Buentello v. State

• Citation: 512 S.W.3d 508
• Decision Date: 08 December 2016
• Docket Number: NO. 01–15–00834–CR,01–15–00834–CR
• Parties: John Cruz BUENTELLO, Appellant v. The STATE of Texas, Appellee
• Court: Texas Court of Appeals

512 S.W.3d 508

John Cruz BUENTELLO, Appellant

v.The STATE of Texas, Appellee

NO. 01–15–00834–CR

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued December 8, 2016

Discretionary Review Refused April 12, 2017

Crespin Michael Linton, Houston, TX, for Appellant.

Devon Anderson, District Attorney—Harris County, Houston, TX, Eric Kugler, Assistant District Attorney, Houston, TX, for State.

Panel consists of Justices Jennings, Keyes, and Brown.

OPINION

Harvey Brown, Justice

John Buentello was convicted of aggravated sexual assault of a child¹ and sentenced to life imprisonment. He argues that there was legally insufficient evidence of a necessary element of the offense: penetration. He also challenges three of the trial court's rulings during his trial: (1) overruling his objection that the outcry witness's testimony was inadmissible because the child's outcry was not reliable and the forensic examiner designated as the outcry witness was not the first adult the child told of the abuse, (2) denying his motion for continuance, and (3) denying his motion for mistrial. We affirm.

Background

Buentello lived out-of-state but would visit his son and his son's family in the Houston area occasionally. The son had a blended family with five children, including Amy,² who was Buentello's son's step-daughter.

According to Amy's mother, Buentello visited only occasionally in the beginning and would spend equal time with all the children. Over time, though, his visits became more frequent—sometimes more than once a month—and he began to spend more of his time focused on Amy. When Amy was 10, she disclosed to her step-father that Buentello had touched her when she was seven years old.

Amy's step-father—who is Buentello's son—described what happened the night that Amy first disclosed that Buentello had touched her. He testified that his oldest daughter woke him late one night, crying. She took him to Amy's bedroom, where Amy was sitting on the floor and also crying. Amy was reluctant to talk about why she was upset. Eventually she told her step-father that something bad had happened because of Buentello. He immediately woke up Amy's mom, and Amy told her mom, in general terms, that Buentello had touched her.

The next morning, Amy's mom called Child Protective Services, which referred Amy to The Children's Assessment Center to be interviewed by a forensic investigator, Susan Odhiambo. The forensic investigator explained to the jury that she is charged with obtaining facts necessary to investigate accusations of sexual abuse of a child. Odhiambo conducts multiple child interviews each day.

Odhiambo recorded her interview of Amy. In that interview, Amy established that she knew the difference between a truth and a lie, and she promised to tell the truth. Then Amy described specific details about Buentello's past conduct toward her. Odhiambo testified that Amy was "certain" about her recollection and "consistent" with her description of who had assaulted her, the time frame of the assault, and the location where it occurred.

Two years later, at Buentello's trial, Amy testified that Buentello assaulted her late one evening while he was visiting from Louisiana. Amy said that it happened in 2010, when she was seven. That night, when everyone else went to bed, she went to her bedroom to watch television. About twenty minutes later, she became thirsty and went to the kitchen for a drink. Buentello was lying on the couch in the study. He called her over in a stern voice. When she complied, he told her, again in a stern voice, to sit on the couch. She hesitated, and he told her in a harsher voice to sit down. Then he told her to lie down. He laid behind her, with his arms wrapped around her and a blanket spread over them, in silence, for about five minutes. She felt "uncomfortable" and "awkward" and wanted to leave, so she told him she was hot and stood to go to her room. He said, "No, just take your clothes off." She told him no.

Buentello stood up, raised her arms above her head, and tried to take her shirt off. Amy resisted, but he took off her shirt and then the rest of her clothes. He then pushed her to the couch. He laid behind her and told her to go to sleep.

Buentello began rubbing Amy's legs. She testified that he then moved "towards my vagina." When asked whether he "was touching your vagina on the outside or on the inside," she testified, "On the inside." She stated that he began "moving around ... forward and back" and that whatever was touching her was "warm and soft and it hurt."

When a noise came from the stairs, Buentello told her to go to her room. She did. Buentello stayed with the family the rest of the weekend; Amy did not tell anyone what happened.

