TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-12-00731-CR
Juan Jose Rosa, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
NO. CR-11-0630, HONORABLE JACK H. ROBISON, JUDGE PRESIDING
MEMORANDUM OPINION
Juan Jose Rosa was convicted of continuous sexual abuse of a young child and
sentenced to eighty-five years’ imprisonment. See Tex. Penal Code §§ 21.02 (if, during period of
at least 30 days, person commits two or more acts of sexual abuse against child younger than 14
years of age, including indecency with child, person commits first-degree felony punishable by life
imprisonment or term between 25 and 99 years), .11 (indecency with child includes touching genitals
of child if committed with intent to arouse or gratify sexual desire of any person). Rosa appeals.
We affirm the trial court’s judgment.
BACKGROUND
Appellant lived with his wife, Maria Nieto, and two of her daughters, Samantha and
R.N., during the summer of 2010.1 The outcry witness, Samantha, testified at trial that Maria’s three
granddaughters (Samantha’s nieces) came over to their house at least every other week to practice
for R.N.’s upcoming quinceanera. Samantha’s nieces were each about six or seven years old at the
time. Samantha further testified that late one night in July when her nieces were over for a
sleep-over, she was in her room with them when two of them began “giggling” and telling her that
the third niece, M.R., had a “secret.” According to Samantha’s testimony, M.R. began crying and
hiding her head in a pillow as one of her cousins told Samantha that appellant “touches [M.R.’s]
cookie.” M.R. continued crying and finally told Samantha that appellant had been putting his fingers
“in her private parts” when she sat on his lap, that sometimes it “would hurt,” and that appellant
touched her like this “every time” she came over for a visit.
Samantha immediately telephoned M.R.’s mother, Genesis Stedman, and informed
her of M.R.’s outcry. Stedman then called the police, who responded and investigated the complaint
that night. A few months later, a counselor with Roxanne’s House2 conducted a forensic interview
of M.R., who was seven years old at the time.
1
When witnesses and relevant persons in this case have the same surname, we refer to them
by their first names for ease of identification. We use initials to refer to persons younger than 17
years of age.
2
Roxanne’s House is a child advocacy center within the Hays-Caldwell Women’s Center
that is authorized by law to provide forensic interviews of young children when there are allegations
of sexual abuse.
2
M.R. was nine years old at the time of appellant’s trial and testified that “every time”
she visited her grandmother’s house during the summer of 2010, appellant would put his hand inside
her shorts and touch her “private parts” with his fingers when she sat on his lap. Maria testified that
she spoke with M.R. the night of her outcry and believed that she was telling the truth. Maria also
testified that she began questioning the veracity of the abuse allegations as she later spoke with
appellant but that, at the time of trial, she still believed that appellant could have touched M.R.’s
genitals but not “penetrated” her vagina.
Also testifying at trial were Deputy Amy Stacy, the law-enforcement officer who
reported to Maria and appellant’s home the night M.R. outcried; Melissa Rodriguez, a social worker
and the program director of Roxanne’s House; and Lenny Martinez, a peace officer with the criminal
investigations division of the Hays County Sheriff’s Office who was assigned to investigate the case.
Martinez testified that he had watched M.R.’s forensic interview and learned therefrom that she
claimed that appellant digitally penetrated her and had touched her private parts “40 times.” The
evidence at trial consisted entirely of verbal testimony; there was no physical evidence of the
charged offense.
DISCUSSION
In his first issue, appellant contends that the trial court erred in allowing the State to
question Maria about an alleged hearsay statement not yet in evidence and then allowing
inadmissible hearsay within hearsay from the outcry witness to establish the statement. Specifically,
the State asked Maria, “Well, so if [M.R.] had said that you told her that if she was lying that
[appellant] might go to jail and talk with the cops and the judge, then is that a lie, or did you say
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something like that to her?” Appellant complains that the trial court permitted Maria to answer the
question, over his objection that it was implying evidence not yet presented to the jury. Although
the trial court permitted the question, it conditioned its admittance on its being later corroborated by
M.R. or Samantha.
