John Eloy Orozco v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: November 21, 2023
• Docket: 01-22-00914-CR
• Status: Published

Opinion

Opinion issued November 21, 2023

In The

Court of Appeals For The

First District of Texas ———————————— NOs. 01-22-00914-CR, 01-22-00915-CR ——————————— JOHN ELOY OROZCO, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 149th District Court Brazoria County, Texas Trial Court Case Nos. 94143-CR, 94144-CR

MEMORANDUM OPINION

A jury convicted Appellant John Eloy Orozco of the first-degree felony

offense of aggravated sexual assault of a child–habitual and the first-degree felony

offense of aggravated kidnapping–habitual, and after finding two enhancement paragraphs true, assessed Appellant’s punishment at life in prison for each offense.1

The trial court ordered Appellant’s sentences to run consecutively at the Texas

Department of Criminal Justice, Institutional Division.

In his sole issue on appeal, Appellant argues the trial court violated his Sixth

Amendment right to confrontation under the Confrontation Clause by (1) admitting

a report prepared by a sexual assault nurse examiner that contained the

complainant’s out-of-court statements; and (2) admitting the sexual assault nurse

examiner’s testimony regarding those statements.

Because Appellant was afforded a full opportunity to confront and cross-

examine the nurse examiner and the complainant at trial, we conclude the trial court

did not violate his right to confrontation under the Sixth Amendment. We affirm the

trial court’s judgment.

Background

Appellant John Eloy Orozco was charged by indictment in two separate cases

with the first-degree offense of aggravated sexual assault of a child–habitual and the

first-degree felony offense of aggravated kidnapping–habitual. In the first case, the

State alleged Orozco sexually assaulted Betty,2 a child younger than seventeen years

1 Appellant was charged with sexual assault of a child-habitual in Cause No. 94143- CR, which was consolidated with Cause No. 94144-CR, where Appellant was charged with aggravated kidnapping-habitual. 2 Because the complainant was a minor when the offenses occurred, we are referring to her by the pseudonym “Betty” to protect her identity.

2 of age, by intentionally and knowingly causing the penetration of Betty’s sexual

organ by Orozco’s sexual organ. In the second case, later consolidated with the first,

Orozco was charged with intending to facilitate the commission of a felony, by

intentionally or knowingly abducting Betty by restricting her movements without

her consent as to interfere substantially with her liberty, by moving her from one

place to another or confining her with intent to prevent her liberation, or by secreting

and holding her in a place where Betty was not likely to be found.

Orozco pleaded not guilty, and the case proceeded to a jury trial. The jury

found the defendant guilty of both charges. The trial court sentenced Orozco to life

in prison for each offense with the sentences to run consecutively. Orozco does not

challenge the sufficiency of the evidence supporting his convictions for either

offense. On appeal, he challenges only the admission of statements Betty made to

Jo McDonald, the sexual assault nurse examiner who examined Betty after the

alleged sexual assault and abduction. We thus limit our recitation of the facts to

McDonald’s and Betty’s testimony at trial.

A. Nurse Jo McDonald

Jo McDonald, a board-certified emergency nurse, is also certified through the

State as a sexual assault nurse examiner (“SANE”). McDonald testified that as a

SANE, she performs medical forensic exams for victims of sexual assault. On the

day of the alleged sexual assault and abduction, McDonald performed a medical

3 forensic exam on Betty, and she documented her findings in a written report admitted

at trial as State’s Exhibit 12.

Explaining the process for a medical forensic exam, McDonald testified that

after obtaining consent to perform a SANE exam, she obtains the patient’s medical

history and “a history from the patient, which is basically their words as to what has

happened to them.” When asked if that history is “important for you in order to

provide medical treatment,” McDonald testified, “The history allows me to know

where I need to focus my exam, where on the body. It also allows me to know where

to collect evidence, as well as what medical treatment may be recommended for this

patient.” After obtaining the patient’s history and medical history, McDonald

performs the physical examination. McDonald testified that she prepares a report

documenting the examination.

During McDonald’s testimony, the State offered into evidence State’s Exhibit

12, which McDonald testified was a fair and accurate representation of the report

she prepared documenting Betty’s SANE examination. The State offered

McDonald’s report into evidence as a business record affidavit. Orozco objected,

arguing McDonald’s report violated his rights under the Confrontation Clause

because it contained out-of-court statements made by Betty to McDonald during the

4 SANE examination.3 The trial court overruled his objection, at which time Orozco’s

counsel asked to approach the bench. During the bench conference, Orozco’s

counsel argued:

What our objection really goes to is confrontation clause in that—I know there’s an exception for medical record diagnoses. However, [Crawford v. Washington, 541 U.S. 36 (2004)] deals with when records are made for the purposes of future criminal litigation, which a SANE exam is.

