Steve Pasillas v. State

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-10-515-CR

STEVE PASILLAS APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

MEMORANDUM OPINION1

A jury convicted Appellant Steve Pasillas of sexual assault of a child and

assessed his punishment at forty years‟ confinement. The trial court sentenced

him accordingly. Appellant brings three points, arguing that the trial court

improperly admitted certain evidence and that the evidence is insufficient to

sustain his conviction. Because the evidence is sufficient to support Appellant‟s

1 See Tex. R. App. P. 47.4. conviction and because he does not clearly specify the evidence of which he

complains, we affirm the trial court‟s judgment.

I. Background Facts

Appellant appeals from his conviction of the sexual assault of his sister,

J.P. At trial, J.P. testified that Appellant had sexually assaulted her on multiple

occasions, beginning when she was in the first grade, stopping when she was in

the third grade, and resuming when she was in the seventh grade.

The State also called Araceli Desmarais, a sexual assault nurse examiner

at Cook Children‟s Medical Center in Fort Worth, to testify about her examination

of J.P. Desmarais testified about the physical findings from her examination of

J.P. as well as about statements J.P. had made during the examination about

sexual encounters between Appellant and her.

II. Evidentiary Rulings

In his first point, Appellant argues that the trial court abused its discretion

by admitting hearsay evidence over his objections. Appellant directs us to three

places in the record where he objected to Desmarais‟s testimony on the grounds

of hearsay. The first was in response to the question, “And at that time of taking

the patient history, what did [J.P.] tell you for the purpose of treatment and

diagnosis?” The second hearsay objection was lodged in response to the

statement, “She stated: „My brother, Steve, did stuff to me.‟ And I asked her

how old she was when it started.” The third hearsay objection to which Appellant

directs us was in response to the question, “What were the things after the yes-

2 or-no questions that she told you?” Desmarais then began to recount the child‟s

description of the sexual abuse she had suffered with no objection from

Appellant. Desmarais completed her testimony on direct examination with no

further hearsay objections.

To preserve error, a party must continue to object each time the

objectionable evidence is offered.2 A trial court‟s erroneous admission of

evidence will not require reversal when other such evidence was received

without objection, either before or after the complained-of ruling.3 This rule

applies whether the other evidence was introduced by the defendant or the

State.4 Because Appellant did not object each time the complained-of evidence

was offered, he forfeited this point. We overrule Appellant‟s first point.

In his second point, Appellant complains that the trial court abused its

discretion by admitting extraneous offense evidence during the guilt phase over

his rule 403 and rule 404 objections. While Appellant obtained a ruling on his

objections at the beginning of J.P.‟s account of extraneous incidents and

renewed his objections once, he failed to contemporaneously object to more than

six pages of J.P.‟s recounting of extraneous incidents and failed to make a 2 Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003); Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003) (citing Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991)); Fuentes v. State, 991 S.W.2d 267, 273 (Tex. Crim. App.), cert. denied, 528 U.S. 1026 (1999). 3 Lane v State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004); Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998). 4 Leday, 983 S.W.2d at 718.

3 running objection. Consequently, he forfeited this point. 5 We overrule

Appellant‟s second point.

III. Sufficiency of the Evidence

In his third point, Appellant argues that the evidence is insufficient to

support his conviction. He does not, however, inform us of the manner in which

the evidence is insufficient. He merely states that the prosecution is required to

prove every element of an offense beyond a reasonable doubt and that the State

failed to do so. Although Appellant argues that the testimony of the child was

ambiguous and lacked credibility, he does not inform us what that testimony was,

in what way it was ambiguous, or why we should overturn the jury‟s

determination of credibility. He also argues that without the improperly admitted

hearsay testimony of Desmarais, the State‟s entire case would fail, but he does

not explain to us why it would fail. We note that we must consider all evidence,

even improperly admitted evidence, in evaluating the sufficiency of the evidence

a criminal case.6 We further note that the jury, not this court, is the sole judge of

the weight and credibility of the evidence.7 We overrule Appellant‟s third point.

5 See Geuder, 115 S.W.3d at 13; Martinez, 98 S.W.3d at 193; Fuentes, 991 S.W.2d at 273. 6 Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007); Moff v. State, 131 S.W.3d 485, 489–90 (Tex. Crim. App. 2004). 7 See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075 (2009); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

4 IV. Conclusion

Having overruled Appellant‟s three points, we affirm the trial court‟s

judgment.

LEE ANN DAUPHINOT JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and WALKER, JJ.

DO NOT PUBLISH Tex. R. App. P. 47.2(b)

DELIVERED: December 8, 2011