Arteaga v. State

• Decision Date: 22 October 2015
• Docket Number: 13–13–00613–CR,NUMBERS 13–13–00612–CR
• Citation: 511 S.W.3d 675
• Parties: Robert Michael ARTEAGA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

511 S.W.3d 675

Robert Michael ARTEAGA, Appellant,

v.The STATE of Texas, Appellee.

NUMBERS 13–13–00612–CR

13–13–00613–CR

Court of Appeals of Texas, Corpus Christi-Edinburg.

Delivered and filed October 22, 2015

Rehearing Overruled December 3, 2015

Discretionary Review Granted April 27, 2016

Ken Mahaffey, Attorney at Law, Austin, TX, for Appellant.

Wiley B. McAfee Jr., District Attorney, Gary W. Bunyard, Asst. District Attorney, Llano, TX, for Appellee.

Before Justices Benavides, Perkes, and Longoria

OPINION

Opinion by Justice Benavides

Appellant, Robert Michael Arteaga, appeals his convictions in separate cause numbers for multiple counts of sexual assault of a child and possession of child pornography, a first and third degree felony respectively. See TEX. PENAL CODE ANN. §§ 22.011, 43.26 (West, Westlaw through 2015 R.S.). By two issues, Arteaga argues: (1) the trial court committed egregious error by charging the jury under the consanguinity statute rather than requiring proof of bigamy as specified in the sexual assault statute; and (2) the trial court committed error by preventing his trial counsel from arguing to the jury that they could consider Arteaga's and other's perspectives on whether the images possessed were lewd. We affirm.

I. BACKGROUND ¹

In cause number 13–13–00612–CR, a jury convicted Arteaga of twenty-three counts of sexual assault of a child.² See TEX. PENAL CODE ANN. § 22.011. The complainant, HSB Doe ("Doe"), was his biological daughter.³ Sexual assault of a child is a second degree felony, except it can rise to a first degree felony if: "the victim was a person whom the actor was prohibited from marrying or purporting to marry or with whom the actor was prohibited from living under the appearance of being married under Section 25.01." TEX. PENAL CODE ANN. § 22.011(f). Arteaga was charged with sexual assault of a child he was "prohibited from marrying", Doe, in the indictment. This charge made all the counts charging him under this cause number first degree felonies. Id. Section 25.01 defines the offense of bigamy. See TEX. PENAL CODE ANN. § 25.01 (West, Westlaw through 2015 R.S.). The jury charge included the definition for consanguinity from the Texas Family Code, which specifies what would constitute a void marriage. See TEX. FAMILY CODE ANN. § 6.201 (West, Westlaw through 2015 R.S.). Additionally, a special issue was also submitted along with the jury charge asking the jury: "Do you find from the evidence beyond a reasonable doubt that the Defendant, Robert Michael Arteaga, was prohibited from marrying [Doe]?" Arteaga did not object to the inclusion of the definition of consanguinity in the jury charge. The jury convicted Arteaga of all twenty-three counts of sexual assault of a child, answered yes to the special issue, and sentenced him to life imprisonment in the Texas Department of Criminal Justice—Institutional Division ("TDCJ–ID") on each count.

In cause number 13–13–00613–CR, the jury convicted Arteaga of seventeen counts of possession of child pornography.⁴ See TEX. PENAL CODE ANN. § 43.26. The illegal photographs at issue were found on Arteaga's personal computer and depicted his daughter, Doe, engaging in sexual acts. Arteaga maintained that he did not consider the photographs to be child pornography. The jury found Arteaga guilty on all counts of the jury charge and sentenced him to ten years imprisonment in the TDCJ–ID and assessed a $10,000 fine on each count. The trial court sentenced Arteaga accordingly and ordered that all sentences be served consecutively. See TEX. PENAL CODE ANN. § 3.03 (West, Westlaw through 2015 R.S.).

During trial, the State put on multiple witnesses, including the complainant, Doe. Doe testified that Arteaga had been molesting her since the age of four. Doe made an outcry to her high school counselor at the age of fifteen. Doe testified that the molestation had occurred in three different counties throughout her life: Harris, Blanco, and Burnet Counties. Doe stated that Arteaga began touching her genital area around the age of four, and he told Doe it was "something special that they shared" and "not to tell anyone." When Doe was around six or seven years old, she testified Arteaga began having them both perform oral sex on each other. Doe stated that Arteaga began having vaginal intercourse with her around the third grade. She also testified that Arteaga took videos of them having vaginal intercourse at least twice and put the videos up on the internet. While filming the videos, Arteaga made Doe wear masks to hide her face. Doe identified the masks during trial from photographs taken by police at Arteaga's home.

