Aguilera v. State
| Decision Date | 06 February 2002 |
| Docket Number | No. 04-00-00509-CR.,04-00-00509-CR. |
| Citation | 75 S.W.3d 60 |
| Parties | Antonio AGUILERA, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Christopher J. Gale, Gale, Wilson & Sanchez, P.L.L.C., San Antonio, for Appellant.
Jose M. Rubio, Jr., Webb County Dist. Atty., Raul A. Martinez, Asst. Dist. Atty., Laredo, for Appellee.
Sitting: PHIL HARDBERGER, Chief Justice, ALMA L. LÓPEZ, Justice, PAUL W. GREEN, Justice.
Opinion by PHIL HARDBERGER, Chief Justice.
Antonio Aguilera ("Aguilera") was found guilty by a jury of three counts of indecency with a child and three counts of aggravated sexual assault. Aguilera presents nine issues in his brief, contending: (1) the jury was instructed pursuant to an "amended" but unaltered indictment; (2) hearsay statements were erroneously admitted; (3) evidence of the complainant's prior sexual history was erroneously excluded; (4) an opinion regarding the truthfulness of the complainant was erroneously admitted; (5) "profile" evidence that Aguilera was a "molester" and a "pedophile" was erroneously admitted; (6) Aguilera elected for the trial court to assess punishment but punishment was submitted to the jury; (7) Aguilera was denied effective assistance of counsel; and (8) the evidence was legally insufficient to convict Aguilera of count three. We sustain Aguilera's second, third and fourth issues and reverse the trial court's judgment. Other than the second, third and fourth issues, we address only those issues that are necessary to the final disposition of the appeal. Tex.R.App. P. 47.1.
On January 1, 1999, Amber Smith (a pseudonym) informed her boyfriend that her stepfather, Aguilera, had sexually abused her for a number of years. Smith was living with her grandmother, but was scheduled to move back into the home of Aguilera's mother because Aguilera and Smith's mother had reunited. At her boyfriend's urging, Smith informed her aunt, and the police were summoned. Ultimately, a jury found Aguilera guilty of three counts of indecency with a child and three counts of aggravated sexual assault. On two counts, the jury assessed punishment at 99 years imprisonment and a $5,000 fine. On the other four counts, the jury assessed punishment at life imprisonment and a $5,000 fine. Aguilera timely filed this appeal.
In his first issue, Aguilera complains that the trial court erred in allowing the State to proceed on an "amended" indictment because the amendment was not effective.
The original indictment omitted the phrase "with the intent to arouse and gratify his own sexual desire" from the counts charging Aguilera with indecency with a child. The State moved to amend the indictment to add the phrase. The trial court granted the motion and issued an order restating the language from the original indictment in its entirety with the phrase added. Aguilera contends that the amendment was not effective.
In Riney v. State, 28 S.W.3d 561 (Tex. Crim.App.2000), the Texas Court of Criminal Appeals considered the continuing precedential value of Ward v. State, 829 S.W.2d 787 (Tex.Crim.App.1992). In Riney, the court overruled Ward and the cases relying on it, to the extent they require physical interlineation of the original indictment as the only means to accomplish an amendment. 28 S.W.3d at 566. The court asserted, "Physical interlineation of the original indictment is an acceptable but not the exclusive means of effecting an amendment to the indictment." Id. at 565.
Aguilera asserts that the following statement made by the court in Riney supports his contention that the order was not effective as an amendment, "We note that Ward v. State continues to stand for the proposition that `[n]either the motion [to amend] itself nor the trial judge's granting thereof is an amendment; rather the two comprise the authorization for the eventual amendment of the charging instrument pursuant to Article 28.10.'" 28 S.W.3d at 566. However, the Fort Worth court has held that a written order granting the State's motion to amend, in which the language of the original indictment is reproduced, is an effective amendment. Valenti v. State, 49 S.W.3d 594, 598 (Tex. App.-Fort Worth 2001, no pet.). We follow the holding in Valenti and conclude that by reproducing the language of the original indictment with the amendment in the order, the amendment was effective.
Aguilera's first issue is overruled.
In his fourth issue, Aguilera contends that the trial court erred in allowing Dr. Gregorio Pina, III, Smith's psychologist, to testify regarding Smith's truthfulness. The State responds that the issue is not preserved for appellate review because no specific objection was made to Dr. Pina's testimony. The State further responds that Dr. Pina's testimony was not an opinion on Smith's truthfulness.
We review the trial court's ruling regarding the admissibility of evidence under an abuse of discretion standard. Salazar v. State, 38 S.W.3d 141, 153-54 (Tex.Crim. App.2001), cert. denied, ___ U.S. ___, 122 S.Ct. 127, 151 L.Ed.2d 82 (2001). Aguilera's complaint relates to the following testimony:
Q. In the course of your practice as a psychologist with children who have been victims of sexual abuse, have you ever encountered any children that lied?
