Anthony Cline v. State

NUMBER 13-11-00734-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

ANTHONY CLINE, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 347th District Court
of Nueces County, Texas.

MEMORANDUM OPINION
Before Justices Garza, Benavides and Perkes
Memorandum Opinion by Justice Garza
A jury convicted appellant, Anthony Cline, of sexual assault of A.G., 1 a child, a

1
We refer to the child victim by initials to protect her identity. See TEX. CODE CRIM. PROC. ANN.
art. 57.02 (West Supp. 2011).
first-degree felony. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i), (2)(B), (e) (West

Supp. 2011). Appellant pleaded “true” to the State’s enhancement allegations that he is

a habitual felony offender, and the trial court imposed punishment at twenty-five years’

imprisonment. See id. § 12.42(d) (West Supp. 2011). By four issues, appellant

contends: (1) the evidence is insufficient to establish that he digitally penetrated A.G.’s

sexual organ; (2) the trial court erred in admitting the video recording of A.G.’s sexual

assault interview; (3) the prosecutor engaged in improper jury argument; and (4) the

prosecutor improperly commented on appellant’s failure to call certain witnesses. We

affirm.

I. BACKGROUND

A.G. was fifteen at the time of trial and was thirteen at the time of the alleged

sexual assault. She testified that on July 1, 2010, appellant (her uncle), who lived in an

apartment with his mother, invited her and her younger brother to the apartment for the

evening.2 A.G.’s younger brother declined the invitation, and appellant drove A.G. to

the apartment. Although appellant’s mother (A.G.’s grandmother) was at the apartment

when they arrived, she later left for the night because she works night shifts as a nurse.

A.G. and appellant watched television in the living room of the apartment. A.G.

commented that her back was hurting; appellant told A.G. to lay on the floor and offered

to massage her back. During the massage, A.G. became uncomfortable when

appellant brought his hands up under her stomach. A.G. left the room, picked up

appellant’s cell phone, and went into the bathroom for about thirty minutes. While in the

bathroom, A.G. texted her friend, C.C., that she was scared. A.G. went back to the

2
Evidence at trial established that appellant was thirty-seven years old at the time of the alleged
assault.

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living room. Appellant got some lotion and began massaging A.G.’s legs. Appellant

continued to massage A.G.’s bare skin, moving from her legs to the upper part of her

body. Appellant then began touching A.G.’s “vaginal area” with his hands. When the

prosecutor asked if appellant touched her “inside” her vaginal area, A.G. responded,

“[b]oth.” The prosecutor again asked whether appellant “put his fingers inside of [her]

vagina.” A.G. stated, “No. He just stayed on the outside of it.” A few moments later,

A.G. said that appellant’s fingers “felt like they were inside.” A.G. told appellant to stop.

She went to her grandmother’s bedroom and spent the night there. A.G. did not tell her

mother about the incident because she was scared and embarrassed. Several months

later, A.G. told her mother by writing her a letter.

On cross-examination, A.G. testified that on the evening the incident occurred,

her mother knew A.G. would be alone with appellant. A.G. also testified that she had

some truancy problems at her school.

Ricardo Jimenez, a forensic interviewer with the Coastal Bend Children’s

Advocacy Center, testified that he conducted a recorded interview with A.G. Jimenez

testified that A.G. was “a little emotional” and cried at certain points during the interview.

E.C., A.G.’s mother, testified that she learned of the incident in September 2010,

two months after it occurred. One morning, A.G. locked herself in her room, refused to

get ready for school, and eventually slipped a letter under the door telling E.C. about the

incident. E.C. immediately called the police. A police officer came to the house and

questioned A.G. about the incident. When the officer asked A.G. if appellant penetrated

her vaginally, A.G. said that he had done so with his finger. During the questioning by

the police officer, A.G. cried and kept her head down. E.C. stated that A.G.’s truancy

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problems developed because A.G. sometimes missed school due to orthodontic

appointments and failed to turn in the required excuses for the absences.

On cross-examination, E.C. stated that she limited appellant’s visits to her house

because he had a serious drug problem and would steal things from her to support his

habit.

Appellant testified that A.G. and her younger brother frequently visited him at his

mother’s apartment, but he was never alone with A.G. because her brother was always

around. Appellant denied that he gave A.G. a massage or that he sexually assaulted

her.

II. SUFFICIENCY OF EVIDENCE OF PENETRATION

By his first issue, appellant contends that there is insufficient evidence that he

penetrated A.G.’s sexual organ with his finger. Appellant points to A.G.’s inconsistent

testimony that he did not put his fingers inside her vagina, that he “both” touched her

inside her vaginal area, and that his fingers “felt like they were inside.”

