In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-02-490 CR
____________________
ALFONSO MORENO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 88th District Court
Hardin County, Texas
Trial Court Cause No. 15,597
MEMORANDUM OPINION
Alfonso Moreno was found guilty by a jury of having committed the offense of Aggravated Sexual Assault. See Tex. Pen. Code Ann. § 22.021(a)(1)(A), (a)(2)(B) (Vernon 2003). He was sentenced to confinement in the Texas Department of Criminal Justice--Institutional Division for a term of thirty years. Moreno presents four issues for review.
Moreno’s first two issues complain of legal and factual insufficiency of the evidence to support his conviction. In a legal sufficiency review, an appellate court views the evidence in a light most favorable to the verdict and determines whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). The standard of review for factual sufficiency is whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury’s determination of guilt, or is so against the overwhelming weight of the evidence as to render the verdict manifestly unjust. King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000).
Both appellate review standards require the court to look at all the evidence, regardless of whether properly or improperly admitted. See Wilson v. State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999)(legal sufficiency); Young v. State, 976 S.W.2d 771, 773 (Tex. App.--Houston [1st Dist.] 1998, pet. ref’d)(factual sufficiency). When an appellant challenges the legal sufficiency of the evidence by asking a court to view less than all of the evidence, an appellant presents nothing for review. See Fuller v. State, 827 S.W.2d 919, 930-931 (Tex. Crim. App. 1992). We see no reason why the same analysis should not apply to a factual sufficiency review.
Within his combined sufficiency argument in his brief, Moreno raises several other points. These issues would be multifarious if they had been intended to embrace separate grounds for appellate review. See Foster v. State, 101 S.W.3d 490, 499 (Tex. App.--Houston [1st Dist.] 2002, no pet.). In combining separate grounds in a single appellate issue, Moreno requests relief based only on the claimed insufficiency of the evidence. See id. We will review all preserved arguments presented as support for the legal and factual sufficiency issues.
Initially, we reject Moreno’s complaint that his out-of-court statement was insufficiently corroborated thereby failing to establish the corpus delicti of the offense. As the Court of Criminal Appeals recently decided based upon facts similar to the instant case, “That the crime occurred in a slightly different manner than appellant described in his out-of-court statement is immaterial to the determination whether the corpus delicti rule has been satisfied. It has.” Salazar v. State, 86 S.W.3d 640, 646 (Tex. Crim. App. 2002). Similarly, we reject Moreno’s argument that the variance between his out-of-court statement and the amended second count in the indictment depletes all evidentiary value from the statement. The statement was relevant and probative. It described a sexual assault on the same victim. See Tex. R. Evid. 401, 402, and 404(b). We also find no merit in Moreno’s contention that Ms. Garrison’s testimony and State’s Exhibit 3 were inadmissible under Cole v. State, 839 S.W.2d 798 (Tex. Crim. App. 1990). In Cole, the “testing” expert was not present to testify at trial, and the issue was the admissibility of the expert’s report. Id. at 799. Here, the nurse examiner testified at trial to the substance of what was in her report. Cole is not applicable.
Finally, we find no merit to Moreno’s hearsay-within-hearsay argument with respect to State’s Exhibit 3. Both State’s Exhibit 3 and Ms. Garrison’s testimony regarding her examination of the victim were admissible under Tex. R. Evid. 803(4). The statements referred to were made for purposes of diagnosis, included a description of the “present symptoms,” and included “the inception or general character of the cause or external source thereof.”
The State called three witnesses in its case against Moreno: Detective Dan Sanderson of the Hardin County Sheriff’s Office; Brenda Garrison, a certified nurse examiner; and the victim’s step-mother, Jamie Moreno. Moreno did not present any evidence in his defense.
State’s witness Brenda Garrison testified she was a certified and licensed nurse examiner in the State of Texas. She further stated that probably 800 of the approximately 1000 sexual assault exams she has conducted have been on children under the age of twelve. The sexual assault exam on the victim, R.M., was done on November 15, 2000. During the exam, it was established that R.M.’s date of birth was March 30, 1988, which would have made her twelve years old at the time of the exam. Garrison testified that the exam of the victim indicated forced penetration of the female sex organ and healed trauma, but no trauma was noted to the victim’s anal area.
Ms. Garrison also testified to the fact that during the exam the victim related that she was afraid of Moreno. The following testimony then took place:
Q.[State] At any time during, maybe not at this exact time when you were asking these questions, did she ever indicate, you know, to you who the perpetrator was on the sexual assault?
A.[Garrison] She gave that to me in her history. Not a name. I didn’t ask for a name.
[Hearsay objection overruled.]
A. If it’s okay, I’ll just read what she stated. (Reading) Child stated quote, His front part went in my front part. She pointed to her vaginal area. The first time was in Louisiana. The second time was in Kountze. He made me sleep with him. I went to bed with panties on and he took them off. Child stated she was mad at her mommy for not calling or being around.