A. Yes, sir.
Q. What percentage of children would you estimate, out of all the patients that you've seen, what percentage of children did you find to be lying?
A. Consistently, since about 1973, in training. About one out of ten, about ten percent there is something that does not come together; and that has stayed through time with me since that time to the present, ten percent.
Q. And what kind of a test—what kind of testing or evaluation, or what kind of psychological evaluating tools do you use to test as far as that is concerned?
Q. (BY MR. RAUL MARTINEZ) Are there any tools that are available during treatment?
(End of Bench conference)
Q. (MR. RAUL MARTINEZ) Do you recall my question?
A. I'll rephrase your question which is: Are there any tools in treatment? And I'd say, any tools in evaluation.
Q. I'm sorry. Yes, let me rephrase. Are there any tools in evaluating the psychological evaluation that can help you determine if a child is lying?
A. Yes, sir.
Q. (BY MR. RAUL MARTINEZ) You may answer the question, Dr. Pina.
A. I understood the question: Are there any tools and evaluation that help to identify the ten percent who are malingering, lying, being deceitful?
Q. That is correct.
Q. (BY MR. RAUL MARTINEZ) Your answer to the question, Dr. Piña? You may answer.
A. The answer is yes, sir.
Q. Okay. And when you make a finding, a psychological finding the child may be lying, do you still continue to provide services to those children as well?
Q. (BY MR. RAUL MARTINEZ) Dr. Piña, one last question: In terms of your conversations with Amber Smith, in terms of your observations of the videotape, did you find her story to be consistent throughout the time?
A. Yes.
In order to preserve error for appellate review, the record must show that a complaint was made to the trial court by an objection that stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context. Tex. R.App. P. 33.1(a). Because the attorneys were speaking simultaneously at the bench, the specific objection made by Aguilera's attorney is unclear; however, the specific grounds for the complaint are apparent from the context of the questioning. The prosecutor's statement in response to Aguilera's objection that he was just "asking in general" implies that the trial court permitted questioning regarding the truthfulness of the class of child abuse victims in general, but not the truthfulness of Smith.
The Texas Court of Criminal Appeals has held that an expert is not permitted under rule 702 of the Texas Rules of Evidence to give an opinion that the complainant or a class of persons to which the complainant belongs is truthful. Yount v. State, 872 S.W.2d 706, 712 (Tex.Crim.App. 1993). In reaching its holding, the court relied on cases holding that expert testimony that child sexual abuse victims rarely lie is inadmissible. See id. Therefore, the trial court abused its discretion in admitting Dr. Piña's testimony.1
Aguilera's defense was based on his contention that Smith was fabricating the sexual abuse allegations to avoid moving out of her grandmother's house because her grandmother was lax as a disciplinarian and her grandmother lived just a few...
To continue reading
Request your trial
-
Auld v. State, 06-21-00079-CR
...the requirements of an excited utterance as contemplated by Rule 803(2) of the Texas Rules of Evidence. In Aguilera v. State , 75 S.W.3d 60 (Tex. App.—San Antonio 2002, pet. ref'd), the court found error where the trial court allowed hearsay testimony from the complainant "made nearly one y......
-
Nguyen v. State, No. 03-07-00017-CR (Tex. App. 9/10/2009)
... ... Id; Barfield v. State, 202 S.W.3d 912, 919 (Tex. App.-Texarkana 2006, pet. ref'd); Westmoreland v. State, 174 S.W.3d 282, 287 (Tex. App.-Tyler 2005, no pet.); Aguilera v. State, 75 S.W.3d 60, 62 (Tex. App.-San Antonio 2002, pet. ref'd); Valenti v. State, 49 S.W.3d 594, 598 (Tex. App.-Fort Worth 2001, no pet.) ... Here, as noted, after the authorization of the amendment, no action was taken to actually amend the original indictment by ... ...
-
Dawson v. State, No. 10-01-202-CR (Tex. App. 12/31/2003)
...must be memorialized by some writing in the trial court's file. See Riney, 28 S.W.3d at 565-66; Aguilera v. State, 75 S.W.3d 60, 63-64 (Tex. App.—San Antonio 2002, pet. ref'd); Hoitt v. State, 30 S.W.3d 670, 674 (Tex. App.—Texarkana 2000, pet. ref'd). Conversely, no writing is required to a......
-
Head v. State
...the order was sufficient to put the defendant on notice of the amended language in the indictment. Id. In Aguilera v. State, 75 S.W.3d 60, 64 (Tex.App.-San Antonio 2002, pet. ref'd), the court held that the amendment to an indictment was effective where the trial court granted the State's m......