Opinion issued June 20, 2024
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-22-00668-CR ——————————— ANTHONY PEREZ, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 263rd District Court Harris County, Texas Trial Court Case No. 1604304
OPINION
Anthony Perez appeals his conviction for the first-degree felony offense of
aggravated sexual assault of a child younger than six years old. See TEX. PENAL
CODE §§ 22.021(a)(1)(B)(ii); 22.021(f)(1). He was found guilty by a jury, and the
trial court assessed his punishment at 34 years’ imprisonment without the possibility of parole. On appeal, he argues that the trial court erred by:
(1) admitting outcry witness testimony, (2) admitting a medical report naming him
as the abuser, (3) denying his motion for mistrial, and (4) limiting the evidence he
could present for impeachment. We affirm.
Background
This case concerns sexual abuse of a five-year-old girl, L.V., by Perez, who
was L.V.’s mother’s boyfriend. At trial, L.V.’s mother testified that she met Perez
in March 2013, when L.V. was two years old. They had a son together in February
2014, and soon after, they moved into an apartment along with L.V. and her older
sister N.V. N.V. is four years older than L.V.
L.V.’s mother worked as a nursing home caregiver for 12 hours each day
starting at 7 a.m. Perez frequently picked up L.V. and her sister from school and
cared for them until their mother got home. In March 2015, Perez, L.V.’s mother,
and the three children moved into Perez’s mother’s house. Perez and L.V.’s mother
were struggling financially and beginning to have problems in their relationship.
L.V.’s mother testified that Perez was a tough disciplinarian. While they
were living with Perez’s mother, L.V.’s mother noticed changes in L.V.’s
demeanor. L.V. also had difficulty sleeping. In July 2016, L.V.’s mother and Perez
broke up. L.V.’s mother and her three children moved out.
2 L.V.’s aunt, Imelda Salgado, testified that in September or October 2016,
L.V. disclosed to her that she had been sexually abused by Perez. At the time of the
outcry, they were in Salgado’s kitchen. L.V. was nervous and scared. L.V. told
Salgado that when she lived in Perez’s mother’s house, Perez told her to sit down.
Perez pulled down his pants and put “his part” in her mouth. Perez then “peed” in
her mouth and told her to swallow. Salgado was shocked but unsure how to handle
the situation. She did not tell anyone what L.V. had told her.
Later in October 2016, L.V. told a teacher at school about the sexual abuse.
The school reported it to the Department of Family and Protective Services who
initiated an investigation. The Department notified L.V.’s mother and contacted the
police department. The investigating officer testified at trial that she interviewed
all the relevant parties and reviewed the records from L.V.’s sexual assault
examination. At the conclusion of her investigation, the officer sought an arrest
warrant for Perez.
L.V. testified at trial. She identified Perez in the courtroom as the person
who had sexually abused her. She testified that when she was about five years old,
she and her siblings lived with Perez at his mother’s house. She described the
rooms and bathrooms in the house. She described which family member slept in
each bedroom.
3 L.V. testified that once when she was playing outside with her sister, she
needed to go inside to the bathroom. Perez came with her and pushed and hit her
with his hands. He told her that if she told anyone, he would hurt her.
On another occasion, she was home because she was sick, and Perez
watched her while her mother was at work. They were watching a movie in his
room when she said that she needed to use the restroom. Perez told her to get her
little brother’s shirt and use it to cover her eyes. L.V. crawled on the floor to get
the shirt. She then returned with the shirt and was on her knees next to the bed.
Perez pulled down his pants and put his “private part” in L.V.’s mouth. He told her
not to bite him. L.V. testified that Perez moved himself back and forth. After he
“peed” in her mouth and told her to swallow, he took his private part out of her
mouth. L.V. testified that she was scared. L.V. testified that she told her sister
about the sexual abuse on the day that it happened. She told her sister to keep it a
secret so that their mother would not get hurt. Later, she told her aunt and her
kindergarten teacher.
L.V. also recounted that on one occasion, Perez came in her room while she
was asleep, took her thumb out of her mouth, and bit it. She stated that he was
upset with her for sucking her thumb.
L.V.’s older sister N.V. testified that living with Perez was “horrible” and
that he treated L.V. poorly. She described the rooms and bathrooms of Perez’s
4 mother’s house. She testified that she did not tell anyone what L.V. had told her
about Perez because N.V. did not think she would be believed.