Now, once [Betty] testifies to all that, maybe everything gets fixed. But at this moment in time, we are—there’s no way we could properly cross-examine that document based on the testimony in it given by [Betty]. So our objection is under Crawford and confrontation.

The trial court overruled Orozco’s objection and admitted State’s Exhibit 12 into

evidence. McDonald read extensively from her report and testified about statements

Betty made to her during the SANE examination.4

Orozco cross-examined McDonald about the contents of her report and

Orozco does not contend, nor does the record reflect, that the trial court impeded his

3 Orozco also objected to the admission of the report based on hearsay. On appeal, Orozco acknowledges that the statements were admissible under an exception to the hearsay rule and limits his challenge to the admission of the report to his argument that the admission violated his rights under the Confrontation Clause. See TEX. R. EVID. 803(4) (creating exception to hearsay rule for statements made for medical diagnosis or treatment). 4 Given the issues on appeal, it is not necessary to discuss the details of the alleged sexual assault and kidnapping offenses. We do, however, include an abbreviated discussion of the offenses as testified to by Betty.

5 ability to question McDonald about the substance of the report or from cross

examining McDonald on any topic on which she testified.

B. Betty

The State called Betty as its last witness. Betty testified that on the day of the

assault and kidnapping, she and her boyfriend skipped class and went to Sealy Park.

While at the park, she noticed Orozco’s car was sitting there and she thought “he

was recording or watching us.” Betty returned to school and waited for her ride

home. While she was waiting, Orozco approached her and identified himself as a

truancy officer. Betty, who lives with her aunt, uncle, and cousins, testified she

believed Orozco when he claimed he was a truancy officer because just one day

before, her aunt had threatened to call a truancy officer on her if she skipped school.

Orozco told Betty to get in his car because he wanted to show her a video. Betty

assumed it was a video of her skipping school.

Instead, after Betty got into Orozco’s car, he showed her a pornographic

video. He then drove her to a secluded area ten to fifteen minutes away where he

showed her another video, made her “smoke some stuff out of a pipe,” made her

remove her clothes, and sexually assaulted her. Betty testified that Orozco inserted

his penis into her vagina and put his mouth in her vagina.

Betty testified that after another car parked near them, Orozco walked her over

to some nearby bushes where he recorded himself sexually assaulting her. He “had

6 her get on her knees so that he could put his penis in her vagina from behind her.”

Orozco threatened to hurt Betty and her family if she “snitched.” He then drove her

home. When Betty’s aunt arrived home from the store, she took Betty to the hospital

where Betty was examined by McDonald that evening.

Orozco’s counsel cross-examined Betty. During his brief examination,

Orozco’s counsel asked Betty how she got home and whether the person who drove

her home dropped her off at a safe location. Betty testified that she was dropped off

in the driveway of her home and she agreed that she had been left in a reasonably

safe place. Orozco did not question Betty about her statements to McDonald during

the SANE exam. Orozco does not argue, nor does the record reflect, that the trial

court prohibited Orozco from questioning Betty about her out-of-court statements or

otherwise placed any limitations on the scope of Orozco’s cross-examination of

Betty.

Confrontation Clause

Orozco argues that the admission of Betty’s out-of-court statements contained

in McDonald’s report (State’s Exhibit 12) and McDonald’s testimony concerning

those statements violated his rights under the Confrontation Clause because Betty’s

statements to McDonald were testimonial, Orozco had not previously cross-

examined Betty, and at the time the report was admitted into evidence, he did not

know if Betty would testify at trial.

7 The State responds that the admission of Betty’s out-of-court statements

contained in McDonald’s report and McDonald’s testimony did not violate Orozco’s

rights under the Confrontation Clause because Betty testified at trial and Orozco had

an unrestricted opportunity to question Betty about her out-of-court statements

during cross-examination. The State also argues that the admission of Betty’s out-

of-court statements to McDonald did not violate Orozco’s rights under the

Confrontation Clause because Betty’s statements to McDonald were non-

testimonial.5

A. Standard of Review and Applicable Law

The Sixth Amendment’s Confrontation Clause guarantees that “[i]n all

criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the

witnesses against him . . . .” U.S. CONST. amend. VI. Under the Confrontation

Clause, testimonial statements of a witness who does not appear at trial are

prohibited unless the witness is unavailable to testify, and the defendant had a prior

opportunity to cross-examine the witness. Crawford v. Washington, 541 U.S. 36,

52, 59 (2004). When “the declarant appears for cross-examination at trial, the

Confrontation Clause places no constraints at all on the use of his prior testimonial

statements.” Id. at 59 n.9 (citing California v. Green, 399 U.S. 149, 162 (1970)).

