Affirmed and Memorandum Opinion filed May 22, 2007.
In The
Fourteenth Court of Appeals
____________
NO. 14-06-00230-CR
____________
DAVID MICHAEL GALINDO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 248th District Court
Harris County, Texas
Trial Court Cause No. 807959
M E M O R A N D U M O P I N I O N
Appellant David Michael Galindo appeals the trial court=s order revoking his probation and sentencing him to seven years= confinement for the underlying offense of sexual assault. In four issues, appellant complains of several of the trial court=s evidentiary rulings and asserts the evidence is insufficient to support the revocation. We affirm.
Background
The State filed a motion to revoke appellant=s probation, alleging he violated the terms of his probation by intentionally and knowingly engaging in sexual contact with his then five-year-old daughter, E.G. Appellant and E.G.=s mother did not live together, and E.G. lived with her mother. E.G.=s maternal grandmother, Martha Ibanez, often cared for E.G. while her mother was working. On the evening of Sunday, April 10, 2005, Ibanez was bathing E.G. and noticed that E.G. closed her legs when Ibanez attempted to wash her. When Ibanez observed E.G.=s behavior, Ibanez asked her who had hurt her there to make her scared. E.G. told Ibanez, AMy daddy does that. My daddy hurts me,@ and then said that he had put his fingers in her. Upon further questioning, E.G. told Ibanez that the last time it happened was earlier that day during a visitation with appellant. E.G. said that appellant had gotten on top of her on the floor after her mother went to sleep on the couch while watching television in the same room.
Ibanez took E.G. to Texas Children=s Hospital later that evening, where she was examined by Nicole Triggs, a registered nurse and certified pediatric sexual assault examiner. During the examination, E.G., while pointing to her vagina, told Nurse Triggs that last night, AMy daddy did something bad to me. He put his hands in me, in my body.@ Nurse Triggs=s examination revealed nothing abnormal, which did not surprise her, based on the sexual contact E.G. described.
Ibanez took E.G. to the Children=s Assessment Center for a videotaped interview on May 2, 2005. During the interview, E.G. stated that her father hurt her by touching her body. Many of the details of E.G.=s statements were conflicting or unclear. For example, she stated that the touching happened while her mother was in the restroom but also stated that he did it where her mother could see it and that her mother told him to stop. E.G. also stated that it happened Ayesterday, a long time ago@ and that it lasted A50 years old.@
At the revocation hearing, both Ibanez and Nurse Triggs testified and, over objection,[1] repeated E.G.=s statements to them regarding appellant touching her. E.G., who was six at the time of the hearing, took the stand but had difficulty testifying. She eventually indicated by shaking her head that no one, including her father, had ever touched her inappropriately. The State offered the videotape interview, first for impeachment and then as substantive evidence under Code of Criminal Procedure article 38.071. The trial court admitted and reviewed the videotape. During cross-examination, E.G. again denied that her father had ever hurt her.
Appellant testified and denied that he had ever sexually abused E.G. E.G.=s mother testified that she never saw appellant touch E.G. inappropriately, appellant was never alone with E.G. during the visit, and she did not fall asleep any time during the visit. E.G.=s brother, who was also present during the visit, corroborated the mother=s testimony. Appellant also presented an expert psychologist, Dr. Jerome Brown, who testified that based on his examination of appellant=s file and the results of a battery of psychological tests, he could find no psychological explanation for why appellant would have committed indecency with a child.
The trial court found that appellant violated the terms and conditions of his probation, revoked probation, and sentenced him to seven years= incarceration. In four issues, appellant alleges that the trial court abused its discretion in (1) revoking appellant=s probation because the evidence is insufficient to support revocation, (2) finding that E.G. was unavailable to testify and in admitting the videotaped interview, (3) excluding evidence that E.G. made prior false allegations of sexual abuse, and (4) admitting testimony from a psychologist about appellant=s criminal history.
Analysis
A. Sufficiency of the Evidence
We review a trial court=s order revoking probation under an abuse of discretion standard. See Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006); Moore v. State, 11 S.W.3d 495, 498 (Tex. App.CHouston [14th Dist.] 2000, no pet.). In conducting our review, we consider all the evidence in the light most favorable to the trial court=s finding to determine whether the trial court could have reasonably found that appellant violated the terms and conditions of his probation by a preponderance of the evidence. See Rickels, 202 S.W.3d at 763B64; Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981); Moore, 11 S.W.3d at 498. The State satisfies its burden of proof when the greater weight of credible evidence before the court creates a reasonable belief that it is more probable that the defendant has violated a condition of probation. Rickels, 202 S.W.3d at 763B64; Joseph v. State, 3 S.W.3d 627, 640 (Tex. App.CHouston [14th Dist.] 1999, no pet.). It is the trial court=s duty to judge the credibility of the witnesses and determine whether the allegations in the motion to revoke are true.[2] See Garrett, 619 S.W.2d at 174; Moore, 11 S.W.3d at 498.
