Rodriguez v. State

• Decision Date: 03 October 1990
• Docket Number: No. 04-89-00332-CR,04-89-00332-CR
• Citation: 802 S.W.2d 716
• Parties: Joseph RODRIGUEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 716

802 S.W.2d 716

Joseph RODRIGUEZ, Appellant, v. The STATE of Texas, Appellee.

No. 04-89-00332-CR.

Court of Appeals of Texas,

San Antonio.

Oct. 3, 1990.

Discretionary Review Granted

Jan. 30, 1991.

Stephen V. Davis, San Antonio, for appellant.

Fred G. Rodriguez, Wende Rush, Diana Cruz, Daniel Thornberry, Crim. Dist. Attys., San Antonio, for appellee.

Before BUTTS, REEVES and PEEPLES, JJ.

OPINION

BUTTS, Justice.

This is an appeal from a conviction for aggravated sexual assault of a child. A jury found appellant guilty and assessed punishment at 20 years' imprisonment.

Appellant urges four points of error. The first two are that the trial court abused its discretion in (1) ruling the child was competent to testify, and (2) in permitting the child complainant to testify by closed circuit television. In his third point appellant argues the hearsay testimony of the outcry witness, which recited details of the alleged criminal offense, was erroneously admitted. The last argument is that no evidence supports the verdict, and the trial court erred in refusing to direct a verdict of acquittal.

All of the contentions on appeal will be examined in light of the hearsay testimony of the outcry witness, the mother of the child complainant. Before trial the State designated her as the outcry witness and notified appellant, furnishing him a copy of her statement. See TEX.CODE CRIM PROC.ANN. art. 38.072 (Vernon Supp.1990). The child, not quite six years old at the time of the alleged offense on February 15, 1989, lived with her mother, Connie Lopez, and her brother and sisters in the Sutton Homes Project in San Antonio. Also living there were a teen-age brother and sister of Connie. Another brother and others lived there from time to time. According to some witnesses, the appellant stayed there in the past. Connie was not married. Appellant was married but separated from his wife at the time of this incident.

On that night Connie worked in a carnival games booth at the rodeo. She testified that she arrived home around 11:00 p.m. and could see into the bedroom. She related that appellant, fully clothed, was sitting on the bed and the complainant, wearing panties, was sitting beside him. ¹ The mother said she did not notice anything wrong and continued on to the bathroom. She said the child followed her and reported that appellant had been "messing" with her. She testified the child told her "it hurt". Asked if the child expressed the word "messing" with her, she answered: "That he had been touching her." Connie stated the girl said he had been touching her between her legs. She said, yes, the child had pointed to the part of the body she was talking about. She said the child pointed to her vagina. The prosecutor asked: "And she calls that area between her legs--is that what she calls herself, calls that part of her body (vagina)?" "Yes." She said the girl was crying. Asked, "Did she say it hurt her?", Connie answered, "Yes, she did." Asked, "Did she ever say what he was touching her with?", she answered "Yes, she did. She told me that he was touching her with his pee-pee...." "She told me that he didn't take his clothes off, that he just unzipped his pants a little."

Connie said that appellant had left in the meantime, asking her to tell her brother to pick him up after he came home from work. Appellant went to his mother's apartment, a couple of doors away. Connie said her brothers went to talk to appellant later, but he was in bed and did not talk with them. Connie called the police.

In answer to the question, "Did she say anything with regards to her legs, that he made her do anything with her legs?", Connie said: "No. She told me that he wanted her to open her legs and that she told him no and that he forced her legs open." "And after he forced her legs open, then what did he do?" "I guess that's when he started messing with her." Connie stated that she saw that the area "was all red. Her vagina was all red."

About 4:00 a.m. the following morning Connie took the child to the emergency room of the Bexar County Hospital, where a resident doctor examined the little girl. Dr. Lisa Ann Turner testified that she found no sign of trauma, and the hymen was intact. The examination revealed no semen, no penetration, or any other sign of sexual assault. When asked if the child complained to her about hurting in her vagina, the doctor answered: "This was given to me in history from her mother. She [the child] didn't say anything to me." She agreed with various surmises of both the defense and the State that a few drops of "green fluid" found near the vaginal opening could have come from the girl's vagina, or from lack of hygiene, or from discharge of a penis. Although the doctor suspected this was a discharge indicating venereal disease, even after tests she could not identify the green fluid or its origin.

