OPINION No. 04-09-00605-CR
Ivan William SANCHEZ, Appellant
v.
The STATE of Texas, Appellee
From the 290th Judicial District Court, Bexar County, Texas Trial Court No. 2006-CR-8845 Honorable George H. Godwin, Judge Presiding
Opinion by: Sandee Bryan Marion, Justice
Sitting: Catherine Stone, Chief Justice Sandee Bryan Marion, Justice Steven C. Hilbig, Justice, concurring in the judgment only
Delivered and Filed: November 3, 2010
AFFIRMED
A jury found appellant, Ivan William Sanchez, guilty on three counts of indecency with a
child by sexual contact and one count of aggravated sexual assault of a child, and assessed
punishment accordingly. On appeal, appellant asserts the trial court erred by: (1) allowing
Jennifer Guzman to testify as an outcry witness; (2) allowing into evidence the testimony of
Angelica Newsom given at a pretrial hearing; and (3) denying his speedy trial motion. We
affirm. 04-09-00605-CR
OUTCRY WITNESS
Texas Code of Criminal Procedure article 38.072 allows outcry testimony if, among other
conditions, the statement describing the alleged offense was “made to the first person, 18 years
of age or older, other than the defendant, to whom the child . . . made a statement about the
offense or extraneous crime, wrong, or act.” TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2(a)(3)
(Vernon 2005). A statement that meets the requirements of subsection 2(a)(3) is not
inadmissible because of the hearsay rule if:
(1) on or before the 14th day before the date the proceeding begins, the party intending to offer the statement: (A) notifies the adverse party of its intention to do so; (B) provides the adverse party with the name of the witness through whom it intends to offer the statement; and (C) provides the adverse party with a written summary of the statement; (2) the trial court finds, 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; and (3) the child or person with a disability testifies or is available to testify at the proceeding in court or in any other manner provided by law.
Id. § 2(b).
The trial court has broad discretion in determining who the proper outcry witness is.
Chapman v. State, 150 S.W.3d 809, 813 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d).
Absent a clear abuse of discretion, we will not disturb the trial court’s ruling. Id. A trial court
abuses its discretion if its ruling is outside the zone of reasonable disagreement. Id.
Here, on September 11, 2007, the State filed a pretrial notice designating Jennifer
Guzman as its outcry witness. Almost two years later, the State filed a pretrial notice designating
Angelica Newsome and Terry Melendez as its outcry witnesses. 1 In the second notice, the State
stated that its review of the complainant’s counseling records revealed Guzman was not the first
1 Melendez did not testify at trial.
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adult told of the offense. Instead, Newsome and Melendez were the first adults to whom
complainant made her outcry.
On May 20, 2009, a pretrial hearing was held during which the complainant testified
about the abuse and Newsome testified about the outcry statement made to her by the
complainant. At the conclusion of the hearing, the prosecutor stated as follows:
Your Honor, that is all the witnesses the state has. The other designated outcry witness originally was . . . Jennifer Guzman. Jennifer Guzman, who the complainant has testified she told subsequent to Ms. Newsome, is the witness that we are seeking to attach down in Atascosa County right now. As I checked this morning, the sheriffs there still had not been able to find her. However, based on the testimony, the state would submit that the proper outcry witness is Ms. Newsome.
The trial court agreed that Newsome was the proper outcry witness. However, Newsome
did not testify at trial because she was unavailable. 2 Instead, at trial, the State called Guzman to
the stand. At the start of her testimony, the trial court admitted into evidence, over appellant’s
objection, two pages of Guzman’s hand-written notes, which she identified as notes taken from
her calendar on which she claims she writes everything. Three of the hand-written entries
referenced the assault. The State then asked Guzman whether “there ever [came] a time that [the
complainant] told you she had been hurt by anyone?” The trial court overruled appellant’s
objection that the question elicited hearsay and the State was “trying to back-door this outcry.”
Guzman answered “yes” and the State proceeded to elicit details of the outcry. On appeal,
appellant asserts the trial court erred in allowing Guzman to testify as an outcry witness both in
her testimony and through the hand-written notes.
2 Over appellant’s objection, Newsome’s pretrial testimony was read into evidence. This objection is the subject of the next issue on appeal.
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A. Proper Outcry Witness
Appellant argues Guzman was not a proper outcry witness because she was not the first
person, eighteen years or older, to whom the complainant made a detailed statement about the
offense. Although not argued at the pretrial hearing, the State counters that because appellant
was charged with multiple counts of aggravated sexual assault of a child and indecency with a
child, more than one outcry witness was proper.
Article 38.072 contemplates allowing the first person to whom the child described the
offense in some discernible manner to testify about the statements the child made. Garcia v.