A clinical psychologist from the Children’s Assessment Center testified as
an expert. She described that often child victims are groomed by their abuser, and
that can involve gift-giving and attention or threats and coercion. She described
that children may delay their outcry of abuse and may partially disclose to some
people before giving a full disclosure of what has happened to them.
A nurse who specializes in sexual assault examinations testified about L.V.’s
sexual assault examination. She stated that the purpose of the exam is diagnosis,
treatment, and safety of the patient. As part of the exam, she collects a medical
history. She testified that this is the most important part because it dictates the
terms of the physical exam and the treatment plan that is created. The medical
report from L.V.’s exam was admitted into evidence, and the nurse reviewed the
report for the jury. The report included that L.V. said that Perez took out his “tee-
tee” and put it in her mouth while her brother’s shirt was tied around her head. She
testified that pee came out, and Perez made her drink it. During her medical exam,
L.V. also said that Perez sometimes punches her and pulls her ears. The nurse
described the limited physical examination that she was able to complete before
L.V. was uncomfortable. The nurse did not see signs of physical trauma, but that
lack of physical trauma was not indicative of whether there had been sexual abuse.
5 Perez’s mother testified for the defense. She testified that she first rented an
apartment for L.V.’s mother and Perez. Eventually, due to relationship and
financial issues, the couple, their infant son, L.V., and N.V. moved in with Perez’s
mother. Perez’s mother testified that when the couple broke up and L.V.’s mother
moved out with the children, L.V.’s mother would not tell her where she lived. She
described that Perez was not faithful to L.V.’s mother and had another girlfriend.
She heard Perez and L.V.’s mother fighting over Perez’s infidelity. When the
couple broke up, they had a custody agreement regarding the son they shared.
Perez had parenting time with the son on weekends. She testified that once L.V.
disclosed abuse, L.V.’s mother sought to change the visitation plan.
The jury found Perez guilty of sexual assault of a child younger than 6 years
old. The trial court assessed his punishment at 34 years’ imprisonment.
Reliability of Outcry Testimony
In his first issue, Perez contends that the trial court erred in admitting
Salgado’s outcry testimony because L.V.’s outcry statement to Salgado was
unreliable. He argues that L.V.’s outcry lacked specificity as to when the sexual
abuse occurred and that the State did not present corroborating evidence to support
her allegations.
6 A. Standard of Review and Applicable Law
The Texas Code of Criminal Procedure allows admission of certain hearsay
testimony in the prosecution of sexual offenses against minors. TEX. CODE CRIM.
PROC. art. 38.072. The statute allows the designation of an outcry witness to testify
about a child’s disclosure of abuse but requires that the outcry witness be the “first
person, 18 years of age or older, other than the defendant, to whom the child made
a statement about the offense.” Id. § 2(a)(3). To qualify, the disclosure must
include more than a “general allusion that something in the area of child abuse was
going on.” Buentello v. State, 512 S.W.3d 508, 517 (Tex. App.—Houston [1st
Dist.] 2016, pet. ref’d) (quoting Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim.
App. 1990)).
Before an outcry witness may testify about the child’s disclosure, the trial
court must find, “in a hearing conducted outside the presence of the jury, that the
statement is reliable based on the time, content, and circumstances of the
statement.” TEX. CODE CRIM. PROC. art. 38.072, § 2(b)(2). “The phrase ‘time
content and circumstances’ refers to ‘the time the child’s statement was made to
the outcry witness, the content of the child’s statement, and the circumstances
surrounding the making of that statement.’” Buentello, 512 S.W.3d at 517–18
(quoting Broderick v. State, 89 S.W.3d 696, 699 (Tex. App.—Houston [1st Dist.]
2002, pet. ref’d) (internal citation omitted)). The trial court’s focus is whether the
7 child’s outcry statement is reliable, not whether the outcry witness is credible.
Sanchez v. State, 364 S.W.3d 476, 487–88 (Tex. Crim. App. 2011). The trial court
considers the circumstances of the outcry, not the abuse itself. Id. at 487. Outcry
reliability is determined on a case-by-case basis. Buentello, 512 S.W.3d at 518.
