Mendoza v. State, 08-17-00230-CR
| Decision Date | 25 November 2019 |
| Docket Number | No. 08-17-00230-CR,08-17-00230-CR |
| Parties | MIGUEL MENDOZA, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Appeal from the 41st District Court of El Paso County, Texas
(TC# 20140D02819)
A jury found Miguel Mendoza, Appellant here, guilty of aggravated sexual assault of a child and indecency with a child. He was sentenced to thirty-six years' on the sexual assault and ten years confinement on the indecency count, to be served concurrently, along with a $5,000 fine for each offense. His appeal effectively raises four arguments: (1) whether entries in a therapist and mental health facility's records are "testimonial" and thus trigger the Confrontation Clause of the Sixth Amendment; (2) whether he was entitled to jury instructions that would have commented on those same records; (3) whether school records improperly bolstered the complaining witness's character and were thus inadmissible; and (4) whether the evidence supports the verdict. We conclude that his complaints lack merit and affirm the judgment below.
BACKGROUND
In 2008, Michelle L. separated from her husband. By that time, the couple had three girls ranging in age from six to eleven. The complainant in this case, Y.L., was the oldest. Soon after her husband moved out, Michelle met Appellant at their workplace. The two started dating in July or August of 2008. By August or September, Michelle had found a new house to live in, but it needed repairs. Appellant volunteered to help with the repairs, and he began staying over at the house, at least on weekends.
In its indictment, the State alleged that on one of these weekends Appellant committed an aggravated sexual assault on Y.L. by placing his sexual organ in her mouth. The State also alleged in the second count of the indictment that Appellant committed indecency with Y.L. by touching her breast. In the trial of this case, Y.L. described those events in more detail. She awoke one morning and found that her mother and sisters had left for the store, leaving her and Appellant alone in the house. She and Appellant were talking when "all of a sudden things started to get weird." She testified that he unzipped his jeans and pulled out his penis. He pushed her down to her knees and he told her to open her mouth. He then pushed her head onto his penis. When he was done, he told her not to tell anyone.
Y.L. also testified that for a period of time Appellant would come into her room every night purportedly to say "good night" but would instead pull up her tank top and start licking her breasts. She described additional behavior not covered by the indictment. Y.L. had her own room which was across a hallway from the master bedroom where Appellant slept. She testified that Appellant would walk around that room in his boxers with his penis out in plain sight and would make eye contact with her. Another time, he took her into the master bedroom, took off her top, and asked to take pictures. Finally, one time while she was driving with Appellant to a restaurant, she testified that he put her hand in his lap and said, "You know where to put it."
This behavior, however, lasted only about a month and after that, Appellant never touchedor acted inappropriately around Y.L. again. Y.L. was certain that these events took place just before she started sixth grade, which would have been September 2008. Appellant eventually moved into the house full-time and stayed there until 2011.
Y.L. did not make an immediate outcry. Rather, she testified that in 2011 while watching a movie that had a scene with an older man touching a younger girl, she got upset and ran to her room. Her mother followed her, and at that time Y.L. told Michelle, but only in general terms, that Appellant had "touched" her. Michelle immediately called and confronted Appellant on the phone; Y.L. could overhear him deny that he did anything wrong. Nonetheless, Michelle testified that she told Appellant to vacate the house, which he did. Michelle did not press her daughter for any details of the event, nor did she report the matter to the police. And Michelle conceded at trial that she did not initially believe Y.L. because all her daughters were going through the trauma of the divorce from their biological father and "were acting out."
Sometime after this first out-cry, Appellant came to the house to take everyone out to dinner. The record was disputed whether the evening out was pre-arranged, or Appellant just showed up. But upon seeing or hearing Appellant at the door, Y.L. went to the bathroom and began crying. Michelle was unable to console her. Appellant then told Michelle that he would leave, and they could go out another time. Michelle also began seeing changes in Y.L.'s behavior, including school absences, a lack of friends, and refusing to come out of her room. Michelle never again dated Appellant. At trial, Michelle testified that she now believes her daughter.