State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990). Because of the way in which the statute is
written, an outcry witness is not person-specific; it is event-specific. Therefore, the State is
permitted to call multiple outcry witnesses if each individual outcry concerns an event different
from the other outcry(ies). Broderick v. State, 35 S.W.3d 67, 73 (Tex. App.—Texarkana 2000,
pet. ref’d). Before more than one outcry witness may testify, however, the outcry must be about
different events, and not simply a repetition of the same event as related by the victim to
different individuals. Id. The statement must be one that in some discernible manner describes
the alleged offense; it must be more than just words generally alluding that something in the area
of child abuse was going on. See Garcia, 792 S.W.3 at 91; Broderick, 35 S.W.3d at 73. Here,
the State contends Guzman testified to two events different from the event described in
Newsome’s pretrial testimony.
The State first argues Guzman testified about an act of indecency by sexual contact,
which is an offense separate from the aggravated sexual assault about which Newsome testified.
The State also argues the complainant’s testimony that she ran away because the abuse had
stopped but was beginning again, suggests “that the sexual assault Guzman testified to was a
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separate sexual assault than the one Newsome testified about.” We therefore compare Guzman’s
testimony with Newsome’s testimony to determine whether the complainant’s outcry to Guzman
was different from her outcry to Newsome. The entirety of Guzman’s testimony about the
outcry is as follows:
Q. What did she [the complainant] tell you. A. That he had been touching her. Q. What did she — A. I said, touching you on top of your clothes or under? She said no. Q. Did she expound? A. I said, you mean sex; he’s been going in you? She said yeah. Q. Did she tell you how long that had been going on? A. She said it stopped and it was going to start again. That’s why she ran away.
The entirety of Newsome’s testimony about the outcry is as follows:
Q. Okay. In that statement what did [the complainant] tell you that was bothering her? A. She told me [that appellant] had picked her up [sic] took her into the other room and had sexually assaulted her. Q. Did she get more specific about? A. She said he put his penis in her.
[on cross-examination]
Q. [W]hat did [the complainant] actually say to you? A. She said that [appellant] picked her up, took her to the other room, she actually told me all her brothers and sisters were — she was sleeping with her brothers and sisters in the same room. She was picked up out of that room and taken to another room and raped. Q. Okay. And when she said raped that — A. She said he got on top of her and put his penis in her.
...
Q. That was the only sexual act that she mentioned? A. That’s all that I was told. Yes.
We conclude the complainant’s testimony that she ran away because the abuse was
“going to,” but perhaps had not yet, “started again” does not in any discernable manner describe
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an actual offense. Therefore, we do not agree with the State that this testimony is about an
instance of sexual assault separate from the one about which Newsome testified. Nor do we
agree with the State’s argument that Guzman also testified to a separate instance of indecency by
sexual contact. Guzman’s testimony that the complainant said “no” when asked about the
touching and then elaborated by saying appellant penetrated her, indicates any touching was
incident to the sexual assault and not a separate and distinct act. See Patterson v. State, 152
S.W.3d 88, 92 (Tex. Crim. App. 2004) (holding that, under facts of the case, offense of
indecency with a child by exposure was committed as part of aggravated assault offense; thus,
indecency offense not subject to prosecution as a separate offense).
Based on this record, we conclude the State did not establish that the outcry to Guzman
was about different events, as opposed to a repetition of the same event to different individuals.
Therefore, Guzman was not a proper outcry witness and the trial court erred in allowing her to
testify and by allowing her calendar notes into evidence. 3
B. Harm
Although the trial court erred by allowing Guzman to testify, that does not end our
review. We must next consider whether the error “had a substantial and injurious effect or
influence in determining the jury’s verdict.” See King v. State, 953 S.W.2d 266, 271 (Tex. Crim.
3 On appeal, the State offers an alternative argument in support of the admission of Guzman’s testimony. The State contends her testimony was properly admissible as a prior consistent statement. According to the State, Guzman’s testimony was offered to refute the appellant’s argument that the complainant fabricated her statements because she was angry with the appellant because she discovered he was not her biological father and he had too many rules. The State is correct that the content, tone, and tenor of defense cross-examination may “open the door to the admissibility of a prior consistent statement by an express or implied suggestion that the witness is fabricating her testimony in some relevant respect.” See Hammons v. State, 239 S.W.3d 798, 808 (Tex. Crim. App. 2007). However, one of the requirements that must be met for a prior consistent statement to be admissible is that “the prior consistent statement must be made prior to the time that the supposed motive to falsify arose.” Id. at 804 (emphasis added); see also Martinez v. State, 276 S.W.3d 75, 82 (Tex. App.—San Antonio 2008, pet. ref’d). At the pretrial hearing, the complainant said appellant told her he was not her biological father when she was thirteen years old. She made her outcry to Guzman when she was either fourteen or fifteen years old. Therefore, as the proponent of Guzman’s testimony, the State failed to establish that the complainant made her outcry to Guzman before her “supposed motive to falsify arose.” Because we determine Guzman was not the proper outcry witness, we need not address appellant’s other complainants in regard to Guzman.