A trial court has broad discretion in admitting outcry witness testimony. Id.
at 516 (quoting Garcia, 792 S.W.2d at 92). We will not reverse the trial court’s
decision to admit outcry witness testimony unless it falls outside the zone of
reasonable disagreement. Id. at 516–17.
B. Analysis
Perez contends that L.V.’s outcry statement was not reliable because it was
not corroborated by other evidence and because L.V. did not tell Salgado
specifically when she was abused.
Appellate courts have enumerated eleven “indicia of reliability” that a trial
court may consider in determining the reliability of a child’s outcry. Buentello, 512
S.W.3d at 518 & n.4 (listing the criteria and citing Buckley v. State, 758 S.W.2d
339, 343–44 (Tex. App.—Texarkana 1988), aff’d on other grounds, 786 S.W.2d
357 (Tex. Crim. App. 1990)). Although courts have enumerated factors that may
assist in ascertaining the reliability of an outcry statement, the focus of the inquiry
must remain upon the outcry statement, not the abuse itself. Broderick, 89 S.W.3d
at 699 (explaining that court must ascertain reliability considering circumstances of
8 statement, not circumstances of abuse). A court may find a child’s outcry reliable
even if the statement is vague or contains inconsistent details about the alleged
sexual abuse. Id.
The trial court did not abuse its discretion in determining that the content
and circumstances of L.V.’s disclosure to Salgado supported a conclusion of
reliability. L.V. described the act in a discernible way that was more than a general
allusion to sexual abuse. She also described a sexual encounter that is beyond the
common understanding of a child her age. She vividly described Perez pulling
down his pants, penetrating her mouth with “his part,” “peeing” in her mouth, and
commanding her to swallow. While L.V. stated that the abuse happened while she
was living with Perez, L.V. was not required to tell Salgado a concrete date or time
of the abuse for her outcry to be reliable. Broderick, 89 S.W.3d at 699 (outcry
statement may be reliable even when vague and inconsistent statements about
details of abuse); see also MacGilfrey v. State, 52 S.W.3d 918, 921 (Tex. App.—
Beaumont 2001, no pet.) (stating child not required to give date or time of abuse
for outcry statement to be reliable). The State was not required to present any other
witness or physical evidence to corroborate L.V.’s outcry statement. Buentello, 512
S.W.3d at 519 (“[N]either corroboration nor physical evidence is required for an
outcry to be determined to be reliable.”). We conclude that the trial court did not
abuse its discretion in finding L.V.’s outcry to Salgado reliable.
9 We overrule Perez’s first issue.
Admission of Medical Report
In his second issue, Perez asserts that the trial court erred by denying his
hearsay objections to portions of the medical report from L.V.’s sexual assault
examination. He argues that the complained-of portions, where L.V. identified
Perez as the person who sexually abused her and described acts of physical abuse,
were inadmissible hearsay.
A. Standard of Review
An appellate court reviews a trial court’s ruling on the admissibility of
evidence for an abuse of discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex.
Crim. App. 2011). We will not reverse a trial court’s decision to admit or exclude
evidence unless the record shows a clear abuse of discretion. Munoz v. State, 288
S.W.3d 55, 57 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (citing Zuliani v.
State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003)). An abuse of discretion occurs
only when the trial court’s decision was so clearly wrong as to lie outside the zone
of reasonable disagreement. Id.
Hearsay—a statement, other than one made by the declarant while testifying
at trial or a hearing, offered in evidence to prove the truth of the matter asserted—
is generally inadmissible at trial. TEX. R. EVID. 801(d), 802. The Texas Rules of
Evidence make an exception to the hearsay rule and allow that “[s]tatements made
10 for the purposes of medical diagnosis or treatment and describing medical history,
or past or present symptoms, pain, or sensations, or the inception nor general
character of the cause or external source thereof insofar as reasonably pertinent to
diagnosis or treatment” are admissible. TEX. R. EVID. 803(4). This exception has
been interpreted to include statements by suspected victims of child abuse as to the
source of their injuries. See Burns v. State, 122 S.W.3d 434, 438 (Tex. App.—
Houston [1st Dist.] 2001, no pet.).
B. Relevant Facts
During a hearing outside the jury’s presence, the State proffered the medical
report from L.V.’s sexual assault examination. The report contained a section titled
“Additional History.” In this section, the sexual assault nurse examiner (“SANE
nurse”) recorded L.V.’s responses to several questions about the sexual abuse she
experienced and her interactions with Perez.
