Zigakol v. State, No. 14-04-01168-CR (TX 11/10/2005)

• Decision Date: 10 November 2005
• Docket Number: No. 14-04-01169-CR.,No. 14-04-01168-CR.,14-04-01168-CR.,14-04-01169-CR.
• Parties: MERCY BARIGOM ZIGAKOL, Appellant, v. THE STATE OF TEXAS, Appellee.
• Court: Texas Supreme Court

Page 1

Unpublished Opinion

MERCY BARIGOM ZIGAKOL, Appellant, v. THE STATE OF TEXAS, Appellee.

No. 14-04-01168-CR.

No. 14-04-01169-CR.

Court of Appeals of Texas, Fourteenth District, Houston.

Opinion filed November 10, 2005.

Do Not Publish. Tex.R.App.P. 47.2(b).

On Appeal from the 184th District Court, Harris County, Texas, Trial Court Cause Nos. 950,172 & 950,173.

Affirmed.

Panel consists of Justices HEDGES, FOWLER, and FROST.

MEMORANDUM OPINION

KEM THOMPSON FROST, Justice.

Appellant Mercy Barigom Zigakol challenges her convictions for aggravated sexual assault of a child in cause number 950,172, and promotion of child pornography in cause number 950,173. A jury found appellant guilty of both charges and assessed punishment at thirty years' confinement for the aggravated sexual assault charge and ten years' confinement for the promotion of child pornography charge. Appellant asserts five issues on appeal challenging one of the trial court's evidentiary rulings and the legal and factual sufficiency of the evidence supporting her convictions. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

In October of 2002, Michael Lane and appellant, Lane's common-law wife at the time, went to the home of Lane's cousin, Sherry Ferrell, in Bryan, Texas. When they arrived, it was around 1:00 a.m. Appellant immediately asked to see A.F., the complainant in this case, who was ten years old at the time. Ferrell, who is A.F.'s mother, responded that A.F. was in her bedroom asleep. Appellant went to A.F.'s bedroom, awoke her, and brought her downstairs. In the meantime, Lane had asked Ferrell if A.F. could come to Houston with them and spend the night in their apartment. Ferrell replied that A.F. could make that decision herself. A.F. agreed to go with them after appellant promised her a new doll.

After they arrived at the apartment, A.F. discovered that there was not a new doll for her. A.F. went to sleep on the couch. Shortly thereafter, appellant came into the living room, awoke A.F., and told her to take off all of her clothes and go into Lane's bedroom. Appellant moved their infant daughter from the bed into a crib adjacent to the bed. Lane undressed and appellant directed A.F. and Lane to get into various sexual positions as she took photographs of them. The photos depict Lane performing sexual acts on A.F. and forcing her to perform oral sex on him. All of the photographs are taken from different angles with some of the photos being quite close up. The following day, appellant took A.F. to the store and bought her a new doll.

Meanwhile, A.F.'s younger sister discovered that A.F. was with appellant and Lane, and began to cry and plead that her mother not make her go to appellant's house. When Ferrell questioned this response, the younger daughter revealed that she had seen Lane on top of A.F., who was naked at the time. She also stated that "bad things had happened to her sister." Ferrell, very concerned, called appellant's home, but appellant's girlfriend was already on the way to Ferrell's home with A.F. When A.F. returned home, she confirmed the heinous acts, saying that appellant forced her to engage in oral sex and vaginal intercourse with Lane. Ferrell called the police in Bryan, Texas, where she was living with her daughters at the time, and the Bryan Police Department contacted the Houston Police Department. Officer Valenta of the Houston Police Department then executed a search warrant for appellant's apartment and recovered, among other things, several photographs. The photographs show the unclothed A.F. alone, and they show Lane engaged in various sexual acts with A.F. According to A.F.'s mother, the photographs are of A.F. when she was between six and ten years old.

Appellant was arrested, and the State charged her with aggravated sexual assault of a child. In cause number 950,172, the indictment alleged in pertinent part as follows:

...the Defendant, heretofore on or about October 27, 2002, did then and there unlawfully, intentionally and knowingly cause the sexual organ of AF, a person younger than 14 years of age and not the spouse of the defendant, to contact the sexual organ of Michael Lane.

Appellant also was charged with promotion of child pornography in cause number 950,173. The indictment alleged in pertinent part that:

...the Defendant, heretofore on or about October 27, 2002, did then and there unlawfully, intentionally and knowingly promote by manufacture visual material containing a film image, namely a photograph that visually depicts a child younger then eighteen years of age, at the time the image was made, who is engaging in sexual conduct, to wit: actual sexual intercourse, and the Defendant knew that the material containing the image depicted the child engaging in the conduct of actual sexual intercourse.

