Sandoval v. State

• Decision Date: 13 September 2013
• Docket Number: No. 03–11–00416–CR.,03–11–00416–CR.
• Citation: 409 S.W.3d 259
• Parties: Felix SANDOVAL, Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

409 S.W.3d 259

Felix SANDOVAL, Appellant

v.The STATE of Texas, Appellee.

No. 03–11–00416–CR.

Court of Appeals of Texas, Austin.

Sept. 13, 2013.

Alexander L. Calhoun, Austin, TX, for Appellant.

Christopher P. Johnson, Assistant Criminal District Attorney, San Marcos, TX, for Appellee.

Before Chief Justice JONES, Justices ROSE and GOODWIN.^*

OPINION

J. WOODFIN JONES, Chief Justice.

A jury convicted appellant Felix Sandoval of the offense of sexual assault of a child, seeTex. Penal Code § 22.011(a)(2)(A), and assessed his punishment, enhanced by a prior felony conviction, at confinement for 80 years in the Institutional Division of the Texas Department of Criminal Justice. See id. §§ 22.011(f) (categorizing offense as second degree felony), 12.42(b) (providing that at trial of second degree felony offense,defendant shall be punished for first degree felony upon proof of previous felony conviction), 12.32 (punishment range for first degree felony is imprisonment for life or any term not more than 99 years or less than 5 years). In nine points of error on appeal, appellant complains about the removal of a juror during deliberations, the admission of hearsay evidence, the admission of improper opinion testimony, and the admission of character-conformity evidence. For the following reasons, we reverse appellant's conviction and remand the cause to the trial court for a new trial.

BACKGROUND

The record reflects that on July 14, 2010, the victim, C.E., turned 15 years old.¹ Appellant was married to C.E.'s aunt, and occasionally C.E. spent the night in their home to visit their daughter, C.E.'s younger cousin. In November 2010, C.E. disclosed to another cousin, B.E., that on one overnight visit earlier that year appellant forced her to have sexual intercourse with him. The cousin got her father, C.E.'s uncle, and had C.E. repeat the information to him. He, in turn, got C.E.'s mother and had C.E. tell her mother. C.E.'s mother, Rosie, reported the incident to police the following day.²

Daniel Preston, a patrol officer with the City of Kyle Police Department, responded to a dispatch call concerning C.E.'s complaint of sexual assault. He met with C.E. and her mother at the police station, where he interviewed them and took written statements from both of them. During the officer's testimony at trial, the written statements of both C.E. and Rosie were admitted for the limited purpose of showing what information the officer acted on. In order to “minimize any perceived prejudice to the defendant,” the trial court ordered that the statements not be published to the jury until C.E. and her mother testified.

Officer Preston testified that C.E. and her mother both told him that appellant had sexually assaulted C.E. the preceding summer when C.E. spent the night at his house to visit her younger cousin. In his testimony, the officer repeated the details of C.E.'s account of the alleged sexual assault. According to the information he received, C.E. spent the night at her aunt's house one night between mid-July and mid-August 2010. The next morning, her aunt and cousin left to go to the store, but C.E. remained behind to sleep some more. After her cousin left, C.E. locked the bedroom door and returned to bed. She then heard appellant repeatedly knocking on the door seeking entrance. C.E. refused to open the door, telling him to go away. She got up out of bed and went to sit on a couch by the window to await her aunt's return. However, appellant somehow unlocked the door and entered the bedroom. According to C.E.'s report to the officer, appellant then came toward her and began hugging her and kissing her on the mouth. C.E. told the officer that she moved her head from side to side to avoid the kisses and told him to stop. She said that appellant then threw her on to the bed and when she attempted to get up he pushed her back down on the bed. They struggled over her sweat pants—when appellant repeatedly attempted to remove them she kept pulling them back up—until he managed to remove them completely after he grabbed her hands. She reported that when he held her hands, it caused her pain. C.E. told Officer Preston that appellant inserted his penis into her vagina as she continued to struggle and fight. She said that appellant had intercourse with her for approximately five minutes and then stopped. He told her not to tell anyone about what had happened and then took his clothes and went into the bathroom. When her aunt and cousin returned, C.E. pretended nothing had happened. She did not say anything until November 14 of that year, when she revealed the assault to her 15–year–old cousin. In his testimony, the officer confirmed that what C.E. told him was “in line” with what her mother told him had happened.

