COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00188-CR
JAIRO HERNANDEZ APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY
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MEMORANDUM OPINION1
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In five issues, appellant Jairo Hernandez appeals his conviction for
continuous sexual abuse of a child. We affirm.
Background Facts
M.V. (Megan) gave birth to M.B. (Mary)2 in February 1997. In 2009, when
Mary was twelve years old and in the seventh grade, Megan began dating
1
See Tex. R. App. P. 47.4.
2
To protect M.B.’s identity, we will use “Mary” and “Megan” to respectively
refer to M.B. and M.V. throughout this opinion.
appellant, who was twenty-three years old. Appellant moved into a house in Fort
Worth with Megan, Mary, and others. At first, Mary liked appellant and thought
that he was nice; appellant bought things for her, watched movies with her, and
took her to the park. Megan worked at a bar late on weekend nights, and during
those times, Mary stayed home with appellant. Megan had met appellant at the
bar where she worked.
One day in October 2009, when Mary and appellant were at the house,
appellant kissed her on her mouth. When she told him to stop, he did so and
asked her to not tell anyone. A few nights later, appellant kissed her again on
her mouth. Several nights after that, appellant came into her room and told her
that he wanted to have sex with her. Appellant took off his pants and underwear,
and after Mary took off her pants, appellant got on top of her, put his penis inside
her underwear, and moved it around near her vagina. Appellant wanted to take
off her underwear, but she would not let him.
A few nights after that incident, appellant again told Mary that he wanted to
have sex with her, and they had sex on her bed. After they finished having sex,
appellant grabbed a shirt from Mary’s dirty laundry to wipe off his semen.
Appellant told Mary that if she told anyone about their sexual encounter, he
would go to jail. Appellant had sex with Mary “a few times a week” from October
2009 through February 2010. On some occasions, appellant put his penis into
Mary’s mouth, and on one occasion, he put his finger inside her vagina.
2
One night in February 2010, after appellant and Megan had an argument,
he went to a bar. When he returned,3 Megan would not let him into her room.
Later that night, appellant went into Mary’s room, and he and Mary had sex
again. As appellant and Mary were putting their clothes on, they heard Megan
moving outside Mary’s room, and appellant hid in Mary’s closet. According to
Mary, as Megan was trying to unlock Mary’s door, Mary “changed real fast
and . . . opened the door.”4 Mary told Megan that she did not want Megan in the
room. When Megan eventually found appellant in the closet, Mary told Megan
that appellant had been hiding there only because Megan was mad at him.
Megan told appellant, who, according to Megan, had “terror in his eyes,” to leave
the room. When Megan tried to talk to Mary about what had happened, Mary
was shaking but said that nothing had occurred. Megan looked at Mary’s bed
and found warm semen on a blanket. She removed the blanket from Mary’s bed
and put it in a closet.
Mary went to school the next day, and Megan arranged for Mary to stay
with a neighbor after school had ended. Mary told that neighbor about her
relationship with appellant, and Mary went to a hospital for a medical exam. She
also gave a recorded statement about her relationship with appellant.
3
Between October 2009 and February 2010, Megan, Mary, and appellant
moved into a different house.
4
Megan testified that when Mary opened the door, Mary was naked.
3
Appellant packed some of his clothes, left the house that he had been
staying in with Megan and Mary, and went to Dallas while denying that he had
acted inappropriately with Mary. According to Megan, appellant “left because he
knew what he had done.” Appellant later went to Houston and told Megan that
he was planning to go to Honduras. Because Megan did not want appellant to
flee, she went to Houston, picked him up, brought him back to Fort Worth, and
had “intimate relations” with him.
A grand jury indicted appellant for one count of continuous sexual abuse of
a child and three counts of aggravated sexual assault.5 Appellant filed several
pretrial motions, including a motion to suppress any oral statements that he had
made to the police along with evidence obtained through the statements. During
a pretrial hearing, the trial court suppressed a videotape of a statement that
appellant had made on the ground that the State did not give a complete copy of
the statement to appellant at least twenty days before the trial began. 6 The court,
however, did not make a pretrial ruling concerning the admissibility of a buccal
swab that the police had gathered during the statement or of a form that
appellant had signed while making the statement.