The jury found appellant guilty in both cause numbers and assessed punishment at thirty years' confinement for the aggravated sexual assault charge and ten years' confinement for the promotion of child pornography charge, both sentences to be served in the Texas Department of Criminal Justice, Institutional Division.

II. ISSUES PRESENTED

Challenging her convictions, appellant asserts five issues on appeal: (1) the trial court erred by admitting hearsay testimony under the excited-utterance exception; (2)-(3) the evidence presented at trial is legally and factually insufficient to support her conviction of aggravated sexual assault; and (4)-(5) the evidence presented at trial is legally and factually insufficient to support her conviction of promotion of child pornography. For the reasons explained below, we affirm appellant's convictions.¹

III. ANALYSIS

A. Did the trial court err by admitting the outcry statement made by the complainant's mother?

In her first issue, appellant contends that Ferrell's testimony regarding A.F.'s outcry was inadmissible hearsay. More specifically, appellant claims that the trial court erred by admitting the testimony into evidence because the State failed to notify her that it was calling Ferrell as the outcry witness.

During Ferrell's direct examination, the trial court allowed her to testify about statements her younger daughter made about seeing appellant on top of A.F. while A.F. was naked. Ferrell testified, "She told me that he told her to go outside and look—watch for [appellant's girlfriend]. She said it took too long. She came back inside. That he was on her sister." In response to further questioning, Ferrell testified that her younger daughter told her that "[s]he saw her sister naked and [Lane] was on top of her sister."

Appellant objected to this testimony on hearsay grounds, but never objected to improper notice. The State acknowledges that it failed to give notice that Ferrell was the outcry witness, and instead listed two other witnesses in the notice. See TEX. CODE CRIM. PROC. ANN. art. 38.072 (Vernon 2005) (outlining the minimum requirements for the notice of intent to use outcry testimony).² However, appellant has failed to preserve this point of error for appeal because she did not object at trial on grounds of improper notice. Failure to object to improper outcry notice waives the right to raise it on appeal. See Garcia v. State, 907 S.W.2d 635, 637 (Tex. App.-Corpus Christi 1995), aff'd, 981 S.W.2d 683 (Tex. Crim. App. 1998) (holding that State's failure to comply with outcry notice requirements was waived by appellant's failure to raise objection on these grounds at trial); Skidmore v. State, 838 S.W.2d 748, 753 (Tex. App.-Texarkana 1992, pet. ref'd) (holding that appellant waived argument that testimony was inadmissible for failure to meet notice requirements of outcry statute where objection at trial alleged that the testimony did not meet qualifications for outcry, but did not specifically raise issue of State's notice to defendant). Accordingly, appellant has waived any complaint about the State's failure to give proper notice of the outcry witness. See TEX. R. APP. P. 33.1.

In any event, even if appellant had preserved error, she has not suffered any harm. The purpose of the notice requirement in article 38.072 is to prevent the defendant from being surprised by the introduction of the outcry-hearsay testimony. See Gottlich v. State, 822 S.W.2d 734, 737 (Tex. App.-Fort Worth 1992, pet. ref'd); Brown v. State, 756 S.W.2d 793, 797 (Tex. App.-Houston [14th Dist.] 1988, pet. ref'd). The record is devoid of any evidence or indication that appellant was surprised by Ferrell's testimony; as such, appellant's case was not prejudiced by the admission of this evidence. The outcry testimony offered through Ferrell was no different from the testimony offered by A.F. herself.

In addition, appellant was allowed to review the state's evidence file, had an opportunity to cross-examine the witness at trial, and appellant has not shown how she was surprised by the outcry testimony or how such testimony impeded her defense. Thus, even if appellant had preserved her complaint, any error was harmless. See Mayes v. State, 816 S.W.2d 79, 88 (Tex. Crim. App. 1991) (holding that error in admitting evidence can be rendered harmless if other evidence at trial is admitted without objection and it proves the same fact that the inadmissible evidence was offered to prove);Upton v. State, 894 S.W.2d 426 (Tex. App.-Amarillo 1995, pet. ref'd) (holding that violation of procedural article governing outcry testimony was harmless error); Fetterolf v. State, 782 S.W.2d 927, 930 (Tex. App.-Houston [14th Dist.] 1989, pet. ref'd) (explaining that, where appellant failed to show surprise by the hearsay testimony, appellant's case was not prejudiced by admission of the hearsay testimony, even though the State failed to comply with the notice requirement under 38.072); Gabriel v. State, 973 S.W.2d 715 (Tex. App.-Waco 1998, no pet.) (holding that error in admitting outcry statement was harmless where record did not reflect that defendant was surprised; it...