Opinion issued November 17, 2016
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-15-00823-CR
———————————
JUAN J. MARTINEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 506th District Court
Grimes County, Texas
Trial Court Case No. 17,543
MEMORDANDUM OPINION
A jury found Juan J. Martinez guilty of one count of aggravated sexual assault
of a child and two counts of indecency with a child. The trial court found true the
State’s enhancement allegation that Martinez had a prior conviction for sexual
assault of a child and assessed Martinez’s punishment at life confinement. In nine
issues, Martinez contends that his convictions should be reversed because:
(1) the evidence was not sufficient to permit the jury to find him guilty of the
three charged offenses;
(2) the evidence was not sufficient to permit the trial court to find that the
enhancement allegation was true;
(3) the trial court erred by excluding evidence that the complainant’s mother
knew of sexual misconduct by another person in her home;
(4) the trial court erred by admitting his prior conviction for sexual assault
during the guilt-innocence phase of the trial;
(5) the trial court erred by admitting the resume of the State’s forensic expert
and the expert’s testimony about the complainant’s credibility; and
(6) the trial court erred by admitting a pediatric nurse practitioner’s report
regarding the complainant’s sexual assault examination.
We affirm the trial court’s judgments of conviction.
Background
A grand jury indicted Martinez for one count of aggravated sexual assault of
a child and two counts of indecency with a child. See TEX. PENAL CODE
§§ 21.11(a)(1), (c)(1), 22.021(a)(1)(B)(i), (2)(B). All three counts concerned the
same child, his 13-year-old daughter. The indictment included an enhancement
2
paragraph alleging that Martinez had previously been convicted of a felony sexual
assault of another child in Colorado.
Before trial, the court held a hearing regarding the admissibility of two of the
State’s exhibits. The first was a certified copy of a Sentence Order issued by a Kit
Carson County, Colorado, district court finding Juan Jose Martinez guilty of
violating Section 18-3-402(1)(e) of the Colorado Criminal Code. That statute
provides that a person commits misdemeanor sexual assault if he “knowingly inflicts
sexual intrusion or sexual penetration” on another who is at least 15 years of age but
less than 17 years of age if the person is at least 10 years older and the two are not
married to one another.1 COLO. REV. STAT. § 18-3-402(1)(e), (3). The second
exhibit was an undated letter on Texas Department of Public Safety letterhead
advising that conviction for specified Colorado offenses requires registration as a
sex offender under Texas law. The trial court found that this evidence was likely to
be admitted at trial and that it was adequate to support a jury finding that Martinez
committed the Colorado offense.
Several witnesses testified at trial for the State. The defense presented none.
1
Though it is a misdemeanor under Colorado law, this offense is treated as a felony
in Texas for purposes of sentencing enhancement so long as its elements are
substantially similar to designated Texas offenses. See TEX. PENAL CODE
§ 12.42(c)(2)(B)(v). One of the designated Texas offenses is so-called statutory
rape. See id. §§ 12.42(c)(2)(B)(ii), 22.011(a)(2), (c)(1). Martinez does not
dispute the substantial similarity of this Texas offense’s elements.
3
The State’s first witness was Veronica, the complainant’s stepmother.2
Martinez was Veronica’s husband at the time of the offenses for which he was
indicted. She had six children of her own; Veronica, Martinez, and these six children
were under one roof when Martinez’s own daughter, the complainant, came to live
with them in the summer of 2011. The complainant shared a bedroom with
Veronica’s daughter, who was seven or eight years old at the time.
Veronica testified that she and her younger daughter were both heavy sleepers.
But at around 5:00 on the morning of November 2, 2013, Veronica awoke and
noticed that Martinez was not in the living room, where he usually slept. She looked
for him and found him asleep in the complainant’s bed, shirtless and with his arms
wrapped around her with her face pressed against his chest. Veronica said they
“looked like lovers,” rather than a father and daughter. She ripped the covers off of
them and heatedly demanded an explanation from Martinez. Martinez explained
that he went to sleep in the girls’ room because he was hot and the air conditioning
cooled that area. Veronica testified that the air conditioning cools the living room
too and that when she found Martinez in the girls’ room he was under a “really,
really thick” blanket. She was upset, so she left and went to the store.
2
We refer to the complainant simply as “the complainant” and to her stepmother
using the pseudonym “Veronica.”
4
Later in the afternoon, Veronica began questioning the complainant and the
complainant started shaking and tearing up. The complainant began crying
hysterically when Veronica asked if Martinez was touching her. The complainant
told her that Martinez touched her on her arms, legs, stomach, and breasts. Veronica
took the children to her brother’s house and then confronted Martinez and told him
he had to leave. He went inside to gather some of his possessions and Veronica
called the Navasota Police Department. Police officers arrived shortly after
Veronica’s call, spoke to both her and Martinez, and issued Martinez a criminal
trespass warning. Veronica brought all of the children back to the home later that
day after Martinez left.
