NUMBER 13-02-113-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
DAVID RODRIGUEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 103rd District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Justices Hinojosa, Yañez, and Castillo
Opinion by Justice Castillo
A jury convicted appellant David Rodriguez in absentia of two counts of indecency with a child and two counts of aggravated sexual assault. It rejected any recommendation for community supervision and assessed punishment at two years in prison and a $2,000 fine for each count of indecency with a child and five years and a $5,000 fine for each count of aggravated sexual assault. The trial court signed a judgment consistent with the jury's verdict and ordered the sentences to run consecutively. It sentenced Rodriguez to a total of fourteen years confinement in the Institutional Division of the Texas Department of Criminal Justice. The trial court has certified that Rodriguez has the right to appeal. See Tex. R. App. P. 25.2(a)(2). By six issues, Rodriguez challenges the legal and factual sufficiency of the evidence and certain evidentiary rulings by the trial court. We affirm.
I. RELEVANT FACTS
This is a memorandum opinion not designated for publication. The parties are familiar with the facts. We will not recite them here except as necessary to advise the parties of our decision and the basic reasons for it. See Tex. R. App. P. 47.4.
J.G. is Rodriguez's stepdaughter. She was born April 16, 1986. Rodriguez began living with J.G.'s mother and four children when J.G. was seven years old. The family lived in Florida for a few months, then returned to Brownsville, Cameron County, Texas. They were living in Brownsville in 1999 when J.G. first accused Rodriguez of molesting her. The Texas Department of Protective and Regulatory Services ("DPRS") investigated J.G.'s allegations against her stepfather in March of 1999. The DPRS took no action at that time. The family moved back to Florida. J.G. repeated her allegations to authorities there. An investigation began in Florida. The family returned to Texas the day before a scheduled court date in the matter.
Back in Texas, J.G. contacted DPRS again. A second investigation began in April of 2000. DPRS again took no action. A report of the Florida investigation reached the authorities in Texas. In November of 2000, DPRS began a third investigation. This time, J.G.'s mother was arrested for child endangerment. A Cameron County grand jury indicted Rodriguez on two counts of indecency with a child and two counts of aggravated sexual assault.
J.G., 14 years old by the time of trial, described for the jury years of almost daily sexual contact and multiple acts of sexual conduct by Rodriguez. She testified that the contacts and conduct took place in Cameron County, Texas from the time she was seven years old until the family moved to Florida briefly in the middle of October 1999. Outcry witnesses testified to the complaints J.G. made. During Rodriguez's defense, family members testified to inconsistent or contradictory statements made by the child, including her denial that Rodriguez had ever touched her. Her mother testified she did not believe her daughter.
During a break following the mother's testimony, Rodriguez left the courtroom. He did not return. Testimony continued in his absence, then concluded. The trial court charged the jury in his absence. The jury deliberated and delivered the verdict. After return of the verdict, Rodriguez surrendered himself for sentencing. The trial court exercised its discretion and ordered the sentences assessed by the jury to run consecutively. See Tex. Pen. Code Ann. § 3.03(b)(2)(A) (Vernon 2003). This appeal ensued.
II. SUFFICIENCY ANALYSES
A. Legal-Sufficiency Analyses
1. Legal-Sufficiency Standard and Scope of Review
A legal-sufficiency challenge calls for appellate review of the relevant evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). We consider all the evidence that sustains the conviction, whether properly or improperly admitted or whether introduced by the prosecution or the defense, in determining the legal sufficiency of the evidence. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). Similarly, in reviewing the legal sufficiency of the evidence, we look to all of the evidence introduced during either stage of the trial. De Garmo v. State, 691 S.W.2d 657, 661 (Tex. Crim. App. 1985).
