PD-1305-15 PD-1305-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 11/2/2015 8:52:38 PM Accepted 11/3/2015 2:33:11 PM ABEL ACOSTA CAUSE NO. ___________________ CLERK
IN THE COURT OF CRIMINAL APPEALS FOR THE STATE OF TEXAS
AARON ANTHONY TORRES, APPELLANT
V.
STATE OF TEXAS, APPELLEE
PETITION FOR DISCRETIONARY REVIEW FROM THE 19TH JUDICIAL DISTRICT COURT MCLENNAN COUNTY, TEXAS TRIAL COURT CASE NUMBER 2012-1062-C1 HON. RALPH STROTHER, JUDGE PRESIDING
AND IN THE THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS APPELLATE CAUSE NUMBER 13-14-0031-CR
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
DENTON B. LESSMAN TX BAR NO. 24042474 November 3, 2015 100 N. 6TH STREET, STE. 702 WACO, TX, 76701 TELEPHONE: (254) 776-4544 FACSIMILE: (254) 776-4551 EMAIL DLESSMANATTY@AOL.COM ATTORNEY FOR APPELLANT
ORAL ARGUMENT IS DEFERRED TO THE COURT IDENTITY OF PARTIES AND COUNSEL
AARON ANTHONY TORRES APPELLANT
STATE OF TEXAS APPELLEE
DENTON B. LESSMAN APPELLATE ATTORNEY FOR 100 N. 6TH STREET, STE. 702 APPELLANT WACO, TEXAS 76701,
DARREN OBENOSKEY TRIAL ATTORNEY FOR 510 N. VALLYE MILLS DR. APPELLANT STE. 302 WACO, TEXAS 76710
ABELINO “ABEL REYNA TRIAL & APPLELLATE 501 WASHINGTON AVE. ATTORNEY FOR APPELLEE / WACO, TEXAS 76701 CRIMINAL DISTRICT ATTORNEY FOR MCLENNAN COUNTY, TEXAS
TABLE OF CONTENTS
TABLE OF AUTHORITIES
Cases
Carpenter v. State, 979 S.W.2d 633, 634 (Tex. Crim. App. 1998) ............... 8
Irby v. State, 327 S.W.3d 138, 154 (Tex. Crim. App. 2010) ......................... 8
Johnson v. State, 433 S.W.3d 546 (Tex. Crim. App. 2014) ......................... 8
Perry v. State, 239 S.W.3d 859, 865 (Tex. App.—Texarkana 2007, no pet) 6
2 Torres v. State, 2015 WL 5158385 (Tex. App.—Corpus Christi 2015, pet filed) .......................................................................................................... 4
Rules
Tex. R. App. Pro. Rule 66.3(f) ...................................................................... 4
Tex. R. App. Proc. Rule 66.3(a) & (c) .......................................................... 4
Constitutional Provisions
Sixth Amendment to the United States Constitution .................................... 5
STATEMENT REGARDING ORAL ARGUMENT
The Petitioner, Aaron Anthony Torres, requests to present oral
argument on this case if the Court determines it to be beneficial in its
consideration.
STATEMENT OF THE CASE
This case is an appeal from the Honorable 13th Court of Appeals and
19th District Court of McLennan County. Aaron Anthony Torres (Torres)
was indicted for the offenses of: Ct. 1) Continuous Sexual Abuse of a Child,
Cts. 2-4) Aggravated Sexual Assault of a Child, Cts. 5-8) Indecency With a
Child by Contact. (C.R. Vol. I-6) A jury trial was held in this matter on
December 3, 2013 through December 5, 2013. (R.R. vol 1, pgs. 1-18)
TORRES was found guilty and sentenced to incarceration in TDCJ for a
period of life on counts 1-4, 20 years on counts 5-7. (R.R. vol. 6, pgs. 41-
3 42) TORRES properly filed a notice of appeal of the Trial Court’s
Judgment. (C.R. Vol. I-158).
