Duran, Jesus Rodolfo v. State ( 2003 )

                                                            COURT OF APPEALS

                                                    EIGHTH DISTRICT OF TEXAS

                                                               EL PASO, TEXAS

                                                                              )    

JESUS RODOLFO DURAN,                               )                    No. 08-01-00512-CR

                                                                              )

Appellant,                          )                             Appeal from

                                                                              )    

v.                                                                           )                   238th District Court

                                                                              )

THE STATE OF TEXAS,                                     )                 of Midland County, Texas

                                                                              )

Appellee.                           )                        (TC# CR26373)

O P I N I O N

Jesus Rodolfo Duran appeals his conviction for the offense of aggravated sexual assault of a child.  A jury found Appellant guilty and assessed punishment at imprisonment for a term of sixty years.  We affirm.

FACTUAL SUMMARY

Twelve-year-old Amanda Duran lived with her parents, Carolina Duran and Appellant, and her brothers and sister in Midland.  Late one evening in September of 1999, Amanda was in bed asleep.  She woke up because she was in pain and discovered that Appellant had gotten in her bed, pulled down her pajamas and put his penis in her rectum.  When she tried to pull away from him, Appellant stated AI=m almost done, I=m almost done.@  In a few moments, he got up and left the room.  Appellant later told Amanda not to tell anyone or he would hurt her more. Appellant had first started touching Amanda inappropriately when she was about four years of age.  He touched both her chest and private parts.  When she was around eight years of age, he began engaging in both vaginal and anal intercourse with her.  He also made her touch his penis.  She did not tell anyone about the abuse until she finally told her fourteen-year-old cousin, Tony Gonzalez.  On Amanda=s birthday in May of 2000, her parents separated.  Mrs. Duran and the children went to Plainview to live with Amanda=s aunt, Celestina Serrato.  Amanda told Celestina about the sexual abuse. Celestina told Mrs. Duran who called the police to make a report.  Mrs. Duran and Amanda later went to Midland in order to file a complaint.

Amanda=s brother, Jesus, saw Appellant enter their bedroom one night and go to Amanda=s bed.  He got under the covers and after a while, Jesus heard Appellant state that he was almost finished.  Appellant then got up and left the room.

After the report was filed with the police, Amanda was interviewed by Andra K. Chamberlin at the Midland Rape Crisis and Children=s Advocacy Center.  Chamberlin=s goal in interviewing children is to discern whether abuse occurred, and if so, the details of the abuse.  She is aware of  cases in which children have made false allegations, although such cases are rare. When interviewing a child who has made an outcry of sexual abuse, she considers several factors, including the timing and circumstances of the disclosure, whether the language used to describe the abuse is appropriate for the child=s age, whether the child provides contextual details, appropriateness of the child=s sexual knowledge based on age, consistency of the core details, details about how the abuser gained access to the child or whether the abuser Agroomed@ the child, plausibility of the child=s description of the abuse, and the child=s emotional reaction during the interview. Chamberlin did not offer a direct opinion that Amanda was truthful but she assessed her interview in terms of these criteria.

A sexual assault nurse, Lynn Glasscock, examined Amanda and found evidence of scarring on the hymen.  Her findings were consistent with sexual assault. Additionally, Glasscock determined that Amanda=s anal sphincter did not function correctly as the result of direct trauma to the anal opening such as would occur with anal penetration.  This finding is consistent with Amanda=s outcry of sexual assault. 

A grand jury returned a two paragraph indictment against Appellant for aggravated sexual assault of Amanda.  The first paragraph alleged that he penetrated her anus with his penis.  The second paragraph alleged vaginal penetration.  After trial began but before any testimony was heard, the State abandoned paragraph two.  The jury found Appellant guilty of aggravated sexual assault by anal penetration as alleged in paragraph one of the indictment.

TRUTHFULNESS OF COMPLAINANT

In Point of Error No. One, Appellant argues that the trial court abused its discretion by permitting Andra Chamberlin to offer an opinion that Amanda was truthful.  Appellant admits that Chamberlin did not directly testify that the complainant was truthful but he asserts that she should not have been permitted to testify that it is rare for a child to falsify an allegation of sexual abuse.  He also contends that the trial court erred in allowing her to testify that Amanda=s story was plausible.

Preservation of Error

With respect to Appellant=s complaint that Chamberlin should not have been permitted to testify that it is rare for a child to make up an allegation of sexual abuse, Appellant has waived any error because he failed to object at trial. As a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion, and the trial court ruled on the request, objection, or motion.  Tex.R.App.P. 33.1(a)(1) and (2); Tucker v. State, 990 S.W.2d 261, 262 (Tex.Crim.App. 1999). Further, a party must continue to object every time inadmissible evidence is offered.  Ethington v. State, 819 S.W.2d 854, 858 (Tex.Crim.App. 1991); Gillum v. State, 888 S.W.2d 281, 285 (Tex.App.‑-El Paso 1994, pet. ref=d); Tex.R.App.P. 33.1.  By failing to make any objection to this statement, Appellant waived his complaint.

