Gaytan v. State

• Citation: 331 S.W.3d 218
• Decision Date: 21 January 2011
• Docket Number: No. 03–09–00370–CR.,03–09–00370–CR.
• Parties: Frank GAYTAN, Appellant,v.The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas

331 S.W.3d 218

Frank GAYTAN, Appellant,

v.The STATE of Texas, Appellee.

No. 03–09–00370–CR.

Court of Appeals of Texas, Austin.

Jan. 21, 2011.

E.G. (Gerry) Morris, Law Office of E.G. Morris, Austin, for Appellant.Sammy M. McCrary, Chief Felony Prosecutor, for The State of Texas.Before Chief Justice JONES, Justices PURYEAR and PEMBERTON.

OPINION

DAVID PURYEAR, Justice.

A jury convicted forty-five-year-old Frank Gaytan of twenty counts of aggravated sexual assault and one count of indecency with a child. See Tex. Penal Code Ann. §§ 21.11, 22.021 (West Supp.2010). The jury assessed punishment at ninety-nine years' confinement on each sexual-assault count and fifteen years' confinement on the indecency count, all sentences to run consecutively. See id. § 3.03(b)(2)(A) (West Supp.2010) (sentences may run consecutively when defendant is convicted of multiple offenses arising out of same criminal episode under penal code sections 21.11 and 22.021). The jury found that between August 18 and September 8, 2004, Gaytan repeatedly molested his six-year-old niece, C.R., while babysitting her. During the trial, the court allowed two adult female relatives of Gaytan's to testify that he had molested them more than twenty years earlier. Gaytan objected to the admission of their testimony, and on appeal he argues that the admission of their testimony was error requiring reversal. Gaytan argues that (1) he did not open the door to their testimony by advancing a defensive theory of fabrication; (2) the testimony's unfairly prejudicial effect far outweighed its probative value, see Tex.R. Evid. 403; and (3) the testimony was not admissible to prove motive, intent, or knowledge under Texas Rule of Evidence 404(b). Gaytan also argues that the trial court erred by refusing to strike C.R.'s testimony because C.R. admitted that she could not directly recall being abused. See Tex.R. Evid. 602 (testimony must be based on personal knowledge). Finally, he argues that the evidence was legally insufficient to sustain a conviction on sixteen of his twenty assault counts. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The jury heard evidence that between August 18 and September 8, 2004, Gaytan babysat C.R. on several occasions. C.R.'s mother, Jennifer Robinson, worked until 6 p.m., and C.R.'s father slept during the day (he worked night shifts). C.R. would arrive home from school at approximately 4:15 p.m., and her older brother would arrive home approximately fifteen minutes later. Gaytan would look after C.R. and her older brother until Robinson got home from work.

On September 8, 2004, when Robinson arrived home from work, her son told her that C.R. was “being mean” to Gaytan. He said that C.R. had said she hated Gaytan and did not want him to babysit her any more. Robinson drove Gaytan home and then returned to her house to ask C.R. about her brother's statements. C.R. told Robinson that Gaytan had been touching her vagina and anus. Robinson called Gaytan to confront him with the accusation, and he denied it. A couple of days later, C.R. told her mother that Gaytan had also made her touch his penis through his pants. C.R. said that Gaytan had told her his penis was a “flashlight,” but she knew it was actually his “wiener.”

On September 10, 2004, Robinson took C.R. to a hospital for a medical examination. The nurse who examined C.R., Laurie Charles, testified at trial that the examination revealed no physical evidence of sexual abuse. Charles also testified, however, that during the examination C.R. repeated her allegation that Gaytan had repeatedly touched her vagina and anus.

On October 12, 2004, Janet Williams, a child-abuse investigator with the Texas Department of Family and Protective Services, conducted a forensic interview with C.R. During the interview, which was recorded, C.R. repeated her allegation against Gaytan. She also stated that Gaytan touched her every day during the period that he was babysitting her and that at the time she was in Ms. Presser's class.

On the basis of C.R.'s forensic interview, a Comal County grand jury indicted Gaytan on twenty counts of aggravated sexual assault, each count predicated on an instance in which Gaytan touched C.R.'s vagina or anus. The grand jury also indicted Gaytan on one count of indecency with a child, predicated on the “flashlight” incident. Gaytan pleaded not guilty and proceeded to trial.

During its case in chief, the State called Jennifer Robinson, who testified about her daughter's outcry and the ensuing investigation. Robinson also testified that when she called Gaytan on the day of C.R.'s outcry, he admitted that he had touched C.R. inappropriately. On cross-examination, Robinson admitted that she had never mentioned this to anyone involved in the investigation and that it was a “very major thing” to raise for the first time during trial.