STATEMENT OF PROCEDURAL HISTORY
Notice of appeal was properly filed on 12/11/13. (C.R. I-158) The
Thirteenth Court of Appeals overruled Torres’ three issues and affirmed the
Trial Court’s judgment. Torres v. State, 2015 WL 5158385 (Tex. App.—
Corpus Christi 2015, pet filed). There was no motion for rehearing filed.
QUESTION PRESENTED FOR REVIEW
The Honorable Thirteenth Court of Appeals’ holding is incorrect
because it denies Torres his right to confrontation under the 6th
Amendment. Torres has a right to present evidence regarding the mental
status of his accuser and the extent of her mental impairment.
REASONS FOR GRANTING REVIEW
Torres asserts that the reason for granting review is that the Tenth
Court of Appeals has:
1) determined an important question of law in a way that conflicts with this
court and other court of appeals’ decision on the same issue, Tex. R. App.
Proc. Rule 66.3(a) & (c); and,
4 2) so far departed from the accepted and usual course of judicial
proceedings as to call for an exercise of the Court of Criminal Appeals’
power of supervision. Tex. R. App. Pro. Rule 66.3(f).
ARGUMENT
The Trial Court violated Torres’ right to challenge the credibility and
truthfulness of G.T 1 under the confrontation clause of the Sixth Amendment
to the United States Constitution by excluding evidence that was necessary
to challenge both her credibility and present evidence regarding mental
state.
Torres’ trial counsel attempted to present video evidence to the jury
that showed the psychological/psychiatric/behavioral/sociological
conditions of G.T. (R.R. vol. 4, pgs. 270 et. seq.) Specifically, it was a video
of G.T. violently interacting with the Waco Police Department on January 7,
2013. The State objected that the video was irrelevant because the outcry
was in 2010, and that there was already enough evidence regarding G.T.’s
conditions before the jury. The Trial Court denied Torres’ request to present
the video to the jury.
Torres presented to the Court of Appeals that the excluded evidence
was specific to the mental status of his accuser and the extent of her
1 The alleged child victim in this case has consistently been referred to as G.T. by both parties. 5 mental impairment. The Thirteenth Court of Appeals overruled the issue
without addressing the mental status and impairment of G.T. Instead, the
Court simply addressed Torres’ argument as a general confrontational
clause issue.
Torres argued that the law applicable to this issue was correctly
stated by Perry v. State, 239 S.W.3d 859, 865 (Tex. App.—Texarkana
2007, no pet):
“The law is well settled that the credibility of the witness, and the weight to be given his or her testimony, is a matter for the jury to decide. See TEX.CODE CRIM. PROC. ANN. art. 38.04 (Vernon 1979). Equally established is the limitation placed on cross-examination by evidentiary Rule 608(b), which precludes attacks on a witness' credibility by way of specific instances of conduct, except for certain criminal convictions. However, the jury is entitled to hear evidence as to the mental status of the witness and the extent of his or her mental impairment. See Saucier v. State, 235 S.W.2d 903, 915–16 (Tex. Crim. App. 1950 (op. on reh'g). ‘[T]he mental capacity of the witness is the proper subject of consideration and impeachment as bearing upon his credibility.’ Bouldin v. State, 222 S.W. 555, 557 (Tex. Crim. App. 1920. Therefore, the right to cross-examination includes the right to impeach the witness with evidence that might go to any impairment or disability affecting the witness' credibility. See Saglimbeni v. State, 100 S.W.3d 429, 435 (Tex.App.-San Antonio 2002, pet. ref'd (citing Virts v. State, 739 S.W.2d 25, 29 (Tex. Crim. App. 1987; see also Sidney v. State, 753 S.W.2d 410, 413 (Tex.App.-Houston [14th Dist.] 1986, pet. ref'd (Trial court should have allowed appellant to cross- examine witness on the duration, extent, and treatment of his mental condition).” Perry at 865.
6 G.T.’s psychological/psychiatric/behavioral/sociological conditions
were a main issue in this case. For example:
• During opening statements the State and Defense both clearly
explained that this case was going to be about the credibility of G.T.
including her psychological/psychiatric conditions. After opening, the
State presented their case how G.T. was a victim of the “life she has
been dealt” (State opening, R.R. vol. 3 pg. 11) and her
behavior/conditions were the result thereof (R.R. vol. 3, pg. 24
[questioning of Lori Smith, LPC]; R.R. vol. 4, pg. 130 [questioning of
Laura Richter, Therapist]; R.R. vol. 4, pg. 244 [questioning of Dr.