The complainant told Veronica more the next day. Veronica testified that the
complainant was crying and said that Martinez had been touching her for about a
year and a half. The complainant told her that his abuse escalated over time. At
first, Martinez would simply lay down with her. He subsequently began touching
her stomach, breasts, and bottom.
The complainant continued to live with Veronica through November and
December 2013. Veronica testified that the complainant became “more distant” and
that “she was always in her room crying, always huddled in a ball.” Veronica
discovered that the complainant “was cutting herself.” When Veronica discovered
the cutting, the complainant revealed to her that Martinez had had sexual intercourse
5
with her. The complainant told Veronica that Martinez had become more sexually
aggressive by the time the abuse was discovered. In response to these new
revelations, Veronica again called and met with police officers, who told her to take
the complainant to a forensic examiner and a sexual assault nurse examiner.
Veronica also testified that Martinez told her that he previously was convicted
of the sexual assault of a 17-year-old girl in Colorado. But Veronica did not know
the details of the crime. She said that Martinez told her that “he went to jail for it”
but did not have to register as a sex offender.
On cross-examination, Veronica acknowledged that she did not notice
anything amiss before she found Martinez sleeping with the complainant and that
her knowledge of the underlying events was based on what the complainant told her
in large part. She agreed that she told law enforcement officers that the complainant
had said that Martinez had intercourse with her at least 20 times. Veronica also
acknowledged that she filed for divorce from Martinez before the allegations of
sexual intercourse emerged.
Officer J. Tielke of the Navasota Police Department testified next. He and his
partner responded to Veronica’s November 2 call. When he arrived at the residence,
he identified Martinez by his driver’s license and spoke with him and Veronica, who
were both upset. Veronica told Tielke that Martinez had inappropriately touched his
13-year-old daughter. Martinez told Tielke that “he was getting kicked out of the
6
house” because Veronica “caught him in bed with his daughter,” though he claimed
that he was “laying on top of the covers” and merely “showing her affection and
giving her a hug at the time.”
Officer Tielke discussed the situation with Martinez near another officer’s
vehicle and this discussion was video recorded by his own vehicle’s dash camera
while the audio was partially recorded by his body microphone; this video was
admitted into evidence and played for the jury. In the video, Martinez denied
touching his daughter in an inappropriate fashion. Officer Tielke issued Martinez a
criminal trespass warning, but did not arrest him. On cross-examination, Tielke
conceded that he did not have any knowledge of the events other than what he was
told.
The State then called A. Klawinsky, with the Navasota Police Department,
who investigated the allegations concerning Martinez. Klawinsky scheduled a
forensic interview of the complainant, which Klawinsky remotely viewed on a
television monitor. During this interview, she learned of Martinez’s prior offense in
Colorado and she subsequently contacted Colorado law enforcement agencies and
obtained their reports regarding the offense.
Several days later, Klawinsky interviewed Martinez at the police station.
Martinez voluntarily spoke with her and another investigator for about 35 minutes.
He was Mirandized and their conversation was recorded on video. This recorded
7
interview was admitted into evidence and played for the jury. During the interview,
Martinez initially denied any wrongdoing and claimed that any touching of his
daughter involved no more than fatherly affection. As the interview progressed,
however, Martinez’s story changed. He denied touching his daughter’s breasts or
vagina throughout, but he also contended that, if he ever touched her inappropriately,
it was unintentional. Martinez later reiterated that any inappropriate touching was
unintentional and explained that he just did not know how to show his daughter that
he loved her. He repeatedly denied having ever been in bed with his daughter under
the blanket, but he subsequently admitted that he was under the blanket with her
when Veronica found him in his daughter’s bed. In addition, he eventually stated
that he realized afterward that he had been wrong in the way he held his daughter
that morning. Martinez further admitted that he became aroused while lying down
with his daughter on another occasion and that he had left her bed three or four other
times to forestall any inappropriateness. At one point he exclaimed, “I need
counseling.”
Klawinsky conferred with the district attorney’s office, and a warrant was
issued for Martinez’s arrest for indecency with a child. After Martinez was arrested,
Veronica contacted Klawinsky with new information, specifically that Martinez had
sexual intercourse with the complainant. In response, Klawinsky scheduled another
forensic interview of the complainant and a sexual assault examination, which were
8
conducted in January 2014. Klawinsky remotely viewed the interview but not the
examination. After this additional investigation, the grand jury indicted Martinez.
On cross-examination, Klawinsky acknowledged that her only sources of
information were Veronica, Martinez, and the complainant. She further
acknowledged that she did not directly speak with the complainant.
Jane Riley, a pediatric nurse practitioner, testified next. She performed a
sexual assault examination on the complainant in January 2014. She identified the
form she filled out as she made her examination of the complainant and the State
offered it into evidence. Over the defense’s hearsay objection, the trial court
admitted the form. Riley first took a general medical history from the complainant.
