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Raul Gutierrez v. State

CourtCourt of Appeals of Texas
DecidedApril 11, 2007
Docket07-05-00437-CR
StatusPublished

This text of Raul Gutierrez v. State (Raul Gutierrez v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Raul Gutierrez v. State, (Tex. Ct. App. 2007).

Opinion

NO. 07-05-0437-CR

                                                             07-05-0440-CR


IN THE COURT OF APPEALS


FOR THE SEVENTH DISTRICT OF TEXAS


AT AMARILLO


PANEL D


APRIL 11, 2007

                                       ______________________________


RAUL GUTIERREZ, APPELLANT


V.


THE STATE OF TEXAS, APPELLEE

_________________________________


FROM THE 69TH DISTRICT COURT OF MOORE COUNTY;


NO. 3707, 3663; HONORABLE RON ENNS, JUDGE

_______________________________



Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

MEMORANDUM OPINION

          In two companion appeals Raul Gutierrez challenges his convictions for the felony offenses of aggravated sexual assault and indecency with a child. The prosecutions arose out of separate events against two related child victims. He presents three issues challenging events during the victims’ testimony. His fourth issue challenges admissibility of expert testimony from a sexual assault nurse examiner. We will affirm both judgments.

          Appellant was initially charged in March 2005 of sexually assaulting his five-year-old cousin AH. This indictment contained two counts and was assigned cause number 3663. The cause number 3663 indictment alleged aggravated sexual assault of AH and that appellant engaged in sexual contact by touching her genitals. A second indictment, filed in May 2005 and assigned cause number 3707, contained four counts alleging aggravated sexual assault of his nine-year-old cousin SH. Appellant pled not guilty in both cases and they were consolidated for a jury trial held in October 2005. In cause number 3663 the jury found appellant not guilty of aggravated sexual assault but guilty of indecency with a child. It assessed punishment at twenty years confinement. It found him guilty of all four counts in cause number 3707 and assessed punishment at life imprisonment.

          SH and AH were the State’s final two witnesses. Just before their testimony the trial court advised counsel that he planned to instruct the jury that it was the court’s policy in all cases where children had to testify “that a court-appointed CASA volunteer sit with the child” and the jury was not to place any significance on that fact. Defense counsel objected that “it’s a comment on the evidence” and would bolster the children’s testimony. He requested the children “come up there by themselves and testify.” The court overruled the objection and instructed the jury as described, including the name of the CASA volunteer.

          Appellant presents two challenges to the trial court’s use of the CASA volunteer at trial. Through his first issue appellant alleges a deprivation of his right of confrontation as guaranteed by the Sixth Amendment to the United States Constitution and Article I, section 10 of the Texas Constitution. In his second issue appellant argues the trial court improperly commented on the weight of the evidence through its procedure and improperly bolstered the testimony of the witnesses. He also argues the trial court should have made a finding the procedural modification was necessary before authorizing use of the CASA volunteer.

          Upon our review of the record, we find we are unable to consider appellant’s first issue because his Sixth Amendment contention was not preserved for appeal. Appellant’s objection to the presence of the CASA volunteer did not assert it would impair his right of confrontation. See Mendez v. State, 138 S.W.3d 334, 340-42 (Tex.Crim.App. 2004) (most constitutional rights are subject to preservation requirement of Rule 33.1); Parades v. State, 129 S.W.3d 530, 535 (Tex.Crim.App. 2004) (failure to object to testimony as violation of Confrontation Clause waived complaint). See also Ramirez v. State, No. 02-06-0135-CR, 2004 WL 2997747 (Tex.App.–Fort Worth January 11, 2007, no pet.); Morris v. State, No. 02-06-0136-CR, 2007 WL 80012 (Tex.App.–Fort Worth January 11, 2007, no pet.); and Meeks v. State, No. 03-03-0509-CR, 2005 WL 1489593 (Tex.App.--Austin June 23, 2005, no pet.) (applying rule).

          Appellant next argues the procedure impermissibly bolstered the children’s testimony and was effectively a comment on the evidence by the trial court. He contends that by instructing the jury the volunteer was court-appointed it could have led the jury to infer the judge’s endorsement of the testimony. Appellant cites article 38.05 of the Code of Criminal Procedure, which directs judges to refrain from commenting on the weight of evidence or making any remark calculated to convey to the jury the judge’s opinion of the case. Tex. Code Crim. Proc. Ann. art. 38.05 (Vernon 1979). Appellant cites also Hoang v. State, 997 S.W.2d 678 (Tex.App.–Texarkana 1999, no pet.), which describes improper comments as including trial court statements implying approval of the State’s argument and statements that, “however impartially they may have been made, may have led the jury to infer the judge’s own opinion of the merits of the case.” Id. at 681.

          We find neither the use of the court-appointed volunteer, nor the court’s instruction, to be improper comments on the evidence. The court told the jury why the volunteer was present and instructed them to place no significance on her presence. We do not agree the instruction implied the court’s endorsement of the credibility of the six- and ten-year-old witnesses, or otherwise conveyed the judge’s own opinion of the merits of the case. See Conrad, 10 S.W.3d at 47 (rejecting a similar argument). We overrule appellant’s second issue.

          Appellant’s third issue assigns error to the trial court’s permitting SH to display a cross during her testimony. He argues the error further deprived him of his right of confrontation. As with his first issue, review of the record demonstrates the purported error was not preserved for review. The third issue is overruled.

          In his final issue appellant challenges the admissibility of testimony of Becky O’Neal, the sexual assault nurse examiner who examined AH. He argues the testimony was inadmissible because it failed to meet the test for reliability of scientific testimony adopted in

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