5 We need not reach this issue, because even assuming Betty’s statements were testimonial, the admission of Betty’s out-of-court statements did not violate Orozco’s constitutional rights.

8 “The [Confrontation] Clause does not bar admission of a statement so long as the

declarant is present at trial to defend or explain it.” Id. at 59 n.9 (citing Tennessee

v. Street, 471 U.S. 409, 414 (1985)); see also Guzman v. State, 591 S.W.3d 713, 724

(Tex. App.—Houston [1st Dist.] 2019, no pet.) (holding admission of declarant’s

out-of-court outcry statement through another witness did not violate defendant’s

rights under Confrontation Clause because “the declarant of the out-of-court outcry

statement, testified at trial and was subject to cross-examination by appellant”);

Crawford v. State, 139 S.W.3d 462, 465 (Tex. App.—Dallas 2004, pet. ref’d)

(holding Confrontation Clause did not bar outcry witness’ testimony concerning out-

of-court statement by child declarant because declarant testified at trial and therefore

defendant had opportunity to cross-examine declarant).

B. Analysis

Orozco argues that Betty’s out-of-court statements contained in McDonald’s

written report are testimonial. He posits that the admission of McDonald’s report

(State’s Exhibit 12) and McDonald’s testimony concerning Betty’s statements in the

report violated his rights under the Confrontation Clause because at the time that

evidence was admitted, Betty “had not testified nor had she been the subject of prior

cross-examination.” He further argues that because several witnesses testified

between the admission of the challenged evidence and Betty’s “eventual in-court

testimony,” “any cross examination of [Betty] regarding those out-of-court

9 statements [was rendered] functionally useless,” and “the State’s heavy reliance on

[Betty’s statements to McDonald] made it such that any later testimony by [Betty]

was unnecessary and cross examination of her regarding her prior statements

useless.” Orozco argues he “could have mounted a more vigorous cross examination

of [Betty] on the statements in State’s [Exhibit] 12” if Betty had testified shortly

after admission of State’s Exhibit 12 and McDonald’s testimony.

Orozco’s arguments are unavailing. Even assuming Betty’s out-of-court

statements to McDonald were testimonial and thus the Confrontation Clause applies,

Orozco was afforded the unrestricted opportunity to cross-examine both McDonald

and Betty at trial about the statements and their testimony. His confrontation rights

were not violated.

McDonald testified at trial and Orozco had a full opportunity to cross-examine

her about the SANE examination and Betty’s statements to her. Orozco’s cross-

examination of McDonald was not impeded. Betty was listed first on the State’s

witness list, and she also testified at trial. Orozco was afforded the unrestricted

opportunity to cross-examine Betty about her testimony at trial and the statements

she gave to McDonald during the SANE examination. The record does not reflect

that the trial court placed any limits on the scope of Orozco’s cross-examination of

Betty. Thus, even assuming Betty’s statements to McDonald were testimonial, the

admission of her statements through State’s Exhibit 12 and McDonald’s testimony

10 did not violate Orozco’s rights under the Confrontation Clause. See Guzman, 591

S.W.3d at 724 (holding admission of declarant’s out-of-court outcry statement

through another witness did not violate defendant’s rights under Confrontation

Clause because “the declarant of the out-of-court outcry statement, testified at trial

and was subject to cross-examination by appellant”); Eustis v. State, 191 S.W.3d

879, 886 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d) (holding Confrontation

Clause was not violated when declarant testified at trial and defendant had

opportunity to question declarant about her out-of-court statements during cross-

examination); see also Nuncio v. State, No. 01-16-00118-CR, 2016 WL 7164059, at

*3 (Tex. App.—Houston [1st Dist.] Dec. 8, 2016, no pet.) (mem. op., not designated

for publication) (holding Confrontation Clause was not violated by admission of

declarant’s 911 call or officer’s testimony about statements declarant had made to

him because declarant testified during defendant’s case-in-chief, and thus defendant

was “afforded the opportunity to examine [declarant] about her out-of-court

statements”).

We overrule Orozco’s sole issue.

Conclusion

We affirm the trial court’s judgment.

Veronica Rivas-Molloy Justice

11 Panel consists of Chief Justice Adams and Justices Landau and Rivas-Molloy.

Do Not Publish. TEX. R. APP. P. 47.2(b).