Carter]).
• The testimony presented by the State included relevant time periods
both before and after the alleged offenses. For example, said
testimony included G.T. chasing her brother around the house with a
knife when she was five (R.R. vol. 4, pg. 73); and, also included
testimonial evidence - Laura Richter, Clinical Therapist at New Life,
(R.R. vol. 4, pgs. 132 et seq.) - on G.T.’s condition from May 2013
until the date of trial. This 2013 testimony included G.T. losing
control, being very verbally aggressive, threatening, yelling,
screaming for probably at least an hour or so. (R.R. vol. 4, pg. 164). 7 • The State showed G.T.’s conditions required her to have inpatient
treatment within several mental health facilities: Austin State Hospital,
DePaul Psychiatric Center in Waco, River Crest Psychiatric Hospital
in San Angelo, Methodist Home in Waco, New Life Treatment Center
in Canyon Lake, and Cedar Crest Psychiatric Hospital in Belton. She
was inpatient at Cedar Crest when the outcry was made. At the time
of the outcry, G.T. was 12 years old.
So, how could it be impermissible for Torres to present to the jury true
evidence of the nature of her condition? Clearly, the video evidence has a
logical or causal connection with G.T.’s mental status or the impact of her
impairment. Johnson v. State, 433 S.W.3d 546 (Tex. Crim. App. 2014);
Carpenter v. State, 979 S.W.2d 633, 634 (Tex. Crim. App. 1998); Irby v.
State, 327 S.W.3d 138, 154 (Tex. Crim. App. 2010).
CONCLUSION
The exclusion of Torres’ video evidence regarding G.T.’s mental
status the extent of her impairment denies him his right to confrontation
under the 6th Amendment of the United States Constitution. The
Intermediate Court’s incorrect holding is in conflict with established Texas
law as explained in Perry. Without granting this petition for discretionary
review, an incorrect precedence will continue in Texas Jurisprudence. 8 PRAYER
WHEREFORE PREMISES CONSIDERED, Torres prays that this
Honorable Court will grant this petition.
Respectfully Submitted,
Law Office of Denton B. Lessman 100 N. 6th Street, Ste. 702 Waco, Texas 76701 Tel: (254) 776-4544 Fax: (254) 776-4551
By: Denton B. Lessman TX Bar No. 24042474 Attorney for Appellant
CERTICATE OF SERVICE
I hereby certify that a copy of this Petition for Discretionary Review
was served on the State Prosecuting Attorney and the Criminal District
Attorney of McLennan County via facsimile on November 3, 2015.
Denton B. Lessman
CERTIFICATE OF COMPLIANCE
I hereby certify in accordance with Rule 9.4(i)(3) that this entire
document, including those excludable under Rule 9.4(i)(1), has a total of 9 1572 words and that this documents was produced using Microsoft Word
2013.
APPENDIX
10 NUMBER 13-14-00031-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
AARON ANTHONY TORRES, Appellant,
THE STATE OF TEXAS, Appellee.
On appeal from the 19th District Court of McLennan County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Longoria Memorandum Opinion by Justice Rodriguez Appellant Aaron Anthony Torres appeals from a judgment rendered by the 19th
District Court of McLennan County, Texas.1 A jury found Torres guilty of seven counts
1 This case is before the Court on transfer from the Tenth Court of Appeals in Waco pursuant to a docket equalization order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West, Westlaw through Ch. 46, 2015 R.S.). of sexual abuse of his minor daughter, G.T.2 Torres was found guilty of: continuous
sexual abuse of a child (Count 1); aggravated sexual assault of a child (Counts 2–4); and
indecency with a child by contact (Counts 5–7). TEX. PENAL CODE ANN. §§ 21.02, 22.021,
21.11 (West, Westlaw through Ch. 46, 2015 R.S.). After the jury assessed punishment,
the trial court sentenced Torres to life imprisonment on Counts 1 through 4, and twenty
years’ imprisonment on Counts 5 through 7. Torres raises three issues on appeal. We
affirm.