A. Standard of Review and Applicable Law

The court of criminal appeals has held that there is “no meaningful distinction

between the Jackson v. Virginia legal sufficiency standard and the Clewis factual-

sufficiency standard” and that the Jackson standard “is the only standard that a

reviewing court should apply in determining whether the evidence is sufficient to support

each element of a criminal offense that the State is required to prove beyond a

reasonable doubt.” Brooks v. State, 323 S.W.3d 893, 902–03, 912 (Tex. Crim. App.

2010) (plurality op.) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Accordingly,

we review claims of evidentiary insufficiency under “a rigorous and proper application of

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the Jackson standard of review.” Id. at 906–07, 912. Under the Jackson standard, “the

relevant question is whether, after viewing the evidence in the light most favorable to

the prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319; see Brooks, 323 S.W.3d

at 898–99. The fact-finder is the exclusive judge of the credibility of witnesses and of

the weight to be given to their testimony. Anderson v. State, 322 S.W.3d 401, 405 (Tex.

App.—Houston [14th Dist.] 2010, pet. ref’d) (citing Lancon v. State, 253 S.W.3d 699,

707 (Tex. Crim. App. 2008)). Reconciliation of conflicts in the evidence is within the

fact-finder's exclusive province. Id. (citing Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim.

App. 2000)). We must resolve any inconsistencies in the testimony in favor of the

verdict. Id. (citing Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000)).

We measure the sufficiency of the evidence by the elements of the offense as

defined by a hypothetically correct jury charge. Coleman v. State, 131 S.W.3d 303, 314

(Tex. App.—Corpus Christi 2004, pet. ref’d) (citing Malik v. State, 953 S.W.2d 234, 240

(Tex. Crim. App. 1997)). “Such a 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.” Villarreal v. State, 286 S.W.3d

321, 327 (Tex. Crim. App. 2009) (quoting Malik, 953 S.W.2d at 240).

The court of criminal appeals has stated that:

penetration occurs when there is “tactile contact beneath the fold of
complainant's external genitalia,” and that it is not inaccurate “to describe
[conduct] as a penetration, so long as [the] contact with [the complainant's]
anatomy could reasonably be regarded by ordinary English speakers as
more intrusive than contact with her outer vaginal lips.” In Vernon, the
defendant was charged with and convicted of aggravated sexual assault

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 of his thirteen-year-old step-daughter. The Second Court of Appeals
affirmed the defendant's conviction, in spite of testimony by the
complainant that the defendant had only touched the “outside” of her
vaginal area. In affirming the court of appeals, this Court noted that the
statute does not criminalize penetration of the vagina, but the broader
conduct of “penetration of the . . . sexual organ” of the child. We went
further to say that “pushing aside and reaching beneath a natural fold of
skin into an area of the body not usually exposed to view, even in
nakedness, is a significant intrusion beyond mere external contact[,]” and
therefore constitutes penetration in the context of sexual assault.

Cornet v. State, 359 S.W.3d 217, 226 (Tex. Crim. App. 2012) (internal citations and

quotations omitted); See Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992).

Child victims of sexual assault are afforded great latitude when testifying. Villalon v.

State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990); Hiatt v. State, 319 S.W.3d 115, 121

(Tex. App.—San Antonio 2010, pet. ref’d). The uncorroborated testimony of a child

victim is alone sufficient to support a conviction for aggravated sexual assault. Hiatt,

319 S.W.3d at 121.

B. Discussion

A.G. testified, in relevant part, as follows:

Q [Prosecutor]: Now, when the Defendant is touching you, [A.G.], is he
touching you inside of your vaginal area?

A [A.G.]: Both.

Q: What do you mean both?

A: Like he was—ugh.

....

Q: Did he put his fingers inside of your vagina?

A: No. He just stayed on the outside of it.

Q: Okay. Earlier you said it was both. What did you
mean by that?

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 A: Well, like he wouldn’t really inside of it [sic], but he
was still touching it like—like how do I explain?

....

Q: But when he touched you, did you feel like his fingers
were inside?

A: They felt like they were inside.

Viewing the evidence in the light most favorable to the jury's verdict, we conclude

that A.G.’s testimony, although ambiguous and arguably contradictory, was legally

sufficient for a rational fact finder to find that appellant’s fingers penetrated A.G.’s

female sexual organ. There is no requirement that the victim be able to testify as to

“penetration” per se. Villalon, 791 S.W.2d at 133; Zuniga v. State, 811 S.W.2d 177,

179–80 (Tex. App.—San Antonio 1991, no pet.) (child victim need not testify in terms of

statutory language, but may use unsophisticated language to describe sexual assault in

manner sufficient to sustain conviction). The jury, as the trier of fact, was free to draw

reasonable inferences from A.G.’s testimony, including that “both” meant that appellant

touched her both on the inside and outside of her vaginal area. See Hooper v. State,

214 S.W.3d 9, 15–16 (Tex. Crim. App. 2007) (stating the jury, as the trier of fact, may

draw reasonable inferences from the facts). Moreover, it is the exclusive province of the

jury to reconcile conflicts in the evidence. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.