The complainant told Riley that she had some difficulty sleeping, and that she was
angry at her father. The complainant also told her that she did not want to talk to
anyone or do anything and that she previously had been cutting herself. When Riley
asked the complainant what happened to her, she stated that “all he did was touch
me” but then said “there was one time he did go all the way.” The complainant
indicated that intercourse hurt and that she was sore the morning after. Riley then
performed a physical examination. She testified that an examination of the female
genitalia will not necessarily reveal signs of sexual intercourse or injury. In the
complainant’s case, Riley did not see any signs of injuries or indications that she had
been sexually assaulted. What she saw, however, was “not inconsistent” with the
9
complainant’s account. Riley’s final diagnostic impression was that the complainant
gave her “a history consistent with sexual assault and that her exam was normal,
which does not rule out that the sexual assault happened.”
On cross-examination, Riley agreed that her physical examination did not
reveal any visible indication of sexual activity. Nor were there any visible signs of
sexual abuse. Riley conceded that her conclusions ultimately were based on what
the complainant told her. She further acknowledged that she had testified in many
cases and that part of her training concerned how to present herself before a jury.
Cameron Collins, the forensic examiner who interviewed the complainant in
November 2013 and January 2014, then took the stand. She testified that she had
conducted and observed about 600 interviews and had worked in the field of forensic
interviewing for about five years. Collins identified a copy of her resume, which
listed her professional training and activities, and the State offered it into evidence.
Over the defense’s relevance objection, the trial court admitted it. Collins testified
that abused children may go through several stages when the abuse is discovered,
which can include denial, tentative or limited disclosure, active or full disclosure,
recantation, and reaffirmation. She stated that not every child goes through all of
these stages, but that “they’ll go through maybe two or three of those at least.”
Because disclosure is a process, it is not uncommon for children to fail to disclose
all of the details at once. Collins also discussed the phenomenon of delayed
10
disclosure, which occurs when “the abuse has been happening for quite some time”
and the child eventually decides to “talk about what’s been happening.” Collins
opined that children have various reasons for not coming forward sooner, such as
the trust they place in a loved one who is abusing them, threats of harm, fear that
they will be disbelieved, and fear of the consequences of divulging the abuse.
With respect to the complainant, Collins testified that no one raised any
concerns with her about coaching before the interviews. Nor did she detect any signs
of coaching. Though Collins and the complainant discussed a number of events that
occurred between the complainant and Martinez, Collins’s trial testimony on direct
examination focused on one in particular. During the first interview, the
complainant told Collins that Martinez had rubbed her vagina. The complainant said
that Martinez came into her bedroom around 2:00 a.m. and told her to scoot over so
that he could lie down next to her. When he did so, Martinez pulled her “very tight
to him” and the complainant could feel his erection pressing against her. Martinez
began rubbing her arms and then her side, back, stomach, and breasts. He then
proceeded to rub her legs, first on the outside of her pajama bottoms, then on the
inside of them. Eventually, Martinez placed his fingers inside of her underwear and
rubbed her vagina. The complainant specified that there was skin-to-skin contact
and provided details indicating that this contact was not momentary or accidental.
11
Collins initially testified about the second interview in general terms, noting
that it took place because the complainant had disclosed new information. Collins
opined that this sort of disclosure of details over time was typical. The complainant’s
demeanor differed somewhat between the two interviews. In the first interview, she
was comfortable when talking about everyday life but became withdrawn, stopped
making eye contact, and began crying when the subject turned to her abuse. In the
second interview, she was much more withdrawn and drew herself into a ball—with
her knees pulled up, head down, and arms wrapped around her.
Collins subsequently testified about the specifics of the second interview. The
complainant told her that Martinez had “intercourse” with her. Collins asked her
what she meant by “intercourse” and the complainant “described it as when a man
puts his private in a girl’s,” specifically in her “vagina.” The complainant also
described specific details about this encounter, including Martinez’s actions before
intercourse and the positioning of their bodies. Because Collins did not understand
exactly what the complainant meant, she had the complainant show her using dolls.
The complainant said she noticed blood afterwards and was sore the following day.
Collins testified that a child simply may be more comfortable disclosing some
details to one person than to another. The complainant expressed to Collins that she
was afraid no one would believe her and worried about being separated from
Veronica as a result of the allegations. In addition, Collins clarified that she does
12
not concern herself with inconsistences between what the child says and what law
enforcement officers may have told her. However, if the child herself is inconsistent
in what she says during the interview, Collins asks follow-up questions about those
inconsistencies.
The State’s final witness was the complainant, who was 15 at the time of trial.
The complainant testified that when Martinez began touching her it started out as
unobjectionable “cuddling.” But it progressed with him rubbing her over her
clothing and then under her shirt and closer to her “privates.” Martinez put his hand
under her shirt and touched her breasts and also under her clothes and touched her
“private part.” He eventually had sexual intercourse with her. The complainant said
she did not want to talk about it after it happened. She was worried that doing so
would destroy her family and that she would lose her family.