Legal sufficiency in this case is measured against the elements of the offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically correct jury charge is one that "accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id. A hypothetically correct jury charge would not simply quote from the controlling statute. Gollihar v. State, 46 S.W.3d 243, 254 (Tex. Crim. App. 2001). Its scope is limited by "the statutory elements of the offense . . . as modified by the charging instrument." Fuller v. State, 73 S.W.3d 250, 254 (Tex. Crim. App. 2002) (Keller, P.J., concurring) (quoting Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000)). When a statute lists more than one method of committing an offense, and the indictment alleges some, but not all, of the statutorily listed methods, the State is limited to the methods alleged. Fuller, 73 S.W.3d at 255; Curry, 30 S.W.3d at 404. This standard of legal sufficiency ensures that a judgment of acquittal is reserved for those situations in which there is an actual failure in the State's proof of the crime. Malik, 953 S.W.2d at 240. We then determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319; Johnson, 23 S.W.3d at 7.
In performing a legal-sufficiency review, we are mindful that the fact finder is the exclusive judge of the credibility of witnesses and the weight to be given testimony. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Adelman v. State, 828 S.W.2d 418, 423 (Tex. Crim. App. 1992); Butts v. State, 835 S.W.2d 147, 151 (Tex. App.–Corpus Christi 1992, pet. ref'd). The fact finder may believe some witnesses and refuse to believe others. Esquivel v. State, 506 S.W.2d 613, 615 (Tex. Crim. App. 1974). It also may accept portions of a witness's testimony and reject others. Id.; Butts, 835 S.W.2d at 151.
If we reverse a criminal case for legal insufficiency following a jury trial, we reform the judgment to reflect conviction for a lesser offense only if: (1) we find that the evidence is sufficient to support conviction of the lesser offense; and (2) a jury charge on the lesser offense was either submitted or requested but denied. Collier v. State, 999 S.W.2d 779, 782 (Tex. Crim. App. 1999) (plurality op.) (discussing circumstances under which court of appeals may reform judgment following jury trial to reflect conviction for lesser offense); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993) (clarifying same). Otherwise, we vacate the judgment of conviction for legal insufficiency and order a judgment of acquittal. Swearingen, 101 S.W.3d at 95.
2. The Hypothetically Correct Jury Charge
a. The Law Applicable to the Indecency-with-a-Child Counts
(1) Counts I and IV of the Indictment
The statutory period of limitation for indecency with a child is ten years from the child's eighteenth birthday. Tex. Code Crim. Proc. Ann. art. 12.01(5)(A) (Vernon 2003). Count I of the indictment alleged that Rodriguez intentionally or knowingly engaged in sexual contact with J.G., a child younger than 17 years and not his spouse, in Brownsville, Cameron County, Texas on or about October 23, 1999 by touching her breast with his mouth. Count IV alleged that Rodriguez engaged in the same contact in the same jurisdiction on or about September 15, 1999.
(2) "On or About" Allegation of Date of Offense
Unless the date is a material element of an offense, it is not necessary for an indictment to specify the precise date on which the charged offense occurred. See Garcia v. State, 981 S.W.2d 683, 685-86 (Tex. Crim. App. 1998). The primary purpose of specifying a date in the indictment is not to notify the accused of the date of the offense. Id. Rather, the purpose of providing a date is to show that the prosecution is not barred by the statute of limitation. Id. When an indictment alleges that a crime occurred "on or about" a certain date, the State may prove an offense "with a date other than the one specifically alleged so long as the date is anterior to the presentment of the indictment and within the statutory limitation period and the offense relied upon otherwise meets the description of the offense contained in the indictment." Yzaguirre v. State, 957 S.W.2d 38, 39 (Tex. Crim. App. 1997) (quoting Sledge v. State, 953 S.W.2d 253, 256-57 (Tex. Crim. App. 1997)). Accordingly, the hypothetically correct jury charge in this case would instruct the jury that the State could prove that the charged offenses were committed before, on, or after the dates alleged in the indictment so long as the dates were before the date of the indictment and within the applicable limitation period. Mireles v. State, 901 S.W.2d 458, 459 (Tex. Crim. App. 1995) (plurality op.); DeMoss v. State, 12 S.W.3d 553, 560 (Tex. App.–San Antonio 1999, pet. ref'd).
