COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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DAVID CAMARILLO, Appellant, v. THE STATE OF TEXAS, Appellee. |
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No. 08-02-00318-CR Appeal from the 383rd District Court of El Paso County, Texas (TC#20000D05463) |
MEMORANDUM OPINION
David Camarillo was convicted of indecency with a child following a jury trial. He raises eight issues on appeal. We affirm.
Facts
In April of 2000, the complainant, V.S., alleged that Camarillo had forced her to touch his penis seven years earlier, when she was in the second grade. Camarillo is V.S.=s uncle through marriage to her mother=s sister. V.S. said she was at Camarillo=s apartment when he came out of the shower wearing only a towel, picked her up and placed her on a clothes hamper in his walk-in closet, and forced her to touch his penis. She said after about five minutes, Camarillo=s wife, Dianne, came in, questioned Camarillo, they argued, and then Dianne left the room. Both V.S. and her mother testified that as a result of the incident, V.S.=s grades dropped and she failed the second grade. However, school records indicate V.S. never failed any grade, and she made B=s in second grade. She did spend two years in kindergarten, but her class evaluations were satisfactory. V.S. made her outcry to a therapist, who did not testify at trial.
V.S. also alleged that when she was 12 years old, she was sleeping at Camarillo=s home when she awoke to the sound of the clicking of a camera. She said her underwear was pulled down, and Camarillo was touching her buttocks. She said she then saw him looking at photos, and while she never saw the photos, she was sure they were of her. Camarillo was not charged in connection with this second alleged incident. In addition, V.S. said that when she was 12, she spent the night with Camarillo=s niece, Marie Camarillo, and that appellant inappropriately touched Marie=s Achest@ during the night. Marie, who was 20 at the time of trial, testified the incident never occurred, Camarillo never acted inappropriately with her, and that she trusts him with her own child. Camarillo=s wife also testified and denied that she ever saw her husband act inappropriately with V.S. Camarillo testified that he did not commit the alleged act. Three character witnesses testified that Camarillo was good with children and a law-abiding man. Four character witnesses testified that V.S. is an untruthful person. Two of the witnesses testified V.S. has a reputation for being untruthful. Camarillo also presented evidence that at the time of the alleged incident, he had undergone surgery for carpal-tunnel syndrome in his arm, and that he could not lift anything heavier than ten pounds.
In the course of the trial, Camarillo=s counsel objected four times that the prosecutor was improperly commenting on the veracity of the State=s witnesses. During opening statements, the prosecutor attempted to assert that a police officer would testify that he believed V.S. was telling the truth when she made her outcry. The court sustained Camarillo=s timely objection, and denied a mistrial. The State then attempted to imply that the detective in charge of the case only made arrests when a complainant was truthful. Again, an objection was sustained, and mistrial denied. During the State=s closing argument, Camarillo=s counsel objected eleven times; the court sustained eight, gave six instructions to the jury to disregard, and denied three motions for mistrial. One of those objections came when the prosecutor pointed to the consistency of V.S.=s statements:
I mean, she told a story to her therapist. And from there she told the police. From the police, she=s told me and she=s told you. And every time, it=s all been consistent.
The judge sustained the objection and instructed the jury to disregard. Two more objections quickly followed:
Prosecutor: You had heard Detective Bolick testify that she told him the story. She told him what had happened. If--and that he--and that he put it in that report. If there had been--
Defense counsel: Object as to arguing outside the record, Judge.
The Court: Sustained.
Prosecutor: He told--she told him what had happened. If there hadn=t been an indecency, don=t you think Mr. Morales would have--
Defense counsel: Object as to arguing outside the record. Attacking at the defendant over the shoulders of counsel.
The Court: Overruled.
The jury convicted Camarillo, and sentenced him to eight years= probation and a fine of $8,000. After a hearing on a motion for a new trial, the judge denied the motion.