I. BACKGROUND3
In 2010, when G.T. was twelve years old, she was admitted to the Cedar Crest
Hospital and Rehabilitation Center (Cedar Crest) for treatment and evaluation for
behavioral issues. While at Cedar Crest, G.T. made an “outcry” statement to one of her
therapists, Lori Smith; G.T. gave Smith a piece of paper on which she detailed her outcry
statement. The hand-written note said “when I was little my dad raped and sexually
assaulted me.” G.T. also told Smith that Torres said he would kill her if she told anyone.
Smith contacted Child Protective Services and the police. G.T. was referred to
the Advocacy Center where Ann Sims, M.D. performed an evaluation. At the Advocacy
Center, G.T. provided Dr. Sims a more detailed description of the abuse: she claimed
Torres began to sexually assault her when she was eight years old and that the abuse
continued until she was eleven years old. Detective Thomas Schmidt with the Beverly
2 We will refer to the minor complainant as G.T., as it was the abbreviation used by the parties in their briefing.
3 Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See TEX. R. APP. P. 47.4.
2 Hills Police Department investigated the claim and determined there was probable cause
to arrest Torres. Torres was later indicted for continuous sexual abuse of a child,
aggravated sexual assault of a child, and indecency with a child.
Torres pled “not guilty” and elected to have a trial by jury. The jury found Torres
guilty on all seven counts and assessed life imprisonment on Counts 1 through 4 and
twenty years’ imprisonment on Counts 5 through 7. The trial court entered judgment
consistent with the verdict. This appeal followed.
II. CONFRONTATION CLAUSE
By his first issue, Torres contends that the trial court abused its discretion when it
excluded video evidence of G.T.’s arrest in 2013. Specifically, Torres contends that the
trial court violated his right to challenge the credibility and truthfulness of G.T. under the
Confrontation Clause of the Sixth Amendment to the United States Constitution by
excluding evidence that was necessary to challenge both her credibility and mental state.4
Torres’s attorney argued before the trial court that the video was relevant to show,
for credibility and impeachment purposes, the “mental disability or the mental capacity of
the witness” and what she was going through “at that time.” Upon questioning by the
trial court, Torres’s trial attorney clarified that he was not seeking to admit the video
through Texas Rule of Evidence 608, but through the Confrontation Clause. Torres’s
attorney went on to say that the video was “evidence of [G.T.’s] mental incapacity, her
4 At trial, Torres argued for admission of the video only on constitutional grounds pursuant to the
Confrontation Clause. Torres, as the proponent of the evidence, was required to offer the evidence for its admissible purpose. See TEX. R. APP. P. 33.1; Reyna v. State, 168 S.W.3d 173, 173 (Tex. Crim. App. 2005). To the extent Torres raises other issues on appeal supporting admission of the video evidence, they are not preserved. See TEX. R. APP. P. 33.1; Reyna, 168 S.W.3d at 179. 3 mental disability that she’s going through at those moments, and that’s directly around
the time frame that she is making these allegations . . . .” The trial court excluded the
evidence.
Torres made an offer of proof to the trial court after it excluded his proffered
evidence. Outside the presence of the jury, he called Officer Eric Trojanowski with the
Waco Police Department to the stand. Officer Trojanowski testified that he responded
to a call on January 7, 2013, about a disturbance in progress involving a runaway minor
he identified as G.T. Officer Trojanowski took G.T. into custody in an effort to defuse the
situation. The officer’s video equipment recorded a video of the arrest and the
subsequent ride in the patrol vehicle. That video showed G.T. aggressively resisting
restraint, threatening Officer Trojanowski, and using profanity.5
During Officer Trojanowski’s testimony, the trial court noted that the video was
taken in 2013 and not in 2010 as argued by Torres. The following exchange occurred:
Court: I want to make sure I understood what you said earlier, Officer. This was in January of this year?
