Martinez v. State

OPINION ON REMAND

BILL VANCE, Justice.

This case is on remand from the Court of Criminal Appeals. In the initial appeal, a majority of this court held that the trial court did not err in admitting hearsay testimony (complainant’s outcry) by the complainant’s mother. Martinez v. State, No. 10-03-00052-CR, 2004 WL 2066760 (Tex.App.-Waco Sept. 15, 2004) (not designated for publication). The Court of Criminal Appeals reversed, holding that the majority was mistaken in its conclusion that the testimony was admissible under article 38.07. Martinez v. State, 178 S.W.3d 806 (Tex.Crim.App.2005). Thus, the case was remanded to us “to determine whether the admission of the outcry statement was harmless error.” Id.

Charles Martinez, who ran Mustang Christian Ranch for troubled children, was charged with four counts of indecency with a child and one count of injury to a child, involving two different minors: A.R. and B.F. The jury acquitted him of the counts related to B.F. but convicted him of all three counts relating to A.R. Punishment was assessed at 10 years in prison for each offense, to be served concurrently, and a fine of $15,000 ($5,000 for each offense).

AR.’s mother, Teresa, testified about what A.R. had told her about the offenses, the admission of which has been determined to be erroneous. See id. Our task is to determine whether this non-constitutional error had more than a slight *293influence on the verdict. Tex.R.App. P. 44.2(b); King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997) (citing Kotteakos v. U.S., 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946)); Fowler v. State, 958 S.W.2d 853 (Tex.App.Waco 1997), aff'd, 991 S.W.2d 258 (Tex.Crim.App.1999).

The Court of Criminal Appeals has recently restated the review process: In assessing the likelihood that the jury’s decision was adversely affected by an error, an appellate court should consider everything in the record, including (1) any testimony or physical evidence admitted for the jury’s consideration, (2) the nature of the evidence supporting the verdict, (3) the character of the error and (4) how it might be considered in connection with other evidence in the case and may also consider (1) the jury instructions, (2) the State’s theory, (3) any defensive theories, (4) closing arguments, (5) voir dire, and (6) whether the State emphasized the error. Haley v. State, 173 S.W.3d 510, 518-19 (Tex.Crim.App.2005).

After examining the record of Martinez’s trial as a whole, we do not have fair assurance that the error in question did not have a substantial and injurious effect or influence in determining the jury’s verdict that he is guilty of the charges involving A.R. See Garcia v. State, 126 S.W.3d 921, 927 (Tex.Crim.App.2004) (an appellate court may not reverse for non-constitutional error if the court, after examining the record as a whole, has fair assurance that the error did not have a substantial and injurious effect or influence in determining the jury’s verdict). As the Court noted in Garcia:

If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but a slight effect, the verdict and the judgment should stand.... But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected.

Id. at 927 n. 9 (quoting from Kotteakos v. U.S., 328 U.S. 750, 764-65, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)).

In making our evaluation in accordance with Haley, two interrelated considerations stand out: (1) absent the improperly admitted outcry evidence, the only direct evidence supporting the guilty verdict was A.R.’s testimony, thereby making her credibility essential to a conviction (the nature of the evidence supporting the verdict, character of the error, and how it might be considered in connection with other evidence); and (2) on five occasions during Teresa’s testimony the trial judge instructed the jury about (a) its role as the judge of the credibility of testimony, (b) its right to consider what A.R. told Teresa and “give it whatever weight, if any, you choose,” (c) its job to judge the credibility of the evidence, as related to hearsay, (d) outcry statements “in a molestation allegation” and the jury’s “judge of the credibility of that,” and (e) the review of witness statements to aid in cross-examination “to aid you, if it does aid you, in judging the credibility of the witnesses” (instructions to the jury).1

*294The State’s theory of the case was that A.R. was telling the truth and the charges were true; the defense theory was that A.R. was not credible, given the circumstances surrounding how she came to be at Mustang Christian Ranch and her version of the events. Although neither party stressed Teresa’s testimony in argument, the State suggested that A.R.’s statements to her mother were made only after she was told that she would not have to return to the Ranch.

Having “grave doubts” about whether the error affected the outcome in this case, we hold that the erroneous admission of Teresa’s testimony was harmful. Fowler, 958 S.W.2d at 865. We reverse the judgment of conviction and remand the cause to the trial court for a new trial.

Chief Justice GRAY dissenting.

. Another consideration: the jury found Martinez not guilty of the counts charging conduct against B.F., who testified for the State. Two witnesses testified in support of the State’s theory about the incident alleged in the count involving injury to a child, and two witnesses said they did not see any indication that it happened. The jury obviously rejected B.F.’s testimony as not credible, leading us to believe that Teresa's testimony was a substantial factor in the jury’s determination that A.R. was credible.