Issue One--Factual Sufficiency
In his first issue, Camarillo challenges the factual sufficiency of the evidence to support his conviction. We review factual sufficiency of the evidence to support a verdict by viewing all the evidence in a neutral light and may reverse only if the proof of guilt is so obviously weak as to undermine confidence in the jury=s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 6-7 (Tex. Crim. App. 2000); Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996); Drost v. State, 47 S.W.3d 41, 45 (Tex. App.--El Paso 2001, pet. ref=d). This Court reviews the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compares it with the evidence that tends to disprove that fact. Johnson, 23 S.W.3d at 7 (citing Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 832, 118 S. Ct. 100, 139 L. Ed. 2d 54 (1997)). In its review of factual sufficiency the court may disagree with the fact finder=s determination; however, we give deference in order to prevent substituting our judgment for that of the fact finder, and any evaluation should not substantially intrude upon the fact finder=s role as the sole judge of the weight and credibility given to witness testimony. Id. (citing Clewis, 922 S.W.2d at 133; Jones, 944 S.W.2d at 648). Our authority to disagree is limited to situations where the record clearly indicates such a step is necessary to arrest the occurrence of manifest injustice. Johnson, 23 S.W.3d at 9; Drost, 47 S.W.3d at 45. Evidence may be found to be factually insufficient to support a verdict in two ways: (1) it may be so weak as to be clearly wrong and manifestly unjust, or (2) an adverse finding of the fact finder may be against the great weight and preponderance of the evidence. Johnson, 23 S.W.3d at 11; Drost, 47 S.W.3d at 45.
Here, the only evidence against Camarillo was the testimony of the child victim. Although there were numerous inconsistencies in her story, she never equivocated about the way in which the alleged incident occurred. The State relies on Goodman v. State, 66 S.W.3d 283, 286 (Tex. Crim. App. 2001) for the notion that the testimony of V.S. is sufficient to support Camarillo=s conviction. In Goodman, the court held that direct evidence of a fact, standing alone and if believed by the jury, is always factually sufficient to conclusively prove that fact. Id. at 286. The State also points out that the testimony of Camarillo=s witnesses that he is a law-abiding man and that V.S. is untruthful in no way directly refuted her testimony, and the jury was free to believe the testimony of witnesses it found to be credible. See Goodman, 66 S.W.3d at 287.
Camarillo=s argument focuses on the inconsistencies in the statements of V.S. and her mother. Both asserted that V.S. flunked second grade, despite contradictory evidence in her school records. There was much confusion over the date of the event, and some of the State=s questioning appeared to follow a theory that perhaps the event occurred when V.S. was in kindergarten, and her memory of failing was actually her repetition of kindergarten. However, V.S. never wavered from her contention that it happened in second grade.
While there were numerous inconsistencies, we cannot say that the finding of guilt is against the great weight and preponderance of the evidence. See Johnson, 23 S.W.3d at 11. The evidence consisted of the testimony of witnesses. When considering the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it with the evidence that tends to disprove the fact, it is clear that the jury=s decision came down to which witnesses they believed. Having found the evidence to be factually sufficient, we overrule Camarillo=s Issue One.
Issues Two through Five--
Improper Argument/Cumulative Effect
Camarillo=s Issues Two through Five address the comments of the prosecutor relating to the veracity of the State=s witnesses. Camarillo asserts the trial court erred in refusing to grant a mistrial, in overruling counsel=s objections, and that he did not receive a fair trial as a result of the cumulative effect of the prosecution=s improper argument. We disagree.
The purpose of jury argument is to help the jury analyze evidence in order to reach a just and reasonable verdict. Campbell v. State, 610 S.W.2d 754, 756 (Tex. Crim. App. 1980). There are four general parameters for jury argument: (1) summation of evidence properly before the jury; (2) reasonable deduction from that evidence; (3) an answer to argument of opposing counsel; and (4) pleas for law enforcement. Cannon v. State, 668 S.W.2d 401, 404 (Tex. Crim. App. 1984); Laca v. State, 893 S.W.2d 171, 184-85 (Tex. App.--El Paso 1995, pet. ref=d).
The State contends it was merely attempting to respond to the statements of defense counsel attacking the credibility of defense witnesses. Undoubtedly, V.S.=s credibility and consistency were at issue, and witnesses may be rehabilitated during argument by pointing to consistencies in their testimony. McDuffie v. State, 854 S.W.2d 195, 216-17 (Tex. App.--Beaumont 1993, pet. ref=d). Even if the comments were improper, the trial court in this case sustained Camarillo=s objections, and instructed the jury to disregard, so any harm that may have resulted from the comments was cured.
This argument, however, cannot justify the prosecutor=s comments during opening statements, as they came before Camarillo had a chance to invite any argument:
Prosecutor: We=re also going to bring in Detective Howard Bolick--well, now Sergeant--he=s been promoted to sergeant. He works for the El Paso Police Department. He=s the main officer, or one of the main officers for--concerning sexual crimes against children. He has investigated hundreds of cases of sexual crimes against children in the community. Hundreds of children. And he=s going to testify that, through his experience and his questioning, he=s able to find out if these children are telling the truth or not.
Defense counsel: I=m going to object, Your Honor looks like he=s going--I=m sorry--that=s improper argument--it=s going to be improper evidence if they even try to put that on.
. . .
The Court: I will sustain that objection.
