NO. 07-11-00131-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
JUNE 7, 2012
JUAN ESQUIVEL, JR., APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 47TH DISTRICT COURT OF RANDALL COUNTY;
NO. 21,012-A; HONORABLE DAN L. SCHAAP, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant Juan Esquivel, Jr. appeals from his jury conviction of the offense of
continuous sexual abuse of a young child1 and the resulting sentence of thirty-five years
of imprisonment. Through one issue, appellant contends the trial court erred in allowing
certain testimony from a sexual assault nurse examiner.2 We will affirm.
1
Tex. Penal Code Ann. § 21.02 (West 2011).
2
See Tex. Gov’t Code Ann. § 420.003(6) (West 2011) (defining “sexual assault
nurse examiner” as “a registered nurse who has completed a service-approved
examiner training course and who is certified according to minimum standards
prescribed by attorney general rule”); Tex. Gov’t Code Ann. § 420.011(c) (West 2011)
(requiring attorney general to adopt rules for certification); 1 Tex. Admin. Code §
Background
Appellant was charged via a December 2009 indictment with, during a period that
was 30 or more days in duration, “intentionally or knowingly commit[ing] two or more
acts of sexual abuse against [the complainant], a child younger than 14 years of age,
namely, the following acts: (a) The defendant caused his male sexual organ to
penetrate the female sexual organ of [the complainant]; (b) The defendant caused his
finger to penetrate the female sexual organ of [the complainant].” Appellant plead not
guilty and the case was tried to a jury.
Appellant does not challenge the sufficiency of the evidence to support his
conviction. Therefore, we will relate only such evidence as is necessary to a disposition
of this appeal.
The complainant, then fourteen years old, testified at trial. At the time of the
events leading to his prosecution, appellant was dating the complainant’s mother and
lived with them from time to time. The complainant told the jury appellant assaulted her
more than once. She testified to instances in which appellant put his “thing” in her
“thing” at their apartment and at a motel, touched her lips with his penis, and put his
fingers in her vagina.
62.25(2) (West 2012) (rules of attorney general defining “sexual assault nurse
examiner” as “a registered nurse who has been specially trained to provide
comprehensive care to sexual assault survivors, who demonstrates competency in
conducting a forensic exam for the collection of evidence and has the ability to testify as
an expert witness”).
2
Appellant testified, denying any sexual contact with the child. He testified the
child had behavioral problems so severe “no foster home would take” her. He also
testified his mentally retarded brother had molested the child’s sister.
A licensed registered nurse and certified sexual assault nurse examiner (“SANE
nurse”) also testified. Appellant raised an objection to a portion of her testimony. The
objection was overruled, and he urges the overruling was error.
Analysis
The State argues appellant’s contention on appeal does not comport with his
objection at trial, and thus was not preserved for our review. See Gallo v. State, 239
S.W.3d 757, 768 (Tex.Crim.App. 2007) (complaint on appeal must comport with
objection made at trial). Although for a different reason, we agree with the State’s
conclusion that appellant’s issue presents nothing for review.
The SANE nurse testified in detail about her observations of injuries to the
complainant. Her report of the examination also was admitted early in her testimony
and she read the complainant’s statement to her to the jury.3 Using a diagram of female
genitalia, the nurse told the jury she observed five injuries to the complainant’s hymen.
Following this testimony, the prosecutor asked the SANE nurse, “[T]he physical findings
of the genital exam, are those consistent with the history given by [the child] earlier in
the exam?” Appellant’s counsel objected, stating the question “calls for a conclusion on
the part of the witness that she is not qualified to make . . . .” After the State responded,
3
Appellant’s trial objections to the admission of the report were overruled. That
ruling is not at issue on appeal.
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asserting the witness’s status as an expert witness, the trial court overruled appellant’s
objection. The prosecutor then asked the SANE nurse the same question a second
time, without objection, and she answered affirmatively. She went on to testify further,
telling the jury at one point, “according to [the complainant’s] history it happened ten
times where somebody’s penis is going into her vagina, it would be very expectant that
she would have these type of injuries to her female sexual organ, especially her
hymen.”
An appellate issue complaining of the admission of evidence presents nothing for
review when the same evidence is admitted elsewhere in the trial without objection.
Mitchell v. State, 68 S.W.3d 640, 643 (Tex.Crim.App. 2002); Josey v. State, 97 S.W.3d
687, 698 (Tex.App.-Texarkana 2003, no pet.). Further, absent a running objection, a
complaining party must object each time allegedly inadmissible evidence is offered.
Martinez v. State, 98 S.W.3d 189, 193 (Tex.Crim.App. 2003); Reynolds v. State, 848
S.W.2d 785, 792 (Tex.App.—Houston [14th Dist.] 1993, pet. ref’d).
Here, appellant’s objection followed detailed and specific testimony by the SANE
nurse of the complainant’s injuries. Appellant objected to the prosecutor’s question
asking the SANE nurse if her physical findings were consistent with the history the child
gave her. After the objection was overruled, the SANE nurse went on to explain, in
greater detail, how the observed injuries were consistent with the history the child
related to her. This further testimony involved additional recitation of the injuries she
observed during her examination, the statements made by the complainant, and her
conclusions that the injuries were consistent with the history and indicated penetration
of the complainant’s sexual organ. Because no objection was raised to this more
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detailed testimony, and because it presented to the jury the same evidence as that of
which he objects, we must conclude no error is preserved for our review. See Lane v.
State, 151 S.W.3d 188, 192-93 (Tex.Crim.App. 2004) (concluding complaints regarding
testimony similar to testimony admitted through another statement were waived);
Mitchell, 68 S.W.3d at 643 (complaint regarding improperly admitted evidence waived if
the same evidence is introduced elsewhere during trial without objection); Garza v.
State, No. 08-11-0035-CR, 2012 Tex.App. LEXIS 4106, at *7 (Tex.App.—El Paso May
23, 2012, no pet. h.) (mem. op., not designated for publication) (similarly finding issue
not preserved for appellate review). We resolve appellant’s sole issue against him and
affirm the judgment of the trial court.
After oral argument in this appeal, and without request from the Court, the State
submitted a supplemental brief accompanied by a motion requesting leave to file the
supplement. The State’s motion is denied.
James T. Campbell
Justice
Do not publish.
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