Crim. App. 2000). We overrule appellant’s first issue.

III. ADMISSION OF SEXUAL ASSAULT INTERVIEW

By his second issue, appellant contends the trial court erred in admitting the

video recording of A.G.’s sexual assault interview under the rule of optional

completeness. See TEX. R. EVID. 107. The State argues that the trial court did not

7
abuse its discretion in admitting the videotaped interview, and even if it had, any such

error was harmless because the same evidence was introduced without objection

through other testimony. See TEX. R. APP. P. 44.2(b).

A. Standard of Review and Applicable Law

We review a trial court’s decision to admit or exclude evidence under an abuse of

discretion standard. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2011).

We may not reverse the judgment if the trial court’s decision is within the zone of

reasonable disagreement. Id.

Texas Rule of Evidence 107, the rule of optional completeness, states:

When part of an act, declaration, conversation, writing or recorded
statement is given in evidence by one party, the whole on the same
subject may be inquired into by the other, and any other act, declaration,
writing or recorded statement which is necessary to make it fully
understood or to explain the same may also be given in evidence, as
when a letter is read, all letters on the same subject between same parties
may be given.

TEX. R. EVID. 107. The rule’s purpose is to reduce the possibility of the jury receiving a

false impression from hearing only a part of some act, conversation, or writing. Pena v.

State, 353 S.W.3d 797, 814 (Tex. Crim. App. 2011); Tovar v. State, 221 S.W.3d 185,

190 (Tex. App.—Houston [1st Dist.] 2006, no pet.). If defense counsel pursues a

subject that would ordinarily be outside the realm of proper comment by the prosecutor,

the defendant opens the door and creates a right of reply for the State. Tovar, 221

S.W.3d at 190. Thus, under the rule of optional completeness, the State is entitled to

admission of the portions of a complainant’s videotaped statement when: (1) defense

counsel asks questions concerning some of the complainant’s statements on the

videotape; (2) defense counsel’s questions leave the possibility of the jury receiving a

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false impression from hearing only a part of the conversation, with statements taken out

of context; and (3) the videotape is necessary for the conversation to be fully

understood. Id. at 190–91. Rule 107 is not invoked by the mere reference to a

document, statement, or act, but rather, the omitted portion of the statement must be

“on the same subject” and must be “necessary to make it fully understood.” Pena, 353

S.W.3d at 814 (quoting Sauceda v. State, 129 S.W.3d 116, 123 (Tex. Crim. App.

2004)).

Under Rule of Appellate Procedure 44.2(b), a non-constitutional error not

affecting a defendant's substantial rights must be disregarded. TEX. R. APP. P. 44.2(b);

Sauceda v. State, 162 S.W.3d 591, 597 (Tex. App.—Houston [14th Dist.] 2005, pet.

ref’d) (op. on remand). A substantial right is affected if: “(1) the error had a ‘substantial

and injurious’ effect or influence in determining the jury's verdict or (2) leaves one in

grave doubt whether it had such an effect.” Id. (quoting Davis v. State, 22 S.W.3d 8, 12

(Tex. App.—Houston [14th Dist.] 2000, no pet.)). In conducting our analysis, we are to

consider the entire record, including all evidence admitted, the nature of the evidence in

favor of the verdict, and “the character of the alleged error and how it might be

considered in connection with other evidence in the case.” Id. (quoting Arroyo v. State,

123 S.W.3d 517, 520 (Tex. App.—San Antonio 2003, pet. ref'd)). We may also consider

other factors, such as the jury instructions, theories of the parties, closing arguments,

voir dire, and whether the State emphasized the error. Id.

B. Discussion

During the State’s direct examination of Jimenez, the following discussion

occurred at a bench conference:

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 [Prosecutor]: I’m gonna be offering—I’m gonna be offering the
video into evidence, at this point, under the Rule 107
of optional completeness. Counsel had asked
questions regarding statements that were made of
that child in that interview with Mr. Jimenez. I believe
he’s opened the door under Rule 107 and we’re
gonna offer it under that exception.

[Court]: How did he open the door?

[Prosecutor]: Pursuant to Tovar v. State, Judge, if counsel asks
questions regarding specific statements made in an
interview, then that would open up the door to the
entire interview under the Rule of Optional
Completeness. He did throughout this process ask
the mom and the detective of the statements that she
made, specifically, during that interview that the State
did not elicit testimony.

[Defense counsel]: She did not deny those statements. She said that she
did, in fact, make those statements. I don’t think we
need extrinsic evidence. She made those
statements. She acknowledged that she made those
statements and so that’s not in dispute.

[Prosecutor]: It doesn’t have to be in dispute.