Officer: Yes, sir.
Court: Of 2013?
Officer: Of 2013, yes, sir.
State: So we don’t even have the right officer.
Defense: Oh, you know what, that’s not the one before Cedar Crest.
Court: Because this outcry happened in —
State: 2010.
5 The video was also offered into evidence via an offer of proof. 4 Defense: Right.
Court: Okay, so this incident certainly doesn’t have anything to do with this case.
Defense: Okay, I’ll just close it up, then.
....
Court: I thought you were saying this happened in proximity to the time of the accusation.
Defense: That’s what I was thinking, but when I look back at it now, that’s not correct.
A. Applicable Law
We review a trial court’s decision to admit or exclude evidence for an abuse of
discretion. Oprean v. State, 201 S.W.3d 724, 726 (Tex. Crim. App. 2006); Shilling v.
State, 60 S.W.3d 280, 282 (Tex. App.—Waco 2001, pet. ref’d). The trial court did not
abuse its discretion if its decision was in the “zone of reasonable disagreement.” See
Oprean, 201 S.W.3d at 726. “The Confrontation Clause of the Sixth Amendment, made
applicable to the States through the Fourteenth Amendment, provides: ‘In all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
against him.’” Maryland v. Craig, 497 U.S. 836, 844 (1990) (citing U.S. CONST. amend.
VI). The central purpose of the Confrontation Clause is to ensure the reliability of the
evidence against a criminal defendant by subjecting it to rigorous testing in the context of
an adversary proceeding before the trier of fact. Crawford v. Washington, 124 U.S. 36,
74 (2004) (citing Craig, 497 U.S. at 845).
As this description indicates, the right guaranteed by the Confrontation Clause includes not only a personal examination, but also (1) insures that the witness will give his statements under oath—thus impressing him with the seriousness of the matter and guarding against the lie by the possibility 5 of a penalty for perjury; (2) forces the witness to submit to cross- examination, the ‘greatest legal engine ever invented for the discovery of truth’; and (3) permits the jury that is to decide the defendant's fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility.
Id. at 845–46 (internal citations omitted). “The Confrontation Clause is generally
satisfied when the defense is given a full and fair opportunity to probe and expose
[testimonial] infirmities [such as forgetfulness, confusion, or evasion] through cross-
examination, thereby calling to the attention of the factfinder the reasons for giving scant
weight to the witness' testimony.” Id. at 847 (quoting Delaware v. Fensterer, 474 U.S.
15, 22 (1985) (per curiam)).
“Generally, the right to present evidence and to cross-examine witnesses under
the Confrontation Clause does not conflict with the corresponding rights under state
evidentiary rules.” Tollett v. State, 422 S.W.3d 886, 892–93 (Tex. App.—Houston [14th
Dist.] 2014, pet. denied) (citing Hammer v. State, 296 S.W.3d 555, 561 (Tex. Crim. App.
2009)). The Confrontation Clause does not confer on a defendant the right to impeach
the general credibility of a witness through otherwise prohibited modes of cross-
examination. Id. at 893. “[D]espite a defendant's constitutional right to cross-examine
witnesses, the trial court retains wide latitude to impose reasonable limits on such cross-
examination based on concerns about, among other matters, harassment, prejudice,
confusion of the issues, the witnesses' safety, or interrogation that is repetitive or only
marginally relevant.” Id. (citing Irby v. State, 327 S.W.3d 138, 145 (Tex. Crim. App.
2010)).
6 B. Discussion
Pursuant to the Confrontation Clause of the Sixth Amendment, Torres had the right
to be confronted with the witnesses against him. See Craig, 497 U.S. at 894. G.T.
testified during the trial and was subject to cross-examination by Torres. The transcript
of Torres’s cross-examination of G.T. consists of sixteen pages in the reporter’s record.
Torres had a full and fair opportunity to probe and expose G.T.’s alleged testimonial
infirmities through cross-examination. See id. at 847.
