Gustavo Ibarra v. State

• Court: Court of Appeals of Texas
• Decided: March 13, 2007
• Docket: 14-06-00271-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed March 13, 2007

Affirmed and Memorandum Opinion filed March 13, 2007.

In The

Fourteenth Court of Appeals

_______________

NO. 14-06-00271-CR

NO. 14-06-00272-CR

GUSTAVO IBARRA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 338th District Court

 Harris County, Texas

Trial Court Cause No. 1007133 & 997569

M E M O R A N D U M   O P I N I O N

Gustavo Ibarra appeals two convictions for aggravated sexual assault of a child^[1] on the grounds that: (1) the trial court erred by admitting and excluding evidence; and (2) the evidence was factually insufficient to support the conviction.  We affirm.

                                                         Admission of Evidence

A trial court's ruling on the admission of evidence is reviewed for abuse of discretion and should be upheld unless the ruling was outside the zone of reasonable disagreement. Oprean v. State, 201 S.W.3d 724, 726 (Tex. Crim. App. 2006).

Appellant=s first issue contends that the trial court erred by admitting investigator Haggerty=s hearsay testimony because he was not a proper outcry witness.  The first statement made by a child against whom a sexual abuse offense was committed to an adult describing the alleged offense is exempt from the hearsay rule .  See Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon 2005).

In this case, appellant objected only once to Haggerty=s testimony on hearsay grounds, and the trial court sustained that objection.  For each of the other complained of instances of improper hearsay testimony by Haggerty, appellant either failed to object entirely or objected on the grounds that: (1) the State improperly asked Haggerty to draw conclusions from the interview; or (2) Haggerty=s testimony was irrelevant and immaterial.  Because the complaints in appellant=s first issue were thus not preserved, they present nothing for our review and are overruled.  See Tex. R. App. P. 33.1; Swain v. State, 181 S .W.3d 359, 367 (Tex. Crim. App. 2005), cert. denied, 127 S.Ct. 145 (2006).

Appellant=s second issue argues that the trial court erroneously permitted the forensic interviewer, McAndrew, to testify as an outcry witness regarding statements the complainant allegedly made to McAndrew because McAndrew did not qualify as an outcry witness.  However, at trial, appellant failed to make any objections on hearsay or outcry grounds to the evidence he complains of in his second issue.  Instead, he objected to that evidence only on the grounds that: (1) McAndrew=s testimony was irrelevant; (2) McAndrew was not qualified to answer the State=s questions; or (3) McAndrew=s testimony violated Texas Rule of Evidence 103 (without elaboration).  Therefore, appellant=s second issue presents nothing for our review and is overruled.  See Tex. R. App. P. 33.1; Swain v. State, 181 S .W.3d at 367.

Appellant=s third issue claims that the trial court erred by admitting into evidence medical records containing the complainant=s statements about the alleged abuse.  However, because appellant failed to object to the admission of the medical records, he waived this complaint, and his third issue is overruled.  See Tex. R. App. P. 33.1; Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003).

Appellant=s fourth issue asserts that, during the complainant=s cross-examination, the trial court erroneously denied his motion to admit or allow reference to a medical report, containing the complainant=s statement that she had never suffered any sexual abuse.  However, appellant=s brief fails to indicate where in the record he made a request or motion to admit the alleged medical report into evidence.

In addition, the record indicates that, during a drug-related emergency visit to the hospital after the initial outcry and examination, the complainant was asked regarding abuse at home.  Although the trial court did not allow counsel to question the complainant whether, during that later hospital visit, she had ever denied that any abuse had occurred at home, the court did allow counsel to generally ask the complainant whether she had ever denied any sexual abuse at home and she responded that she never denied any sexual abuse.  Contrary to his complaint on appeal, however, the record does not reflect that counsel ever asked to reference the medical report.  Thus, appellant=s fourth issue presents nothing for our review and is overruled.

                                                      Sufficiency of the Evidence

Appellant=s fifth issue contends that there is factually insufficient evidence to support  his respective convictions because: (1) the two incidents were alleged to have occurred in 2003; (2) the complainant=s testimony was uncorroborated by any testimony other than that of the improper outcry witnesses; and (3) the complainant testified in 2005 that the offenses had occurred in the preceding year (2004 rather than 2003, as alleged).

In reviewing factual sufficiency, we determine whether the evidence, though legally sufficient, is, when viewed in it entirety in a neutral light, either too weak to withstand scrutiny or so greatly outweighed by contrary evidence that the reviewing court can explain with some specific and objective basis that the verdict represents a manifest injustice.  See Watson v. State, 206 S.W.3d 404, 414-17 (Tex. Crim. App. 2006).  To prove aggravated sexual assault, the State must have established that appellant intentionally or knowingly caused: (1) the sexual organ of a child younger than fourteen years of age to contact his mouth; or (2) the penetration of the sexual organ of a child younger than fourteen years by any means.  Tex. Penal Code Ann. ' 22.021(a)(1)(B)(I), (iii) (Vernon Supp. 2006).

In this case, the complainant testified that appellant caused her sexual organ to contact his mouth on at least two occasions.  She also stated that appellant penetrated her sexual organ with his sexual organ.  Although the testimony of a child victim alone is sufficient to support a conviction for aggravated sexual assault,^[2] the complainant=s statements were corroborated by sexual assault nurse examiner, Floyd Hand.  Hand testified that the complainant had told him that appellant touched her sexual organ with his mouth and also penetrated her sexual organ with his sexual organ.  Hand=s testimony was supported by the complainant=s medical records.

Additionally, appellant=s brief mistakenly claims that the complainant testified in 2005 that the abuse had occurred in the preceding year.  Rather, the complainant stated during trial in 2006 that she had told her friend, Josh Flores, in 2004 about the sexual abuse.  Finally, the jury charge instructs that the State is not required to prove a specific date stated in the indictments as long as it proves that the offenses were committed within the applicable limitations period.   Because appellant=s fifth issue fails to demonstrate that the evidence is

factually insufficient to support his conviction, it is overruled, and the judgment of the trial court is affirmed.

/s/        Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed March 13, 2007.

Panel consists of Chief Justice Hedges and Justices  Fowler and Edelman.

Do not publish C Tex. R. App. P. 47.2(b).

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^[1]           In a single trial, a jury found appellant guilty and assessed punishment at 10 years confinement for each offense.

^[2]           See Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon 2005); Lane v. State,174 S.W.3d 376, 386 (Tex. App.CHouston [1st Dist.] 2005, pet. ref=d), cert. denied, 127 S. Ct. 246 (2006).