Chamberlin testified that one of the criteria she considers is the plausibility of the description of the abuse, or in other words, whether it is believable that the abuse happened in the way the child said it did.  Appellant objected Ato anything about plausibility.@  A general objection is normally insufficient to preserve error.  Lewis v. State, 664 S.W.2d 345, 349 (Tex.Crim.App. 1984). However,  in this case it appears the trial court understood the nature of Appellant=s objection because he did not permit the witness to go further and testify as to her conclusion regarding the plausibility of the complainant=s allegation.  Because the trial court sustained Appellant=s objection and instructed the jury to disregard the testimony, Appellant obtained all the relief he requested at trial.  Having failed to request a mistrial, he did not pursue his complaint to an adverse ruling.  See Brooks v. State, 642 S.W.2d 791, 798 (Tex.Crim.App. 1982)(the proper method of pursuing an objection until an adverse ruling is to (1) object, (2) request an instruction to disregard, and (3) move for a mistrial).  Point of Error No. One is overruled.

IMPROPER COMMENTS DURING OPENING STATEMENT

In Points of Error Nos. Two and Three, Appellant contends that the trial court erred in overruling his objections to comments made by the prosecutor during the State=s opening statement.  After describing the facts she believed the State would prove regarding the sexual abuse, the prosecutor stated:

[The prosecutor]:  Now, there=s going to be a lot of other witnesses, I imagine four or five, six other witnesses that the State=s going to bring to help corroborate Amanda=s story, and I=m sure the defense attorney, who does a good, job will raise all sorts of smoke screens.  Oh, the child=s been manipulated, oh, children lie -- [Emphasis added].

[Defense counsel]:  I=m going to object, Your Honor.  That=s improper opening statement.

[The prosecutor]:  Responding to his voir dire, Your Honor.

[The trial court]:  Continue.  Objection is overruled.

[The prosecutor]:  All sorts of little rabbit trails, but I want you all to remember one thing, and that is why we are here this week, and why we are here this week is about Amanda, because she has been the victim of sexual assault for 12 years.

In Point of Error No. Two, Appellant argues that the above highlighted comments discredited counsel and constituted an attack on Appellant over the shoulders of his attorney.  To preserve error for review on appeal, a defendant=s complaint on appeal must comport with the objection raised at trial.  Santellan v. State, 939 S.W.2d 155, 171 (Tex.Crim.App. 1997).  Because Appellant=s general objection at trial that the prosecutor=s comments were improper opening argument does not comport with the argument made on appeal regarding the attack on counsel, the issue is waived.  See Jones v. State, 644 S.W.2d 530, 532 (Tex.App.--Corpus Christi 1982, no pet.). Point of Error No. Two is overruled.

In Point of Error No. Three, Appellant challenges the prosecutor=s allegedly erroneous assertion during her opening statement that the victim had been endured sexual abuse for twelve years.  The contention is waived because Appellant did not object at trial.  See Tex.R.App.P. 33.1.  Point of Error No. Three is overruled.

IMPROPER CLOSING ARGUMENT

In Point of Error No. Four, Appellant asserts that the prosecutor made an improper final argument by stating the following:

There is no motive.  Spouses do want to be mean.  Sometimes spouses are mean to each other in divorces.  Carolina Duran was on the stand.  Did he ever develop that?  Where is the meanness, where is the spite?  She wanted out because he drinks too much and doesn=t provide, and one other reason.  Not meanness.  She just wanted out. 

Appellant argues that the testimony is improper because the prosecutor speculated about Mrs. Duran=s testimony on the reasons for her divorce. He did not, however, make any objection to the argument.  Consequently, nothing is preserved for our review.  See Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996). Point of Error No. Four is overruled.

IMPROPER FINAL ARGUMENT, BOLSTERING

AND CUMULATIVE ERROR

In his final point of error, Appellant makes multiple arguments.  First, he argues that the prosecutor made an improper final argument by pointing out the credentials and experience of the police officers, the sexual assault nurse, and the child advocacy expert.  According to Appellant, this constitutes improper bolstering of the witnesses. Appellant made no objection to this argument.  Therefore, it is waived.  See Cockrell, 933 S.W.2d at 89.  Even if it had been preserved, the prosecutor did nothing more than summarize the evidence admitted in the case.  As such, her argument was proper.  See Morales v. State, 11 S.W.3d 460, 463 (Tex.App.--El Paso 2000, pet. ref=d)(proper jury argument consists of: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) answer to argument of opposing counsel; and (4) a plea for law enforcement).

Appellant argues that the cumulative effect of this error couple with the errors discussed in Points of Error Nos. One and Four require reversal.  Cumulative error, however, concerns performance of a harm analysis once multiple errors have been established.  See Chamberlain v. State, 998 S.W.2d 230, 238 (Tex.Crim.App. 1999), cert. denied, 528 U.S. 1082, 120 S. Ct. 805, 145 L. Ed. 2d 678 (2000).  Because any error is waived, the doctrine of cumulative error is not applicable.  Point of Error No. Five is overruled.  Having overruled each point of error, we affirm the trial court=s judgment.

January 30, 2003

ANN CRAWFORD McCLURE, Justice

Before Panel No. 4

Barajas, C.J., Larsen, and McClure, JJ.

(Do Not Publish)