Torres contends, in error, that the Confrontation Clause entitled him to admit as
evidence a video recording taken three years after the outcry statement at issue for the
purpose of attacking G.T.’s credibility. However, the Confrontation Clause does not
permit Torres the right to impeach G.T.’s general credibility through otherwise prohibited
modes of cross-examination. See id. at 893. Though Torres had a constitutional right
to cross-examine G.T., the trial court retained wide latitude to impose “reasonable limits”
on cross-examination when it was prejudicial, repetitive, or only marginally relevant.” 6
See id. (citing Irby v. State, 327 S.W.3d 138, 145 (Tex. Crim. App. 2010)).
We conclude the trial court did not abuse its discretion when it excluded the video
evidence because the video was duplicative of extensive testimony about G.T.’s
behavioral issues and its relevance was further diluted by the fact that it occurred three
years after, and not immediately before, the outcry statement at issue. See id. at 894–
97; Irby, 327 S.W.3d at 145.
We overrule Torres’s first issue.
6 G.T., her mother, Smith, and Dr. Sims testified regarding G.T.’s behavioral problems and her various treatment programs. 7 III. TEXAS CODE OF CRIMINAL PROCEDURE ARTICLE 38.072
By his second issue, Torres contends that the trial court erred when it permitted
the State to introduce G.T.’s “outcry” statement into evidence. Specifically, Torres
contends that the State failed to follow the statutory provisions of article 38.072 of the
code of criminal procedure because it did not give notice of its intent to use the outcry
statement fourteen days before trial and the statement was admitted to the jury without a
preliminary hearing on reliance. See TEX. CODE CRIM. PROC. ANN. art. 38.072 (West,
Westlaw through Ch. 46, 2015 R.S.).
Article 38.072 provides that outcry statements meeting the article's requirements
are not inadmissible because of the hearsay rule. Id. The article requires the trial court
to hold a hearing regarding reliability prior to admitting outcry testimony. See id.
Generally, in order to complain about non-compliance with article 38.072, a defendant
must preserve the issue for appeal by making an objection in the trial court. TEX. R. APP.
P. 33.1(a); Long v. State, 800 S.W.2d 545, 548 (Tex. Crim. App. 1990) (per curiam); Zarco
v. State, 210 S.W.3d 816, 829 (Tex. App.—Houston [14th Dist.] 2006, no pet.); see also
Gabriel v. State, 973 S.W.2d 715, 719 (Tex. App.—Waco 1998, no pet.) (“[A]fter a
hearsay objection is made, the State has the burden to show it has complied with all the
requirements listed in article 38.072.”).
Torres did not object to the outcry statement during trial. The State referenced
the outcry statement in its opening statement, and G.T.’s therapist testified to the outcry
statement without objection. Torres cited to an instance in the record in which he
8 objected to hearsay; however, the objection was unrelated to the outcry statement at
issue. The following exchange occurred:
State: And just from—You were, obviously, not there at the time of her admission, but from your review of the records, what was your understanding of the reason she was brought to Cedar Crest that day.
Witness: What I see is that she was brought due to aggressive behavior, and it does say secondary—
Defense: Judge, I would object. At this time she’s reading from the records. It’s hearsay. She didn’t make the records.
It is clear from the context of Torres’s hearsay objection that it was not made to the outcry
statement, but was instead made to G.T.’s medical records regarding her admission to
the facility, a topic unrelated to her subsequent outcry.
Accordingly, we find that Torres did not adequately apprise the trial court of the
nature of his complaint and, thus, did not preserve his complaint for appellate review. See
TEX. R. APP. P. 33.1(a); Long, 800 S.W.2d at 548; Zarco, 210 S.W.3d at 828–29.
We overrule Torres’s second issue.
IV. CUMULATIVE ERROR
By his third issue, Torres contends that he was denied a fair trial based on the
“cumulative errors” in the previously addressed issues. Torres’s argument fails because
we have determined that the trial court did not commit error at trial. See Chamberlain v.
State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999) (noting that there is “no authority
holding that non-errors may in their cumulative effect cause error”). We overrule Torres’s
third issue.
9 V. CONCLUSION
We affirm the judgment of the trial court.
NELDA V. RODRIGUEZ Justice Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed the 1st day of September, 2015.