IN THE
TENTH COURT OF APPEALS
No. 10-04-00323-CR
Ivan Jose Manzano,
Appellant
v.
The State of Texas,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court No. 2003-876-C
O p i n i o n
Ivan Manzano was charged in a two-count indictment with felony offenses of aggravated sexual assault against a single victim. He pled not-guilty, but a jury convicted him on both counts and assessed ten years in prison for each. The trial judge ordered that the sentences run consecutively, and Manzano appealed.
The Issues
In four issues, he asserts error in the admission of statements by the victim to a doctor, error in failing to grant a mistrial after the State invited the jury to speculate about the contents of a videotape that had been excluded from the evidence, and two issues concerning the “stacking” of the sentences. Finding no error, we will affirm the judgment.
The Facts Briefly
Manzano lived next door to the victim’s grandmother, and the two families were friends. Manzano’s daughter would babysit for the victim’s mother, and sometimes those children would stay with him. The victim’s aunt overheard a conversation between her daughter and the victim, then age 6, in which the victim said, “Ivan does sex.” The aunt told the victim’s mother, who confronted the victim. As a result, Manzano was charged.
The victim testified about the physical acts, and a doctor who conducted a medical exam testified that the victim told her, “Ivan did s-e-x.”
Further recitation of the evidence, at either the guilt-innocence stage or the punishment stage, is not relevant to our decision.
Evidentiary Rule 803(4) and Child Testimony
Manzano’s third issue contests the trial court’s ruling that the statements made by the victim to the doctor were admissible. The admissibility of evidence lies within the discretion of the trial judge. E.g., Ellis v. State, 99 S.W.3d 783, 788 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). We must uphold the trial court's ruling if it was within the zone of reasonable disagreement. Id.
Acknowledging that statements made for the purpose of assisting in a medical diagnosis are admissible, Manzano says that the statements made in this case should not have been admitted because they did not achieve the reasons for admitting such statements under Rule 803(4) of the Rules of Evidence. Tex. R. Evid. 803(4). Decisions under the rule, he says, do not recognize that a lack of maturity causes children to fail to associate providing accurate information with the role the medical provider is occupying, i.e., gathering information to make a diagnosis. He also says that exams such as the one conducted here are more for the purpose of investigation than providing treatment.[1] He stresses the language in Rule 803(4) limiting admissibility to statements made “insofar as reasonably pertinent to diagnosis or treatment.” Id.
Here, he contends, there was nothing to diagnose or treat. The victim was not complaining of pain or discomfort and manifested no outward problems. The doctor was the last person she saw in the investigative process—after the police and an advocacy counselor. Thus, he says the doctor’s testimony provided nothing more than an “aura of authority” for the victim’s testimony.
The State says that courts in Texas have routinely admitted such statements because “treatment of child abuse must begin with removing the child from the abusive setting.” Although nothing in this record suggests that the exam in question was conducted to remove the child from an abusive setting, we find no distinction in the cases that would remove statements by a child from the effect of Rule 803(4). Beheler v. State, 3 S.W.3d 182, 189 (Tex. App.—Fort Worth 1999, pet. ref’d) (reviewing court must look to the record to see if it supports a conclusion that the young child understood why she needed to be honest when speaking to the caregiver); Molina v. State, 971 S.W.2d 676, 683-84 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d) (evidence of the complainant's understanding of the need to tell the truth). Statements are admitted using Rule 803(4) when the witness satisfies the Legislature’s definition of a physician or health care provider as defined in the medical malpractice statute. See Gregory v. State, 56 S.W.3d 164, 183 (Tex. App.—Houston [14th Dist.] 2001, pet. dism’d) (registered nurse permitted to testify about statements made and symptoms of child abuse victim) (“Texas courts have allowed non-physicians to testify under the medical diagnosis and treatment exception to hearsay.”); Torres v. State, 807 S.W.2d 884, 886-87 (Tex. App.—Corpus Christi 1991, pet. ref’d) (emergency room nurse testified under Rule 803(4) about victim’s answers to questions asked during collection of samples for “rape kit”); Fleming v. State, 819 S.W.2d 237, 247 (Tex. App.—Austin 1991, pet. ref’d) (physician and mental health therapist testified about victim’s statements). Although the trial judge made no specific inquiry to determine whether the child appreciated the need to be truthful, the record is sufficient to support this conclusion. Molina, 971 S.W.2d at 684 (citing Fleming, 819 S.W.2d at 247). Further, whether the statements at issue were “reasonably pertinent to the diagnosis or treatment” of the victim was a question for the trial judge to answer prior to admitting the evidence. Tex. R. Evid. 803(4). Finding that his determination was within the “zone of reasonable disagreement,” we overrule the issue. Ellis, 99 S.W.3d at 788.