(3) The Elements of Indecency with a Child as Limited by the Indictment
Thus, the hypothetically correct jury charge against which we measure legal sufficiency in Count I and Count IV of the indictment in this case would ask the jury if Rodriguez: (1) on or about September 15, 1999 and October 23, 1999 (2) intentionally or knowingly (3) engaged in sexual contact (4) with J.G., who was then a child under 17 years old and not his spouse, (5) by touching her breast with his mouth. We turn to the relevant definitions.
(4) Definitions Used in the Indecency-with-a-Child Statute
The penal code defines "sexual contact" as "any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person." Tex. Pen. Code Ann. § 43.01 (Vernon 2003). The offense of indecency with a child requires proof of the accused's intent to engage in the proscribed contact rather than an intent to bring about any particular result. Rodriguez v. State, 24 S.W.3d 499, 502 (Tex. App.–Corpus Christi 2000, pet. ref'd). Thus, the definitions in the hypothetically correct jury charge in this case concerning the applicable culpable mental state for the indecency-with-a-child counts would be limited to the nature of the conduct, rather than result of conduct or circumstances surrounding the conduct.
A person acts intentionally, or with intent, with respect to the nature of conduct or to a result of the conduct when it is the person's conscious objective or desire to engage in the conduct or cause the result. Tex. Pen. Code Ann. § 6.03(a) (Vernon 2003). Similarly, a person acts knowingly, or with knowledge, with respect to the nature of conduct or to circumstances surrounding the conduct when the person is aware of the nature of the conduct or that the circumstances exist. Tex. Pen. Code Ann. § 6.03(b) (Vernon 2003). A person acts knowingly, or with knowledge, with respect to a result of conduct when the person is aware that the conduct is reasonably certain to cause the result. Id.
A fact finder may infer the accused's mental state from the acts, words, and conduct of the accused and from the circumstances surrounding the acts in which the accused engaged. See Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991); Dillon v. State, 574 S.W.2d 92, 94 (Tex. Crim. App. [Panel Op.] 1978). An accused rarely facilitates conviction by admitting to the requisite intent or knowledge. It seldom is possible to prove by direct evidence what an accused intended or knew at the time of the incident. Thus, the fact finder usually must infer intent and knowledge from circumstantial evidence rather than direct proof. See Gardner v. State, 736 S.W.2d 179, 182 (Tex. App.–Dallas 1987), aff'd, 780 S.W.2d 259 (Tex. Crim. App. 1989); see also Hernandez, 819 S.W.2d at 810; Dillon, 574 S.W.2d at 94-95.
Specifically, the fact finder can infer the requisite intent to arouse or gratify the sexual desire of a person from conduct, remarks, or all the surrounding circumstances. Robertson v. State, 871 S.W.2d 701, 705 (Tex. Crim. App. 1993); McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. 1981). The intent to arouse or gratify may be inferred from conduct alone. McKenzie, 617 S.W.2d at 216. No oral expression of intent is necessary. Id.; Gregory v. State, 56 S.W.3d 164, 171 (Tex. App.–Houston [14th Dist.] 2001, pet. granted). Nor is visible evidence of sexual arousal required. McKenzie, 617 S.W.2d at 216; Gregory, 56 S.W.3d at 171. Further, the fact finder may draw an inference of guilt from the accused's acts, words, and conduct before, during, and after the incident. See Foster v. State, 779 S.W.2d 845, 859 (Tex. Crim. App. 1989) (inference of guilt may be drawn from flight).
b. The Law Applicable to the Aggravated-Sexual-Assault-of-a-Child Counts
(1) Count II and Count III of the Indictment
The statutory period of limitation for aggravated sexual assault of a child also is ten years from the child's eighteenth birthday. Tex. Code Crim. Proc. Ann. art. 12.01(5)(B) (Vernon 2003). Count II of the indictment alleged that Rodriguez intentionally or knowingly caused the anus of J.G., then a child younger than 14 years not Rodriguez's spouse, to contact his sexual organ in Brownsville, Cameron County, Texas on or about October 15, 1999. Count III of the indictment alleged that Rodriguez intentionally or knowingly caused the sexual organ of J.G., then a child younger than 14 years not Rodriguez's spouse, to contact his sexual organ in Brownsville, Cameron County, Texas on or about October 1, 1999.
