Tienda v. State, 11–11–00283–CR

• Decision Date: 14 May 2015
• Docket Number: No. 11–11–00283–CR,11–11–00283–CR
• Citation: 479 S.W.3d 863
• Parties: Joe Louis Tienda, Appellant v. The State of Texas, Appellee
• Court: Texas Court of Appeals

479 S.W.3d 863

Joe Louis Tienda, Appellant

v.The State of Texas, Appellee

No. 11–11–00283–CR

Court of Appeals of Texas, Eastland.

Opinion filed May 14, 2015

Angie Roberts–Huckaby, Assistant, San Marcos, for Appellant.

Ginna Pastrano, E. Chevo Pastrano, The Pastrano Law Firm, Houston, for Appellee.

Panel consists of: Wright, C.J., Willson, J., and Bailey, J.

OPINION

JOHN M. BAILEY, JUSTICE

Joe Louis Tienda appeals his jury convictions for the offense of indecency with a child by sexual contact. See TEX. PENAL CODE ANN. § 21.11(a)(1), (c) (West 2011). Appellant was indicted on three counts of indecency with a child by sexual contact. The jury acquitted him of Count One and convicted him of Counts Two and Three. On Count Three, the jury assessed his punishment at confinement for a term of six years in the Texas Department of Criminal Justice, Institutional Division. On Count Two, the jury assessed his punishment at confinement for a term of ten years and recommended that the punishment be suspended. Accordingly, the trial court suspended the imposition of Appellant's ten-year sentence of confinement and placed him on community supervision for a term of ten years.

In six issues on appeal, Appellant contends that (1) one of his convictions for indecency with a child should be set aside on double jeopardy grounds; (2) the evidence was insufficient to sustain his convictions; (3) the trial court erred when it admitted, as an excited utterance, the testimony of a school nurse regarding the child's statement to her; (4) the trial court erred when it admitted, as an excited utterance, an audio recording of an interview of the child taken by a police detective; (5) the trial court erred when it admitted out-of-court statements made by the child to the police detective as information relied upon by the detective in his investigation; and (6) the trial court erred when it allowed improper opinion testimony from the police detective. We reverse and remand.

Background Facts

Appellant was charged by indictment with three counts of indecency with a child by contact. In light of the jury's verdict, we direct our attention to Counts Two and Three. These two counts of the indictment alleged that Appellant engaged in sexual contact "by touching the buttocks of [S.D.] with his male sexual organ with the intent to arouse or gratify the sexual desire of [Appellant]." Count Two alleged the date of occurrence as "on or about" July 1, 2007, and Count Three alleged the date of occurrence as "on or about" August 1, 2007.

S.D. was a sixteen-year-old girl who lived with her mother and Appellant, her stepfather. In September of 2007, S.D. told Darelle Jordan, a school nurse, that some events happened over the summer between her and her stepfather that made her feel uncomfortable. Nurse Jordan testified that S.D. made the following report to her:

She said he—when her mother was not home and she was alone at the house, that he would sit next to her, close to her, put his hand near her breast.¹ She would ask him to move his hand, he would refuse. He would joke, act like it was all in fun. She would have to actually remove herself from his presence in order to get him to leave her alone. She would try to retreat to her bedroom.

When she retreated to her bedroom, he followed her into the bedroom, he laid down in the bed next to her, he rubbed his pelvis and genital area on her, he laid on top of her. When he was doing that, she could feel his erect penis, it made her frightened and uncomfortable.

Nurse Jordan told S.D. that she would have to report these incidents to Child Protective Services (CPS). S.D. did not want Nurse Jordan to report anything. Nurse Jordan testified that S.D. was worried that, if Appellant was reported to authorities, it "might cause problems in their family, that financial support by [Appellant] would be missed by her family." Nevertheless, Nurse Jordan reported these events to CPS.

Scott Johnson, a detective with the San Marcos Police Department, received the report from CPS. He met with S.D. at her high school. Detective Johnson testified that he interviewed S.D. and recorded her statements about what had happened between her and Appellant. He testified that S.D. made the following report to him:

[S.D.] described activity which began in that summer proceeding [sic] that school year of 2007. What began as uncomfortable displays of affection on the part of [Appellant] where he began kissing her, which then evolved into further attempts to kiss on the mouth. She described him trying to kiss her using his tongue. She said that he began—when he would embrace her, he would frequently brush his hand across her—

...