Evidence Not Admitted – Final Argument
The victim was taken to the Advocacy Center where she was interviewed. A videotape of the interview was made, and the State offered it into evidence at trial. On Manzano’s objection, the trial court excluded it. Nevertheless, in final argument the State referred to the videotape:
Let’s talk about the interview with Brenda Penland. Why did we call Brenda to come up here and testify again? Because we had to clear it up. She had to tell you she reviewed the video and, yes, [the victim] brought it up first. She brought up Ivan and sex before Brenda asked her about it. And don’t you know if that interview would have been impermissively suggestive you would have seen it, because [defense counsel], wild horses couldn’t have kept that video out.
Sustaining Manzano’s objection, the trial court instructed the jury to disregard the argument but denied a motion for a mistrial.
We have written recently about reviewing the denial of a motion for mistrial. Perez v. State, 2006 WL 133575, at *1-3 (Tex. App.—Waco January 18, 2006, no pet. h.).
A motion for mistrial is appropriate for “highly prejudicial and incurable errors.” We review the denial of a motion for mistrial under an abuse of discretion standard. See Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003) (quoting Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000)); Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999).
[T]he question of whether a mistrial should have been granted involves most, if not all, of the same considerations that attend a harm analysis. A mistrial is the trial court’s remedy for improper conduct that is “so prejudicial that expenditure of further time and expense would be wasteful and futile.” In effect, the trial court conducts an appellate function: determining whether improper conduct is so harmful that the case must be redone. Of course, the harm analysis is conducted in light of the trial court’s curative instruction. Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required.
Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). Thus, the appropriate test for evaluating whether the trial court abused its discretion in overruling a motion for mistrial is a tailored version of the test originally set out in Mosley v. State, 983 S.W.2d 249, 259-60 (Tex. Crim. App. 1998), a harm analysis case. See Hawkins, 135 S.W.3d at 77 (“We therefore agree that the Mosley factors should be used to evaluate whether the trial court abused its discretion in denying a mistrial for improper argument, at least in cases like this one, in which constitutional rights are not implicated.”). The Mosley factors that we consider in determining whether the trial court abused its discretion in denying a mistrial are: (1) the severity of the misconduct (the magnitude of the prejudicial effect); (2) measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the judge); and (3) the certainty of conviction absent the misconduct. Mosley, 983 S.W.2d at 259.
In final argument, it is improper to refer to evidence that the trial court excluded. Applying the Mosley factors, we first observe that the prosecutor’s conduct appears to be a response to counsel’s argument about a “forensic interview” and about Penland’s testimony when recalled that she had viewed the videotape and verified the sequence of events. The mistake was not repeated, and we do not find that the statement was calculated to inflame the minds of the jury. See Perez, 2006 WL 133575, at *2. In most instances, an instruction to disregard will cure the prejudicial effect. See id. The improper statement about the videotape was followed by an instruction to disregard from the trial court, which Manzano concedes is generally effective and which we presume was complied with by the jury. An instruction to disregard is presumptively inadequate only in the most blatant cases; only offensive or flagrant improper conduct warrants reversal when there has been an instruction to disregard, and, in the case at bar, the improper statement was not so flagrant that the instruction to disregard was ineffective. See id. Finally, considering all the evidence, the certainty of conviction—absent the improper statement—was high, considering the direct testimony of the victim and the medical testimony. See id. Although this is a more difficult decision than in Perez, we cannot say that the trial court abused its discretion in denying the mistrial motion; thus we overrule Manzano’s issue and turn to the issues regarding the sentence.
Due Process – Failure to Instruct Jury that Court Might Cumulate
Manzano’s first issue asserts that the jury should have been instructed that the court might cumulate the sentences for the two offenses. Although sentences for multiple offenses charged in the same indictment must generally run concurrently, he acknowledges that the legislature has provided several exceptions, including one for sexual assault of a child. Tex. Pen. Code Ann. § 3.03(a), (b) (Vernon Supp. 2005). Because the trial court has discretion about whether to cumulate and because the jury in this instance inquired about the matter,[2] Manzano contends that due process requires that the jury be given information to make an informed decision about what sentences to assess. He acknowledges that there are no published decisions addressing this issue, but suggests that such a requirement would be a logical extension of the holding in California v. Ramos, 463 U.S. 992, 103 S. Ct. 3446, 77 L. Ed. 2d 1171 (1983). The State cites Andrews v. State and Peterson v. State as contrary authority. Andrews v. State, 159 S.W.3d 98, 103 (Tex. Crim. App. 2005) (trial counsel ineffective for failure to object to prosecutor's misstatement of the law regarding whether the appellant's sentences could be stacked, even though he knew that the State had filed a motion to cumulate the sentences); Peterson v. State, No. 01-02-00603-CR, 2003 WL 22681607 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (not designated for publication) (rejecting argument that Apprendi v. New Jersey, requires jury to determine whether to cumulate sentences).