On cross-examination, the complainant acknowledged that Martinez and
Veronica had begun to have marital difficulties at some point. She also agreed that
she had hoped the family would stay together. The complainant agreed that, in
addition to her testimony, she had talked to a number of people about what had
happened to her, but she did not recall all of their names. When asked about the
nature of the inappropriate touching, the complainant stated that Martinez touched
her on her “private part” and clarified that she meant her “vagina.” She said this
occurred in the room she shared with her stepsister at night when everyone was
13
sleeping. She could not recollect the time of year. She had on her sleeping clothes
at the time—a big t-shirt and some pajama pants. She was wearing underwear;
sometimes she wore a bra as well. She also testified that she remembered Martinez
having intercourse with her, but again could not remember the time of year when
this happened. The complainant testified that both she and Martinez were clothed.
Martinez lay behind her and pulled her clothes down to her knees, and then had
intercourse with her. She recalled telling Veronica that this had happened many
times, but she did not recall telling her that it happened 20 times. However, the
complainant testified that Martinez did have intercourse with her often and that
sometimes she would be facing him and sometimes not.
After the State’s witnesses testified, both sides rested and made closing
arguments. In their closing arguments, both sides argued that the verdict essentially
turned on whether the jury believed the complainant. The jury found Martinez guilty
on all three counts. The trial court entered separate judgments of conviction for each
count, found the enhancement allegation of the indictment to be true, and assessed
Martinez’s punishment at life confinement. See TEX. PENAL CODE
§ 12.42(c)(2)(B)(v). Martinez appeals.
14
Discussion
A. Evidentiary sufficiency
In his first three issues, Martinez contends that the proof is not sufficient to
support his convictions for aggravated sexual assault of a child and indecency with
a child. In his sixth issue, he contends that the proof is not sufficient to support the
State’s enhancement allegation about the Colorado conviction for sexual assault.
1. Standard of review and applicable law
We apply the legal standard for sufficiency of the proof stated in Jackson v.
Virginia, 443 U.S. 307 (1979). Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App.
2011); Pena v. State, 441 S.W.3d 635, 640 (Tex. App.—Houston [1st Dist.] 2014,
pet. ref’d). Under this standard, we “must consider all of the evidence in the light
most favorable to the verdict and determine whether, based on that evidence and
reasonable inferences therefrom, a rational fact finder could have found the essential
elements of the crime beyond a reasonable doubt.” Gear, 340 S.W.3d at 746. We
cannot substitute our judgment for that of the jury by reevaluating the weight or
credibility of the evidence; instead, we defer to the jury’s resolution of conflicts in
the evidence. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). Under
this standard, the proof “is insufficient under four circumstances: (1) the record
contains no evidence probative of an element of the offense; (2) the record contains
a mere ‘modicum’ of evidence probative of an element of the offense; (3) the
15
evidence conclusively establishes a reasonable doubt; or (4) the acts alleged do not
constitute the criminal offense charged.” Ryser v. State, 453 S.W.3d 17, 25 (Tex.
App.—Houston [1st Dist.] 2014, pet. ref’d).
A person commits the offense of aggravated sexual assault of a child if, among
other things, he intentionally or knowingly causes the penetration of the sexual organ
of someone younger than 14 years of age. TEX. PENAL CODE § 22.021(a)(1)(B)(i),
(2)(B). The uncorroborated testimony of the child suffices to support a conviction
for aggravated sexual assault. TEX. CODE CRIM. PROC. art. 38.07(a), (b)(1); Johnson
v. State, 419 S.W.3d 665, 671 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d).
Likewise, uncorroborated outcry testimony—the testimony of another regarding the
child’s disclosure of the sexual assault—suffices to support a conviction. Eubanks
v. State, 326 S.W.3d 231, 241 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d).
A person commits the offense of indecency with a child if, among other
things, he touches the breast or genitals of someone younger than 17 years of age
with the intent to arouse or gratify the sexual desire of anyone. TEX. PENAL CODE
§ 21.11(a)(1), (c)(1). Touching a child through her clothing is encompassed by the
offense. Id. § 21.11(c)(1). The required intent may be inferred from the surrounding
circumstances. Navarro v. State, 241 S.W.3d 77, 79 (Tex. App.—Houston [1st
Dist.] 2007, pet. ref’d). The uncorroborated testimony of either the child or an outcry
16
witness suffices to support a conviction for indecency with a child. Jones v. State,
428 S.W.3d 163, 169 (Tex. App.—Houston [1st Dist.] 2014, no pet.).
To establish a prior conviction, the State must prove beyond a reasonable
doubt that a conviction exists and that the defendant was the person convicted. Tate
v. State, 414 S.W.3d 260, 265 (Tex. App.—Houston [1st Dist.] 2013, no pet.). This
may be proven by various means, including documentary proof of the conviction
that has enough information to establish the defendant’s identity. Jimenez v. State,
446 S.W.3d 544, 549 (Tex. App.—Houston [1st Dist.] 2014, no pet.). Witness
testimony may bridge evidentiary gaps in the documentary proof of the conviction
or the identity of the defendant as the person convicted. Id.; Orsag v. State, 312
S.W.3d 105, 116–19 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d).
