Opinion issued June 30, 2016
In The
Court of Appeals
For The
First District of Texas
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NO. 01-15-00532-CR
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ROMELO HERNANDEZ DIAZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 248th District Court
Harris County, Texas
Trial Court Case No. 1453096
MEMORANDUM OPINION
A jury convicted appellant Romelo Hernandez Diaz of indecency with a
child. See TEX. PENAL CODE § 21.11. Diaz admitted to two prior felony
convictions, resulting in an enhanced punishment. The jury assessed punishment at
40 years in prison and a $10,000 fine. Diaz appealed and asserts two issues: (1) the
evidence was legally insufficient on the issue of identity and (2) the trial court
erred by admitting testimony from a witness without holding a reliability hearing
under article 38.072 of the Code of Criminal Procedure.
Finding no reversible error, we affirm.
Background
When the complainant was ten years old, appellant Romelo Diaz was dating
her grandmother. The complainant and her sister frequently would visit and sleep
in their grandmother’s living room. One night, the complainant’s mother planned
to have the grandmother keep the kids overnight, but the grandmother refused. The
complainant started to cry, saying that she knew why the grandmother did not want
them to stay at her home. After her mother questioned her, the complainant stated
that Diaz touched her “down there.”
The mother drove to the grandmother’s house and called the police. Deputy
T. Garza arrived and interviewed the complainant in his patrol car. The
complainant disclosed to Deputy Garza two separate occasions when Diaz had
touched her genitals. The complainant subsequently went to the Children’s
Assessment Center for a forensic interview, where she described the same events
in detail.
The first incident occurred when the complainant was asleep in her
grandmother’s home. The complainant said that she woke to feel someone
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touching her vagina. The complainant could “kind of see his hair” and could smell
alcohol on his breath, but it was too dark to see his face. The complainant said that
Diaz kissed her forehead and left, but then returned to the room, took her hand and
slid it down his shorts, and “asked . . . what it felt like.”
The second incident happened when the complainant fell asleep while
watching television. She woke up to Diaz touching her breasts and vagina. Because
the television was on, the complainant was able to see Diaz’s face when this
happened.
At trial, Deputy Garza testified as the outcry witness under Code of Criminal
Procedure Article 38.072. Deputy Garza recounted what the complainant had told
him, and he described her demeanor during the interview. Diaz’s counsel did not
object to Deputy Garza’s testimony or his status as the outcry witness.
After Deputy Garza testified, the State elicited testimony from the forensic
interviewer from the Children’s Assessment Center. Before the forensic
interviewer took the stand, Diaz’s counsel made the following objection:
Diaz: I believe that the testimony that would come from
[the interviewer] would be an outcry witness, yet
this witness has just testified to the outcry meeting
all the statutory requirements as questioned by
Ms. Burton. So in essence I would ask this witness
not be allowed to testify since we’ve already had
the outcry witness.
State: I don’t want to offer any outcry statement from
her.
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Court: That objection’s overruled.
The forensic interviewer proceeded to discuss the interview process and
methodology. The prosecutor asked the interviewer several questions about what
the complainant had told her, and how she reacted to the interview process. The
State introduced two photographs of the complainant taken during the interview
process when she was pointing to parts of her body. The interviewer stated that
these were taken while the complainant was describing where Diaz had touched
her. Diaz’s counsel did not object to this testimony or to the introduction of the
photographs.
The complainant testified about each incident that she previously had
recounted to Deputy Garza and the forensic examiner. The complainant also
testified that Diaz would frequently give her gifts after abusing her, and at least
once he told her to “shush” after giving her some money.
The jury found Diaz guilty of indecency with a child, and it assessed
punishment at 40 years in prison and a $10,000 fine. Diaz appealed.
Analysis
I. Sufficiency of the evidence
In his first issue, Diaz argues that the evidence was insufficient to convict
him because no reasonable jury could have found beyond a reasonable doubt that
his identity was proved by the evidence. Diaz admits that the complainant’s
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testimony was sufficient to show that someone had indecent contact with her.
However, he asserts that the essential element of identity was uncertain because
both incidents took place in the dark and the complainant could not properly
identify him.
We determine the sufficiency of evidence to support a criminal conviction
by a legal-sufficiency standard. Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim.
App. 2010). When evaluating the legal sufficiency of the evidence, we consider all
the evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the essential elements of the offense beyond
a reasonable doubt. Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012).
This standard is the same for cases supported by either direct or circumstantial
evidence. Carrizales v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013).
We do not resolve any conflict of fact, weigh any evidence, or evaluate the
credibility of any witnesses, as this is the function of the trier of fact. See Merritt,
368 S.W.3d at 525–26. We permit juries to draw multiple reasonable inferences
from the facts as long as each inference is supported by the evidence presented at
trial. Hooper v. State, 214 S.W.3d 9, 15–16 (Tex. Crim. App. 2007). We presume
that the factfinder resolved any conflicting inferences in favor of the verdict, and
we defer to that resolution. See Merritt, 368 S.W.3d at 526.
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Circumstantial evidence alone may be enough to support a criminal
conviction. Temple v. State, 390 S.W.3d 341, 359 (Tex. Crim. App. 2013);
Hooper, 214 S.W.3d at 13. For circumstantial evidence cases, it is not necessary
that every circumstance independently prove guilt; it is enough for a guilty verdict
to be “warranted by the combined and cumulative force of all the incriminating
circumstances.” Temple, 390 S.W.3d at 359 (quoting Johnson v. State, 871 S.W.2d
183, 186 (Tex. Crim. App. 1993)).