At trial, appellant pled not guilty to each count of the indictment. The jury
convicted appellant of continuous sexual abuse of a child, and following the
5
See Tex. Penal Code Ann. §§ 21.02(b), 22.021(a)(1)(B), (2)(B) (West
Supp. 2011).
6
See Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a)(5) (West 2005).
4
instructions in the jury charge, the jury did not consider the three counts of
aggravated sexual assault. The jury assessed appellant’s punishment at forty
years’ confinement, and the trial court sentenced him accordingly. He brought
this appeal.
Evidentiary Sufficiency
In his first two issues, appellant argues that the evidence is insufficient to
sustain his conviction for continuous sexual abuse of a child. A person commits
that first-degree felony offense if “during a period that is 30 or more days in
duration, the person commits two or more acts of sexual abuse” and “at the time
of the commission of each of the acts of sexual abuse, the actor is 17 years of
age or older and the victim is a child younger than 14 years of age.” Tex. Penal
Code Ann. § 21.02(b), (h); Lane v. State, 357 S.W.3d 770, 773 (Tex. App.—
Houston [14th Dist.] 2011, pet. ref’d).
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the verdict to
determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979); Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010). This standard gives full play to the responsibility of the
trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S.
at 319, 99 S. Ct. at 2789; Isassi, 330 S.W.3d at 638.
5
A child sexual abuse victim’s testimony, standing alone, may be sufficient
to support a conviction. See Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim.
App. [Panel Op.] 1978); Johnston v. State, 230 S.W.3d 450, 455 (Tex. App.—
Fort Worth 2007, no pet.); West v. State, 121 S.W.3d 95, 111 (Tex. App.—Fort
Worth 2003, pet. ref’d). Mary’s and Megan’s testimonies, which we have
summarized through the facts recited above, support the jury’s finding of
appellant’s guilt for continuous sexual abuse of a child.
Beyond Mary’s and Megan’s testimonies, significant other evidence also
substantiates the jury’s verdict. For example, Dr. Jamye Coffman, a child abuse
pediatrician, testified that a sexual assault nurse examiner performed an
examination of Mary about six days after, according to Mary, she had last had
sex with appellant. Mary told the nurse that she had not had sexual partners
other than appellant. The nurse discovered a healing tear of Mary’s hymen,
which indicated that the tear had occurred within two or three weeks before the
exam. Dr. Coffman diagnosed Mary as having been sexually abused.
Amy McClellen, a detective with the Fort Worth Police Department
(FWPD), was assigned to Mary’s case in February 2010. Detective McClellen
obtained a statement from Megan and arranged for Mary to attend a forensic
interview. On March 2, 2010, Megan brought the blanket from Mary’s bed to
Detective McClellen. Detective McClellen sent the blanket to a lab for testing.
Appellant gave a sample of his DNA through a buccal swab to Detective
McClellen. Cassie Johnson, a forensic scientist, examined the blanket and found
6
that it contained sperm cells. The FWPD sent a cutting from the blanket to the
University of North Texas Center for Human Identification, where Farah Plopper,
a forensic analyst, found that the cutting contained a DNA profile that matched
appellant’s DNA.7
Finally, John Berestecky, an investigator with Child Protective Services
(CPS), testified that appellant admitted during an interview that he had sexually
abused Mary three times.
Despite this evidence supporting appellant’s conviction, he contends that
the evidence is insufficient under Jackson because it did not show that the
blanket containing his DNA came from Mary’s bedroom. Megan testified that the
semen-stained blanket came from Mary’s bed. She explained that she stored the
blanket in the top of a closet before giving it to Detective McClellen, and she
identified the blanket that Johnson examined as the blanket that came from
Mary’s room. Megan said that the blanket had not been altered or changed from
the time that she put it in her closet until the time that she gave it to Detective
McClellen. Detective McClellen testified that upon receiving the blanket, she put
it in FWPD’s property room. Based on these facts, we conclude that the
7
The cutting also contained someone else’s DNA. Plopper said,
“[W]henever we’re dealing with cuttings from cloth . . . , there often seems to be a
mixture [of DNA], because anyone that’s handled that item before or touched [it]
could have left skin cells on it . . . .” She explained that the chance that the
predominant DNA sample on the cutting came from someone other than
appellant was 2.1 quintillion to one.