2. Analysis
(a) Aggravated sexual assault and indecency with a child
Martinez contends that extensive conflicts in the evidence rendered the jury
unable to find him guilty beyond a reasonable doubt. He argues that the testimony
of the witnesses varied and that the complainant’s account changed over time and
lacked details about when and where she was sexually abused. He further argues
that the dates of two of the offenses alleged in the indictment are impossible because
they postdate the complainant’s outcry.
17
Martinez does not dispute that the complainant was 13 years old at the time
of the offenses. The complainant testified that Martinez rubbed her breasts and
vagina and had intercourse with her. Though she could not recall the dates on which
she was abused, she said it happened several times in the room she shared with her
stepsister at night while the family was asleep. This testimony alone is sufficient to
support Martinez’s convictions on all three counts. See Jones, 428 S.W.3d at 169;
Eubanks, 326 S.W.3d at 241. But the complainant’s testimony did not stand alone;
Veronica and Collins both testified about the outcries the complainant made
regarding Martinez’s sexual abuse. Veronica additionally discovered Martinez lying
asleep in the complainant’s bed and holding her in in what Veronica characterized
as a lover’s embrace. Finally, Martinez himself corroborated the complainant’s
allegations to an extent in his recorded interview, in which he acknowledged being
in his daughter’s bed multiple times, being under the blanket with her once, and
being aroused on another occasion.
Martinez nevertheless contends that conflicts in the witnesses’ testimony
render it insufficient. He argues that while Veronica told authorities that the
complainant said he had sexual intercourse with her at least 20 times, the
complainant did not make this allegation to anyone else or testify that Martinez had
sex with her this many times at trial. Martinez points out that the complainant told
Collins of just one alleged instance of sexual intercourse. He further argues that
18
while Collins was aware of the discrepancy concerning the number of instances of
intercourse, she made no effort to resolve this factual conflict during her interview
and testified that both stories—one instance and 20 instances—could be true.
Martinez maintains that a jury’s ability to weigh witness credibility is not unlimited
and asserts that the conflicts in the evidence are so significant that no reasonable jury
could find him guilty of the charged offenses based on this proof.
The record undermines Martinez’s characterization of the witnesses’
testimony. While the complainant did not recall telling Veronica that Martinez had
sex with her 20 times, the complainant did testify that Martinez had sexual
intercourse with her often. Similarly, while Collins agreed that she did not attempt
to reconcile the factual accounts provided by different people, she explained that this
was because her questioning focuses on what the child says during an interview.
Collins further explained that she does ask follow-up questions of the child if the
child says inconsistent things during an interview. In addition, Collins clarified that
two differing accounts about the number of instances of abuse can both be true
because a child simply may not be giving a full account during an interview and
reiterated that the disclosure of sexual abuse is a process that occurs over time.
Martinez does not cite any authority for the proposition that evidentiary conflicts
may be so pronounced as to render them beyond the jury’s evaluation. We hold that
19
any inconsistencies or credibility issues were for the jury to resolve. Isassi, 330
S.W.3d at 638.
Martinez’s complaint about the dates of the offenses likewise does not require
reversal. The indictment alleges that he touched the breast and genitals of the
complainant on or about November 10, 2013. The proof at trial, however,
established that Veronica ejected Martinez from the family home on November 2.
But this variance is immaterial because the indictment alleges that Martinez
inappropriately touched the complainant “on or about” November 10. When the
State alleges an offense occurred “on or about” a specific date, it may prove the
offense “was committed on a date different from that alleged in the indictment” so
long as it predates the presentment of the indictment and the expiration of any
applicable statute of limitations. Thomas v. State, 444 S.W.3d 4, 9 (Tex. Crim. App.
2014). All of the evidence at trial concerned sexual abuse alleged to have taken
place before Martinez’s departure from the family home.
We overrule Martinez’s first, second, and third issues.
(b) Prior conviction for sexual assault of a child
Martinez contends that the proof was insufficient to find he had previously
been convicted of the sexual assault of a child in Colorado. He argues that the State
offered no documentary proof of the conviction into evidence and that it did not
present any witnesses who connected him with the prior conviction.