Perez objected that certain portions of L.V.’s responses were inadmissible
hearsay, namely the statement where L.V. identified Perez as her abuser and
expressed that he punched her “lots of times” and “pulled [her] ears.” He argued
that the statement identifying him was not made for the purpose of medical
diagnosis or treatment for sexual abuse and that these were extraneous domestic
violence offenses. The trial court sustained the objections in part, excluding certain
11 specific details of the physical abuse.* The redacted medical report, including
L.V.’s identification of Perez as the abuser and details of physical abuse, was
admitted at trial.
At trial, the SANE nurse testified that the purpose of the sexual assault exam
is “diagnosis, treatment, and safety of the patient.” She stated that collecting
medical history and questions posed in the “Additional History” section of the
report is “more important than any other . . . part of the exam” because it “dictates
what you’re going to do in terms of your physical exam . . . and the treatment plan
that you’re going to make.”
C. Analysis
Perez asserts that the identity of L.V.’s abuser and the details of physical
abuse were not made for the purpose of medical diagnosis and treatment and were
not admissible at trial. We disagree. First, the SANE nurse expressly testified that
the examination, including questions regarding additional history, were completed
for the purposes of medical diagnosis and treatment. TEX. R. EVID. 803(4). The
identity of the abuser, as well as the full extent and nature of the abuse L.V.
recounted was critical to the nurse’s ability to conduct a thorough, relevant medical
evaluation and to develop a treatment plan for L.V. See Bargas v. State, 252
* The report included that L.V. identified her stepfather as her abuser and said he punched her and pulled her ears on many occasions. The trial court excluded details in the report such as “makes a fist and imitates punch to her face” and “tugs on her earrings.” The redacted report was admitted into evidence. 12 S.W.3d 876, 896 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (“Because
treatment of child abuse includes removing a child from an abusive setting, the
identity of the abuser is pertinent to the medical treatment of the child.”); see also
Hood v. State, Nos. 05-20-00902-CR, 2022 WL 2071111, at *5 (Tex. App.—
Dallas June 9, 2022, no pet.) (mem. op., not designated for publication) (“[T]he
identity of an offender falls within the ambit of the hearsay exception governing
statements made for medical diagnosis or treatment because it is relevant to
treatment, particularly in incest and family violence cases, insofar as it presents an
environmental and safety issue that could frustrate diagnosis and treatment.”). The
trial court did not abuse its discretion in admitting the complained-of portions of
the medical report under rule 803(4). We overrule Perez’s second issue.
Denial of Motion for Mistrial
In his third issue, Perez contends that the trial court erroneously denied his
motion for mistrial made after a Houston Police Department officer made an
unsolicited comment at trial that she attempted to schedule a polygraph
examination during her investigation of the case.
The State asked a Houston Police Department officer what her next steps
were after speaking with witnesses. She responded, “Well the next steps after
speaking to every person, I also tried to schedule a polygraph exam.” She was cut
off by Perez’s attorney’s objection. After a hearing outside the presence of the jury,
13 the trial court instructed the jury to disregard the statement made by the witness.
The court gave the following instruction:
Ladies and gentlemen, I have an instruction that I’m about to give you. You are to disregard the last statement made by this witness and not consider it for any purpose. Results from a polygraph examination have been found to be completely unreliable, and are, therefore, not permitted as evidence in a trial proceeding. In this case, there was no polygraph examination conducted. You are, therefore, instructed not to consider for any purpose the statement made by this witness referencing an attempt to schedule a polygraph examination. You will base your verdict on the evidence presented in this courtroom only.
A mistrial is required only when the impropriety is “clearly prejudicial to the
defendant and is of such character as to suggest the impossibility of withdrawing
the impression produced on the minds of the jurors.” Martines v. State, 371 S.W.3d
232, 250 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (quoting Ladd v. State, 3
S.W.3d 547, 567 (Tex. Crim. App. 1999)). We review the trial court’s refusal to
grant a mistrial for an abuse of discretion. Hawkins v. State, 135 S.W.3d 72, 77
(Tex. Crim. App. 2004). When a polygraph is mentioned at trial and defense
counsel requests a mistrial, we must first determine whether the results were
revealed to the jury. Martines, 371 S.W.3d at 250. Generally, when polygraph
results are mentioned but not revealed to the jury, an instruction to disregard is
sufficient to cure any error. Id. at 251. In determining whether the trial court
erroneously refused to grant a mistrial, we may also consider (1) whether the
questioning party exhibited bad faith by asking a question designed to elicit
14 polygraph evidence; and (2) whether polygraph evidence bolstered the State’s case.