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App. 1997). A conviction should not be overturned for non-constitutional error, such as here, if
this court, after examining the record as a whole, has fair assurance that the error did not
influence the jury, or had but a slight effect. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim.
App. 1998). The improper admission of evidence is not harmful if the same or similar evidence
is admitted without objection at another point in the trial. Mayes v. State, 816 S.W.2d 79, 88
(Tex. Crim. App. 1991).
In this case, several witnesses other than Guzman testified without objection about the
complainant’s outcry. Annette Santos, the sexual assault nurse examiner, testified she saw the
complainant for the first time in December 2005, when the complainant was referred to her by
the San Antonio Police Department. Jennifer Guzman accompanied the complainant. Santos
read aloud from her report, which was also admitted into evidence, the statements the
complainant made to her. The complainant told Santos the abuse started when she was either
nine or ten years old, and consisted of appellant touching her breasts, her “front private area,”
and oral and vaginal penetration with his fingers and penis.
The complainant also testified at trial. She said appellant came into her bedroom, put his
hands under her nightshirt and felt her breasts, but she never told anyone because she was afraid.
She said the touching progressed to appellant trying to pull down her pants and put his fingers
inside her vagina. She said she tried to avoid appellant by sleeping with her two brothers, but
appellant would come into the bedroom and carry her into the living room where he would take
off her clothes, “hold [her] down and just like rape” her, and by “rape” she meant putting his
penis inside her. Once he forced her to put her mouth on his penis.
The defense called Cheryl Thiery, a CPS investigator, to testify about her contact with the
family. She said she first contacted the family in October 2005 for the purpose of investigating a
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claim that appellant had hit the complainant’s fifteen-year-old brother. After the complainant
and her brother went to live with their mother’s cousin (Jennifer Guzman), the complainant made
her December 2005 outcry to Guzman, who reported the allegation to the police who in turn
reported the outcry to CPS. Although Thiery did not testify about the contents of her
conversation with the complainant, she stated her investigation of the sexual assault outcry led to
a “reason to believe” disposition.
After a review of the record, we have a fair assurance that the error did not influence the
jury, or had but a slight effect, because the complainant and the sexual assault nurse examiner
testified about the same matter, in more detail, and without objection. 4 See Duncan v. State, 95
S.W.3d 669, 672 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (because the outcry witness’s
testimony included same facts that were admitted into evidence without objection, trial court’s
error in admitting outcry witness’s testimony was harmless); Thomas v. State, 1 S.W.3d 138, 142
(Tex. App.—Texarkana 1999, pet. ref’d) (same).
NEWSOME’S TESTIMONY
In his second issue, appellant asserts his constitutional right to confront witnesses was
violated when the trial court allowed the State to read into evidence the testimony Newsome
gave at the May 20, 2009 pretrial hearing during which Newsome testified about the outcry
statement made to her.
“The admission of a hearsay statement made by a non-testifying declarant violates the
Sixth Amendment if the statement was testimonial, and the defendant lacked a prior opportunity
for cross-examination.” Wall v. State, 184 S.W.3d 730, 734 (Tex. Crim. App. 2006). The Texas
Rules of Evidence provide as an exception to hearsay in criminal cases, “testimony given as a
4 The jury also heard Newsome’s pretrial testimony about the outcry. Appellant objected to this testimony, but as discussed further under appellant’s second issue, we conclude the trial court did not err in admitting Newsome’s testimony.
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witness at another hearing of the same or a different proceeding, if the party against whom the
testimony is now offered had an opportunity and similar motive to develop the testimony by
direct, cross, or redirect examination.” TEX. R. EVID. 804(b)(1). Here, there is no dispute that
Newsome’s pretrial testimony about what the complainant told her was “testimonial,” and, at
trial, the court ruled Newsome to be unavailable. Therefore, the issue is whether appellant had
an “opportunity and similar motive to develop [Newsome’s] testimony by direct, cross, or
redirect examination” at the pretrial hearing.
In Texas, there is no bright-line rule that states pretrial hearings do not provide an
adequate opportunity to cross-examine sufficient to satisfy confrontation clause requirements.
Rule 804(b)(1) does not require that in order for prior testimony to be admitted as an exception
to the hearsay rule the opponent of the evidence have had an identical motive to challenge the
testimony at the prior proceeding as he now has at trial. Coffin v. State, 885 S.W.2d 140, 147
(Tex. Crim. App. 1994). Instead, the rule requires only that he have had a similar motive. Id.