In his first issue, appellant contends the evidence is insufficient to support the revocation order. He emphasizes that the only evidence against him is the testimony of Ibanez and Nurse Triggs, which was based on a story that E.G. recanted, and the videotaped interview, which was also recanted and was inadmissible (as he alleges in his second issue below).[3] He argues that E.G.=s recantation, in combination with the lack of physical evidence proving he committed the offense and the consistency of his testimony with the testimony of E.G.=s mother and brother indicating he could not have committed the offense as alleged, show that the trial court=s finding is not supported by the totality of the evidence. Appellant further attempts to bolster the credibility of the recantation by arguing that E.G. was older and better able to distinguish fantasy from reality at the time of the hearing and that she could not have been influenced by her father or his attorney to change her story because they did not have access to her.
When a witness recants, it is impossible to know which version of her story is true. Ex parte Tuley, 109 S.W.3d 388, 401 (Tex. Crim. App. 2002). Thus, it is left to the fact finder to determine whether to believe the original statement or the recantation. See Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991); Fernandez v. State, 805 S.W.2d 451, 456 (Tex. Crim. App. 1991); Sudds v. State, 140 S.W.3d 813, 818 (Tex. App.CHouston [14th Dist.] 2004, no pet.). In other words, a fact finder is entitled to disbelieve a recantation. See Sudds, 140 S.W.3d at 818 (AThe jury is not only entitled to resolve conflicts but can even choose to disbelieve any recantation.@). Appellant essentially requests that we declare E.G.=s initial statement unreliable as a matter of law. However, it is not our function to attempt to determine which version of the story we would have believed had we been the fact finder. See Fernandez, 805 S.W.2d at 456 (AFor the Court of Appeals . . . to say that this witness=[s] hearsay testimony has no probative value in light of her in-court recantation was an improper attempt to reweigh the evidence to conform to their own opinion of the credibility of the hearsay and their own belief of the probative value of that testimony.@).
Further, the testimony from Nurse Triggs and Ibanez is substantive evidence of guilt.[4] See Gregory v. State, 56 S.W.3d 164, 182B84 (Tex. App.CHouston [14th Dist.] 2001, pet. dism=d) (holding testimony from examining nurse repeating child=s statements admissible under Evidence Rule 803(4) in indecency with a child case); Ex parte Tuley, 109 S.W.3d at 401 (holding that Aan outcry statement [under Texas Code of Criminal Procedure article 38.072] is reliable evidence of guilt@); Rodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim. App. 1991) (same). Indeed, outcry evidence is sufficient to support a conviction beyond a reasonable doubt, which is a higher evidentiary standard than the preponderance standard required in probation revocation cases. See Jensen v. State, 66 S.W.3d 528, 534 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d) (noting that an Aoutcry statement from a child victim, by itself, can be sufficient to sustain a conviction for aggravated sexual assault@); see also Jackson v. State, 110 S.W.3d 626, 631 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d) (A[A] criminal conviction, which requires proof beyond a reasonable doubt, may rest on hearsay despite the lack of the complainant=s testimony or even the complainant=s recantation.@); Moore, 11 S.W.3d at 498 (stating that grounds for probation revocation must be proven by a preponderance of the evidence).
The trial court observed the witnesses= demeanor, made credibility determinations, and resolved conflicts in the evidence. Viewing the evidence in the light most favorable to the trial court=s finding, we conclude the evidence is sufficient to provide by a preponderance of the evidence that appellant violated the terms and conditions of his probation by committing indecency with a child. Thus, the trial court did not abuse its discretion in revoking appellant=s probation, and we overrule appellant=s first issue.
B. Admission of the Videotape
In his second issue, appellant complains that the trial court erred in admitting E.G.=s videotaped interview. Article 38.071 of the Code of Criminal Procedure allows a trial court to admit a recording of a prior oral statement of a victim under thirteen years old if the court determines that the child is Aunavailable to testify in the presence of the defendant@ in certain categories of cases, including indecency with a child. See Tex. Code Crim. Proc. Ann. art. 38.071, '' 1, 8 (Vernon 2005). Article 38.071 further provides:
In making a determination of unavailability under this article, the court shall consider relevant factors including the relationship of the defendant to the child, the character and duration of the alleged offense, the age, maturity, and emotional stability of the child, and the time elapsed since the alleged offense, and whether the child is more likely than not to be unavailable to testify because:
(1) of emotional or physical causes, including the confrontation with the defendant; or
(2) the child would suffer undue psychological or physical harm through his involvement at the hearing or proceeding.