Although the cases cited by the State do not speak directly to the issue Manzano asserts, we do not agree with his assertion. The Penal Code and Code of Criminal Procedure assign to the trial judge the responsibility for determining whether to cumulate sentences or allow them to run concurrently, when there is an option. Tex. Code Crim. Proc. Ann. art. 42.08(a) (Vernon Pamphlet 2005); Tex. Pen. Code Ann. § 3.03(a), (b). No factual determinations are required,[3] so there is nothing for a jury to determine. We hold that due process does not require that the jury be given information about the trial court’s ability to cumulate sentences or order them to run concurrently. We overrule issue one.
Due Process and Right to Jury Trial – Cumulation Not Submitted
Manzano’s second issue directly asserts that, because cumulation of his sentences results in an increase in the “maximum sentence,” a logical extension of the due-process and jury-trial requirements of Apprendi and the cases following it would require submission of the question to the jury. See United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005); Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004); Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). The State again points to the fact that the trial judge made no factual determination but simply exercised the discretion given to him by statute.
We addressed this issue in Marrow v. State and concluded that no Apprendi violation occurred. Marrow v. State, 169 S.W.3d 328, 330-31 (Tex. App.—Waco 2005, pet. ref’d). Neither due process nor the requirement of trial by jury requires that the statutorily-assigned role of the trial judge in the determination of whether to cumulate sentences or allow them to run concurrently be reassigned to the jury. We overrule Manzano’s second issue.
Conclusion
Having overruled Manzano’s four issues, we affirm the trial court’s judgment.
BILL VANCE
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Chief Justice Gray concurs only in the judgment and without a separate opinion.)
Affirmed
Opinion delivered and filed February 15, 2006
Do not publish
[CR25]
[1] He cites three law review articles: Child Sexual Abuse and Statements for the Purpose of Medical Diagnosis or Treatment, 67 N.C.L. Rev. 257 (1989) (the age and mental maturity of the child may attenuate the selfish interest of the declarant so profoundly as to virtually eliminate any trustworthiness guarantee under the rationale of this exception); Hearsay Exceptions in Child Abuse Cases: Have the Courts and Legislatures Really Considered the Child?, 19 Whittier L. Rev. 559 (1998) (young children may not understand the physician's role, and thus lack the motivation to tell the truth); and The Tug of War Between the Confrontation Clause and Hearsay Exceptions in Child Sexual Abuse Cases: Implications of White v. Illinois, 28 So. U. L. Rev. 93 (2001) (the reliability of all hearsay statements should be examined on a case-by-case basis).
[2] The court instructed the jury that they should not consider the matter.
[3] Subject to certain procedural requirements, the discretion is apparently absolute.
he evidence; (2) a reasonable deduction from the evidence; (3) an answer to the opponent's argument; or (4) a plea for law enforcement. Alejandro v. State, 493 S.W.2d 230, 231 (Tex. Crim. App. 1973). The invited-argument rule permits prosecutorial argument outside the record in response to defense argument which goes outside the record; however, an argument may not be justified by asserting "invited argument" when the reply strayed beyond the scope of the invitation. Bush v. State, 773 S.W.2d 297, 301 (Tex. Crim. App. 1989).
Based on all of the evidence in the record and considering that the evidence of fingerprints was admitted through a witness called by Manning, we believe that the State's reply was a fair response to Manning's argument. We overrule point five.
EXCLUDED EVIDENCE
As Manning succinctly points out: "The primary issue in the trial was identity." After the State rested, Manning called Kenneth (Kenny Boo) Giddens to testify. Outside of the presence of the jury, Giddens testified about his criminal record, which included two burglaries of habitations and an unauthorized use of a motor vehicle. Manning then attempted to offer testimony that Giddens was in Madisonville on the day the Coles' home was burglarized and—knowing that Giddens would deny committing the burglary for which Manning was on trial—impeach him by showing that his physical characteristics were similar to those reported by Cole and that clothing that he had worn was similar to that reported by Cole.
In front of the jury, Giddens was asked his name, allowed to stand with Manning beside him, and allowed to stand in the back of the courtroom with Manning, with each looking over his right shoulder. The court sustained the State's objection to further testimony by Giddens. Out of the jury's presence, Giddens testified about his height and weight, where he worked, and where he lived. He said that he did not commit the burglary of the Coles' residence and he did not know whether Manning committed the burglary.