Garrison testified that the victim stated her “dad” was the perpetrator of the sexual assault, and that there was no history of anyone else sexually assaulting the victim. The victim also indicated to Garrison that the last incident of sexual assault occurred two years prior to the exam. Garrison further described in detail the trauma inflicted.
Aside from the testimony of Sanderson and Garrison, two documents of an incriminating nature were also introduced into evidence over objection: State’s Exhibit 2, which was a written statement made by Moreno to Sanderson in which Moreno admitted to anal penetration of the victim, and State’s Exhibit 3, which indicated the types of sexual assaults on the victim engaged in by Moreno. At the conclusion of the State’s case, the defense rested, and the State elected to proceed only on the amended second count in the indictment.
Any rational trier of fact could have found each of the essential elements of aggravated sexual assault proven beyond a reasonable doubt. Moreno asserts that we should not consider Garrison’s testimony or State’s Exhibit 3, but in a sufficiency of evidence review an appellate court must review all the evidence. As the defense presented no evidence we have little record evidence to weigh against the guilty verdict under a factual sufficiency analysis. Even under a neutral review of the evidence we cannot say the proof of guilt is so “obviously weak” as to undermine confidence in the jury’s verdict. We overrule issues one and two.
Issue three complains of the trial court’s “definition” of “penetration” provided to the jury in the court’s written instructions. The instruction appears as follows: “One of the elements in this case is ‘penetration.’ You are instructed that penetration is complete however slight.” The cases that have dealt with this issue have determined that this instruction is not a comment on the weight of the evidence, but rather is a correct statement of the law and a proper instruction in a sexual assault case. See Sherbert v. State, 531 S.W.2d 636, 637 (Tex. Crim. App. 1976); Henry v. State, 132 Tex. Crim. 148, 103 S.W.2d 377, 380 (1937); Wilson v. State, 905 S.W.2d 46, 48-49 (Tex. App.--Corpus Christi 1995, no pet.); Rawlings v. State, 874 S.W.2d 740, 744 (Tex. App.--Fort Worth 1994, no pet.); Zuniga v. State, 811 S.W.2d 177, 180 (Tex. App.--San Antonio 1991, no pet.); Galloway v. State, 716 S.W.2d 556, 557 (Tex. App.--Waco 1986, pet. ref’d). We overrule issue three.
The final issue alleges improper comments by the State during its opening statement. In reviewing whether improper comments by the prosecutor during opening statement constitute reversible error, an appellate court must determine whether, when viewed in conjunction with the record as a whole, the statement was so prejudicial as to deny appellant a fair trial. Herrera v. State, 915 S.W.2d 94, 97 (Tex. App.--San Antonio 1996, no pet.). A prosecutor’s opening statement is authorized by Tex. Code Crim. Proc. Ann. art. 36.01(a)(3) (Vernon Supp. 2003). The opening statement should inform the jury of the nature of the accusation and the facts which are expected to be proved by the State. See Taylor v. State, 947 S.W.2d 698, 706 (Tex. App.--Fort Worth 1997, pet. ref’d).
In the instant case, Moreno complains of three instances in the State’s opening remarks. The first appears to have been an attempt to inform the jury why the victim would not be testifying at trial. Although the trial court sustained Moreno’s objection, Moreno did not move for the trial court to instruct the jury to disregard the State’s comment. Instead, Moreno immediately moved for a mistrial, which was denied by the trial court. Moreno’s objections and the trial court’s response imply that the State may not have been able to prove why the victim was absent from trial. Nevertheless, we do not see how the comments denied Moreno a fair trial under the circumstances.
Moreno’s second complaint of improper opening remarks centers on the anticipated testimony of Brenda Garrison and the contents of State’s Exhibit 3. Moreno’s objection was to the effect that the evidence was subject to a motion to quash which would be heard later, and the State’s mention of the evidence was error. The trial court overruled Moreno’s objection. The State was permitted to introduce Ms. Garrison’s testimony concerning her examination of the victim, and State’s Exhibit 3 was admitted into evidence. The State’s opening remarks, in the light of the whole record, were not so prejudicial as to deny Moreno a fair trial.
Finally, Moreno complains of the State’s comment regarding the many exceptions to the hearsay rule. Moreno objected to the State explaining the law to the jury. The trial court overruled the objection with the comment “The Court will make the decision on the admissibility of the evidence, but this is opening statement. The statement has been invited, and I’ll overrule it.” There is no explanation of how the State’s comment was “invited.” The State did not make any further attempt to explain the law of hearsay. Again, considering the record as a whole as we must, we do not see how the State’s opening statement was so prejudicial as to deny Moreno a fair trial. We overrule issue four.
Having overruled all issues presented, we affirm the judgment and the sentence of the trial court.
AFFIRMED.
PER CURIAM
Submitted on October 6, 2003
Opinion Delivered October 15, 2003
Do Not Publish
Before McKeithen, C.J., Burgess, and Gaultney, JJ.