The State then called C.R., who was ten years old at the time. She testified that Gaytan touched her vagina and anus many times while he was babysitting her, each time while she was sitting in his lap in the living room of her home. C.R. also testified about the “flashlight” incident. On cross-examination, C.R. admitted that she had no direct memory of Gaytan abusing her and that she was basing her testimony on (1) conversations she had subsequently had with her mother and (2) parts of her recorded interview that she had recently watched. Gaytan then moved to have C.R.'s testimony stricken because it was not based on personal knowledge. See Tex.R. Evid. 602. The court denied his motion.

After Gaytan cross-examined C.R., the State sought to introduce testimony by four of Gaytan's adult relatives who alleged that Gaytan had touched them inappropriately when they were children. These instances of abuse allegedly occurred in 1976, 1979, 1981, and 1985. The State proposed to offer this testimony under Texas Rule of Evidence 404(b), arguing that it was probative of Gaytan's intent, motive, and knowledge with regard to his abuse of C.R. See Tex.R. Evid. 404(b). The State also argued that the testimony was admissible under Rule 404(b) to rebut the suggestion, allegedly made by Gaytan during his opening statement and cross-examination of C.R., that C.R. had fabricated her allegations. After hearing extensive argument from both sides, the court decided to allow testimony concerning the incidents in 1981 and 1985. The court refused to allow testimony concerning the incidents in 1976 and 1979 because Gaytan was a juvenile at the time they allegedly occurred. Gaytan requested and was granted a running bill of objection to the testimony that the court admitted.

The State then called Cherie Perez, who was Gaytan's niece and was thirty years old at the time of trial. Perez testified that from the time she was five or six years old until she was eleven, Gaytan repeatedly touched her vagina after luring her into his bedroom with candy and games. The abuse allegedly occurred at Gaytan's mother's house, where Gaytan lived. Perez also testified that Gaytan touched her in the back of a van while they were on a family trip.

Next, the State called Tanya Gaytan (“Tanya”), another of Gaytan's nieces, who was thirty-five years old at the time of trial. Tanya also testified that from the time she was four or five years old until she was ten, Gaytan would touch her vagina and make her touch his penis after luring her into his bedroom with candy and games. These incidents also allegedly occurred at Gaytan's mother's house.

After Tanya testified, Gaytan sought to play portions of C.R.'s recorded forensic interview that allegedly conflicted with C.R.'s trial testimony. The State sought to have the entire video played for the jury, and the trial court granted its request. Janet Williams, the child-abuse investigator who conducted the interview, testified to the circumstances surrounding the interview. On cross-examination, she confirmed that C.R. had told her she was a student in Ms. Presser's class at the time Gaytan abused her. Gaytan then introduced school records that showed C.R. was actually in Ms. Presser's class during the 2003–2004 school year, a fact that he argued was significant because the dates in the indictment were part of the 2004–2005 school year.

After closing arguments, the jury convicted Gaytan on all twenty-one counts in the indictment. Gaytan elected to have the jury assess punishment, and during the punishment phase he presented evidence that he was mildly mentally retarded with an IQ of sixty-four. The jury subsequently assessed punishment at ninety-nine years' confinement on each sexual-assault count and fifteen years' confinement on the indecency count, all sentences to run consecutively. Gaytan appeals.

STANDARD OF REVIEW

We review trial court rulings on the admissibility of evidence for abuse of discretion. Carrasco v. State, 154 S.W.3d 127, 129 (Tex.Crim.App.2005). A trial court abuses its discretion when its ruling is arbitrary or unreasonable. State v. Mechler, 153 S.W.3d 435, 439 (Tex.Crim.App.2005). A trial court does not abuse its discretion if its decision is within “the zone of reasonable disagreement.” Bigon v. State, 252 S.W.3d 360, 367 (Tex.Crim.App.2008).

When an appellant challenges the sufficiency of the evidence supporting his conviction, we examine all of the evidence adduced at trial in the light most favorable to the verdict and ask whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 899 (Tex.Crim.App.2010).

DISCUSSION

In twenty-two points of error, Gaytan argues that (1) the trial court erred by admitting Perez and Tanya's testimony; (2) the trial court erred by refusing to strike C.R.'s testimony after C.R. admitted she could not directly recall being abused; and (3) the evidence was legally insufficient to support a conviction on sixteen of the twenty assault counts. We will address these arguments in turn.

Perez's and Tanya's Testimony

The...