Gonzalez v. State
| Decision Date | 16 May 2017 |
| Docket Number | NO. 01-15-00902-CR, NO. 01-15-00903-CR,01-15-00902-CR |
| Citation | 522 S.W.3d 48 |
| Parties | Roel David GONZALEZ, Appellant v. The STATE of Texas, Appellee |
| Court | Texas Court of Appeals |
Wayne T. Hill, Houston, TX, for Appellant.
Jessica Caird, Assistant District Attorney, Kim K Ogg, District Attorney, Houston, TX, for State.
Panel consists of Justices Keyes, Higley, and Lloyd.
A jury found Appellant, Roel David Gonzalez, guilty of the offense of aggravated sexual assault of a child on the first offense and indecency with a child on the second.1 Appellant elected for the jury to assess punishment, and it assessed his punishment at confinement for twenty years on the first offense and five years on the second offense, to run concurrently. Appellant raises the following five issues: "Evidence was insufficient as a matter of law to sustain Appellant's conviction for" (1) "the offense of aggravated sexual assault of a child [and (2) ] for the offense of indecency with a child"; (3) "[t]he trial court erred in denying Appellant's motion [for] mistrial for the constitutional challenge to article 39.15 of the Texas Code of Criminal Procedure ;" (4) "[t]he trial court erred when it overruled Appellant's objection to the improper argument of the prosecutor injecting evidence outside the record"; and (5) "[t]he trial court erred in denying Appellant's motion for mistrial based upon the prosecutor's improper jury argument."
We affirm.
Mother testified that she met Appellant through work, began dating him, and eventually they moved into a house along with Mother's three daughters in 2008. At the time, Alice was almost twelve, Belle was ten, and Cici, the complainant, was age eight.2 Appellant became the family's primary supporter because, as Belle and Cici testified, Mother contracted multiple sclerosis. They lived together happily until one night when Appellant and Mother argued and threw beer containers at each other.
According to Mother's testimony, Appellant was outside drinking with friends. After she asked them to come inside, she went outside where she and Appellant argued. Mother conceded that, after they argued, she threw a six-pack of beer at Appellant, and then he threw a twelve-pack of beer at her, cutting her forehead and cheek. Alice testified that she heard Mother go outside, and then she heard a loud boom. Alice went outside, smelled beer and blood, and saw her mother on the floor next to broken glass beer bottles with a bleeding gash on her forehead. Belle testified that, after Alice woke her, she ran outside to the garage and saw her mother bleeding and beating on Appellant's car window. Cici also saw her mother bleeding after the beer bottle incident.
Following this incident, the relationship between the girls and Appellant was strained. Mother testified that, before the beer bottle incident, the girls would greet Appellant, but afterwards, they did not want to be home with him on the weekends. Priscilla Mango and Bryanna Gonzalez, Appellant's daughters, also observed the change in behavior. Mango testified that the girls initially called her father "Daddy," but stopped after the beer bottle incident. Gonzalez testified that "[the girls] loved him like their own father," but became cold and distant after the incident. Also, during cross-examination, an investigator for the Texas Department of Family and Protective Services (DFPS) testified that Alice told her that she wanted Appellant out of the house and that she wanted her Mother and her biological father to reconcile. According to the investigator, Alice's dislike for Appellant increased after the beer bottle incident. The investigator also confirmed that Mother knew her daughters did not like Appellant. Belle and Cici both conceded on the stand that they did not like Appellant.
In 2009, on the night of the first incident, Belle testified that she, Cici, and Appellant were up late playing Monopoly, as they often were, and Mother had gone to sleep. Belle lost. While the game continued, she fell asleep. She testified that she woke up as Appellant tried to unzip her blue jean shorts to the light of a camouflage-colored flashlight, but she rolled over, dissuading him. She also testified that she saw Appellant move towards Cici with a flashlight, and then stand over her. Belle said that she thought Appellant did the same thing to Cici.3
Cici testified that Appellant stood over her and pulled her nightgown up and underpants aside to put his mouth and tongue on her genitals. Cici defined her genitals as the part of her body she uses to go to the bathroom. Cici was scared and "didn't know what to do."