Appellant also objected to M.R.’s alleged statement as posed to Maria by the State
on the basis of hearsay and asked for a running hearsay objection. Although the trial court did not
expressly rule on appellant’s hearsay objection or allow him a running objection, it did imply its
agreement with the State that the statement in issue was not offered for the truth of the matter
asserted (i.e., that appellant would go to jail if M.R. was lying) but to show that Maria had in fact
made the statement to M.R.:
Court: Was that statement made by [M.R.], that is my
question?
State: According to the police reports that we have.
Court: All right.
State: That’s what Samantha says that [M.R.] told
her.
Court: All right. If you have some evidence from
some source on that, then we – and Samantha
is going to be able to testify, she is the outcry
witness, so . . .
State: That’s what she reported to the police at the
scene.
Court: If that’s the case then –
State: Yes.
Court: – you are all right.
The State then proceeded to question Maria about her alleged statement to M.R. that appellant would
have to go to jail if she were lying. Appellant did not again object, and Maria answered the question.
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M.R. never later testified to making the statement about Maria telling her that
appellant would go to jail if she was lying, and appellant contends that the statement was
impermissibly admitted as “hearsay within hearsay” by the outcry witness Samantha. Appellant
complains that the trial court’s error in permitting both the initial hearsay statement during Maria’s
testimony and the later corroboration of it by Samantha was prejudicial to him because it impeached
Maria’s credibility and implied that she was interfering with M.R.’s outcry on appellant’s behalf.
The State responds that the complained-of statement was not hearsay because it was
not offered to prove the truth of the matter asserted, see Tex. R. Evid. 801, but to impeach Maria by
showing bias or interest towards appellant, see id. R. 613(b). Rule 613 places no limitations on the
type of evidence that may be adduced to show a witness’s bias or interest, and “the field of external
circumstances from which probable bias or interest may be inferred is infinite.” Gonzales v. State,
929 S.W.2d 546, 549 (Tex. App.—Austin 1996, pet. ref’d). We agree with the State.
In ruling on appellant’s objection about the admissibility of M.R.’s alleged statement,
the trial court was concerned not with whether it might be hearsay, but whether the State’s allusion
thereto would be later corroborated. Our review of the record leads us to conclude that the State did
not offer M.R.’s statement to prove the truth of the matter asserted by Maria (that appellant would
go to jail if M.R. was lying) but, rather, to prove that Maria in fact made the statement to M.R.,
perhaps with the intent to influence M.R.’s recollection of the events. See Porter v. State,
623 S.W.2d 374, 385 (Tex. Crim. App. 1981) (extra-judicial statement offered for purpose of
showing what was said rather than for truth of matter stated therein does not constitute hearsay).
Therefore, M.R.’s statement was not hearsay, and the trial court did not abuse its discretion in
5
admitting the challenged testimony. See McCarty v. State, 257 S.W.3d 238, 239 (Tex. Crim. App.
2008) (admission of evidence reviewed for abuse of discretion, and trial court’s ruling will be upheld
if within zone of reasonable disagreement). Accordingly, we overrule appellant’s first issue.
In his second issue, appellant complains that the trial court erred in denying his
motion to dismiss an allegedly biased juror and overruling his request for use of an alternate juror
after the challenged juror made an “improper” comment to the bailiff during a break in the
punishment phase of the trial. During the break, the bailiff reported to the court that Juror 142 had
just made a comment to him along the lines of, “Wasn’t that magnificent. It’s the best thing that
happened all week.” The bailiff said in reply to the juror, “I cannot comment on anything regarding
the trial.” During an in camera hearing, Juror 142 admitted that he had made the statement but did
not elaborate much on what he meant by it, stating that “it had no merit” and that the statement was
not about anything that would affect his ability to remain fair and impartial. Juror 142 further
testified that his statement was not “referring to evidence at all” but that he made it just before the
jury was dismissed for lunch, after that portion of the trial had ended “ironically” rather than the
“typical” and “mainstream” way the trial had progressed.3 Appellant asserts that the improper
statement reflects that Juror 142 may have been biased against him, evidenced by his “evasiveness”
in explaining what he meant, and that the trial court should have replaced him with an available
alternate juror.
