De La Paz v. State

• Decision Date: 18 June 2008
• Docket Number: No. PD-1168-07.,PD-1168-07.
• Citation: 273 S.W.3d 671
• Parties: Oscar Pena DE LA PAZ, Appellant,<SMALL><SUP>1</SUP></SMALL> v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

273 S.W.3d 671

Oscar Pena DE LA PAZ, Appellant,¹ v. The STATE of Texas.

No. PD-1168-07.

Court of Criminal Appeals of Texas.

June 18, 2008.

Rehearing Denied September 10, 2008.

Frederick T. Dunbar, for Oscar Pena De La Paz.

HOLCOMB, J., delivered the opinion of the Court, in which MEYERS, PRICE, JOHNSON, HERVEY, and COCHRAN, JJ., joined.

The trial court admitted certain hearsay evidence over appellant's objection that its admission would violate his Sixth Amendment right to confront the witnesses against him. On direct appeal, the court of appeals held that the trial court did not err in admitting the evidence. We now reverse and remand.

On October 18, 2005, a Nolan County grand jury returned an indictment charging appellant with two counts of aggravated sexual assault of a child under Texas Penal Code § 22.021(a)(1)(B)(i). Count one of the indictment alleged that appellant penetrated the child's female sexual organ with his finger, and count two alleged that he penetrated her sexual organ with his penis.

On March 27, 2006, the State brought appellant to trial before a petit jury on his plea of not guilty. At the guilt stage of the trial, the State called six witnesses: Angie Medina, Tonya Sides, Matt Counts, Les Soles, Pat Rollins, and Michelle Johnson. The State also offered in evidence numerous exhibits. Appellant called four witnesses: Angie Medina, Melissa Duran, Irene De La Paz, and himself.

Angie Medina, when called to the witness stand by the State and, later, by appellant, testified that: (1) she was 25 years old and resided with her five children at 1403 Hughes Street in Sweetwater; (2) on the day in question, Saturday, May 14, 2005, appellant—her longtime boyfriend and the biological father of her children—also resided with her and her children at that address; (3) her children included three girls (K.D., C.D., and F.D.) and two boys (M.D. and O.D.); (4) on the day in question, K.D. was seven years old, C.D. was six years old, M.D. was six years old, O.D. was four years old, and F.D. was two years old; (5) on that day, at 3:00 p.m., she left her children at home alone with appellant while she accompanied her mother and niece to a nearby Wal-Mart store; (6) she returned from the Wal-Mart store at about 3:50 p.m. and found the front door locked; (7) she knocked on the door, and appellant opened it; (8) she entered the residence, put her purchases on a table, and then went back outside to check on the children, who were all playing there; (9) she then went back inside the residence to use the bathroom; (10) appellant accompanied her into the bathroom, and the two of them conversed there; (11) appellant told her that, while she was gone, he had bathed the children; (12) appellant also "talk[ed] about what would happen if one of the daughters got molested"; (13) she and appellant then heard a knock at the front door; (14) appellant went to the front door and opened it, while she remained in the bathroom; (15) she "heard [appellant] saying, `I told you not to be playing outside'"; (16) she then left the bathroom, at which point appellant told her that K.D. was bleeding "at ... her middle spot"; (17) appellant also "said that [K.D.] had told him there was a black guy"; (18) she examined K.D. and found bloody toilet tissue in her underwear; (19) she removed the bloody tissue from K.D.'s underwear and "put some more ... in it to make it stop bleeding"; (20) she asked K.D. what had happened to her, but K.D. would not say; (21) she (i.e., Medina) then telephoned her mother to ask for a ride to the local hospital; (22) appellant "didn't want [her] to take [K.D.] to the hospital," however, because "he was afraid that ... they would get the kids taken away"; (23) appellant was worried specifically that "the cops" and "CPS would get involved"; (24) she told appellant that she "had to take [K.D. to the hospital] because she was bleeding a lot"; (25) her mother drove her and K.D. to the emergency room of the local hospital; (26) while at the hospital, she telephoned appellant back at their residence in order "to check up on the kids"; (27) she spoke with appellant briefly at that time, and then he put six-year-old C.D. on the telephone; (28) she could hear appellant, in the background, coaching C.D. to tell her that K.D. had fallen out of a tree; (29) K.D. was later transferred to a hospital in Abilene; and (30) K.D. was released from the hospital in Abilene on Tuesday, May 17, 2005. Medina also testified that, in April 2005, appellant had caught her having sexual intercourse with another man.

