AFFI l&i; Opinion issued October 3l 2012.
In The
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No. 05-1 1-00348-CR
JOSE LtJIS ROl)RICUEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 3
Dallas County, Texas
Trial Court Cause No. Fl0-52026-J
OPINION
I3efore Justices i3ridges, Richter, and Lang
Opinion By Justice Richter
Appellant was convicted of aggravated sexual assault of a child and the court
sentenced him to twenty years’ imprisonment. In a single issue on appeal, appellant asserts
the trial court erred in allowing victim impact testimony during the punishment phase of
trial. Finding no reversible error, we affirm the trial court’s judgment.
During the guilt/innocence phase of trial, appellant’s daughter testified that she had
a strained relationship with her father and he raped her approximately six times between the
ages of five and thirteen. At the sentencing phase of trial, the prosecutor asked the victim
how the oftLnsc had atfcctcd her lit, from thL moment it happened until the present
Defense counsel objected, and the trial court sustained the objection. The following
exchange then occurred:
PROSECUTOR: Ms. Velcz, has this- the sexual incidences with your
father, has it affected your life?
DEFENSE COUNSEL: Again, your Honor, I’d object to victim
impact testimony.
THE COURT: Objection overruled. I’ll allow some-- testimony.
PROSECUTOR: Has what happened to you as a child affected your
family today?
WITNESS: Yes
DEFENSE COUNSEL: Your Honor, getting out of—again, we’re
moving into victim impact testimony and I would object.
THE COURT: Objection ovemiled.
After the trial judge overruled the objection, the witness testified about her need for
ongoing therapy, nightmares, tension between family members, and how appellant’s action
affected her love-life, including her failing marriage. Appellant argues that the trial court
abused it discretion in allowing the testimony because it constitutes impermissible victim
impact testimony in violation of Thx. CODE CiuM. PROC. MN. art. 42.03 § 1 (b) (West
2006). We disagree.
Article 42.03 pertains to post-sentence victim-impact statements. Id. Such post-
sentence statements can include a person’s views about the offense, the defendant, and the
effect on the victim. See Id. The statements are unsworn and are not transcribed by the court
reporter. See Id. As appellant correctly observes, courts have recognized that the Legislature
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provided for these types of statements to he made only after sentencing to alleviate any risk
that the statements would alThct the partiality o the court during the punishment phase ot
trial. See Johnstni i’. State, 286 S.W.3d 346, 349 (Tex. (‘rim. App. 2009 ) Aldrich i’. State,
296 S.W.3d 225. 259 (Tex. App.--- Fort Worth 2009, pet refd).
But while article 42.03 does not authorize the use ol an unsworn victim—impact
statement presented before sentencing, it also does not prohibit the admissibility and
consideration ofrelevant victim-impact testimony prior to sentencing during the punishment
phase of the trial. See Brown v. State, 875 S.W.2d 38,40 (Tex, App.—Austin 1994, no pet.);
Jagaroo v. Stale, 1 80 S.W.3d 793, 799 (Tex. App.—Houston[ 14th Dist.j 2005, pet. ref’d).
As the United States Supreme Court has observed, evidence of the impact of an offense on
the life of the victim and others can be introduced at the punishment phase ota criminal trial
as a way of informing “the sentencing authority about the specific harm caused by the crime
in question.” Payne v. Tnnessee, 501 U.S. 808, 825 (1991); see also haley v. State, 173
S.W.3d 510, 5 17 (Tex. Crim. App. 2005); Stavinoha v. State, 808 S.W.2d 76, 79 (Tex. Crim.
App. 1991) (holding relevant victim impact evidence may include physical, psychological,
or economic effects of a crime on victim or victim’s family). To be admissible the evidence
must have “some bearing on the defendant’s personal responsibility and moral culpability.”
Haley, 173 S.W.3d at 517; Salazar v. State, 90 S.W.3d 330, 335 (Tex. Crim. App. 2002).
Article 37.07 of the Texas Code of Criminal Procedure grants the trial court broad discretion
to admit evidence the court deems relevant to sentencing. See TEx. CODE CRIM. PRoc’. ANN.
art. 37.07* 3 (a)(1 ) (West Supp. 2011). Evidence maybe deemed relevant if the defendant
should have anticipated the particular effect of the otlense on the victim or the victim’s
family. Sec Iorcno v. State, 38 S.W .3d 774, 777 (Tcx. App. }louston [1 4th Dist.j 2(01
no pet.).
In the instant case, the prosecutor’s questions elicited testimony about the harm to the
victim and her family occasioned by the offense .Unlike a unsworn, unrecorded statement
under article 4203, the victim’s sworn testimony was subject to crossexamination, On this
record, the trial court could reasonably deem the testimony relevant to appellant’s personal
responsibility and moral culpability, and appellant could reasonably anticipate that raping
his daughter would have a traumatic impact on family dynamics. Therefore, we cannot
conclude the trial court abused its discretion in allowing the victim’s sworn testimony about
the emotional and psychological harm she suffered as a result of appellant’s actions,
Appellant’s sole issue is overruled, The judgment of the trial court is affirmed.
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JUDGMENT
JOSE LUIS RO1)RIGUEZ, Appellant Appeal from the Criminal District Court No.
3 of Dallas County. Texas. (TrCtNo, FlO
No, O51 UOO348CR V. 52026.4).
Opinion delivered by Justice Richter,
THE STATE OF TEXAS, Appellee Justices I3ndges and Lang participating
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered October 31, 2.012.