(2) The Elements of Aggravated Assault of a Child as Limited by the Indictment
Thus, the hypothetically correct jury charge against which we measure legal sufficiency in Count II of the indictment would ask the jury if Rodriguez: (1) on or about October 15, 1999 (2) intentionally or knowingly (3) caused the anus (4) of J.G., who was then a child under 14 years old and not his spouse, (5) to contact (6) his sexual organ. As to Count III of the indictment, the hypothetically correct jury charge would ask the jury if Rodriguez: (1) on or about October 1, 1999 (2) intentionally or knowingly (3) caused the sexual organ (4) of J.G., who was then a child under 14 years old and not his spouse, (5) to contact (6) his sexual organ. We turn to additional relevant definitions.
(3) Definitions Used in the Aggravated-Sexual-Assault-of-a-Child Statute
The Texas Court of Criminal Appeals has not addressed whether aggravated sexual assault of a child is a nature-of-conduct, result-of-conduct, or combined offense. See Baker v. State, 94 S.W.3d 684, 691 (Tex. App.–Eastland 2002, no pet.); see also Cook v. State, 884 S.W.2d 485, 492-94 (Tex. Crim. App. 1994) (Maloney, J., concurring); Duhart v. State, 890 S.W.2d 187, 191 (Tex. App.–Corpus Christi 1994, no pet.); Murray v. State, 804 S.W.2d 279, 281 (Tex. App.–Fort Worth 1991, pet. ref'd). Where an offense is not clearly categorized with respect to the conduct elements, the trial court may submit to the jury the full statutory definitions of "intentionally" and "knowingly" because both definitions allow the jury to consider the nature of the accused's conduct or the results of the conduct. Baker, 94 S.W.3d at 691 (citing Murray, 804 S.W.2d at 281).
With a hypothetically correct jury charge in mind that reflects the correct definitions and the elements of the offenses as modified by the indictment, we turn to legal-sufficiency analyses of the evidence to support Rodriguez's convictions for indecency with a child as alleged in Count I and Count IV of the indictment and aggravated sexual assault of a child as alleged in Count II and Count III.
3. Measuring the Legal Sufficiency of the Evidence
Against the Hypothetically Correct Jury Charge
a. Count I and Count IV, Indecency with a Child
Rodriguez focuses our legal-sufficiency analysis by arguing that the evidence is insufficient to support: (1) the intent-to-gratify element of the indecency-with-a-child allegations; and (2) the State's allegations that the particular sexual contact described occurred on the alleged dates within the jurisdiction of the trial court in Brownsville, Cameron County, Texas.
(1) The Intent-to-Gratify Element
J.G. repeatedly described for the jury multiple incidents of sexual contact and sexual conduct by Rodriguez in Texas and in Florida. A child's description of sexual contact is sufficient evidence from which a fact finder may infer the intent-to-gratify element of indecency with a child. See, e.g., McKenzie, 617 S.W.2d at 216; Brown v. State, 871 S.W.2d 852, 856 (Tex. App.–Corpus Christi 1994, pet. ref'd). Viewing the evidence in the light most favorable to the State, we conclude that any rational trier of fact could have found beyond a reasonable doubt the intent-to-gratify element of Count I and Count IV of the indictment. See Jackson, 443 U.S. at 319; see also Johnson, 23 S.W.3d at 7.
(2) The Date-and-Place Elements
The offenses proved by the State conformed with the allegations in the indictment, were within the statute of limitation, and occurred before the date of the indictment. See Yzaguirre, 957 S.W.2d at 39. The State was not required to prove that any particular offense occurred on any particular date. See Mireles, 901 S.W.2d at 459. Viewing the evidence in the light most favorable to the State, we conclude that any rational trier of fact could have found beyond a reasonable doubt that Rodriguez committed the offenses charged in Count I and Count IV of the indictment in Cameron County on dates before the date of the indictment and within the limitation period. See Jackson, 443 U.S. at 319; see also Johnson, 23 S.W.3d at 7.
