Rosales v. State
| Decision Date | 10 November 2017 |
| Docket Number | NO. 03-15-00735-CR,03-15-00735-CR |
| Parties | Victor Rosales, Appellant v. The State of Texas, Appellee |
| Court | Texas Court of Appeals |
NO. D-1-DC-14-300723, HONORABLE JON N. WISSER, JUDGE PRESIDING
A jury convicted appellant Victor Rosales of the offense of aggravated sexual assault of a child and assessed punishment at 40 years' imprisonment.1 The district court rendered judgment on the verdict. In four points of error on appeal, Rosales asserts that the district court abused its discretion in admitting certain evidence and erred in failing to instruct the jury during the punishment phase of trial that the jury must not consider extraneous-offense evidence unless it believed beyond a reasonable doubt that Rosales had committed the extraneous offenses. We will affirm the judgment of conviction.
BACKGROUND
The jury heard evidence that on October 25, 2013, Rosales sexually assaulted Y.R., his 13-year-old niece. Y.R. testified that on the day of the assault, Rosales picked her up from school to go shopping, made stops at a convenience store and a bank, and then drove her to a motel. According to Y.R., Rosales told her that he was planning on meeting someone in one of the motel rooms and asked her if she wanted to go inside with him. Y.R. agreed. Once they were inside the room, Y.R. recounted, she sat down on the bed and Rosales "started looking at [her] pretty weird," began asking her if she and her boyfriend had ever "done anything" sexual together, and then "grabbed" Y.R., "pinned [her] down" on the bed, took off her clothes, kissed her, and eventually penetrated her sexual organ with his.
Other evidence considered by the jury included the testimony of Y.R.'s mother, the first adult to whom Y.R. had reported the assault; Dahlia Alshahri, an employee at the motel where Y.R. claimed the assault had occurred, who testified that motel records showed that Rosales had checked into the motel on the date in question; Dr. Beth Nauert, a pediatrician who had examined Y.R. following the assault and observed a tear in Y.R.'s hymen that was "consistent with [Y.R.'s] history of a single episode of previous vaginal penetration"; Denise Baxindine, a social worker who had counseled Y.R. following the assault; and Detective Carey Chaudoir of the Austin Police Department, who had investigated the assault. Based on this and other evidence, which we discuss in more detail below, the jury found Rosales guilty of aggravated sexual assault of a child as charged and assessed punishment at 40 years' imprisonment as noted above. The district court rendered judgment on the verdict. This appeal followed.
ANALYSIS
Admissibility issues
In his first, second, and third points of error, Rosales asserts that the district court abused its discretion in admitting evidence of: (1) Y.R.'s change in demeanor and attitude following her outcry to her mother; (2) statements made by Y.R. during her counseling sessions with Baxindine; and (3) cash withdrawals that Rosales made from his bank on dates other than the date of the alleged assault. Rosales contends that evidence of Y.R.'s change in demeanor and Rosales's cash withdrawals were irrelevant and that certain statements made by Y.R. to Baxindine were inadmissible hearsay.
Standard of review
We review a district court's evidentiary rulings for abuse of discretion.2 We are to view the record "in the light most favorable to the trial court's determination, and the judgment will be reversed only if it is arbitrary, unreasonable, or 'outside the zone of reasonable disagreement.'"3 "We will sustain the lower court's ruling if it is reasonably supported by the record and is correct on any theory of law applicable to the case."4
Y.R.'s change in demeanor and attitude
Over Rosales's objection, the State elicited the following testimony from Y.R.'s mother:
In his first point of error, Rosales asserts that the above evidence was not relevant to any issue in the case.
"Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action."5 "Thus, evidence merely tending to affect the probability of the truth or falsity of a fact in issue is logically relevant."6 Moreover, "[e]vidence need not by itself prove or disprove a particular fact to be relevant; it is sufficient if the evidence provides a small nudge toward proving or disproving some fact of consequence."7 "This broad definition lends itself to a liberal policy of admission of evidence for the jury's consideration."8
In a sexual-assault case, "the consequential fact is [whether] the complainant had been raped."9 "Thus, any evidence that would tend to prove that fact or increase the jury's knowledge about that fact would be relevant."10 However, when "there [is] no dispute that [the complainant] had been raped, . . evidence of her emotional difficulty after the rape would not alter the probability it occurred because that was not disputed."11 In such a case, the evidence is irrelevant because "there [is] no logical relationship between the evidence and the consequential fact."12
In this case, the district court would not have abused its discretion in finding that Rosales had disputed the occurrence of the assault. Rosales's defensive theory at trial was that no sexual assault had occurred at the motel and that any physical evidence tending to show that Y.R. had been assaulted was the result of Y.R. engaging in sexual intercourse with her boyfriend on another occasion. This theory was evident during Rosales's extensive cross-examination of Y.R., when he asked Y.R. multiple questions implying that she had lied to her parents regarding the extent of her relationship with her boyfriend and was also fabricating her account of the events that had transpired at the motel. It would not be outside the zone of reasonable disagreement for the district court to find that evidence of Y.R.'s emotional state following her outcry had at least some tendency to make it more probable that, contrary to Rosales's defensive theory, Y.R was telling the truth when she claimed that Rosales had sexually assaulted her at the motel.13 Accordingly, we cannot conclude that the district court abused its discretion in admitting the evidence on that ground.
We overrule Rosales's first point of error.
Counseling records
During the testimony of Denise Baxindine, the social worker who had provided counseling services to Y.R., the district court admitted into evidence State's Exhibit 17, Baxindine's records of her counseling sessions with Y.R. In his second point of error, Rosales asserts that certain statements contained within the records were inadmissible hearsay.14 In response, the State argues that the statements satisfy the "medical diagnosis or treatment" exception to the hearsay rule.15
Although not briefed by the parties, we must first address whether Rosales properly preserved error, if any, in the court below.16 We conclude that he did not. The exhibit to whichRosales objected contained 47 pages of printed and handwritten notes, forms, and other documents containing dozens of statements (some written in English and others written in Spanish) summarizing what both Y.R. and Baxindine had said during the course of their counseling sessions. Our review of the exhibit reveals that the records contained at least some evidence that the district court would not have abused its discretion in admitting. Specifically, at least some of the statements described Y.R.'s thoughts and emotions at the time of the sessions and thus would have been admissible under the "then-existing mental, emotional, or physical condition" exception to the hearsay rule.17
It is well established that when an exhibit contains both admissible and inadmissible material, the burden is on the objecting party to specifically point out which portion of the exhibit is inadmissible; otherwise, any error in admitting specific portions of the exhibit is not preserved for review.18 Thus, in order to preserve error, Rosales was required to identify for the district court which particular statements within the exhibits he considered inadmissible.19 Although he hasidentified those statements in his brief on appeal, he failed to do so in the court below. Instead, he made a global hearsay objection to the entire exhibit, without specifying the statements that he found to be objectionable. Consequently, Rosales failed to preserve error, if any, in the court's admission of the challenged statements.20
Moreover, even if error had been preserved, and further assuming without deciding that the specific statements challenged on appeal were inadmissible, we could not conclude on this record that Rosales was harmed by their admission. Evidence admitted in violation of the rules of evidence is non-constitutional error.21 We may not reverse a conviction for non-constitutional error unless the error affected the defendant's substantial rights.22 "A substantial right is affected whenthe error had a...
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