Y.L. made another outcry to a school counselor in February of 2013. By that time, Y.L. was a freshman in high school. While in tears in a counselor's office, she stated that she wanted to hurt herself After telling the counselor that she wanted to endher life, the counselor contacted the Texas Department of Child Protective Services (CPS); the school also contacted Y.L.'s mother. On the school's referral, later that year Y.L. saw a behavioral counselor, Esther Monty, LPC. Ms. Monty in turn referred Y.L. to an in-patient psychiatric facility, Peak Behavioral Health Services (Peak Behavioral), where she was admitted for nine days in the fall of 2013.
The police became involved in September 2013, and the State indicted Appellant in June 2014. The case did not come to trial until October 2017. By that time Y.L. was twenty-years' old. As we note above, the jury found Appellant guilty under both counts. He raises essentially four issues on appeal. In two related complaints, he challenges the admission of the records for Esther Monty and Peak Behavioral Center. Next, he claims that the trial court erred in refusing several tendered instructions that would have told the jury how to consider doctor, counselor, therapist, and mental health records. Appellant also complains that Y.L.'s school records were inappropriately admitted. Finally he claims that the evidence is legally insufficient to support the verdict.1
CONFRONTATION CLAUSE
In his first two issues, Appellant complains that the trial court admitted two sets of records into evidence in derogation of the Confrontation Clause to the Sixth Amendment. The first set (State's Exhibit 2) are the records of Esther Monty, LPC.2 Y.L. saw Esther Monty from September10, 2013 to November 22, 2013. In the initial assessment, Y.L. answered "yes" to the question of whether she had ever been abused by someone outside of the family. Y.L. identified Appellant by name as the abuser but declined to discuss any details. Ms. Monty's diagnostic impression includes "sexual abuse of child victim" and she immediately referred Y.L. to a psychiatric hospital in order to stabilize a mood anxiety, noting the risk for suicide. After Y.L.'s release from the hospital, Ms. Monty continued to see Y.L. for anxiety and depression.
The second set of records (State's Exhibit 3) are from Peak Behavioral. Y.L. was admitted to Peak Behavioral's facility from September 16, 2013 to September 25, 2013. The admitting diagnosis included "major depression, recurrent, severe with post-traumatic stress disorder, chronic sleep disorder due to gen med condition." The records--spanning some 205 pages--at several junctures recite Y.L.'s history to include "molestation of 5 years ago by her mother's boyfriend" and "fondling as well as force oral sex[.]" One entry identifies Appellant by name as the molester.
Appellant objected to the records under both hearsay and the 6th Amendment's Confrontation Clause. Neither Esther Monty nor any sponsoring witness from Peak Behavioral testified at trial. Rather, the records were proved up by affidavits establishing them as business records. The State served notice of its intent to offer the records under TEX.R.EVID. 902(10) well in advance of trial. The trial court overruled both objections, and Appellant advances only the Confrontation Clause objection on appeal.
Applicable Law
"In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him[.]" U.S. CONST. amend VI. That would mean, for instance, the State might be precluded from playing at trial a tape-recorded statement of a witness that the accusedhad no chance to cross-examine. Crawford v. Washington, 541 U.S. 36, 38 (2004). It might also prevent the State from using the laboratory report of an expert chemist retained by the State to prove that a substance was illegal, absent the defendant's ability to cross examine the chemist. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 324 (2009). Stated more precisely, an accused's right to confrontation under the Sixth Amendment is violated when a witness is permitted to relate out-of-court "testimonial" hearsay statements unless the declarant is unavailable, and the defendant had a prior opportunity to cross-examine the declarant. Crawford, 541 U.S. at 59; De La Paz v. State, 273 S.W.3d 671, 680 (Tex.Crim.App. 2008). The right of confrontation is a "bedrock procedural guarantee," that applies to both federal and state prosecutions. Crawford, 541 U.S. at 42.
Yet as explained by the Court in Crawford, an out-of-court statement must be "testimonial" in nature to implicate the Confrontation Clause. Crawford, 541 U.S. at 68. "[The Clause] applies to 'witnesses' against the accused--in other words, those who 'bear testimony.'" Crawford, 541 U.S. at 51, quoting 2 N. Webster, An American Dictionary of the English Language (1828)....
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