3
Just before the lunch break, a character witness for the defense had testified. Cross
examination of the witness revealed that he was a convicted and unregistered sex offender.
Appellant challenges his defense counsel’s effectiveness in calling this witness in a separate issue,
addressed infra.
6
When considering whether a juror’s “conversation” with someone about the case on
trial prohibits the defendant from receiving a fair and impartial trial, courts focus their analysis
on “whether the juror was biased as a result of the improper conversation.” Ocon v. State,
284 S.W.3d 880, 887 (Tex. Crim. App. 2009); see Tex. Code Crim. Proc. art. 36.22 (“no person shall
be permitted to converse with a juror about the case on trial except in the presence and by the
permission of the court”). Also, where a juror’s statements or conduct raise a question as to whether
he is biased, “an inquiry is appropriate to determine the juror’s intent when making the statement”
to determine whether the juror is biased. Granados v. State, 85 S.W.3d 217, 236 (Tex. Crim. App.
2002). The appellate court reviews the trial court’s decision after such inquiry in the light most
favorable to its ruling and gives almost total deference to the trial court’s resolution of issues turning
upon an evaluation of credibility and demeanor. Quinn v. State, 958 S.W.2d 395, 402-03 (Tex.
Crim. App. 1997).
“Bias” is defined as the inclination toward one side that leads to a natural inference
that the decision-maker is not impartial, and disqualification based thereon is not ordinarily
appropriate unless the bias stems from an extrajudicial source. Id. However, “it defies common
sense and human nature to require that a juror have no impressions or opinions until the judge sends
the jury to deliberations. Jurors must necessarily engage in at least some assessment of credibility
and evaluation of the evidence as the proceedings occur.” Id. at 403. “Opinions based upon
evidence received in judicial proceedings do not ordinarily raise questions about impartiality.” Id.
On this record, there is no evidence that Juror 142’s alleged “bias” stemmed from an
extrajudicial source or that his comment was anything more than an impression about the trial
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proceedings that had just occurred before lunch. Viewing the evidence about the juror’s statement
and intent in the light most favorable to the trial court’s ruling, we conclude that the trial court did
not err in overruling appellant’s motion to dismiss the juror. Accordingly, we overrule appellant’s
second issue.
Appellant contends in his third issue that the trial court erred by allowing two
witnesses to testify in areas in which they were not qualified to testify: Deputy Stacy, the officer
responding to Stedman’s call the night of M.R.’s outcry, and Melissa Rodriguez, the director of
Roxanne’s House. The admissibility of evidence generally, and the qualifications of a witness to
testify as an expert or as a lay witness, is within the discretion of the trial court, and we will not
disturb its ruling absent an abuse of discretion. Harnett v. State, 38 S.W.3d 650, 658-59 (Tex.
App.—Austin 2000, pet. ref’d).
With respect to Deputy Stacy, appellant contends that she was a lay witness and not
an expert witness, and that her testimony exceeded that permitted by the rules of evidence when she
provided expert opinions about whether children can be coached to give detailed accounts of sexual
abuse and whether they can be misled or manipulated in their accounts by family members. See Tex.
R. Evid. 701 (lay witness’s opinions or inferences must be rationally based on perception of witness
and helpful to clear understanding of witness’s testimony or determination of fact in issue). The
State responds that Deputy Stacy was qualified to give both expert testimony and lay testimony, and
that her expert qualification was based on her training. See Harnett, 38 S.W.3d at 658-59 (no rigid
formula exists for determining whether witness is qualified to testify as expert, and social worker’s
8
opinions and inferences were based on impressions and conclusions derived from both perceptions
of what she saw, heard, and observed and her years of experience and training).
