Angel Jasso Rodriguez v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: June 8, 2023
• Docket: 05-22-00273-CR
• Status: Published

Opinion

AFFIRMED as MODIFIED and Opinion Filed June 8, 2023

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00273-CR

ANGEL JASSO RODRIGUEZ, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 203rd Judicial District Court Dallas County, Texas Trial Court Cause No. F-2023934-P

MEMORANDUM OPINION Before Justices Partida-Kipness, Reichek, and Miskel Opinion by Justice Reichek A jury found appellant Angel Jasso Rodriguez guilty of continuous sexual

abuse of a child and assessed his punishment at 75 years’ confinement. In this

appeal, he contends the trial court abused its discretion in allowing an outcry witness

to testify about statements the complainant made during a recant interview.

Appellant argues the testimony did not describe the sexual abuse and was therefore

hearsay. In a cross-point, the State asks the Court to modify the judgment to include

an affirmative finding that the complainant was younger than fourteen years of age

at the time of the offense. For reasons that follow, we affirm as modified. Background

Appellant was charged by indictment with continuous sexual abuse of V.M.,

a child younger than fourteen. See TEX. PENAL CODE ANN. § 21.02(b). Appellant is

V.M.’s stepfather.

In February 2016, when she was in fifth grade, V.M.’s vagina “hurt real bad”

while she was at elementary school. She told her school counselor appellant sexually

assaulted her, and the counselor called the police. V.M. was taken to the Dallas

Children’s Advocacy Center (DCAC) where she gave details about the sexual abuse

to Yesenia Holley. Two weeks later, V.M. returned to DCAC and told Holley the

abuse did not happen. No criminal case was filed at that time.

In the fall of 2018, when V.M. was in seventh grade, appellant beat her

because he caught her texting a boy. Her middle school PE coach noticed the signs

of physical abuse, and V.M. returned to DCAC. V.M. told another DCAC

interviewer about the physical abuse and appellant’s continued sexual abuse. A

search warrant was then obtained to get a DNA sample from appellant. The police

could not immediately locate appellant; he was arrested six months later in south

Texas.

The day after her first interview, V.M. was examined at Children’s Medical

Center and her underwear was collected. Testing performed on the underwear in

2017 showed the presence of sperm cells. Additional testing was performed on the

underwear in 2020 after appellant’s DNA sample was obtained. The lab concluded

–2– with a “high degree of confidence” that appellant was the source of the semen found

on V.M.’s underwear.

Appellant’s Hearsay Argument

In his sole issue, appellant contends the trial court abused its discretion in

permitting Holley to testify about “disclosures made by the victim during the recant

interview.” Appellant argues this testimony was hearsay because it did not describe

the sexual assault. Appellant does not specify what disclosures he complains about

or provide any record references to Holley’s testimony. But from the objections

made at trial, we understand appellant’s complaint to involve Holley’s testimony

about what V.M. told her regarding why she recanted and/or things V.M. said that

raised red flags. The State responds that Holley’s testimony was not hearsay because

it was not offered for the truth of the matter asserted and also that any error was

harmless. We agree with the State.

At a pretrial hearing, the trial court certified Holley as an outcry witness

pursuant to Texas Code of Criminal Procedure 38.072. Holley was the Director of

Forensic Services for DCAC in February 2016. One of her duties was to conduct

forensic interviews with children when allegations of abuse were made, and she first

interviewed V.M. on February 8, 2016. At that time, V.M. was ten years of age and

in fifth grade. V.M. told Holley that appellant started abusing her when she was in

first grade. V.M. indicated appellant touched her breast with his hand and also bit

her on her breasts. This conduct occurred when she was in first, second, and third

–3– grades. By the time V.M. was in the fourth and fifth grades, appellant’s conduct

escalated to him penetrating her vagina and her anus with his hand and his penis.

V.M. told Holley that she tried to tell her mother about appellant’s behavior back

when she was in first grade. Her mother told her to stay away from appellant and

began to lock V.M.’s door.

At the conclusion of the interview, Holley took V.M. to the waiting room. As

V.M. approached her mother, Holley observed that the mother looked “very mad,”

like she was mad at V.M.