The State made objections under both Rules 401-02 and Rule 403. Tex. R. Crim. Evid. 401, 402, 403. Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Id. 401. Rule 402 provides in part: "Evidence which is not relevant is inadmissible." Id. 402. The determination of whether evidence is relevant to any issue in the case lies within the discretion of the court. Id. 401; Johnson v. State, 698 S.W.2d 154, 160 (Tex. Crim. App. 1985), cert. denied, 479 U.S. 871, 107 S. Ct. 239, 93 L. Ed. 2d 164 (1986). The court has no discretion, however, to admit evidence that it has determined is not relevant. Tex. R. Crim. Evid. 402.
Rule 403 provides in part: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." Id. 403.
The determination of the admissibility of evidence is within the discretion of the court. Id. 104; Jackson v. State, 575 S.W.2d 567, 570 (Tex. Crim. App. [Panel Op.] 1979). Error does not occur unless the court abuses that discretion. Werner v. State, 711 S.W.2d 639, 643 (Tex. Crim. App. 1986).
Manning points to the holding in Renfro v. State, 822 S.W.2d 757, 759 (Tex. App.—Houston [14th Dist.] 1992, pet. ref'd). The Houston court said that, when identification is an important issue at trial, "evidence showing that another person similar in appearance to the Defendant was committing similar crimes at about the same time, and that one person mistakenly identified the Defendant as such criminal, is admissible." Id. at 758 (citing Holt v. United States, 342 F.2d 163, 165 (5th Cir. 1965)). Although Manning's offer of proof differs from the Renfro facts, we believe that his point is well taken. See id. at 759.
The court allowed Giddens to tell the jury his name and to stand before them but would not allow him to tell them how much he weighed, his height, where he worked, or where he lived. If the court had excluded the former testimony on the basis that it was not relevant or, if relevant, its probative value was substantially outweighed by its tendency to mislead or confuse the jury, then the latter testimony might have been excluded on the same basis. Tex. R. Crim. Evid. 401, 403. Having allowed Giddens to testify, however, we hold that the court abused its discretion in excluding the additional evidence of his height, weight, employment, and residence, because that evidence was just as relevant and no more likely to violate Rule 403 than the evidence that the court allowed. Id. By the same token, the court properly excluded Giddens' testimony that he did not commit the burglary on trial—evidence that had no tendency to make it more or less probable that Manning did. Id. 401. Because that evidence was not relevant, it was not admissible. Id. 402. We should not be heard to say that evidence of the type Manning offered through Giddens will always be relevant and thus admissible. We say only that, having admitted a part of his testimony, the court erred in excluding other testimony that was then relevant.
Having determined that the court erred in failing to admit evidence offered by Manning, we must now determine whether the error contributed to the conviction or punishment. Tex. R. App. P. 81(b)(2). In making that determination, we will consider the following six factors:
1. the source of the error;
2. the nature of the error;
3. whether or to what extent the error was emphasized by the State;
4. the probable implications of the error;
5. how much weight a juror would probably place on the error; and
6. whether declaring the error harmless would encourage the State to repeat it with impunity.
Harris v. State, 790 S.W.2d 568, 587 (Tex. Crim. App. 1989). We do not focus on the propriety of the outcome of the trial, but on the integrity of the process that led to conviction and punishment. Id.
The source of the error was Manning's offer of evidence and the nature of the error was the court's failure to apply the rules evenly. The State urged the court not to allow Giddens to testify at all; thus, declaring the error harmless would not encourage the State to repeat it. When we turn to the implications of the error and the weight a juror would probably place on the error, we find that Manning argued:
Kenny Boo Giddens, similar height, similar weight, closer to the description. If you look at the size and the weight that was described, he's actually closer to the description. Lives in the neighborhood and he's closer. The only thing was they didn't see him on the street that day. If they had seen him on the street that day, I wonder what he would have been wearing; red shirt, blue cap possibly? The people that knew him said that's the kind of stuff he would wear. That's consistent with him, too.
This argument was supported by the record because Denise Betts testified without objection that it was not unusual for Manning to wear a red tee-shirt and a blue baseball cap while he was living in Madisonville. Finding that the error was not emphasized by the State and considering the other factors that we have described, we find beyond a reasonable doubt that the error did not contribute to Manning's conviction or punishment. Id.; Tex. R. App. P. 81(b)(2). We overrule point one.