Neither the form of the proceeding, the theory of the case, nor the nature of the relief sought need
be the same. Id. Only the particular issue about which the testimony was first offered must be
substantially similar to the issue offered in the current action. Id.
On appeal, appellant contends he was not given the opportunity at trial to “flesh out” any
potential bias Newsome may have had, to question Newsome’s ability to adequately recall
events, or to expand on Newsome’s admission at the pretrial hearing that she had “seizures and
certain things [were] kind of foggy.” The purpose of a hearing conducted pursuant to article
38.072 is to determine whether the outcry “statement is reliable based on the time, content, and
circumstances of the statement.” TEX. CODE CRIM. PROC. art. 38.072, § 2(b)(2). Appellant
contends the purpose of the pretrial hearing is different from cross-examination for purposes of
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the guilt/innocence stage of trial. Therefore, appellant concludes, he had no motive at the pretrial
hearing to question Newsome about her bias, her recall, or her seizures.
One indicia of whether the child’s outcry is reliable is whether evidence exists of prior
prompting or manipulation by adults. Norris v. State, 788 S.W.2d 65, 71 (Tex. App.—Dallas
1990, pet. ref’d). Therefore, at the pretrial hearing, appellant had a basis for exploring whether
Newsome held any bias against him that would have caused her to prompt or manipulate the
complainant. Also, because the outcry statement must be one that in some discernible manner
describes the alleged offense, appellant had a basis for exploring Newsome’s ability to recall the
time, content, and circumstances of the outcry. In fact, at the pretrial hearing, appellant’s
counsel conducted an extensive cross-examination of Newsome about the timing of the outcry
and the specific words the complainant used in describing the offense, and Newsome’s pretrial
testimony was read at trial in its entirety, including counsel’s cross-examination. We conclude
appellant’s motive to cross-examine Newsome at the pretrial hearing was similar to his stated
motive for cross-examining her at trial. Therefore, appellant was not denied his constitutional
right to confront a witness at trial.
SPEEDY TRIAL
Finally, appellant asserts the trial court erred in denying his motion for speedy trial. To
determine whether the State violated appellant’s right to a speedy trial under the state or federal
constitution, we weigh and balance four factors: (1) the length of the delay; (2) the reason for the
delay; (3) the assertion of the right; and (4) the prejudice to the accused. Barker v. Wingo, 407
U.S. 514, 530 (1972) (creating balancing test for reviewing speedy trial claims under federal
constitution); Cantu v. State, 253 S.W.3d 273, 280 n.16 (Tex. Crim. App. 2008) (although
speedy trial right under Texas Constitution exists independently of federal guarantee, claims of
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denial of State speedy trial right are analyzed under same four Barker factors). Once the Barker
test is triggered, we analyze the speedy trial claim by first weighing the strength of the Barker
factors and then balancing their relative weights in light of the conduct of both the prosecution
and the defendant. Cantu, 253 S.W.3d at 281. None of the Barker factors is a necessary or
sufficient condition to finding a speedy trial violation. Id. Rather, the factors are related and
should be evaluated in conjunction with any other relevant considerations. Id. In reviewing the
trial court’s ruling, we review the legal components de novo and review the factual components
for an abuse of discretion. See id. at 282.
Appellant was indicted on October 18, 2006 and trial commenced on June 22, 2009.
Because the delay was more than two years, further analysis under Barker is triggered. As to the
reasons for the delay, the State bears the initial burden of providing a justification for the delay.
Emery v. State, 881 S.W.2d 702, 708 (Tex. Crim. App. 1994). At the speedy trial hearing, the
State offered no explanation, nor any justification, for the delay. However, the trial court was
aware that continuances had been sought by both sides and “copious pretrial work” had been
done. Therefore, this factor weighs only slightly against the State. Appellant did not assert his
right to a speedy trial until May 15, 2009 and the hearing was held on June 22, 2009, the day of
trial. Appellant concedes on appeal this factor does not weigh in his favor. Lastly, this court is
to consider whether appellant was prejudiced by the delay. Appellant was not incarcerated
pending trial, and his only testimony at the speedy trial hearing was that the charges weighed
heavily on his mind and made finding work difficult for him. However, he offered the court no
estimation of his financial losses or any other evidence by which the court could quantify his
loss. Because appellant’s showing of prejudice was minimal, this factor should be weighed in
favor of the State. On balance, we conclude appellant’s right to a speedy trial was not violated.
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CONCLUSION
We overrule appellant’s issues on appeal and affirm the trial court’s judgment.
Sandee Bryan Marion, Justice
Publish
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