During voir dire, Deputy Stacy explained that she could answer the objected-to
questions based on the training she received as a certified peace officer, which covered the topics
of responding to child-abuse calls, sexual assault, family violence, and dealing with child victims,
as well as the experience she had gained from responding to several child-abuse cases. A trial court
may admit an expert’s testimony under rule 702 if the testimony concerns some type of technical or
specialized knowledge and would assist the jurors in their fact-finding function; special knowledge
may be acquired by virtue of a witness’s experience, training, or education. Id. Given Deputy
Stacy’s training and experience in the field in which she testified, we conclude that the trial court
did not abuse its discretion in admitting her testimony over appellant’s rule 702 objection.
With respect to Rodriguez, appellant contends that she also was not qualified to
testify as an expert, specifically about the future psychological impact sexual abuse may have on
children, because she was not a licensed counselor or psychologist and had not conducted any studies
or published any papers. However, as already discussed, a witness may be qualified by virtue of her
experience, training, or education, and “licensure, or certification in a particular discipline is not a
per se requirement” to be an expert. Id. at 659. During the in camera hearing on Rodriguez’s
qualifications, she indicated that her field of expertise includes the “effects that child sexual abuse
particularly has on children as they grow into adults.” She had worked at Roxanne’s House for
nearly eleven years, personally conducted over 1,200 forensic interviews, and counseled both
children and adult victims of sexual abuse over time as they worked through their experiences.
9
Additionally, her education and training covered the areas of sociology, counseling, and child abuse.
On this record, we conclude that the trial court did not abuse its discretion in admitting Rodriguez’s
testimony over appellant’s rule 702 objection. Accordingly, we overrule his third issue.
In his fourth issue appellant contends that the trial court erred in denying the motion
for continuance he filed to accommodate his expert witness’s availability to testify. He alleged in
his motion that (a) his expert had been on vacation just prior to trial and therefore did not have
adequate time to prepare her evaluations and (b) that she would be testifying in a different trial in
another county during one of the first two days of trial in his case and therefore he was unable to
avail himself of her essential testimony, which harmed his defense and right to a fair trial. We
review the trial court’s ruling on the motion for continuance for an abuse of discretion, which is
demonstrated by a showing that the defendant was actually prejudiced by the denial of his motion.
Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996). Examples of specific prejudice are
allegations of unfair surprise, inability to effectively cross-examine any of the State’s witnesses, or
demonstrating that crucial testimony would have been given by a potential witness. Id.
A defendant who files a motion for continuance based on an absent witness must
demonstrate that (1) he exercised reasonable diligence to procure the witness’s attendance, (2) the
witness is not absent by the procurement or consent of the defense, and (3) the motion is not made
for delay. Harrison v. State, 187 S.W.3d 429, 434 (Tex. Crim. App. 2005). Additionally, the
defendant must show the facts expected to be proved by the witness, which must be material, and
“[m]ere conclusions and general averments are not sufficient for the court to determine [the facts’]
materiality.” Id.
10
Appellant did not preserve error on the trial court’s denial of his motion for
continuance because there is nothing in the record showing the specific facts he expected his expert
witness to prove or supporting the requirement that her testimony would have been material. See
Hubbard v. State, 912 S.W.2d 842, 843 (Tex. App.—Houston [14th Dist.] 1995, no pet.).
Accordingly, appellant has not made any showing of actual prejudice, and we overrule his
fourth issue.