Arteaga told Doe she was special and if she became pregnant, they would get married. Doe testified that Arteaga had a vasectomy to prevent her from getting pregnant, and she had her own bedroom next to his so he would have easier access to Doe.⁵ On her fourteenth birthday, Arteaga took Doe to San Antonio, purportedly to visit the Alamo. Instead of going to the Alamo, Arteaga got a hotel room where they "drank liquor and had sex." Around that time, Doe testified Arteaga began penetrating Doe's anus with his penis. She stated that Arteaga had intercourse with her repeatedly, but that it became more frequent as she got older. By the time she was around fourteen, Doe and Arteaga would have vaginal intercourse at least once a week "[e]verytime, like, [appellant's girlfriend] would go to the store." Each incident would normally include Doe performing oral sex on Arteaga as well. Doe testified that Arteaga would create situations where they would be alone: "Whenever we [needed] groceries he would send [appellant's girlfriend] to the store and have me stay or he would text me and be like tell [appellant's girlfriend] you don't feel good or you just want to stay home, you just don't want to go with her to the store." Doe testified appellant's girlfriend would go to the store often because there were seven people living in the household.

Doe also testified that Arteaga used a variety of adult "sex toys" on her. During trial, Doe identified many of the "toys" found at Arteaga's home. Doe also identified several pornographic videos seized from Arteaga's home because she stated Arteaga would make her watch them. Several nude photographs of Doe were found on Arteaga's computer. Doe testified she took those photographs with her cell phone at Arteaga's request, mostly when she was visiting her grandparents for the summer. Doe said her older sister knew about the molestation and acted as a lookout for Arteaga. At one point, Doe testified that Arteaga had spoken about a sexual encounter involving Doe, her sister, and him, but that it never occurred. Doe stated she learned the relationship she had with Arteaga was wrong as she got older and asked him to stop. Arteaga said he would stop their relationship but it would "break his heart." Both Doe and her older sister went to the school counselor to make the outcry.

After her outcry, Doe and her siblings were removed from Arteaga by Texas Child Protective Services and placed with Arteaga's parents in Galveston. Doe testified Arteaga's family pressured her to recant the allegations. Arteaga called Doe repeatedly and devised a story for Doe to tell law enforcement. Doe said that she did recant her story to police, but would not have done so without the pressure she felt from her family.

The State also called Amy Callaway, the forensic interviewer, to testify. Callaway testified about "grooming" and the effect it can have on children who are abused. Callaway stated it was common for children to outcry and then recant. In certain cases, the children will then reaffirm the outcry after time passes. Callaway said it was very common for children who were victimized to still love and want to be around the perpetrator, and that this was one of the worst cases of abuse she had ever seen.

Doe was examined by a sexual assault nurse examiner ("SANE nurse") following her outcry and interview. The SANE nurse identified a tear to Doe's hymen typical with sexual penetration prior to sexual maturity. She stated Doe had a significant amount of scar tissue in her genital area, which showed her that the abuse had been occurring for a long time. Doe also had healing tears to her anus. The SANE nurse also found a genital wart on Doe, but could not conclude with certainty that it was a result of sexual intercourse.

Arteaga's girlfriend was called by the State to testify. She stated that Arteaga was very controlling and his behavior with Doe was very different from the other children in the household. She stated sometimes she felt like Doe was Arteaga's girlfriend and she was the child. The girlfriend testified they did use "sex toys" in their intimate encounters, but she did not recognize all the "toys" that were found at the home. She also stated Arteaga and she did not use lubricant, even though it was found with the "toys" as well. The girlfriend also testified that after Doe was removed from the home, she overheard Arteaga on the phone with Doe and her sister. He was telling the girls to "stick to their stories" and would not speak to the girls in her presence. The girlfriend stated that now "she felt stupid" and all the behavior she had witnessed over their years together "makes sense."

Arteaga testified in his own defense and stated Doe made the allegations up because she wanted to live with her biological mother, who was less strict than he was. He stated that his older daughter had shown him the nude photographs of Doe on Doe's cell phone, saying that Doe was sending them to her boyfriend. Arteaga testified that he had his older daughter send the photos to his cellphone and he placed them on his laptop computer so it would be easier to confront Doe with them. However, Doe did not recall being confronted with the photographs during her testimony. After a finding of guilty by the jury, this appeal followed.

II. JURY CHARGE ERROR

By his first...