20
Martinez’s contentions are not supported by the record. After Klawinsky’s
testimony, the State sought to admit the Colorado Sentence Order. The defense
objected on several grounds, including an objection that any probative value the
order had was substantially outweighed by the danger of unfair prejudice. The trial
court held the order was admissible under Article 38.37 of the Code of Criminal
Procedure and admitted a certified copy of it, which was published to the jury. The
order stated the court and case number, identified the defendant as a Juan Jose
Martinez who was born on May 28, 1977, and recited that he had been found guilty
after pleading guilty to violating “18-3-402(1)(e) – Sex Assault – 10-year age
differen.” and jailed for the offense. The State also connected Martinez with the
Colorado offense with other evidence:
● Veronica’s testimony that Martinez told her he had been convicted for
sexual assault in Colorado and jailed;
● Tielke’s testimony that he confirmed Martinez’s identity via his driver’s
license, including his birthdate of May 28, 1977;
● Klawinsky’s videotaped interview with Martinez in which he
acknowledged his prior incarceration in Colorado; and
● Klawinsky’s testimony that she obtained the Sentence Order from Colorado
law enforcement agencies after learning of the conviction.
21
Taken together this proof suffices to permit a factfinder to find beyond a reasonable
doubt that Martinez was convicted of the offense referenced in the Sentence Order.
See Jimenez, 446 S.W.3d at 549; Orsag, 312 S.W.3d at 116–19.
We overrule Martinez’s sixth issue.
B. Evidentiary rulings
Martinez complains that the trial court erred in several of its evidentiary
rulings. In his fourth issue, he contends that the trial court should have permitted
him to question Veronica about the sexual misconduct of one of her sons. In his
fifth issue, Martinez contends that the evidence of his prior Colorado conviction
should have been excluded because its probative value was outweighed by it
potential for unfair prejudice. In his seventh and eighth issues, he maintains that the
trial court erred by allowing Collins’s resume into evidence and by permitting her to
opine on the complainant’s credibility. In Martinez’s ninth issue, he contends that
the court erred by admitting Riley’s sexual assault examination report.
1. Standard of review
To preserve an evidentiary error for appellate review, a party must timely
object with specificity in the trial court unless the specific ground for the objection
is apparent from context. TEX. R. EVID. 103(a); TEX. R. APP. P. 33.1(a). The error
that the party asserts on appeal must conform to the objection made at trial. Clark
v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012).
22
A trial court’s ruling on the admissibility of evidence is reviewed for an abuse
of discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011);
Robbins v. State, 88 S.W.3d 256, 259–60 (Tex. Crim. App. 2002). Under this
standard, we must uphold its ruling so long as it is within the zone of reasonable
disagreement; we may not reverse solely because we would have ruled otherwise.
Tillman, 354 S.W.3d at 435; Robbins, 88 S.W.3d at 260. Even if the trial court stated
an invalid basis for its ruling, we must uphold the ruling if it is correct on any
applicable theory. Osbourn v. State, 92 S.W.3d 531, 538 (Tex. Crim. App. 2002).
2. Analysis
(a) Sexual misconduct of another person
Martinez contends his counsel should have been allowed to question Veronica
about an incident in 2010 in which one of her sons allegedly sexually abused one of
her other children because, according to defense counsel, the earlier incident would
have made her more watchful. The trial court excluded the proposed testimony after
hearing it outside of the presence of the jury. Martinez argues on appeal that this
testimony was relevant to Veronica’s credibility, given her testimony that she had
not noticed anything amiss before she discovered Martinez in bed with the
complainant.
To be admissible, evidence must be relevant. TEX. R. EVID. 402. Evidence is
relevant if “it has any tendency to make a fact more or less probable than it would
23
be without the evidence” and that fact “is of consequence in determining the action.”
TEX. R. EVID. 401. Thus, when assessing the relevance of particular evidence, courts
must consider the purpose for which the proof is being introduced. Layton v. State,
280 S.W.3d 235, 240 (Tex. Crim. App. 2009). It is essential that there be a direct or
logical connection between the proof and the proposition sought to be proven. Id.
The credibility of the State’s witnesses is relevant at trial. See McDuff v. State,
939 S.W.2d 607, 617 (Tex. Crim. App. 1997). But the trial court’s conclusion that
the testimony of alleged sexual abuse of another child in the home was not relevant
to Veronica’s credibility or any other issue in the case was not an unreasonable one.
This 2010 incident involved neither Martinez nor the complainant. It occurred
before the complainant moved in with the family. The defense did not contend that
the complainant misidentified her abuser; it contended that the abuse did not happen.
Thus, neither the 2010 incident nor Veronica’s knowledge about it made a fact of
consequence more or less probable. See Rivera v. State, 130 S.W.3d 454, 460 (Tex.
App.—Corpus Christi 2004, no pet.) (affirming exclusion of incident of sexual abuse
not involving defendant or complainant that defendant sought to introduce to prove
complainant’s mother’s mental state). The trial court therefore did not abuse its
discretion by excluding this evidence.
We overrule Martinez’s fourth issue.
