The State of Texas v. Stephanie Olivarez

Court of Appeals Tenth Appellate District of Texas 10-24-00342-CR The State of Texas, Appellant v. Stephanie Olivarez, Appellee On appeal from the 54th District Court of McLennan County, Texas Judge Susan N. Kelly, presiding Trial Court Cause No. 2019-793-C2 JUSTICE SMITH delivered the opinion of the Court. MEMORANDUM OPINION Following a jury trial, Stephanie Olivarez was convicted of sexual assault of a child. See TEX. PENAL CODE ANN. § 22.011(a)(2)(C). Her punishment was assessed at six years in prison, probated for ten years. Olivarez timely filed a motion for new trial, which the trial court granted after a hearing. The State appeals, alleging that the trial court abused its discretion by considering evidence related to untimely amendments to the motion1 and in ultimately granting the motion. We reverse and remand. STANDARD OF REVIEW We review a trial court’s decision to grant a motion for new trial for an abuse of discretion. Becerra v. State, 685 S.W.3d 120, 127 (Tex. Crim. App. 2024). We view the evidence in the light most favorable to the trial court's ruling, defer to the trial court's credibility determinations, and assume that all reasonable factual findings in support of the ruling were made. State v. Thomas, 426 S.W.3d 233, 238 (Tex. App.—Houston [1st Dist.] 2012), aff’d, 428 S.W.3d 99 (Tex. Crim. App. 2014). We must not substitute our judgment for the trial court’s judgment; rather, we must decide whether the trial court’s decision was arbitrary or unreasonable, meaning that no reasonable view of the record could support the trial court’s ruling. Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006). A trial court will generally not abuse its discretion in granting a motion for new trial if the defendant: (1) articulated a valid legal claim in her motion for new trial; (2) produced evidence or pointed to evidence in the trial record that substantiated her legal claim; and (3) showed prejudice to her substantial 1 We do not address this issue, as it is not necessary to our resolution of the appeal. TEX. R. APP. P. 47.1. The State of Texas v. Stephanie Olivarez Page 2 rights under the applicable standard in Rule 44.2 of the Rules of Appellate Procedure. State v. Herndon, 215 S.W.3d 901, 909 (Tex. Crim. App. 2007). RELEVANT FACTS Olivarez was the complainant’s father’s girlfriend. She was also friends with the complainant’s mother. In August of 2018, Olivarez reported to the complainant’s father that the complainant’s mother was providing alcohol to minors and engaging in sexual activity with them. The complainant’s father reported these allegations to law enforcement. The next day, the complainant reported to his father that Olivarez had sexually assaulted the complainant approximately four months earlier, on or about April 19, 2018. The complainant’s father reported these sexual assault allegations to law enforcement. Olivarez’s motion for new trial focused on the State’s failure to disclose the complainant’s private counseling records from 2018. The State’s subpoena duces tecum ordering the private counselor, Marjorie Husbands, to produce the complainant’s counseling records and appear for trial on February 27, 2023, was served on February 22, 2023. The case did not proceed to trial as scheduled. On July 31, 2024, a prosecutor advised Olivarez’s counsel via email that the complainant “mentioned he was in counseling in 2017-2018 with a private counselor. We have been talking to The State of Texas v. Stephanie Olivarez Page 3 him since 2019 and this was never brought up. We do not intend to get the records or inquire further about them.” During trial, on August 6, 2024, the complainant indicated that he had discussed the underlying sexual assault in his counseling sessions with Ms. Husbands. Outside of the jury’s presence, defense counsel informed the trial court about the above-mentioned communications regarding the counseling records. Defense counsel advised the trial court that he understood the State’s email to mean that the complainant had not discussed the sexual assault incident with the counselor and that the counseling records would therefore be irrelevant. The State had not provided any of the counseling records to defense counsel. The State responded that Ms. Husbands did not provide any records in response to the subpoena duces tecum and that the State had not inquired into the contents of the counseling sessions with the complainant or Ms. Husbands. The trial court noted that the clerk’s file included a copy of the subpoena duces tecum, and after confirming that the State received no response, commented, “I don’t see any bad faith on the State. I certainly understand.” The court then reminded defense counsel of his ability to subpoena the counseling records and Ms. Husbands if he so desired, and