Id. ' 8(a). We review a trial court=s unavailability determination for an abuse of discretion. See Mitchell v. State, No. 01-04-00853-CR, __ S.W.3d __, 2006 WL 3804443, at *4 (Tex. App.CHouston [1st Dist.] Dec. 28, 2006, no pet. h.); Laredo v. State, 194 S.W.3d 637, 639 (Tex. App.CHouston [14th Dist.] 2006, pet. ref=d).
When the prosecutor first called E.G. to the stand, she was unable to testify at all. She could not state her name or take the oath and, according to the prosecutor=s comments during questioning, was on the verge of tears. After a brief recess, the prosecutor again attempted to elicit testimony. E.G. was reluctant to speak, answering most questions, even basic ones such as her name and age, by shaking her head or shrugging her shoulders. E.G. indicated she was scared, and the trial court called another recess. When court resumed ten minutes later, appellant made a competency objection, and the trial court examined E.G. and found her competent to testify. Questioning resumed with little improvement in E.G.=s ability to testify. Finally, after E.G. was able to identify the genital area on a doll, the following exchanged occurred between E.G. and the prosecutor:
Q. Has anybody touched you on that part of your body?
A. (Shaking head no.)
Q. Is there anybody that has ever touched you on that part of your body that you didn=t like?
A. (Shaking head no.) No.
Q. Nobody. Has anybody hurt you on that part of your body that you didn=t like?
A. No.
Q. Have you told somebody that somebody has touched you on that part of your body?
A. No.
Q. You haven=t told anybody that? Have you told me that?
A. No.
Q. Do you see your dad in the courtroom today?
A. (Shaking head yes.)
Q. Can you tell me what color shirt he is wearing?
A. Orange.
Q. Has your daddy ever touched you on that part of your body beforeC
A. (Shaking head no.)
Q. Cwith any part of his body?
A. (Shaking head no.)
Q. Did you tell somebody that?
A. (Shaking head no.)
Q. Do you not want to talk about it right now?
A. (Shaking head no.)
Q. Why not?
A. (Shrugging shoulders.)
Q. Does it make you scared?
A. (Shaking head yes.)
. . . .
Q. Okay. Do you want to talk anymore today?
A. (Shaking head no.)
The State passed the witness, and the defense did not cross-examine E.G. at this time.
The State then offered the videotape, first as a prior inconsistent statement and then as substantive evidence under article 38.071 on the grounds that E.G. was unavailable to testify. The trial court admitted the videotape after finding E.G. was unavailable. The trial court listened to the parties= arguments concerning E.G.=s behavior and demeanor and made its own observations, including noting that she had covered her eyes once, and concluded as follows:
If you look at what unavailable is defined as, it=s over there in 6, 7 and 8 relevant factors: Emotional, the age, maturity, the emotions, stability, psychological [c]auses, confrontation with the defendant. And I think that what we just saw was inability to testify. I think it=s just plan and simple. That is what this section is truly referring to, and what we just saw.
. . . .
I think [article 38.071] is specifically talking about this exact circumstance . . . .
So, if you=re introducing the tape, I will let it in under RuleC Article 38.071, Section 5, based on my determination under Section 8 of unavailability.[5]
After viewing the videotape, the trial court allowed appellant to cross-examine E.G. After being assured by appellant=s counsel that he only wanted to discuss Ahappy things, good things,@ E.G. became more responsive and testified coherently about subjects such as school, her friends, games she likes to play, and cartoons. He eventually asked E.G. about her father, and she said she loved and missed him and that he never hurt her or touched her in a bad way. She also testified about the events on the day in question and denied that her mother ever fell asleep while watching television or left her alone with appellant.
Appellant contends that the trial court abused its discretion in finding that E.G. was unavailable because no evidence supports such a finding.[6] Appellant argues that because E.G. was physically present and actually testified, she could not be unavailable as a matter of law. We disagree. Article 38.071 specifically contemplates that a child can be physically present and yet unavailable to testify. See Tex. Code Crim. Proc. Ann. art. 38.071, ' 1; Mitchell, 2006 WL 3804443, at *3; Laredo, 194 S.W.3d at 639. Although E.G. opened up and gave more detailed and responsive testimony later, at the time of the trial court=s ruling, E.G. had been nonresponsive and afraid.[7] The trial court personally observed E.G.=s emotional state, demeanor, and ability to testify and ruled based on these personal observations. When reviewing for abuse of discretion, we afford almost total deference to the trial court=s determination of historical facts that the record supports, especially when the findings are based on the evaluation of credibility and demeanor. Mitchell, 2006 WL 3804443, at *4. The trial court=s findings are supported by the record, and we find the trial court did not abuse its discretion in ruling that E.G. was unavailable and admitting the videotape. See id. at *4B5 (finding trial court did not abuse its discretion in making unavailability determination based on judge=s observations of child=s emotional state and ability to testify). Therefore, we overrule appellant=s second issue.