On February 22, 2016, Holley saw V.M. for a second interview. It was what

is known as a “recant interview.” Holley was not surprised to see V.M. for a recant

interview due to the fact that V.M. had disclosed the abuse to her mother years prior,

but nothing else was done, and due to the look V.M.’s mother gave V.M. in the

waiting area on the day of the first interview.

During the recant interview, Holley noticed red flags that indicated V.M. had

been coached or told to lie. Holley testified that in general red flags include family

members not being supportive or being upset, a lack of means to pay for rent, food,

or utilities, and having to move or change schools. There were no red flags in

Holley’s first interview with V.M.

Holley was asked what disclosures V.M. made about why her first interview

was not true. When she began to answer, appellant’s counsel made a hearsay

–4– objection. The trial court overruled the objection and granted a running hearsay

objection to Holley’s testimony about what V.M. told her about why she recanted.

After appellant’s objection was overruled, Holley was asked what disclosures

V.M. made that gave her red flags. V.M. told Holley that after the first interview

her mother asked her why she said those things about appellant and that her mother

was upset and crying. Her younger sisters, appellant’s biological children, were also

upset and crying because their father was no longer at home. Mother cried often,

and there was “a lot of prayer with mom, the grandmother, and . . . an aunt” because

of the things V.M. had said. V.M. also heard her mother invite appellant to go with

them to Children’s Medical Center when V.M. went in for her examination.

Appellant declined to go. After the exam, V.M.’s mother told her the doctor said no

one touched V.M.

We review the trial court’s ruling on the admission of evidence under an abuse

of discretion standard. Tear v. State, 74 S.W.3d 555, 558 (Tex. App.—Dallas 2002,

pet. ref’d). We will not disturb the ruling on appeal if it is within the zone of

reasonable disagreement. Id.

Hearsay is an out-of-court statement offered to prove the truth of the matter

asserted in the statement. TEX. R. EVID. 801(d); Bahena v. State, 634 S.W.3d 923,

927 (Tex. Crim. App. 2021). Hearsay is inadmissible unless made admissible by

statute or rule. TEX. R. EVID. 802; Bahena, 634 S.W.3d at 927. Article 38.072 of the

code of criminal procedure creates a hearsay exception for a child’s first outcry of

–5– sexual abuse to an adult. Bays v. State, 396 S.W.3d 580, 581 & n.1 (Tex. Crim. App.

2013). The statute applies only in prosecutions of specified offenses if committed

against a child younger than fourteen years of age. Id. at 581 n.1. There is a hearsay

exception for out-of-court statements that (1) describe the alleged offense, (2) are

made by the child against whom the charged offense was allegedly committed, and

(3) are made to the first person, eighteen years of age or older, other than the

defendant, to whom the child made a statement about the offense. TEX. CODE CRIM.

PROC. ANN. art. 38.072, § 2(a).

Statements offered for the purpose of showing what was said, and not for the

truth of the matter asserted, do not constitute hearsay. Lozano v. State, 359 S.W.3d

790, 820 (Tex. App.—Fort Worth 2012, pet. ref’d). This is particularly true when

the making of the statement is relevant to a matter at issue at trial. Id. An out-of-

court statement is offered to prove the truth of the matter asserted if it is relevant

only to the extent the factfinder believes it to be true and accurate. Cardenas v. State,

971 S.W.2d 645, 650 (Tex. App.—Dallas 1998, pet. ref’d). If the statement’s

probative value does not hinge on its truthfulness, then it is not offered to show the

truth of the matter asserted. Id.

Holley’s testimony about the things V.M. told her in the recant interview, such

as her mother and sisters being upset about the allegations and evidence of her

mother’s lack of support, were not offered to prove that they were true. They were

offered to show that Holley observed red flags during the second interview and did

–6– not believe V.M.’s recantation. The trial court could have reasonably determined

that Holley’s testimony about the reasons V.M. gave for recanting were not offered

to prove the truth of the matter asserted. The trial court did not abuse its discretion

in permitting Holley’s testimony about V.M.’s statements during the recant

interview.