Id.
“Numerous cases have held that where a witness gives a nonresponsive
answer that mentions a polygraph test was offered or taken but does not mention
the results of such a test, there is no error in failing to grant a mistrial.” Kugler v.
State, 902 S.W.2d 594, 595 (Tex. App.—Houston [1st Dist.] 1995, pet. ref’d).
Here, although the jury heard the officer “tried to schedule” a polygraph exam,
there was no indication that Perez refused to take the examination, nor was there
any evidence that he took a polygraph. No polygraph results were revealed to the
jury. The record does not reflect that the prosecutor deliberately or intentionally
elicited the testimony regarding the polygraph. Once the officer mentioned it, the
trial court promptly informed the jury that polygraph evidence was inadmissible
and instructed the jury to disregard. The trial court also told the jury that there was
no polygraph examination conducted. The trial court did not belabor the issue or
call undue attention to the reference. We conclude that the trial court’s instruction
to the jury to disregard the testimony sufficiently cured any error arising from the
reference to a polygraph examination. We therefore hold that the trial court did not
abuse its discretion in denying Perez’s motion for mistrial.
We overrule Perez’s third issue.
15 Impeachment Evidence
In his final issue, Perez argues that the trial court abused its discretion by
excluding impeachment evidence, including specific threats L.V.’s mother
allegedly made. Perez’s defensive theory was that L.V.’s mother harbored ill will
against him because of his infidelity. He asserted that her bias led her to coach or
manipulate L.V. to fabricate sexual abuse allegations. To support his theory, he
sought to call his own mother to testify that L.V.’s mother threatened Perez that he
would never see their son again and that he would “pay for what he did to her.” In
a hearing outside the jury’s presence, the trial court ruled that Perez could not ask
his mother about specific threats or statements that she heard L.V.’s mother make.
The trial court ruled that Perez could establish a change in circumstances and the
facts of the family law case between him and L.V.’s mother through testimony by
his own mother.
Assuming without deciding that Perez’s mother’s testimony as to L.V.’s
mother’s threats was admissible, the trial court’s error in excluding them was
harmless and did not affect Perez’s substantial rights. Errors in the admission of
evidence are non-constitutional and subject to a harm analysis under Texas Rule of
Appellate Procedure 44.2(b). Walters v. State, 247 S.W.3d 204, 219 (Tex. Crim.
App. 2007); TEX. R. APP. P. 44.2(b) (providing that any non-constitutional error
that does not affect substantial rights must be disregarded).
16 The record reflects that Perez’s mother’s proposed testimony would have
only incrementally furthered Perez’s defensive theory. Perez elicited testimony
from his mother that L.V.’s mother was biased against him. Perez’s mother
testified that within a couple of months of moving in with her, L.V.’s mother and
Perez had multiple issues with their relationship. She testified that she believed the
problems started before the couple moved in with her. She described that Perez and
L.V.’s mother broke up because Perez had another girlfriend. She testified that
Perez’s infidelity was ongoing. She testified that L.V. and her mother moved out
just a few months before L.V.’s outcry of sexual abuse. Perez also elicited
testimony from his mother that L.V.’s mother changed the custody arrangements
for their son after L.V.’s outcry, which restricted Perez’s access to the boy.
Perez also cross-examined L.V.’s mother regarding her relationship with
him and their breakup, the fact that they had arguments and relationship problems,
and whether he had been unfaithful. L.V.’s mother denied knowing that he had
been unfaithful to her and asserted that she did not try to restrict Perez’s access to
his son but instead tried to protect her son after Perez was arrested for sexually
abusing L.V.
Accordingly, considering the entirety of the record, the trial court’s ruling
limiting Perez’s mother’s testimony did not affect Perez’s substantial rights.
We overrule Perez’s fourth issue.
17 Conclusion
We affirm the judgment of the trial court.
Peter Kelly Justice
Panel consists of Justices Kelly, Countiss, and Rivas-Molloy.
Publish. TEX. R. APP. P. 47.2(b).