In this case, the complainant stated definitively both in her outcry and in
court that it was Diaz who had molested her. The complainant testified that she
was unable to see Diaz’s face in the first incident, but she stated that she could see
his hair in the available light. The complainant also heard Diaz speak when he
forced her hand down his shorts shortly thereafter. Based on their relationship, the
jury rationally could infer that the complainant could identify Diaz based on his
voice. In the second incident, the complainant testified that she saw Diaz by the
light of the television, and she was certain it was him. The testimony that Diaz had
given the complainant money and instructed her to “shush,” presumably about his
contact with her, was further circumstantial evidence suggesting his guilt.
Viewing the evidence in the light most favorable to the verdict, we conclude
the evidence is sufficient to support Diaz’s conviction. The jury was able to assess
the credibility and demeanor of the complainant when she testified. See Hooper,
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214 S.W.3d at 16–17. We must defer to the jury’s implied assessment of the
complainant’s credibility. See Temple, 390 S.W.3d at 363. The jury inferred from
the complainant’s testimony and the circumstantial evidence presented that Diaz
was guilty of indecency with a child. Because this was a reasonable inference
based on the evidence, we conclude that a rational juror could find Diaz guilty
beyond a reasonable doubt, and we defer to that resolution. See Merritt, 368
S.W.3d at 525.
We overrule Diaz’s first issue.
II. Outcry witness and hearsay
In his second issue, Diaz asserts that the trial court erred by failing to hold a
reliability hearing prior to admitting the testimony of the forensic interviewer. Diaz
asserts that several of the statements elicited from the interviewer were hearsay,
and that the interviewer improperly acted as an outcry witness when Deputy Garza
already had been certified in that role.
We review a trial court’s decision to admit or exclude evidence for abuse of
discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010).
Hearsay is a statement that “the declarant does not make while testifying at the
current trial or hearing,” offered “to prove the truth of the matter asserted in the
statement.” TEX. R. EVID. 801. Hearsay is inadmissible unless otherwise provided
by statute, the rules of evidence, or other rules prescribed under statutory authority.
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TEX. R. EVID. 802. As with any other error in admitting or excluding evidence, a
party may only claim error in admitting hearsay if the error affected a substantial
right of the party, and the party made a timely objection or motion to strike on the
record, stating the specific ground. See TEX. R. EVID. 103(a); TEX. R. APP. P.
33.1(a).
Certain hearsay statements from children who were the victims of sexual
offenses are admissible when they were “made to the first person, 18 years of age
or older, other than the defendant” to whom the child made a statement about the
offense. See TEX. CODE CRIM. PROC. art. 38.072; Sanchez v. State, 354 S.W.3d
476, 484 (Tex. Crim. App. 2011). Before such an “outcry statement” can be
admitted, the party intending to offer the statement must notify the adverse party,
provide the name of the witness, and provide the adverse party with a written
summary of the statement. TEX. CODE CRIM. PROC. art. 38.072; Zarco v. State, 210
S.W.3d 816, 831 (Tex. App.—Houston [14th Dist.] 2006, no pet.). To admit the
statement the trial court must find, in a hearing conducted outside the presence of
the jury, that the statement is reliable based on the time, content, and circumstances
of the statement. TEX. CODE CRIM. PROC. art. 38.072(b)(2); Garcia v. State, 228
S.W.3d 703, 706–07 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d).
In this case, Diaz objected generally before the forensic interviewer’s
testimony that it would be a redundant outcry statement. It is undisputed that
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Deputy Garza was properly certified as the outcry witness under the article 38.072
procedure, and he testified before the interviewer. The State replied to Diaz’s
objection that it did not intend to offer outcry statements from the interviewer. (To
the extent the interviewer was not “the first person, 18 years of age or older” to
whom the complainant made a statement about the offense, any statements made
would not qualify as an outcry statement.) Based on this representation, the trial
court overruled the objection and declined to hold a hearing under article
38.072(b). The State does not dispute that the interviewer was not certified as the
outcry witness and could not give outcry testimony. The State did not rely on the
outcry witness statute in seeking to offer the testimony. We therefore find no error
in the court’s decision not to conduct an outcry witness hearing. See Long v. State,
800 S.W.2d 545, 547 (Tex. Crim. App. 1990) (noting that compliance with the
statute is necessary “in order to render the testimony admissible” under
Article 38.072).
Diaz’s real complaint appears to be that the forensic interviewer made
several statements that could be construed as hearsay. Article 38.072 provides one
exception to hearsay, but it is not the sole exception to hearsay. See, e.g., TEX. R.
EVID. 803. Diaz never made a hearsay objection at trial, nor did he renew his initial
objection or explain to the trial court a specific ground for excluding elements of
the interviewer’s testimony. His sole objection aimed to exclude the entirety of the
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interviewer’s testimony under the outcry-witness statute, and he failed to object to
any specific statement on hearsay grounds. Accordingly, we conclude that Diaz has
not preserved error on his claims that the interviewer’s testimony contained
inadmissible hearsay. See TEX. R. EVID. 103(a); TEX. R. APP. P. 33.1(a); Long, 800
S.W.2d at 548 (objection must adequately notify the trial court of the basis of the
complaint to preserve error).
We overrule Diaz’s second issue.
Conclusion
We affirm the judgment of the trial court.
Michael Massengale
Justice
Panel consists of Justices Higley, Bland, and Massengale.
Do not publish. TEX. R. APP. P. 47.2(b).
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