stated that “I don’t see anything that I need to do to the State. It doesn’t appear that they willfully did anything. And at least there was some public notice.” The State of Texas v. Stephanie Olivarez Page 4  Later that day, defense counsel obtained a subpoena duces tecum for the counseling records, which was served on Ms. Husbands the following morning, August 7, 2024. Within the hour, Ms. Husbands emailed the responsive documents to defense counsel’s investigator, who forwarded the records to defense counsel while the State was still presenting its case in chief. Olivarez presented her case in chief that afternoon. Both parties rested and closed their cases on August 8, 2024. Defense counsel did not request a continuance at any time to review or investigate the counseling records. At the hearing on Olivarez’s motion for new trial, Ms. Husbands testified that her Private Health Information (“PHI”) records indicate that on February 22, 2023, “someone came to the door, they identified themselves, and I gave them the records” in response to the State’s subpoena duces tecum. Though Ms. Husbands could swear that the records were “delivered by hand to the person who came to the door” who identified themselves as “being from the proper place[,]” she testified that she could not “swear, to be open and honest, that I know it was a specific person, that it was [the District Attorney’s Investigator].” The State called three witnesses at the hearing on the motion for new trial. Defense counsel’s investigator testified that she relied on the State’s assertion that Ms. Husbands produced no records in response to the subpoena The State of Texas v. Stephanie Olivarez Page 5 on file. She confirmed that she received the counseling records during trial and forwarded them immediately to defense counsel’s email. She also agreed that she had no personal knowledge that the counseling records ever existed in the District Attorney’s Office. One of the State’s prosecuting attorneys testified. The prosecutor explained that he personally reviewed the defendant’s physical file, the physical file of the complainant’s mother, and the “EDOC system” for both cases and did not find the counseling records. He also went through evidence.com – the system into which paper records would be scanned – and did not find the records. When defense counsel asked whether the prosecutor was saying he “looked everywhere that you know to look and there’s no evidence that those -- that these records were inside your office[,]” the prosecutor agreed. Despite the allegations in the motion for new trial that the evidence was intentionally withheld, defense counsel reassured the prosecutor that he was “not accusing you personally of any wrongdoing or even your office of intentionally doing something wrong[,]” and later commented that the defense was not contending that the District Attorney’s Office “maliciously hid these records.” The final witness was the District Attorney’s Office investigator specifically named in Ms. Husbands’s affidavit as the representative to whom The State of Texas v. Stephanie Olivarez Page 6 she provided the counseling records in 2023. The investigator testified that he did not recall going to Ms. Husbands’s home and that he did not get the counseling records. He also stated that he had no knowledge of the counseling records existing in the District Attorney’s Office and that, in an effort to find them, he searched the files and the office. The trial court took the motion under consideration, and eventually granted the motion for new trial by written order. ANALYSIS A trial court has no discretion to grant a motion for new trial on grounds not raised in the motion. State v. Provost, 205 S.W.3d 561, 566 (Tex. App.— Houston [14th Dist.] 2006, no pet.). Here, Olivarez raised two specific grounds in her timely-filed motion for new trial2: (1) under Rule of Appellate Procedure 21.3(e), that evidence tending to establish her innocence was intentionally destroyed or withheld, thus preventing its production at trial; and (2) under 2 The State filed a response to Olivarez’s motion for new trial that included several objections to the motion. Olivarez filed a response to the State’s objections on October 9, 2024 – outside the 30-day window for amendments to the motion for new trial – in which she alleged for the first time that a new trial should be granted based on a “Brady Violation, Fundamental Fairness, and Due Process[.]” See TEX. R. APP. P. 21.4(b). At the hearing on the motion for new trial, the State objected to Olivarez’s response “where they’ve asserted new grounds” as untimely filed and requested that the trial court refuse to consider any of the newly-alleged grounds. After overruling the objection, the trial court granted the State a running objection. Because these grounds were untimely