Accordingly, we hold the evidence legally sufficient to support Rodriguez's convictions for each count of indecency with a child. See Jackson, 443 U.S. at 319; see also Johnson, 23 S.W.3d at 7. We overrule Rodriguez's third issue.
b. Count II and Count III, Aggravated Sexual Assault of a Child
Rodriguez also asserts that the evidence is legally insufficient to support the jury's findings that the particular sexual conduct described in Count II and Count III of the indictment occurred on the alleged dates within the jurisdiction of the trial court in Brownsville, Cameron County, Texas. He adds that the State did not prove that J.G. was under the age of 14 at the time the conduct occurred. At trial, J.G. both told the jury her birth date and said she was 14 years old. She related for the jury multiple incidents of sexual conduct by Rodriguez in Cameron County before the move to Florida in 1999. As with the indecency-with-a-child counts, viewing the evidence in the light most favorable to the State, we conclude that any rational trier of fact could have found beyond a reasonable doubt that Rodriguez committed the charged offenses in Cameron County on dates before the date of the indictment and within the limitation period when J.G. was less than 14 years old. See Jackson, 443 U.S. at 319; see also Johnson, 23 S.W.3d at 7.
Accordingly, we hold the evidence legally sufficient to support Rodriguez's convictions for each count of aggravated sexual assault of a child. See Jackson, 443 U.S. at 319; see also Johnson, 23 S.W.3d at 7. We overrule Rodriguez's first issue.
III. FACTUAL-SUFFICIENCY ANALYSES
A. Factual-Sufficiency Standard and Scope of Review
This Court measures the factual sufficiency of the evidence in this case against a hypothetically correct jury charge. Adi v. State, 94 S.W.3d 124, 131 (Tex. App.—Corpus Christi 2002, pet. ref'd); see Malik, 953 S.W.2d at 240. We are constitutionally empowered to review the judgment of the trial court to determine the factual sufficiency of the evidence used to establish the elements of the charged offense. Johnson, 23 S.W.3d at 6. In determining the factual sufficiency of the elements of the offense, we view all the evidence neutrally, not through the prism of "the light most favorable to the prosecution." Id. at 6-7 (citing Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996)). We set aside a finding of guilt only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Johnson, 23 S.W.3d at 7. A clearly wrong and unjust finding of guilt is "manifestly unjust," "shocks the conscience," or "clearly demonstrates bias." Rojas v. State, 986 S.W.2d 241, 247 (Tex. Crim. App. 1998).
In conducting a factual-sufficiency review, we review the fact finder's weighing of the evidence. Johnson, 23 S.W.3d at 7 (citing Clewis, 922 S.W.2d at 133). We review the evidence that tends to prove a material disputed fact and compare it with evidence that tends to disprove it. Johnson, 23 S.W.3d at 7. We are authorized to disagree with the fact finder's determination. Id. However, we approach a factual-sufficiency review with appropriate deference to avoid substituting our judgment for that of the fact finder. Id. Our evaluation should not intrude substantially on the fact finder's role as the sole judge of the weight and credibility given to witness testimony. Id.
We always remain aware of the fact finder's role and unique position, a position we are unable to occupy. Id. at 9. Exercise of our authority to disagree with the fact finder's determination is appropriate only when the record clearly indicates our intervention is necessary to stop manifest injustice. Id. Otherwise, we accord due deference to the fact finder's determinations, particularly those concerning the weight and credibility of the evidence. Id.
Every fact need not point directly and independently to the accused's guilt. Vanderbilt v. State, 629 S.W.2d 709, 716 (Tex. Crim. App. 1981). A finding of guilt can rest on the combined and cumulative force of all the incriminating circumstances. Id. When an appellant challenges the factual sufficiency of the elements of the offense, we ask whether "a neutral review of all the evidence . . . demonstrates that 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." Zuliani v. State, 97 S.W.3d 589, 593-94 (Tex. Crim. App. 2003) (quoting Johnson, 23 S.W.3d at 11); see Swearingen, 101 S.W.3d at 97. In conducting a factual-sufficiency review in an opinion, we "show our work" when we consider and address the appellant's main argument for urging insufficiency of the evidence. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003); Johnson, 23 S.W.3d at 9; Manning v. State, 112 S.W.3d 740, 747 (Tex. App.–Houston [14th Dist.] 2003, no pet. h.); see Tex. R. App. P. 47.1. This practice benefits the parties, maintains the integrity of the justice system, and improves appellate practice. Sims, 99 S.W.3d at 603; Manning, 112 S.W.3d at 747. If we reverse a criminal case for factual insufficiency, we vacate the judgment of conviction. Clewis, 922 S.W.2d at 133-34. We remand for a new trial a criminal case reversed for factual insufficiency, so a second fact finder has the chance to evaluate the evidence. Swearingen, 101 S.W.3d at 97.