C. Impeachment of E.G.
In his third issue, appellant claims the trial court improperly limited his ability to develop evidence to impeach E.G. We review a trial court=s evidentiary rulings for an abuse of discretion. Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005). We will uphold the trial court=s ruling as long as it is within the zone of reasonable disagreement. Id.
First, appellant complains the trial court inappropriately refused to allow him to elicit testimony regarding two allege instances of E.G. making prior false sexual abuse allegations. In Lopez v. State, 18 S.W.3d 220, 225 (Tex. Crim. App. 2000), the Court of Criminal Appeals recognized that although such evidence is generally inadmissible, the Confrontation Clause requires its admission in some cases. However, the protections of the Confrontation Clause do not apply to probation revocation proceedings. Trevino v. State, No. 14-06-00265-CR, __ S.W.3d __, 2007 WL 470549, at *3 (Tex. App.CHouston [14th Dist.] Feb. 15, 2007, no pet. h.). Therefore, Confrontation Clause concerns cannot make evidence of alleged prior false allegations admissible in this case. Even without this obstacle, as the trial court specifically noted, there is no evidence in the record[8] that E.G., as opposed to her parents, actually made these allegations, and thus impeachment of E.G. in this manner would have been improper. See Lape v. State, 893 S.W.2d 949, 956 (Tex. App.CHouston [14th Dist.] 1994, pet. ref=d).
Second, appellant complains the trial court improperly limited his ability to develop evidence that E.G. lied in the videotape interview when she stated that her grandmother had choked her mother. However, E.G. testified on cross-examination that Ibanez never choked her mother. Further, during her testimony, Ibanez also denied choking E.G.=s mother. Thus, appellant had sufficient evidence to impeach E.G. on this issue, and any further evidence would have been cumulative. See Tex. R. Evid. 403 (giving trial court discretion to exclude cumulative evidence); Ho v. State, 171 S.W.3d 295, 304 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d) (AThe trial court has the discretion to limit the scope of cross-examination to avoid harassment, prejudice, confusion of the issues, endangering the witness, and the injection of cumulative or collateral evidence.@).
We conclude the trial court did not abuse its discretion in limiting appellant=s presentation of impeachment evidence, and thus we overrule his third issue.
D. Cross-Examination of Psychologist
Appellant=s expert psychologist, Dr. Brown, testified, after examining appellant and studying his file, that he could find no psychological explanation for why appellant would commit indecency with a child. He based this ultimate conclusion on a series of underlying findings, including, among others, that appellant (1) had no difficulties controlling negative impulses or use of aggression, (2) had no history of child molestation or sexual assault, (3) had a clear sense of moral right and wrong, and (4) demonstrated he was able to respect rules and conform to social expectations. During cross-examination, the State questioned Dr. Brown about appellant=s criminal record, including the fact that he was on probation for sexual assault and had previously been convicted of criminal mischief, unlawfully carrying a weapon, and theft by receiving.
In his fourth issue, appellant asserts that the State used its cross-examination of Dr. Brown to improperly impeach him with prior offenses in violation of Texas Rules of Evidence 609. We disagree. The State was entitled to cross-examine Dr. Brown regarding the facts and data he relied on, or was aware of but did not rely on, in forming his opinions. See Wheeler v. State, 67 S.W.3d 879, 883 (Tex. Crim. App. 2002). Appellant=s criminal history was directly relevant to challenging several of Dr. Brown=s underlying findings leading to his ultimate conclusion. See id. at 884 (allowing cross-examination of expert CPS worker regarding allegation that defendant had molested his niece). Thus, we conclude the trial court did not abuse its discretion in allowing the State to cross-examine Dr. Brown regarding appellant=s criminal history, and we overrule his fourth issue.
Conclusion
Having overruled appellant=s four issues, we affirm the trial court=s judgment.
/s/ Leslie B. Yates
Justice
Judgment rendered and Memorandum Opinion filed May 22, 2007.
Panel consists of Justices Yates, Anderson, and Hudson.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] Appellant objected to this testimony on both hearsay and Confrontation Clause grounds. However, he raises no issue regarding the admissibility of this evidence on appeal.