When asked to give her medical opinion about sexual abuse in this case, she answered: "I would have to say I couldn't be sure. That it was possible sexual abuse had occurred. It is possible that it hasn't." We note that to this point at trial the only evidence of sexual assault had come from the outcry witness, the mother. There was no supporting or corroborative medical evidence.

Laura Gruener, a child protective specialist with the Texas Department of Human Services, testified that she had investigated the case, interviewing the child complainant on February 17th. She said she was able to communicate with the child "only to a small degree" when she tried to record the interview on video tape. The child would only shake her head yes or no, refusing to verbalize. When shown anatomically correct dolls, the child, on being asked what she called the female doll's genitalia, "she would--seemed like she shrugged. She wouldn't name them." When asked about the male doll's penis, "she got up and looked worried or frightened toward me and inched along the wall ... and then walked to the door and opened the door and walked out of the room."

The social worker testified she then took the child to another room, brought in her mother and sister, and talked with her. In answer to a question whether the child named a perpetrator, she said the child did. Appellant's objection that this was "just another way of getting into hearsay as to what [the child] said ..." was overruled. The social worker then stated that the child named the appellant. She said she called the appellant and arranged an interview. She testified he told her he had gone to sleep watching television at the apartment and when he woke, the complainant and her sister were in bed with him. He denied committing the offense.

Appellant objected that he should be allowed to show a previous sexual referral to the Department involving the same child, which this social worker investigated. Counsel stated:

We have not got to see the child herself testify, and all we have is something very second hand, and the only incident of the child really telling the story is really [the child] on the lap of her mother who probably chipped in all the details.

You have seen how [the child] testified. All she could do really is nod her head.... Her mother could have fed that whole story to the ... Department ... We have this similar type of thing happening before, a similar story. She reported the sexual assault incident and nothing--it came to nothing. Similar accusations.

THE COURT: It came to nothing because the child ... according to this woman's (social worker) testimony because the child wouldn't say anything, which is a different circumstance in this case. (Emphasis supplied) [Evidence of the earlier alleged sexual assault accusation was excluded; this is not a point on appeal.]

The appellant testified, telling of a sexual relationship between himself and Connie. He said he ended the affair because he wanted to go back to his wife and baby son. It was the defensive theory that the charges were brought vindictively. Connie denied there was any such relationship. She denied that she had a motive for bringing these charges. She did acknowledge appellant sometimes spent the night at her apartment, but said it was with her brothers. She said they would smoke pot or sniff spray paint, and she would throw them out.

Appellant testified he went to the apartment on the 15th of February to wait for Connie's brother to get off work so they could go out drinking. Appellant recounted he fell asleep watching T.V. and moved into the bedroom, lying down on the edge of the bed with all his clothes on, including a jacket. He said he did not know when the two children got into the same bed. He testified the sound of Connie coming in the back door woke him, and he got up. He said he met Connie at the back door, telling her to ask her brother to come get him when he got home, and then he went to his mother's apartment.

The State called Connie's 14 year old brother as a rebuttal witness. Moses Leal confirmed that appellant came to the apartment to wait for his brother. The last he remembered before going to sleep was that appellant was watching television. He said appellant was leaving the next time he saw appellant. "My sister called the police, and then I asked [the child] what happened, and then she said nothing. She said, 'It hurts.' That is all she told me." The only evidence in this case of the alleged sexual offense--the details to prove the truth of the event--was the hearsay testimony of the outcry witness, as related above.

The State relied on closed circuit television pursuant to TEX.CODE CRIM PROC.ANN. art. 38.071 (Vernon Supp.1990) and the hearsay statement of the designated outcry witness pursuant to article 38.072 (Vernon Supp.1990) to establish the criminal offense.

Article 38.072

Article 38.072 of the Texas Code of Criminal Procedure applies in cases of aggravated sexual assault committed against a child 12 years of age or younger. It provides in pertinent part:

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