PEN PACKETS
The seventh point complains of the admission during the punishment phase of two "pen packets"—records of his prior convictions from the Texas Department of Criminal Justice—Institutional Division—over Manning's objection that they were not properly self-authenticated. He candidly admits that the form he objects to, i.e., authentication by a deputy clerk of a court in the name of the clerk, has been previously addressed and upheld. Soliz v. State, 794 S.W.2d 110, 114 (Tex. App.—Houston [1st Dist.] 1990, pet. ref'd). He says, however, that his objection is different. He asserts that the clerk cannot act "by" a deputy, whereas he says Soliz held only that a deputy county clerk may perform all acts that the clerk could perform. We see no distinction.
Each exemplification contained a certification of the authority of Frank J. Robinson, the judge of the county court of Walker County, made by James D. Patton, the clerk of the county court of Walker County, "By: Judy Thompson Deputy." The form of these certificates is proper under section 82.005 of the Local Government Code. Tex. Loc. Gov't Code Ann. § 82.005(c) (Vernon 1988). We hold that the exhibits were properly authenticated. We overrule point seven.
PRIOR CONVICTION
Manning's sixth point asserts that one of the prior convictions was void because he was denied the effective assistance of counsel when there was no appeal. No notice of appeal or waiver of appeal appears in the records of the prior conviction. The only evidence on the question is Manning's testimony that his lawyer said she would appeal the conviction, but never did. The State's brief points to Manning's burden of proof in collaterally attacking the prior conviction and says that any error in admitting the conviction was rendered harmless by the admission of another prior conviction. Either prior conviction, it asserts, justified the imposition of fifty years in prison. We agree with the State's first contention; thus, we do not reach the second.
The State proved Manning's prior conviction by introducing into evidence a certified copy of a "pen packet." The burden then shifted to Manning to make an affirmative showing of any defect in the judgment rendering the prior conviction void. Johnson v. State, 725 S.W.2d 245, 247 (Tex. Crim. App. 1987). Whenever a collateral attack is lodged against (1) a prior conviction by habeas corpus or (2) a prior conviction used to enhance punishment in an ongoing trial, a defendant alleging ineffective assistance of counsel must prove by a preponderance of the evidence that the prior conviction is void. Ex parte Kunkle, 852 S.W.2d 499, 505 (Tex. Crim. App.), cert. denied, ——— U.S. ———, 114 S. Ct. 122, 126 L. Ed. 2d 87 (1993); Galloway v. State, 578 S.W.2d 142, 143 (Tex. Crim. App. [Panel Op.] 1979). Because Manning had the burden of proof under a preponderance-of-the-evidence standard, the sufficiency review on appeal is governed by Meraz v. State, 785 S.W.2d 146, 154-55 (Tex. Crim. App. 1990):
[W]hen the courts of appeals are called upon to exercise their fact jurisdiction, that is, examine whether appellant proved his affirmative defense or other fact issue where the law has designated that the defendant has the burden of proof by a preponderance of evidence, the correct standard of review is whether after considering all the evidence relevant to the issue at hand, the judgment is so against the great weight and preponderance of the evidence so as to be manifestly unjust.
(Emphasis added). Thus, our inquiry is directed to whether the court's implied finding that Manning was not deprived of effective assistance of counsel is so against the great weight and preponderance of the evidence as to be manifestly unjust. See id.
Because the court found the enhancement paragraph "true," we must assume that it, sitting as trier of fact, concluded that Manning failed to prove by a preponderance of the evidence that counsel's actions violated the Strickland standards. Strickland v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 2066, 80 L. Ed. 2d 674 (1984). Manning's burden on appeal is to establish that implied findings on the Strickland standards are so against the great weight and preponderance of the evidence as to be manifestly unjust. See Meraz, 785 S.W.2d at 155.
Questions of admissibility of evidence are addressed to the court. Tex. R. Crim. Evid. 104(a). When a fact issue is tried to the court, the trial judge is the sole judge of the credibility of the witnesses and may accept or reject all or any part of the testimony given by any witness. Johnson v. State, 571 S.W.2d 170, 173 (Tex. Crim. App. [Panel Op.] 1978). The judge was entitled to disbelieve Manning's testimony about the appeal of his prior conviction and, in absence of any other evidence, could have found that Manning did not discharge his burden of proving that his prior conviction was void. Such a finding would not be so against the great weight and preponderance of the evidence as to be manifestly unjust. Meraz, 785 S.W.2d at 155. We overrule point six.
CONCLUSION
Having overruled all of Manning's points, we affirm the judgment.
BILL VANCE
Justice
Before Chief Justice Thomas,
Justice Cummings, and
Justice Vance
Affirmed
Opinion delivered and filed
Do not publish