As I was saying, she described the defendant brushing his hand across her breast, making her feel very uncomfortable. She then described her efforts to try to avoid him by going into her room and staying in her room.

She described [Appellant] coming into her room and lying in bed with her. And at times, on more than one occasion, lying on top of her in—he was dressed in shorts. And she—the action she described was him lying on top of her so that his genitals would be in contact through the clothing with her buttocks and him moving back and forth in a motion, and she also described feeling his erect penis through his shorts while he was doing that.

A portion of the audio recording of Johnson's interview of S.D. was admitted at trial as an excited utterance. In the portion of the audio recording admitted as evidence, S.D. said that Appellant would lie on top of her while she was lying on her stomach. She reported that Appellant would move "up and down" on her while lying on top of her and that she could feel his penis when he was doing this even though he was wearing shorts. S.D. stated to Detective Johnson that Appellant's penis was "hard" and that he did this "three times."

At the time of trial, S.D. was twenty years old. She was reluctant to testify against Appellant. The trial court issued a writ of attachment to secure her attendance at trial after she did not voluntarily comply with a subpoena. S.D. told the prosecutors prior to trial that she wanted the charges against Appellant dropped. When asked why she wanted the charges dropped, S.D. testified: "Because I felt like everything was fine in our family and I just wanted to just move on with my life and just, you know, be happy again." S.D. was hesitant to testify that Appellant had sexual contact with her. S.D. initially testified at trial that Appellant's penis was not hard on the occasions that he lay on top of her. She also testified that it was possible that what had happened was an accident or simply wrestling with Appellant. When confronted with the statements she made to Detective Johnson, however, S.D. testified that she told him the truth about what had occurred. S.D. also testified that she remembered telling Detective Johnson that she felt Appellant moving up and down when he was on top of her and she felt his hard penis on her "butt."

Double Jeopardy and Sufficiency of the Evidence

In his first issue, Appellant asserts a double jeopardy claim. He argues that he suffered multiple punishments for the same offense. Specifically, Appellant contends that he was convicted of two identical offenses "arising out of only one possible fact scenario." He asserts that there was evidence about only one occasion when Appellant's penis came into contact with S.D.'s buttocks. He supports this contention with the following comment that one of the prosecutors made during a bench conference concerning the State's compliance with Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

But the meeting I had with [S.D.] there was no recantation. She confirmed everything she told to the detective was the truth. And then she went over, step by step, with me what it is the defendant had done to her.

She made it clear that there were three separate occasions. And that what we had misinterpreted from her interview was that the penis to the buttocks happened three times and that it really only happened once. The first time was him getting in bed and holding her close and the second time was the penis to the buttocks and the third time was kissing and breast touching.

The Fifth Amendment's Double Jeopardy Clause provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. Among the protections afforded by this provision is the protection from multiple punishments for the same offense. Langs v. State, 183 S.W.3d 680, 685 (Tex.Crim.App.2006). There are two variations of a multiple-punishments claim: (1) where there are both a greater and a lesser included offense and the same conduct is punished twice—once for the basic conduct and a second time for that conduct plus more—and (2) where the same criminal act is punished under two distinct statutes and the legislature intended the conduct to be punished only once—such as causing a single death and being charged with both intoxication manslaughter and involuntary manslaughter. Id.

The State contends that Appellant waived his double jeopardy claim by not raising it in the trial court. We disagree. The State is correct that a double jeopardy claim generally must be raised in the trial court to preserve the error for appellate review. See Gonzalez v. State, 8 S.W.3d 640, 643–46 (Tex.Crim.App.2000). Because of the fundamental nature of the double jeopardy protections, however, a double jeopardy claim may be raised for the first time on appeal or on collateral attack if two conditions are met: (1) the undisputed facts show that the double jeopardy violation is clearly apparent on the face of the record and (2) when enforcement of the usual rules of procedural default serves no legitimate state interest. Langs, 183 S.W.3d at 687 ; Gonzalez, 8 S.W.3d at 643.

Appellant's double jeopardy claim is essentially a challenge to the sufficiency of the evidence to show that he committed...