussie and Jones

Affirmed

Filed: October 22, 1998

Do Not Publish

1. The child's mother testified that "bootie" was a word the child used to describe her "butt."

2. Another condition has been added since the trial in this case, but is irrelevant to the appeal.

3. Appellant also invokes the federal constitutional guarantee of due process but cites no authority nor makes any argument under those provisions that would distinguish the federal and Texas protections of this nature. See U.S. Const. Amends. V, XIV. We decline to consider the reference to the federal constitution, both for the lack of briefing and because it would render the issue multifarious. Tex. R. App. P. 38.1; see Dunn v. State, 951 S.W.2d 478, 480 (Tex. Crim. App. 1997).

hink that that can certainly be argued from this language. I think it's there. It's in legalese, but the thought is there and expressed and can be argued to the jury. So that will be denied.

During argument, appellant's attorney did argue to the jury that the court could set other reasonable conditions of probation beyond the statutory conditions the jury had just heard. Several possible additional conditions were suggested by appellant's attorney as examples to illustrate the court's authority to make the conditions fit the offender. There was no objection to this argument and explanation.

The charge given by the trial court was a statement of the law in the terms of the statute. See Tex. Code Crim. Proc. Ann. art. 42.12, § 11(a) (West Supp. 1998). ⁽²⁾ Appellant's requested charge was simply a rephrasing of the statutory language used by the trial court. When a refused charge is substantially the same as that given, or is adequately covered by the court's charge, there is no harm in failing to give the refused charge. Penry v. State, 903 S.W.2d 715, 753 (Tex. Crim. App. 1995); Hawkins v. State, 660 S.W.2d 65, 81-82 (Tex. Crim. App.1983). Appellant has not shown that there is any substantial difference between the charge given and the one requested. The trial court did not err. Appellant's first issue is overruled.

Parole Instruction

Appellant's second issue is that the trial court gave the jury an instruction on parole and good time. He contends on appeal that this violated his right to due course of law under Article I, Section 19 of the Texas Constitution. ⁽³⁾ At trial, appellant's objection was less specific, and no direct reference was made to either the fed