7
evidence sufficiently established that the blanket upon which appellant’s DNA
was found was the blanket that came from Mary’s bedroom.
Appellant also contends that the evidence is insufficient under Jackson
because Mary could not identify him in court. At trial in May 2011, when the
prosecutor first asked Mary if she saw appellant in the courtroom, she stated,
“Well, I don’t want to look,” and she then said that she thought that he was there.
The second time that the prosecutor asked Mary if appellant was in the
courtroom, Mary said, “I think so,” but then said, “I don’t see him.” Mary said that
she had last seen appellant in February 2010.
Although Mary could not identify appellant, Megan identified him in court
as the man who had dated her, who had lived with her, and who had been found
in Mary’s closet on the same night in February 2010 that Megan found warm
semen on Mary’s bed. And as we mentioned above, appellant admitted to
Berestecky that he had engaged in sexual intercourse with Mary. Thus, despite
Mary’s inability to locate appellant in court, we conclude that the evidence
sufficiently identified him as the person who sexually abused her.
See Couchman v. State, 3 S.W.3d 155, 162 (Tex. App.—Fort Worth 1999, pet.
ref’d) (“Identity of a perpetrator may be proven by either direct or circumstantial
evidence.”).
Viewing the evidence in the light most favorable to the jury’s verdict of
conviction, we hold that the jury could have rationally found the essential
elements of continuous sexual abuse of a child beyond a reasonable doubt.
8
See Tex. Penal Code Ann. § 21.02(b); Jackson, 443 U.S. at 319, 99 S. Ct. at
2789; Isassi, 330 S.W.3d at 638. We therefore overrule appellant’s first two
issues.
The Forfeiture of Appellant’s Evidentiary Complaints
In his third issue, appellant argues that the trial court erred by admitting
State’s Exhibit 11, his Spanish-language consent form for the buccal swab DNA
sample. As we mentioned above, the trial court did not make a pretrial ruling
concerning the admissibility of the consent form; instead, the following exchange
occurred between the trial court and appellant’s trial counsel:
THE COURT: You know, without hearing everything, it’s hard
for me to imagine that the fact that a recorded statement is not
admissible makes a written consent not admissible.
[DEFENSE COUNSEL]: I would then ask the Court if it would
perhaps ask the State to --
THE COURT: I’m not going to ask the State to do anything.
I’m here to rule on things as they come up. If they offer something
and you think it’s not admissible, then you need to object, then I’ll
hear what I think I need to hear to rule on that objection.
[DEFENSE COUNSEL]: I’ll do that, Judge.
During the State’s direct examination of Detective McClellen in front of the
jury, she testified, without objection, that she had asked appellant for his consent
to give his DNA sample, that the FWPD had used a form for suspects to express
their consent to give such samples, that the FWPD had used translators and a
Spanish form to obtain consent from suspects who do not speak English, that
appellant had signed the Spanish consent form, and that appellant had
9
consensually given a sample of his DNA. After the jury heard all of that
evidence, the State offered the Spanish consent form as Exhibit 11, but appellant
objected to the admission of the form on the basis that he had signed the form as
a part of giving his verbal statement to Detective McClellen, which the trial court
had ruled to be inadmissible. Also, appellant objected to Detective McClellen’s
testimony about his expressing verbal consent for giving his DNA sample on the
ground that any consent was conveyed to Detective McClellen by the translator
and was therefore hearsay. The trial court overruled appellant’s objections and
admitted the consent form.
The State argues that appellant forfeited the complaints that he makes in
his third issue, and we agree. To preserve a complaint for our review, a party
must have presented to the trial court a timely request, objection, or motion that
states the specific grounds for the desired ruling if they are not apparent from the
context of the request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Lovill v.
State, 319 S.W.3d 687, 691–92 (Tex. Crim. App. 2009). Further, the trial court
must have ruled on the request, objection, or motion, either expressly or
implicitly, or the complaining party must have objected to the trial court’s refusal
to rule. Tex. R. App. P. 33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex.