[Court]: I’m sorry?

[Prosecutor]: It does not have to be in dispute. It’s just the fact that
he elicited partial testimony of the interview, and
without the entire interview. Now, he’s opened the
door to having that entire interview and all of its
contents being played for the jury.

[Court]: Okay. Very well. Objection overruled.

The prosecutor argued that defense counsel opened the door during his cross-

examination of E.C. and Detective Daniel Rodriguez, the police officer assigned to

investigate the case.3 During defense counsel’s cross-examination of Detective

Rodriguez, the following exchange occurred:

3
We have reviewed defense counsel’s cross-examination of E.C.; defense counsel did not ask

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 Q [Defense counsel]: Okay. You were aware, from the interview, that
[A.G.] was having issues at school and truancy
problems; is that correct?

A [Rodriguez]: Correct.

Q: Okay. And that was before any alleged incident
took place; is that correct?

A: Yes.

Q: Okay. Now, during the interview of the child at
the advocacy center, did you have any other
follow-up questions; how do you go about that?

A: Follow up questions with the child?

Q: Yes.

A: If that occurs, then we typically have to bring
them back to the advocacy center.

....

Q: Are you aware that on the video [A.G.] mentions a
[C.C.] and gives a phone number for that
witness?

A: Yes, I do.

Q: And you never followed up on that either?

A: I did not.

Assuming, without deciding, that the trial court abused its discretion in admitting

the videotape, we conclude that appellant cannot show that its admission was harmful

because A.G. provided the same account in her trial testimony: that appellant touched

her “both” on the inside and outside of her vaginal area.4 Appellant argues that he was

harmed by admission of the videotaped interview because “A.G. was effectively allowed

E.C. any questions regarding A.G.’s videotaped interview.
4
In the interview, A.G. identified where appellant touched her as her “uterus.” At trial, she
clarified that by “uterus,” she meant her vaginal area.

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to testify twice during the trial,” which permitted the State to “improperly bolster” her

testimony. We disagree that appellant was harmed by the admission of evidence that

was cumulative of other evidence—in this case, A.G.’s trial testimony. See Mick v.

State, 256 S.W.3d 828, 832 (Tex. App.—Texarkana 2008, no pet.) (holding that

admission of videotape statement of child sexual assault victim was harmless because

it was cumulative of victim’s trial testimony); Jensen v. State, 66 S.W.3d 528, 535–36

(Tex. App.—Houston [14th Dist.] 2002, pet. ref’d) (same). We overrule appellant’s

second issue.

IV. PREJUDICIAL JURY ARGUMENT

By his third and fourth issues, appellant contends that the prosecutor engaged in

improper jury argument during its closing argument. By his third issue, appellant

complains that the “prosecutor improperly asked how the community could ever protect

children like A.G. if the jury did not make the decision to convict the appellant.”

Specifically, the prosecutor argued that if the jury was unwilling to convict appellant

solely on A.G.’s testimony, it should render a verdict of not guilty.

By his fourth issue, appellant contends the prosecutor improperly commented on

appellant’s failure to contradict the State’s evidence. Specifically, the prosecutor

improperly commented that the State would have welcomed the testimony of A.G.’s

friend, C.C., and that the defense had “equal subpoena power as the State.” The State

responds that with regard to both issues, appellant failed to preserve any issue for

review. We agree.

To preserve improper jury argument for appellate review, a defendant must

object and pursue the objection to an adverse ruling. Benn v. State, 110 S.W.3d 645,

12
650 (Tex. App.—Corpus Christi 2003, no pet.) (citing Flores v. State, 871 S.W.2d 714,

722-23 (Tex. Crim. App. 1993) (noting also that “where an adverse ruling is not

obtained, nothing is preserved for review”)). Otherwise, he forfeits his right to complain

about the argument on appeal. Id.

Here, with respect to the prosecutor’s comment that the jurors should render a

not-guilty verdict if they were unwilling to rely solely on A.G.’s testimony, defense

counsel objected on the basis of “improper argument,” and the trial court sustained the

objection. Defense counsel did not, however, pursue his objection to an adverse ruling.

See id. With regard to the prosecutor’s comment regarding the fact that A.G.’s friend

was not contacted, defense counsel objected and the trial court responded, “All right.

Very well.” Defense counsel did not further pursue the objection. Similarly, defense

counsel objected to the prosecutor’s comment that the defense could have subpoenaed

witnesses, and the trial court sustained the objection. Defense counsel did not pursue

the objection to an adverse ruling. Accordingly, appellant failed to preserve any issue

regarding improper jury argument. See id. We overrule appellant’s third and fourth

issues.

V. CONCLUSION

We affirm the trial court’s judgment.

________________________
DORI CONTRERAS GARZA
Justice

Do not publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
31st day of January, 2013.

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