24
(b) Colorado conviction for sexual assault
Martinez argues that the evidence concerning his prior Colorado conviction
for sexual assault should have been excluded under Rule 403. He argues that in
cases like this one, in which the verdict turns on witness credibility due to the
absence of physical evidence, proof that the defendant committed other sexual
offenses against children is substantially more prejudicial than probative. He further
argues that rigorous application of Rule 403 is especially important in this context
to ensure that defendants are not tried merely for being criminals or bad persons in
general, a risk which Article 38.37 exacerbates by disabling the application of Rules
404 and 405 in trials for sexual offenses against children.
In trials for sexual offenses against children, the defendant’s commission of a
separate sexual offense against a child may be admitted “for any bearing the
evidence has on relevant matters, including the character of the defendant and acts
performed in conformity with the character of the defendant,” notwithstanding Rules
404 and 405 of the Rules of Evidence. TEX. CODE CRIM. PROC. art. 38.37, § 2(b).
Proof of a separate offense, however, arguably may be excluded if its probative value
is substantially outweighed by its potential for unfair prejudice. TEX. R. EVID. 403.3
3
This court has applied Rule 403 to Article 38.37. See Wysack v. State, No. 01-
13-00683-CR, 2015 WL 4366245, at *9 (Tex. App.—Houston [1st Dist.] July
16, 2015, pet. ref’d) (mem. op., not designated for publication); Victorian v. State,
No. 01-13-01004-CR, 2015 WL 3915966, at *4 (Tex. App.—Houston [1st Dist.]
June 25, 2015, pet. ref’d) (mem. op., not designated for publication). The State
25
If a defendant objects to extraneous-offense evidence under Rule 403, then
the trial court must weigh the relevance of the evidence against its prejudicial impact.
Johnston v. State, 145 S.W.3d 215, 219–20 (Tex. Crim. App. 2004). But it “need
not conduct a formal hearing or even announce on the record that it has mentally
conducted this balancing test.” Cruz v. State, 122 S.W.3d 309, 313 (Tex. App.—
Houston [1st Dist.] 2003, no pet.). Rule 403 favors admissibility of relevant
evidence and carries with it a presumption that probative evidence is more probative
than prejudicial. Hajjar v. State, 176 S.W.3d 554, 562 (Tex. App.—Houston [1st
Dist.] 2004, pet. ref’d). Moreover, because proof of prior sexual abuse of a child is
especially probative of a defendant’s propensity to sexually abuse another one, “the
Rule 403 balancing test normally will not favor the exclusion of evidence of the
defendant’s prior sexual assaults of children.” Alvarez v. State, 491 S.W.3d 362,
371 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d).
When applying this balancing test, factors we consider include: (1) how
compellingly the evidence of the other crime makes a fact of consequence more or
less probable; (2) the evidence’s potential to affect the jury in an irrational and
incurable way; (3) the degree of delay and distraction caused by the presentation of
this extraneous evidence; and (4) the proponent’s need for the particular evidence in
light of the other admissible proof. Santellan v. State, 939 S.W.2d 155, 169 (Tex.
does not dispute Rule 403’s applicability.
26
Crim. App. 1997); Hajjar, 176 S.W.3d at 561. If these factors, “viewed as
objectively as possible, lead to the conclusion that the danger of unfair prejudice
substantially outweighed the probative value of the proffered evidence,” we “should
declare that the trial court erred in failing to exclude it.” Montgomery v. State, 810
S.W.2d 372, 392 (Tex. Crim. App. 1991) (op. on reh’g).
In Alvarez, this court rejected the very arguments that Martinez asserts here.
There we concluded that evidence of the commission of other sexual offenses against
children was highly probative precisely because the case otherwise turned on witness
credibility. 491 S.W.3d at 371. Consequently, the trial court reasonably could have
concluded both that the Colorado conviction was compelling proof of Martinez’s
guilt and that the State had significant need of this evidence. Furthermore, as we
explained in Alvarez, it is not irrational for jurors to draw conclusions about a
defendant’s guilt based on proof that he sexually abused other children. Id. In
addition, we also concluded that proof of the other offenses was prejudicial, but not
unfairly so. Id. Therefore, the trial court could have reasonably concluded that the
Colorado conviction would not affect the jury in an irrational manner. We note that,
as in Alvarez, Martinez does not identify any particular facts about the Colorado
offense that made proof of it uniquely or unfairly prejudicial. See id. Nor does he
contend that proof of the Colorado offense caused substantial delay or distraction
with respect to the offenses for which he was standing trial. Viewed objectively,
27
none of the four Rule 403 factors weigh in Martinez’s favor. On this record we
cannot conclude that the danger of unfair prejudice associated with the Colorado
conviction substantially outweighed its probative value. Thus, the trial court did not
abuse its discretion under Rule 403. See Montgomery, 810 S.W.2d at 392.
We overrule Martinez’s fifth issue.