B. Measuring the Factual Sufficiency of the Evidence
Against the Hypothetically Correct Jury Charge
1. Indecency with a Child as Alleged in Count I and Count IV
In his factual-sufficiency challenge, Rodriguez points to J.G.'s inconsistent statements and her mother's testimony that she did not believe her daughter's allegations. However, J.G. repeatedly described for the jury multiple incidents of sexual contact by Rodriguez in Texas before the family moved to Florida in 1999. The jury was free to accept her trial testimony and reject evidence of her prior inconsistent statements. See Esquivel, 506 S.W.2d at 615. Further, the jury could draw no inference of guilt from the fact that Rodriguez did not testify to deny J.G.'s allegations. However, he fled the courtroom during the trial. The jury could infer "consciousness of guilt" from his flight. See Foster, 779 S.W.2d at 859. Viewing all of the evidence neutrally, favoring neither Rodriguez nor the prosecution, we find that the proof of Rodriguez's guilt of indecency with a child as alleged in Count I and Count IV of the indictment is not so obviously weak as to undermine confidence in the jury's determination. See Zuliani, 97 S.W.3d at 593-94. We do not find that the proof of his guilt is greatly outweighed by contrary proof. See id. We overrule Rodriguez's fourth issue.
2. Aggravated Sexual Assault of a Child as Alleged in Count II and Count III
J.G. testified unequivocally that the sexual conduct occurred in Brownsville, Cameron County, Texas, when she was under the age of 14, and she was not married to Rodriguez. In his brief, Rodriguez does not point us to any evidence tending to disprove the elements of aggravated sexual assault of a child by contact. He again points to J.G.'s inconsistent statements and her mother's testimony that she did not believe her daughter's allegations. Again, differences in testimony are not sufficient for us to completely discount J.G.'s direct evidence. The jury determined the relative credibility of the witnesses and testimony and could infer Rodriguez's "consciousness of guilt" from his flight during the trial. See Esquivel, 506 S.W.2d at 615; see also Foster, 779 S.W.2d at 859. Viewing all of the evidence neutrally, favoring neither Rodriguez nor the prosecution, we find that the proof of Rodriguez's guilt of aggravated sexual assault of a child as alleged in Count II and Count III of the indictment is not so obviously weak as to undermine confidence in the jury's determination. See Zuliani, 97 S.W.3d at 593-94. We do not find that the proof of his guilt is greatly outweighed by contrary proof. See id. We overrule Rodriguez's second issue.
IV. THE EVIDENTIARY ISSUES
A. The Videotaped Testimony
In his fifth issue, Rodriguez asserts that the trial court abused its discretion in admitting, over objection, the videotaped testimony of J.G. after she had testified in person. The State responds that the trial court properly admitted the videotape pursuant to article 38.071 of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 38.071(Vernon Supp. 2004).
At the time the State offered the videotape in evidence, Rodriguez's counsel objected on grounds of: (1) hearsay; (2) best-evidence rule; (3) prejudice; and (4) violation of his right to cross-examine. On appeal, without argument, Rodriguez cites to three opinions and contends the trial court reversibly erred.
We review a trial court's admission or exclusion of evidence under an abuse-of-discretion standard. Montgomery v. State, 810 S.W.2d 372, 379-80 (Tex. Crim. App. 1990). An abuse of discretion occurs when the trial court acts arbitrarily or unreasonably, without reference to guiding rules or principles. Id. at 380. In other words, an abuse of discretion occurs only when the trial court's decision is so wrong as to lie outside that zone within which reasonable persons might disagree. Id. A trial court has a "limited right to be wrong." Id. Our inquiry on appeal is whether the result was reached in an arbitrary or capricious manner. Id.