The officer also testified that during his interview of C.E., she gave a description of a tattoo on appellant's upper arm. During questioning on redirect examination, the State showed Officer Preston a photograph of a tattoo on appellant's arm taken during his jail book-in, and the officer opined that it matched the description C.E. gave him. In addition, Officer Preston described the clothing that C.E. reported appellant had been wearing at the time of the assault—a white t-shirt and camouflage shorts. The officer also said that C.E. indicated that she did not report the assault sooner because she was scared. He further testified that C.E.'s written statement comported with what she had told him in the interview and, further, that he “didn't find any glaring discrepencies or inconsistencies ... that would raise red flags.” After taking the report, he forwarded the case to the Criminal Investigation Division.

Pedro Carrasco, a detective with the Kyle Police Department, was assigned to investigate the case. He set up a forensic interview of C.E. at the local child advocacy center. As part of his investigation, he reviewed the video of the interview.³ He opined in his testimony at trial that C.E.'s forensic interview was consistent with both the written and oral statements C.E. had provided Officer Preston. He also explained that in her forensic interview C.E. described a tattoo on appellant's left arm. After being shown a photograph of appellant's tattoo by the prosecutor, he opined that it matched the description C.E. gave to the interviewer. Detective Carrasco also testified that he had not observed anything in C.E.'s forensic interview that indicated to him that she had fabricated the allegations.

The detective also testified that, as part of his investigation, he made contact with appellant, who agreed to come in to the police station for a voluntary interview.⁴ During the interview, appellant recalled the night that C.E. spent the night at his house that summer, and he remembered that his wife had left the house for 10 to 15 minutes and then returned. Throughout the interview, appellant repeatedly denied committing the offense and expressed that “[he was] not a molester.” He indicated that he did not know C.E.'s motives for falsely accusing him, but offered several possible reasons for the accusation, including the family's dislike of him. At the end of the interview, appellant offered to give a DNA sample and, after the detective's request, indicated that he would consider taking a polygraph test. However, the detective had no further communications with appellant after the interview. The video recording of the interview was admitted into evidence, in its entirety, and played for the jury during the detective's testimony.⁵

Also during his testimony, Detective Carrasco confirmed that he had received information about an admission that appellant made to his wife that “seemed to corroborate that [appellant] had had intercourse with C.E.” His subsequent testimony revealed that this corroborating information came from appellant's in-laws. Allegedly, appellant admitted having had sex with his niece to his wife, who then told her mother, who then told C.E.'s mother, Rosie, who then told Detective Carrasco.⁶ In concluding his direct testimony, the detective detailed the considerations that led to his opinion that appellant had committed the sexual assault.

After the law enforcement officials testified, C.E.'s family members testified about her disclosure of the sexual assault. C.E. disclosed the sexual assault first to her 15–year–old cousin, B.E., at a family gathering. B.E. then told her father, Jesse, and had C.E. tell him what had happened. Jesse then notified his sister, C.E.'s mother, and was with them when C.E. told her mother about the assault. During his testimony at trial, Jesse described C.E.'s demeanor when she told him about the assault and when she recounted the details of the sexual assault to her mother. In her testimony, B.E. recounted the details of the sexual assault as C.E. had described it to her. She also described C.E.'s demeanor when she told about the assault, indicating that C.E. was upset. The State offered C.E.'s hearsay statements to her cousin as an “excited utterance,” and the trial court admitted them as such.

C.E.'s mother, Rosie, also testified at trial. While she did not provide the details of the sexual assault that her daughter had shared with her, she testified that C.E. identified appellant as the one who sexually assaulted her. She described C.E. as “emotional” when she told her about the assault. Rosie's written statement to Officer Preston, detailing her daughter's account of the sexual assault to her, was admitted “for all purposes” during her testimony. Much of Rosie's testimony rebutted the assertions appellant made in his interview with the detective. For example, she denied that C.E.'s biological father might have sexually molested her daughter and denied knowing any reason why her daughter might have fabricated these allegations against appellant. Rosie also testified that she had learned earlier from her oldest daughter, J.A., that appellant was sexually interested...