State's witness Tonya Sides testified that: (1) she was a child-abuse investigator and certified peace officer employed by the Nolan County District Attorney's Office; (2) on May 14, 2005, she was called to the Rolling Plains Hospital in Sweetwater to investigate a possible case of child abuse; (3) while at the hospital, she spoke with Angie Medina and learned that Medina had given consent for a police search of her residence at 1403 Hughes Street; (4) she then drove to Medina's residence and participated in a search of it; (5) when she arrived at the residence, appellant, appellant's mother, and "a few" of his children were there; (6) during the search, she found a pile of wet, bloodstained clothing in the bathroom; (7) she also found "some toilet tissue in the trash can that had blood on it"; (8) while at the residence, she "requested that [appellant] go to the police department and talk with [the police] about [K.D.'s] injuries," and appellant agreed to do so; (9) later that day, while talking with appellant at the police station, she explained to him that he was not under arrest and that he was free to leave at any time; and (10) appellant then gave a statement, which was reduced to writing and signed by him.

Appellant's written statement, admitted in evidence as State's Exhibit Number One, read as follows:

"Angie and I were in the house. Angie was in the restroom and I was in the kitchen fixing a sandwich. While I was fixing the sandwich Angie said, `Who's knocking on the front door?' I told her that I didn't know. I went to the front door and nobody was there. I heard somebody start knocking at the back door. I went to the back door and saw [K.D.] standing there. She had her hand out and I could see blood on the tips of her fingers. [K.D.] told me she was bleeding. I asked her where she was bleeding from and she told me `down there.' I pulled out her shorts and could see blood. Angie asked what was going on and I told her. Angie called her mom and asked her to take them to the doctor. We asked [K.D.] what happened and she just told it was a black boy. I asked her which black boy and [K.D.] told me that she did not know. I asked her what happened and she just said it was a black boy. [C.D.] told me that [K.D.] had fell out of a tree. [K.D.] told me that she didn't fall out of a tree [and that] it was a black boy. Angie's mom showed up and they took [K.D.] to the doctor."

Sides testified further that: (11) on May 17, 2005, she drove back to the residence at 1403 Hughes Street and placed appellant under arrest; (12) she transported him to the Nolan County Jail, where she advised him of his Miranda² rights and where he voluntarily gave a second statement, which was different from his first statement; (13) appellant's second statement was also reduced to writing and signed by him; and (14) she did not coerce appellant or promise him anything in return for his second statement.

Appellant's second written statement, admitted in evidence as State's Exhibit Number Two, read as follows:

"On Saturday, my wife went to the store with her mother. She left me with four of my kids. I was going to take them a bath. I put the two girls, [C.D.] and [K.D.], in the bath. I told the boys to wait for the girls to finish so they could take a bath. I had to put shampoo on their hair and around their neck and arm pits and arms. They were jumping around and stuff in the tub. [K.D.] had soap in her eyes and she was crying. I was like mad. I reached down by her legs and pulled her hard. I did not have this planned. I didn't plan to go to her private. I guess that is when I cut her open. I had seen blood. When I grabbed her I could feel part of her private. After I seen blood, it scared me. So I got them out of the tub and I cleaned her up. I told [C.D.] to go in the other room and change because I didn't want her to see it. I used toilet paper to clean her up. I got her under clothes and I put them on her while we were in the restroom. I told her to walk out like that and change into her other clothes. From there, they got dressed and I combed their hair. I told them to play outside. I was scared. I didn't want to end up in a place like this. I didn't know what to do. After that, that is when they went out to play and I took the boys a bath. My wife got home and we went into the restroom. [K.D.] was knocking on the front door. My wife asked who it was and I went to the back door and I opened it and saw blood on [K.D.'s] hands. She was telling me that she was bleeding from down their [sic]. From there, we went to the room and started cleaning her and my wife told me she was going to call her mom and take her to the doctor. I never told her not to call the police. The only thing I did, was get scared when I seen the blood from my little girl and I told her not to tell what happened. My wife pushed toilet paper in my daughter's private. I love my kids a lot. I love my daughter and I would never do anything to hurt her. What happened was an accident and it wasn't anything I planned. I love them all with all my heart. I wished none of this happened."

State's witness Matt Counts testified that: (1) he was an officer in the Sweetwater Police Department; (2) on the afternoon of May 14, 2005, he responded to a call from the emergency room of a hospital in Sweetwater; and (3) when he arrived at the emergency room, he took possession of...