Although Rodriguez does not make the argument in his brief, a plain-language reading of article 38.071 indicates that the child must be unavailable to testify before a videotape of the child's testimony is admissible. See Tex. Code Crim. Proc. Ann. art. 38.071, § 1 (Vernon Supp. 2004); see also Jensen v. State, 66 S.W.3d 528, 535 (Tex. App.–Houston (14th Dist.) 2002, pet. ref'd). J.G. was available and did testify. The State argued at trial that the videotape was admissible as a prior consistent statement of the victim. See Tex. R. Evid. 801(e)(1)(B).
Even if the trial court abused its discretion in admitting the videotape, Rodriguez is not entitled to a reversal if the same facts are proved by other properly admitted evidence. Matz v. State, 21 S.W.3d 911, 912 (Tex. App.–Fort Worth 2000, pet. ref'd). Error in the admission of evidence is subject to a harm analysis under rule 44.2(b) of the rules of appellate procedure. See Tex. R. App. P. 44.2(b); see also Matz, 21 S.W.3d at 912 (citing Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998)). Under Rule 44.2(b), we are to disregard any error unless it affects the appellant's substantial rights. See Tex. R. App. P. 44.2(b); see also Matz, 21 S.W.3d at 912. A substantial right is affected when the error had a substantial, injurious effect or influence on the jury's verdict. Matz, 21 S.W.3d at 912 (citing King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997)). It is well settled that the improper admission of evidence does not constitute reversible error if the same facts are proved by other properly admitted evidence. Matz, 21 S.W.3d at 912 (citing Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999) (holding any error in admission of hearsay testimony harmless in light of other properly admitted evidence proving same fact)).
We have reviewed the videotape. We find its contents cumulative of J.G.'s testimony at trial. Any error could not have affected Rodriguez's substantial rights and was harmless. See Tex. R. App. P. 44.2(b); see also Matz, 21 S.W.3d at 913; Jensen, 66 S.W.3d at 535. Thus, even if the trial court abused its discretion in admitting the videotape, we must disregard the error. We overrule Rodriguez's fifth issue.
B. The Outcry Witness
In his sixth issue, Rodriguez asserts that the trial court abused its discretion in allowing hearsay testimony from a witness who was not designated as an "outcry" witness pursuant to article 38.072 of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon Supp. 2004). In his argument under issue six, however, Rodriguez asserts, without citation to any authority, that he was deprived of his federal and state constitutional right to confront his accuser. The State counters that Rodriguez waived any error in admission of the testimony because the same evidence came in without objection elsewhere in the trial.
The challenged witness is J.G.'s paternal aunt. At trial, Rodriguez objected to her testimony as hearsay and that she was not designated as an outcry witness. The State responded that it was offering the testimony to show a prior consistent statement of the victim, not as that of an outcry witness. The trial court overruled the objection but instructed the jury to limit its use of the evidence to that purpose, affording Rodriguez all the relief to which he was entitled. During the aunt's testimony, Rodriguez objected further that she had not been designated as an expert.
Even if the trial court abused its discretion in admitting the aunt's testimony, we find that Rodriguez's claim on appeal does not comport with his trial objection. See Tex. R. App. P. 33.1; see also Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). Further, Rodriguez does not cite in his brief any authority regarding his right-to-confrontation constitutional rights. We hold that Rodriguez waived on appeal any error in the trial court's admission of the aunt's testimony. See Coffey v. State, 796 S.W.2d 175, 179 (Tex. Crim. App. 1990) (issue that does not comport with trial objection presents nothing for review); see also Tex. R. App. P. 38.1(h) (brief must contain appropriate citations to authorities). We decline to address his sixth issue.
V. CONCLUSION
We have overruled Rodriguez's issues one through five. We have found he waived issue six on appeal. We affirm the judgment of conviction and sentence.
ERRLINDA CASTILLO
Justice
Do Not Publish.
Tex. R. App. P. 47.2(b).
Memorandum Opinion delivered and
filed this 13th day of May, 2004.