Amy testified that what Buentello did to her that night made her feel "scared" and "disgusted." She testified about additional disturbing events involving Buentello touching her. She said that Buentello would unexpectedly put lotion on his hands and rub her legs. Twice when he did this, he reached far into her shorts. On another occasion, he commented to her that her "butt" and "boobs" were "growing."

Amy's mother testified about two more strange events involving Buentello that occurred in 2013, when Amy was 10. During a visit, Buentello asked Amy's mother if Amy's younger sister could nap with him in Amy's bedroom. According to Amy's mother, Amy insisted to her that Buentello not be allowed to nap with the young girl. Amy said she "was afraid that Grandpa was going to hurt her little sister."

The second strange event involved Buentello's asking to take Amy to Louisiana to stay with him. Amy's mother testified that she offered to let Amy and her brother visit Buentello together, but Buentello said no. Buentello became angry with Amy's mother because she would not allow Amy to stay with him alone.

Although Amy's mother thought these two events were strange, at the time she trusted Buentello. However, looking back on these two specific events and reflecting on Amy's behavior during that time, Amy's mother testified that there were signs that Amy was uncomfortable: she had begun to avoid Buentello during his visits and would stay physically close to her when he was nearby.

Around this same time, when Amy was 10 and Buentello was not in the home, Amy and her older sister were in Amy's room, laughing and talking. Amy opened her dresser and unexpectedly saw Buentello's Bible in her dresser drawer. The realization that he had recently been in her bedroom upset her, and she began to cry. Her sister asked why she was upset. When Amy told her about Buentello, her sister was "in shock." That is when Amy's sister persuaded her to tell her parents, and they woke her step-father to tell him what Buentello had done.

The Children's Assessment Center forensic investigator, Susan Odhiambo, testified as the designated outcry witness. Before trial began, Buentello had challenged whether Odhiambo was the proper outcry witness because Amy had spoken to her step-father and her mother first. He did not call any witnesses in support of his challenge. The State responded that Odhiambo was the first person to whom Amy disclosed sufficient details of the encounter to qualify it as an aggravated sexual assault. The trial court denied Buentello's challenge and designated the CAC investigator, Odhiambo, as the outcry witness.

During her testimony, Odhiambo recounted Amy's description of the assault, including Amy's statement that Buentello "was playing with her private." When asked whether Amy confirmed that Buentello had touched inside her, and not just outside her vagina, Odhiambo responded, "She said it three different times." Buentello's counsel asked whether Amy prefaced her statements about penetration with the phrase "I think," and Odhiambo confirmed that she had, but she also indicated that Amy's phrasing was an affirmation that she had been penetrated: "She said she thinks she was, yes."

Another trial witness was Amy's therapist, Stephanie Legendre. About eleven months before trial, the State notified Buentello that Legendre would be testifying as an expert and provided her name and address. Next to her name was the notation, "Therapist/Child Expert." When Buentello realized, during trial, that Legendre was going to testify that Amy has post-traumatic stress disorder

, he indicated surprise and moved for a continuance. His motion was denied.

Legendre testified that she is a licensed professional counselor who specializes in child sexual-abuse victims. She has been treating Amy for two years. According to Legendre, Amy avoids discussing the assault, and, when she does discuss it, she demonstrates emotions of "shame and embarrassment." In their sessions, Legendre has observed evidence of trauma, including hypervigilance (described as a startle response), depression, irritability, shame, suicidal ideations

, failure to accept nurture, self-inflicted cuts, and poor self-image.

Legendre opined that Amy's "core issue" is post-traumatic stress disorder

, which she described as avoidance of discussing a traumatic issue, intrusion of memories, nightmares, hypervigilance, extreme reactiveness, and altered cognition (described as having a distorted view of oneself as "disgusting or ugly or fat").

Legendre also discussed the concept of grooming, in which an offender identifies a child's vulnerabilities, uses those to build a relationship with the child, increases attention to the child, and then uses the developed relationship to coerce the child into sexual contact. Legendre also explained how children commonly disclose sexual assault. She testified that a delayed outcry, like Amy's, is common and that an outcry is typically a process in which the child will give more information about the sexual assault over time.

Harris County Sheriff's Office Deputy J. Pietsch testified about his criminal investigation. He testified that, early on in the investigation, he attempted to speak with Buentello. When asked whether he was able to...