Crim. App. 2004). A reviewing court should not address the merits of an issue
that has not been preserved for appeal. Wilson v. State, 311 S.W.3d 452, 473
(Tex. Crim. App. 2010) (op. on reh’g).
10
As we explained in Ratliff v. State, an “objection to . . . evidence must be
made before a witness gives substantial testimony about it.” 320 S.W.3d 857,
861 (Tex. App.—Fort Worth 2010, pet. ref’d) (citing Marini v. State, 593 S.W.2d
709, 714 (Tex. Crim. App. [Panel Op.] 1980)). Thus, in Ratliff, we held that the
defendant’s “failure to object at the time [a detective] specifically described the
physical evidence and explained how he found that evidence forfeited any error
associated with his objection to the State’s later introduction of the evidence.”
Id. at 862. The principles that we explained in Ratliff control our resolution of
appellant’s third issue; appellant secured a ruling on his objection to the
admission of the Spanish consent form only after Detective McClellen gave
substantial testimony about it, without objection, in front of the jury. Therefore,
we hold that appellant forfeited any error associated with his objections to the
admission of the Spanish consent form or to Detective McClellen’s testimony
about appellant’s consent to giving the buccal swab. See id.; see also Clay v.
State, 361 S.W.3d 762, 766 (Tex. App.—Fort Worth 2012, no pet.) (“A trial
court’s erroneous admission of evidence will not require reversal when other
such evidence was received without objection, either before or after the
complained-of ruling.”); Thomas v. State, 884 S.W.2d 215, 216–17 (Tex. App.—
El Paso 1994, pet. ref’d); Turner v. State, 642 S.W.2d 216, 217 (Tex. App.—
Houston [14th Dist.] 1982, no pet.) (“Error has . . . been held waived in situations
. . . where there was no objection regarding the testimony preceding the
admission of the exhibits.”). We overrule appellant’s third issue.
11
In appellant’s fourth issue, he argues that the consent form was
inadmissible because it was obtained by a person whom he had no opportunity
to cross examine and whose qualifications to interpret from English to Spanish
and Spanish to English were not known. He contends that the “person
interpreting for the police was not adequately proved to have the interpretation
skills required to admit evidence” under article 38.30 of the code of criminal
procedure. See Tex. Code Crim. Proc. Ann. art. 38.30 (West Supp. 2011). For
the reasons explained above in our resolution of appellant’s third issue, however,
and also because appellant did not object to the admission of the Spanish
consent form at trial on the basis that he asserts in his fourth issue on appeal, we
hold that he forfeited that issue, and we overrule it. See Tex. R. App. P.
33.1(a)(1); Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004) (“[I]t
is well settled that the legal basis of a complaint raised on appeal cannot vary
from that raised at trial.”); Lemasurier v. State, 91 S.W.3d 897, 902 (Tex. App.—
Fort Worth 2002, pet. ref’d) (“[A]n objection stating one legal basis may not be
used to support a different legal theory on appeal. Therefore, if counsel objects
on an incorrect ground at trial and is overruled, but later cites the correct ground
to the appellate court, error is not preserved.”).
In his fifth issue, appellant argues that the trial court erred by allowing
evidence of his admission to Berestecky that he sexually abused Mary. At trial,
appellant objected to Berestecky’s testimony about his admission on the ground
that it was hearsay because Berestecky learned of it only through a translator.
12
On appeal, appellant does not urge hearsay as the reason that the trial court
should have excluded the evidence, but he instead argues, in a similar fashion to
the argument in his fourth issue, that “the CPS interpreter was not adequately
proved to have the interpretation skills required to admit evidence.” He also
argues that the lack of an opportunity to test the interpreter’s qualifications
violates his right of confrontation. We hold that appellant’s hearsay objection did
not preserve the complaints he makes on appeal in his fifth issue, and we
therefore overrule that issue. See Tex. R. App. P. 33.1(a)(1); Lemasurier, 91
S.W.3d at 902; Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005) (“An
objection on hearsay does not preserve error on Confrontation Clause
grounds.”).
Conclusion
Having overruled each of appellant’s issues, we affirm the trial court’s
judgment.
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; GARDNER and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: June 21, 2012
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