The court sustained the objection, and instructed the jury to disregard, which is generally the appropriate remedy for improper argument. McGinn v. State, 961 S.W.2d 161, 165 (Tex. Crim. App. 1998). Where the jury has been instructed to disregard, only offensive or flagrant error warrants reversal, and such error Amust have been a willful and calculated effort on the part of the State to deprive [the appellant] of a fair and impartial trial.@ Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000).
Here, the prosecutor=s comments do not appear willful or calculating. We hold that the comments in this case were not Aflagrant error,@ or an effort on the part of the State to deprive Camarillo of a fair trial. We conclude that the instructions to disregard were adequate to cure any error, and no cumulative error is shown. We overrule Camarillo=s second, third, fourth, and fifth issues.
Issue Six--Right to Confront and Cross-Examine
In his sixth issue, Camarillo asserts the trial court violated his right to confront and cross-examine witnesses by prohibiting him from asking the complainant how she perceived her reputation in the community. Specifically, Camarillo wanted to question V.S. about her alleged reputation as AThe Slut of Appaloosa.@ The court rightfully questioned the relevance of that line of questioning. Camarillo=s offer of proof focused on his need to question V.S. on how she perceived her reputation, and how that may have impacted her outcry.
The U.S. Constitution guarantees criminal defendants the right to confront and cross-examine witnesses against them. See U.S. Const. amend. VI. Each Confrontation Clause issue must be weighed on a case-by-case basis, taking into account the defendant=s rights and the risk factors associated with admission of the evidence. Hoyos v. State, 951 S.W.2d 503, 510 (Tex. App.--Houston [14th Dist.] 1997), aff=d, 982 S.W.2d 419 (Tex. Crim. App. 1998). The trial court should balance the probative value of the evidence sought to be introduced against the risk its admission may entail. Castillo v. State, 939 S.W.2d 754, 758 (Tex. App.--Houston [14th Dist.] 1997, pet. ref=d) (citing Hodge v. State, 631 S.W.2d 754, 758 (Tex. Crim. App. [Panel Op.] 1982)). The exclusion of evidence is reviewed for abuse of discretion.
The trial court concluded that question had little, if any, probative value, and any probative value was outweighed by the prejudicial nature of the statement. Camarillo was allowed to extensively question the witness about any variety of issues probative to the case. The court was within its discretion to exclude this evidence, and its exclusion did not violate the defendant=s right of confrontation. Camarillo=s sixth issue is overruled.
Issues Seven and Eight--Outside Influence on Jury
In his seventh and eighth issues, Camarillo contends that jurors were improperly influenced by banners, cut-outs, and posters throughout the courthouse proclaiming April, the month of trial, as AChild Abuse Prevention Month@ and by two newspapers which the court bailiff found in the jury room.
At a hearing on a motion for a new trial, an investigator for Camarillo testified that banners, cut-outs, and posters proclaiming April AChild Abuse Prevention Month@ were throughout the courthouse, and likely seen by anyone entering the building at that time. However, Camarillo failed to provide evidence that those posters and banners actually influenced the jury.
The court=s bailiff testified that at least twice during the trial he saw copies of the local paper in the jury room, but he did not see any of the jurors reading the paper, nor did he know whether it was during trial or during deliberations. Camarillo presented no evidence that jurors actually read the paper during the course of the trial, or that there were any stories about this case in the newspapers.
Camarillo admits he has not proved the jury was exposed to the public service advertisements in any meaningful way during deliberations. Camarillo relies on In the Matter of M.A.F., 966 S.W.2d 448, 450 (Tex. 1998) to support his argument that he is entitled to a new trial. In that case, jurors were deliberating and reviewing evidence when they discovered a marijuana cigarette in the pocket of the defendant=s jacket. Id. at 449. The jury notified the court, but no instruction was given, and deliberations continued. Id. The court reversed the conviction because the jury received new, adverse evidence after retiring to deliberate. Id. at 451.
It can hardly be said that the viewing of public service announcements in the courthouse rises to the level of a juror=s discovery of new evidence during deliberations. Camarillo presents no evidence that suggests that the content of the posters or the newspapers had any effect upon any juror in this case. As there was no showing of any outside influence on the jury, we need not reach the issue of whether the trial court abused its discretion when it denied Camarillo=s motion for a new trial, and therefore Issues Seven and Eight are overruled.
Conclusion
Having overruled all of Camarillo=s issues presented, we affirm his conviction.
SUSAN LARSEN, Justice
January 22, 2004
Before Panel No. 3
Barajas, C.J., Larsen, and Chew, JJ.
(Do Not Publish)