(c) Cameron Collins’s resume
At trial, defense counsel objected to the admission of Collins’s resume on the
ground that it was irrelevant. On appeal, Martinez argues that the resume’s sole
conceivable relevance concerned whether Collins was an expert, which was a
decision for the trial court to make rather than the jury.
To the extent that Martinez complains that the trial court abdicated its role as
gatekeeper by admitting Collins’s resume and deferring to the jury’s assessment of
her expertise, he made no objection about her qualifications. Thus, he has not
preserved for appellate review any complaints relating to her qualifications or the
admissibility of her testimony as an expert. TEX. R. EVID. 103(a); TEX. R. APP. P.
33.1(a); Martinez v. State, 22 S.W.3d 504, 507 (Tex. Crim. App. 2000).
We overrule Martinez’s seventh issue.
(d) Testimony about the credibility of the complainant
Martinez contends that Collins improperly testified in support of the
complainant’s credibility. In particular, he argues that Collins’s testimony that
28
children sometimes deny they were abused or recant allegations of abuse was
improper. Martinez likewise argues that it was improper for Collins to testify that
there was no indication that the complainant had been coached.
Defense counsel did not object at trial to the testimony Martinez complains
about on appeal. Thus, Martinez has not preserved any potential error with respect
to this testimony. TEX. R. EVID. 103(a); TEX. R. APP. P. 33.1(a); Oliver v. State, 32
S.W.3d 300, 303–04 (Tex. App.—San Antonio 2000, pet. ref’d).
We overrule Martinez’s eighth issue.
(e) Riley’s sexual assault examination report
At trial, defense counsel objected that Riley’s sexual assault report, which
included statements the complainant made to her during the examination as well as
Riley’s conclusions, contained “hearsay conclusions.” The State responded that the
report came within the exception for statements made for purposes of medical
diagnosis or treatment and the trial court agreed with the State. See TEX. R. EVID.
803(4). Citing Garcia v. State, 126 S.W.3d 921 (Tex. Crim. App. 2004), Martinez
contends on appeal that this hearsay exception is inapplicable. In particular,
Martinez argues that none of the statements made in the report—whether they are
the complainant’s statements or Riley’s—were made for the purpose of medical
diagnosis or treatment. Martinez contends that the report was instead made “as part
of an investigation into allegations of a criminal offense.”
29
Hearsay—a statement not made by the declarant while testifying at trial that
a party offers into evidence for the truth of the matter asserted—is generally
inadmissible. TEX. R. EVID. 801(d), 802. However, this general prohibition does
not bar a statement made for and reasonably pertinent to medical diagnosis or
treatment that “describes medical history, past or present symptoms or sensations;
their inception; or their general cause.” TEX. R. EVID. 803(4). This exception may
encompass medical records documenting the sexual abuse of children. See, e.g.,
Sandoval v. State, 52 S.W.3d 851, 856–57 (Tex. App.—Houston [1st Dist.] 2001,
pet. ref’d) (trial court did not err in admitting medical records in their entirety).
Riley was a pediatric nurse practitioner. In that role, she performed “medical
exams on children who are suspected of being physically or sexually abused.” She
examined the complainant. As part her examination, she completed an eight-page
report. The report included the complainant’s relevant medical history, the
complainant’s description of the alleged abuse, the results of Riley’s physical
examination of the complainant, and Riley’s diagnostic impressions.
We reject Martinez’s contention that Riley’s sexual assault examination of the
complainant was part of a criminal investigation and therefore not made for the
purpose of medical diagnosis or treatment. We have previously recognized that the
purpose of these sexual assault examinations is to ascertain whether the child was
sexually abused and whether the child needs medical attention. Sandoval, 52 S.W.3d
30
at 857. The contents of Riley’s report reflect that she examined the complainant in
order to make this diagnosis and determine if treatment was required. In addition,
Riley testified that she did not consider herself an arm of law enforcement. She
examined the complainant in her capacity as a pediatric nurse practitioner. That
Riley’s examination of the complainant and her report memorializing the
examination was relevant to the law enforcement officers who were investigating
the complainant’s allegations of sexual abuse does not strip the examination of its
medical purpose. Consequently, Garcia is distinguishable. There the Court of
Criminal Appeals held that Rule 803(4) was inapplicable to statements that the
defendant’s wife made to an employee of a battered woman’s shelter because there
was no evidence that she went to the shelter for the purpose of receiving a medical
diagnosis or treatment or that she received a diagnosis or treatment from the shelter’s
employees. 126 S.W.3d at 927. In contrast, Riley’s sexual assault examination
report reflects this purpose on its face. Thus, the trial court did not abuse its
discretion in admitting her report into evidence over the defense’s hearsay objection.
We overrule Martinez’s ninth issue.
31
Conclusion
We affirm the trial court’s judgments of conviction.
Rebeca Huddle
Justice
Panel consists of Chief Justice Radack and Justices Higley and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).
32