Even if it was an abuse of discretion to permit Holley’s testimony about

V.M.’s statements in the recant interview, any error was harmless. The erroneous

admission of evidence is nonconstitutional error. Gonzalez v. State, 544 S.W.3d

363, 373 (Tex. Crim. App. 2018). Nonconstitutional errors require reversal only if

they affect a defendant’s substantial rights. Id.; TEX. R. APP. P. 44.2. This means

that an error is reversible only when it has a substantial and injurious effect or

influence in determining the jury’s verdict. Gonzalez, 544 S.W.3d at 373. The

erroneous admission of evidence is not reversible error when substantially similar

testimony comes in elsewhere without objection. Cook v. State, 665 S.W.3d 595,

600 (Tex. Crim. App. 2023).

Here, evidence similar to Holley’s testimony about V.M.’s statements in the

recant interview came in elsewhere without objection. V.M. herself testified about

why she went back to DCAC to recant. The reasons she gave matched what Holley

said V.M. told her as well as other things Holley said were red flags in general.

Appellant provided for V.M., her mother, and her two sisters. With him out of the

house, they did not have as much money and sometimes did not have food to eat.

–7– V.M. saw her mother crying because she did not have enough money to pay the bills.

Her sisters were also hurt because they missed their father. Further, there was other

evidence V.M.’s mother did not support V.M. in her allegations against appellant,

her husband. Holley personally observed that V.M.’s mother was angry with V.M.

after the first interview. There was evidence V.M.’s mother had known about the

sexual abuse for years without taking real action. And V.M.’s mother testified on

behalf of appellant at trial, telling the jury that V.M. “tells lies.” We conclude any

error in the admission of Holley’s testimony did not affect appellant’s substantial

rights. We overrule appellant’s sole issue.

State’s Cross-Issue

In a cross-issue, the State asks us to modify the judgment. It argues that

because V.M. was younger than fourteen at the time of the offense, the trial court

should have made an affirmative finding to that effect in the judgment.

In the trial of a sexually violent offense, the judge shall make an affirmative

finding of fact and enter the affirmative finding in the judgment if the judge

determines that the victim was younger than fourteen years of age at the time of the

offense. TEX. CODE CRIM. PROC. ANN. art. 42.015(b). Continuous sexual abuse of

a young child is a sexually violent offense when it is committed by a person

seventeen years of age or older. Id. art. 62.001(6)(A). An affirmative finding that

the victim was younger than fourteen triggers provisions of the sex offender

–8– registration program that prohibit employment in certain types of jobs. See id. art.

62.063(b).

It is undisputed that V.M. was younger than fourteen at the time of the offense

and that appellant was in his late 30s or early 40s. The judgment contains V.M.’s

age at the time of the offense (“10 years”) in the section that requires appellant to

register as a sex offender. See id. art. 42.01, § 1(27). But the “special findings”

portion of the judgment does not include any findings about her age as required by

article 42.015(b). This Court has the power to modify a judgment to make the record

speak the truth when we have the necessary information before us to do so and may

do so on its own motion. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d

26, 28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529–30 (Tex.

App.—Dallas 1991, pet. ref’d). Accordingly, we sustain the State’s cross-issue and

modify the trial court’s judgment to include an affirmative finding that V.M. was

younger than fourteen years of age at the time of the offense.

As modified, we affirm the trial court’s judgment.

/Amanda L. Reichek/ AMANDA L. REICHEK JUSTICE 220273F.P05

–9– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

ANGEL JASSO RODRIGUEZ, On Appeal from the 203rd Judicial Appellant District Court, Dallas County, Texas Trial Court Cause No. F-2023934-P. No. 05-22-00273-CR V. Opinion delivered by Justice Reichek. Justices Partida-Kipness THE STATE OF TEXAS, Appellee and Miskel participating.

Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED to include the following special finding:

The Court affirmatively finds that the victim was younger than fourteen years of age at the time of the offense.

As MODIFIED, the judgment is AFFIRMED.

Judgment entered this 8th day of June, 2023.

–10–