[2] Appellant argues that if appellate review is to have any meaning, we must reassess the credibility of the witnesses and re-weigh the evidence to determine if the State has met its burden of proof. We disagree. By asking us to re-weigh the evidence, appellant essentially asks us to conduct a factual sufficiency review, but this court has unequivocally held that a factual sufficiency review is not available in the probation revocation context. See Joseph, 3 S.W.3d at 642. Rather, we review for abuse of discretion. Rickels, 202 S.W.3d at 763; Moore, 11 S.W.3d at 498. We review the evidence in the light most favorable to the trial court=s finding and determine if the trial court acted reasonably. See Rickels, 202 S.W.3d at 763B64; Garrett, 619 S.W.2d at 174; Moore, 11 S.W.3d at 498; Joseph, 3 S.W.3d at 640. It is the trial court=s role to make credibility determinations and resolve evidentiary conflicts. See Garrett, 619 S.W.2d at 174; Moore, 11 S.W.3d at 498. If the trial court made reasonable decisions in assessing credibility and resolving conflicts in the testimony, and if viewing the evidence in the light of such determinations the trial court could reasonably believe that, more likely than not, appellant violated his probation, we must uphold the trial court=s decision. See Rickels, 202 S.W.3d at 763B64; Moore, 11 S.W.3d at 498. Thus, although we employ a highly deferential standard of review, the trial court is not accorded absolute discretion to revoke probation. See Scamardo v. State, 517 S.W.2d 293, 297 (Tex. Crim. App. 1974).
[3] The State, citing authority regarding sufficiency reviews of criminal convictions, argues that even if the videotape was inadmissible, we must still consider it in our sufficiency review here. See Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim. App. 2006). We need not determine whether this principle applies in the probation revocation context because even without considering the videotape, we conclude sufficient evidence supports the trial court=s finding. Thus, we will not discuss the videotape in our analysis of appellant=s first issue.
[4] Appellant notes in his brief that it is Aquestionable@ whether the Confrontation Clause as interpreted by Crawford v. Washington, 541 U.S. 36 (2004), allows us to consider outcry testimony as substantive evidence of guilt and suggests that we consider such evidence only for impeachment purposes. Pointing out a potential issue is insufficient to place that issue before us for consideration. Further, the Confrontation Clause does not apply to probation revocation proceedings. Trevino v. State, No. 14-06-00265-CR, __ S.W.3d __, 2007 WL 470549, at *3 (Tex. App.CHouston [14th Dist.] Feb. 15, 2007, no pet. h.).
[5] Appellant argues that the trial court erred in failing to make an express finding of unavailability under section 8 of article 38.071. Appellant has cited no authority demonstrating that a trial court=s unavailability finding must be express, and in any event, we conclude that the above-quoted portion of the transcript shows the trial court did make an express finding.
[6] Appellant also contends that the trial court erred in failing to make specific findings under section 5 of article 38.071, which sets forth technical requirements for the admissibility of a recording. After appellant raised this objection, the trial court stated that it was admitting the videotape subject to the State proving the necessary requirements, which the State assured it would do when it called the interviewer to testify. Appellant did not re-urge its objection after the interviewer=s testimony and thus waived any error. See Owens-Corning Fiberglas Corp. v. Keeton, 922 S.W.2d 658, 661 (Tex. App.CAustin 1996, writ denied) (noting that when trial court conditionally admits evidence, A[i]f the condition is not fulfilled by the close of the proponent=s case, the burden is on the opposing party to renew his original objection by moving to strike the evidence; otherwise the party waives any error resulting from the conditional admission of the evidence@).
[7] We assess the trial court=s actions based on the information available to the court at the time of the ruling. See In re A.W.P., 200 S.W.3d 242, 245 (Tex. App.CDallas 2006, no pet.) (reviewing trial court=s decision based on evidence before it at the time, noting appellant had not shown trial court=s decision was incorrect when made); In re Harvest Cmtys. of Houston, Inc., 88 S.W.3d 343, 349 (Tex. App.CSan Antonio 2002, no pet.) (stating that we Acan only consider the record that was before the trial court at the time of the hearing@ in determining whether the trial court=s ruling was correct). Moreover, although article 38.071 specifically provides that A[a] determination of availability under this article can be made after an earlier determination of unavailability,@ Tex. Code Crim. Proc. Ann. art. 38.071, ' 8(b), appellant never requested that the trial court reconsider its ruling after the circumstances of E.G.=s testimony changed.
[8] This includes the sealed files from the Department of Child Protective services made available to us on appeal.