Cici further testified that, after a while, Appellant stopped, retrieved a beer from the kitchen, and came back. Appellant re-opened her legs by grabbing her ankles, and returned to licking her genitals. Cici kept her eyes shut, so that Appellant would not know she was awake.
Cici also testified that, on a second night, she awoke to Appellant unbuttoning her shorts and sticking two fingers into her vagina, which she demonstrated during trial using a Kleenex box. She was in the room where all three girls slept. Unlike the last time, Cici said it hurt her, so she opened her eyes, but she did not try to wake her sisters. Cici testified that Appellant stopped, went to the bathroom, and washed his hands.
On a third night, Cici testified that she saw Appellant enter their room, but Cici shook Alice awake. Alice questioned Appellant's presence. Also, the noise woke Mother, who asked Appellant to turn off the light. Appellant left the room.
Alice testified that she learned of the abuse from Belle and Cici in the summer of 2010, and she started a rumor at school that Appellant had raped her. She testified that the point of the rumor was to remove Appellant from the house or to call attention to Appellant's wrongdoing. When confronted by a school counselor, Alice conceded that she lied when she said that Appellant raped her. The DFPS investigator testified that she received a report about suspected abuse in April of 2011, and that both Belle and Cici told her about the sexual abuse.
All three girls were transported to, and participated in, forensic interviews at the Children's Assessment Center. Stephanie Jones, the forensic interviewer, testified that Cici was 10 years old at the time of the interview and made the comment "my stepfather raped me."
The State provided Brady notices for the forensic interviews to Appellant. Prior to and during trial, Appellant moved for copies of the forensic interviews in order to fully prepare his defense. The trial court allowed access to the interviews, but did not allow Appellant to copy the interviews. Both Appellant's counsel and expert reviewed all three videos prior to trial. Appellant also asked for a mistrial on the basis that the lack of copies hindered his right to prepare and confront witnesses, and the trial court denied the mistrial request. During its rebuttal case, the State called the forensic interviewer, and, after Appellant waived his objections, all three interviews were admitted by the trial court and published to the jury.
During his cross-examination of the girls, Appellant highlighted inconsistencies between their testimony on the stand and their forensic interviews. Belle conceded on the stand that in the forensic interview she did not mention the flashlight, did not remember telling Cici to go to her room, did not see Appellant get a beer after the initial abuse of Cici, and did not see Appellant go back and touch Cici again. Cici testified that she did not remember Appellant using a flashlight, and still did not remember the flashlight after reviewing her forensic interview testimony in which she said she woke up to a bright light. Cici did not tell the forensic interviewer about Appellant's massaging her feet before she fell asleep
Appellant, on appeal, calls our attention to discrepancies between Belle and Cici's testimony: Cici did not remember falling asleep on the couch, nor did she remember anyone else being awake, even though Belle had testified to being awake. Also, Belle said the girls did not wear shorts around Appellant, but Cici said she was wearing shorts during the second assault.
Concerning the third night, Appellant also points out on appeal that Cici testified in the forensic interview that her older sister, Alice, was at her grandmother's house, not at home, as she testified at trial.
Dr. Reena Isaac, a child abuse pediatrician and the medical director of the forensic nurse team at Texas Children's Hospital, conducted the medical examinations for the DFPS investigation, and specifically of Cici. Isaac testified that Cici told her that Appellant touched "in my private parts" and pointed to her genitals. Isaac related that Cici said Appellant touched her genitals with his mouth and his fingers two times, but Cici never saw Appellant's private part. Isaac further testified that she found no damage in Cici's genital area, which was expected because any damage could have repaired itself within days. On cross-examination, Isaac conceded that, even though the exam itself is not dispositive, she did not see any physical signs of abuse.
Dr. Gilbert Garcia, a pediatrician with Northeast Pediatric Associates of Humble, testified that Cici visited his office twice in 2011. The first was a normal visit, where everything "looked fine." On a second visit for an upper respiratory infection
several months later, Mother and Cici met with one of Dr. Garcia's physician's assistants. Dr. Garcia read the assistant's notes to the jury, which indicated Mother was very concerned about child abuse dating back two years, and she asked for a referral to a psychiatrist:
Mom states that patient was sexually abused for over two years. She found out this April that her boyfriend was sexually abusing [Belle] and her sister. Mom had gone to the police and both girls had been examined by CPS...
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