In his fifth issue, appellant alleges that he was rendered ineffective assistance of
counsel in the punishment phase of the trial when his counsel allegedly failed to run a criminal
background check on a character witness prior to calling the witness to testify. The witness whom
defense counsel called to testify was a neighbor of appellant who himself was a convicted sex
offender and had not updated his registration as required by law. Appellant argues that the
neighbor’s testimony “severely prejudiced” him against receiving a lower sentence.
In reviewing counsel’s performance, we presume that counsel makes all significant
decisions in the exercise of reasonable judgment. Strickland v. Washington, 466 U.S. 668, 689
(1984). Appellant has the burden to bring forth a record that affirmatively demonstrates the alleged
ineffectiveness of his counsel by a preponderance of the evidence. See Scheanette v. State,
144 S.W.3d 503, 509-10 (Tex. Crim. App. 2004). Performance of counsel usually cannot be
adequately examined based on a trial-court record; this type of record is best developed in a motion
for new trial. See id. Without a fully developed record, finding counsel constitutionally ineffective
would require us to assume that there was no sound trial strategy, which we are not permitted to do
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unless the counsel’s decision was “so outrageous that no competent attorney would have engaged
in it.” Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).
Although appellant filed a motion for new trial, he did not raise this issue in that
motion, and his defense counsel was not afforded an opportunity to explain his complained-of
decision. In fact, appellant’s allegation that defense counsel failed to run a background check on the
character witness is mere speculation and is not verifiable on this record. Additionally, even
assuming defense counsel did so fail, we cannot conclude that such omission was categorically and
unreasonably “outrageous.” On this record, we cannot conclude that appellant received ineffective
assistance of counsel, and we therefore overrule his fifth issue.
Lastly, appellant asserts that the trial court erred in allowing the State to make an
“improper reference” to his immigration status and negative comments about his wife during its
opening argument in the guilt-innocence phase of trial. Specifically, appellant complains of the
following statements: “You see, [Maria]’s the type of woman who chooses whatever man is in her
life over the well-being of her family. She met this defendant, who was 33 years old, 21 years
younger than her, at a nightclub and she married him and even though she knew he was married back
in his home of Guatemala, she went ahead and started citizenship paperwork for him.” He claims
that the statement prejudiced the jury against him and unfairly impeached him by “maligning” Maria,
which harm was exacerbated by Stedman’s testimony.4
4
Appellant cites Stedman’s testimony about the number of Maria’s former romantic partners
and the age difference between appellant and Maria as further “maligning” her character but does
not raise the issue of the testimony’s admissibility. However, even if he did raise the issue and
assuming he preserved error, we would conclude that the trial court’s admission of the testimony was
within the zone of reasonable disagreement and not an abuse of discretion. See McCarty v. State,
12
Appellant objected to the State’s argument on the basis of relevance, and the trial
court sustained the objection. However, appellant did not request an instruction to disregard, which
is the appropriate remedy for improper argument and a requirement to preserve the error on appeal,
unless the error is “incurable.” McGinn v. State, 961 S.W.2d 161, 165 (Tex. Crim. App. 1998); see
also Logan v. State, 698 S.W.2d 680, 682 (Tex. Crim. App. 1985) (jury argument is incurable if it
is extreme or manifestly improper, injects new and harmful facts into the case, or violates a
mandatory statutory provision and is so inflammatory that its prejudicial effect cannot reasonably
be cured by instruction to disregard). We conclude that the alleged erroneous jury argument was not
so inflammatory that any prejudicial effect could not have been cured by an instruction to disregard.
Because appellant did not preserve the error by requesting an instruction to disregard, he cannot
complain of the argument on appeal. We overrule appellant’s sixth issue.
CONCLUSION
Having overruled all six of appellant’s issues, we affirm the trial court’s judgment
of conviction and sentence.
257 S.W.3d 238, 239 (Tex. Crim. App. 2008).
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_____________________________________________
Melissa Goodwin, Justice
Before Chief Justice Rose, Justices Puryear and Goodwin
Affirmed
Filed: March 11, 2014
Do Not Publish
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