raised, and because the State objected, they cannot support the trial court’s grant of the motion for new trial. See State v. Moore, 225 S.W.3d 556, 570 (Tex. Crim. App. 2007) (“[…] over the State’s objection, the appellate court should consider only the validity of the original and any timely amended motion for new trial, and should reverse any ruling granting a new trial based upon matters raised for the first time in an untimely amendment.”). The State of Texas v. Stephanie Olivarez Page 7 Rule of Appellate Procedure 21.3(h), that the verdict was contrary to the law and the evidence. See TEX. R. APP. P. 21.3(e), (h). The trial court did not clearly state the grounds upon which it granted the motion for new trial, but referenced Rule 21.3(h) and the “interest of justice.” The order granting the motion for new trial included the following findings: 1. The record reflects that the State requested the therapy records from the complainant’s therapist on February 22, 2023, which pertain to the complainant attending therapy at or near the time of the outcry of the commission of the offense. 2. The State alleges it never received nor viewed the therapy records. 3. The subpoena for the therapy records was served on February 22, 2023. 4. At the hearing on the Motion for New Trial, the therapist testified that, pursuant to the subpoena, she gave a copy of the therapy records of the complainant to an investigator for the McLennan County District Attorney’s Office on February 22, 2023, when the investigator came to her home in Crawford, Texas. 5. The State did not provide the therapy records to the defense at any point. 6. The State has a duty to disclose to a defendant any exculpatory, impeachment, or mitigating document, item, or information in the possession, custody, or control of the State that tends to negate the guilt of a defendant. (Tex. Code Crim. Proc. Art. 39.14). The State of Texas v. Stephanie Olivarez Page 8  7. During the trial, on cross-examination of the complainant, the Defendant learned that the complainant had discussed facts related to the offense with his therapist. 8. The therapy records contain exculpatory and impeachment information that could be used by the Defendant to try to negate her guilt. Rule 21.3(h) An allegation that the verdict is contrary to the law and the evidence is a legal sufficiency challenge. State v. Zalman, 400 S.W.3d 590, 594 (Tex. Crim. App. 2013). Because a motion for new trial challenging the sufficiency of the evidence presents a legal rather than a factual question, a trial court must apply the appellate sufficiency standard of review. State v. Medina, 536 S.W.3d 528, 532 (Tex. App.—San Antonio 2017, pet. ref’d). This means that the trial court must view 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. Id. If a reasonable juror could have found the essential elements beyond a reasonable doubt, then the trial court abuses its discretion in granting the motion for new trial under Rule 21.3(h). Id. On appeal, we “conduct the same review conducted by the trial court when it made its original determination to grant [the defendant’s] new trial.” Id. Thus, we review all the evidence in the light most favorable to the guilty The State of Texas v. Stephanie Olivarez Page 9 verdict to determine whether any rational factfinder could have found beyond a reasonable doubt that Olivarez committed the offense. Zuniga v. State, 551 S.W.3d 729, 732-33 (Tex. Crim. App. 2018); Medina, 536 S.W.3d at 532. We measure whether the evidence presented at trial was sufficient to support a conviction by comparing it to “the elements of the offense as defined by the hypothetically correct jury charge for the case.” Zuniga, 551 S.W.3d at 733 (quoting Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). Pursuant to a hypothetically correct jury charge in this case, a defendant commits the offense of sexual assault of a child by intentionally or knowingly causing the sexual organ of a child younger than seventeen years of age to contact the sexual organ of the defendant. See TEX. PENAL CODE ANN. §§ 22.011(a)(2)(C), (c)(1). The complainant testified that when he was fourteen years old, Olivarez got on top of him and caused his penis to contact her vagina. A child victim's testimony alone is sufficient to support a conviction for sexual assault of a child. See TEX. CODE CRIM. PROC. ANN. art. 38.07. Furthermore, Olivarez testified that the complainant’s penis might have penetrated her vagina 3, but she asserted that the complainant “raped me. I didn’t do anything to him.” 3 Olivarez vacillated during her testimony on whether she could recall the complainant’s penis penetrating her vagina. At one point, when the State asked Olivarez whether it was true that she was alleging the complainant’s penis penetrated her vagina, she stated, “Obviously, that’s true. And, obviously, that’s what happened.” The State of Texas v. Stephanie Olivarez Page 10 The jury is the exclusive judge of the credibility of the witnesses and the weight of the evidence. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). In reviewing Olivarez’s motion, the trial court had to presume that the jury resolved any conflicts in the evidence in favor of the verdict. See Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). A rational juror could have credited the complainant’s testimony over Olivarez’s testimony as to which person intentionally or knowingly caused the sexual-organ-to-sexual-organ contact. Because a rational juror could have found the essential elements beyond a reasonable doubt, the trial court abused its discretion in granting the motion for new trial under Rule 21.3(h) as contrary to the law and the evidence. Interest of Justice The trial court’s order granting the motion for new trial indicates that the “interest of justice” ground was based on the State’s violation of article 39.14(h) of the Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 39.14(h). Under this subsection, as relevant here, the State has a duty to disclose to a defendant any exculpatory, impeachment, or mitigating document, item, or information in the possession, custody, or control of the State that tends to negate the guilt of a defendant. Id. Olivarez did not include “in the interest of justice” as a specific ground in her motion for new trial, The State of Texas v. Stephanie Olivarez Page 11 though she did mention article 39.14 in her motion and provide factual information supporting her claim of a violation of that statute. We give deference to the trial court’s resolution of the conflicting evidence about whether Ms. Husbands provided the counseling records to the District Attorney’s Office. We thus analyze this claim assuming that the District Attorney’s Office possessed the counseling records in 2023 and failed to provide those records to Olivarez. As to the first factor, a disclosure violation of article 39.14 is a valid legal claim for purposes of a motion for new trial. See Fortuna v. State, 665 S.W.3d 861, 867 (Tex. App.—Houston [14th Dist.] 2023, no pet.). However, when previously undisclosed evidence is disclosed during trial, the defendant’s failure to request a continuance waives any violation under article 39.14(h). Ray v. State, No. 10-17-00394-CR, 2018 WL 4926215, at *6 (Tex. App.—Waco Oct. 10, 2018, pet. ref’d) (mem. op., not designated for publication). Defense counsel undisputedly obtained the counseling records during the trial. The State argued in its response to the motion for new trial and at the hearing that Olivarez failed to seek a continuance to review the counseling records. Defense counsel argued at the motion for new trial that he should not be expected to check his email in the course of trial and that “[w]e did what we could when we could and we received the evidence that we could when we could.” Defense The State of Texas v. Stephanie Olivarez Page 12 counsel, in other words, “had the opportunity to avoid the prejudice and impairment but chose not to.” Rodriguez v. State, 630 S.W.3d 522, 524 (Tex. App.—Waco 2021, no pet.). Olivarez waived her article 39.14(h) challenge. Even assuming that Olivarez preserved her article 39.14(h) challenge, and assuming that the State’s failure to disclose the counseling records substantiated an article 39.14(h) violation, the trial court should not grant a new trial if the defendant's substantial rights were not affected. Herndon, 215 S.W.3d at 908. The harmless error standard under Rule 44.2(b) applies to an article 39.14 statutory violation. Hallman v. State, 721 S.W.3d 307, 314 (Tex. Crim. App. 2025). If the error had no influence on the jury or had but very slight effect, the error must be disregarded. Thomas v. State, 505 S.W.3d 916, 926 (Tex. Crim. App. 2016). On appeal, Olivarez asserts that he was harmed because the counseling records revealed areas of cross-examination on the following subjects: (1) the complainant’s motivations and protectiveness of his mother; (2) the complainant’s anger with his father for reporting the sexual assault to law enforcement; and (3) the weight to give the complainant’s testimony about his memory of the event, because the records stated that the complainant admitted “he was so intoxicated on the night of the occurrence that he had very little memory of the incident[.]” Olivarez claims that because The State of Texas v. Stephanie Olivarez Page 13 the counseling records go to the complainant’s credibility, the records would have influenced the jury’s verdict. We compare the inculpatory evidence against the magnitude of the alleged error to see whether the error had only a “very slight effect” or if there was “substantial” harm. Hallman, 721 S.W.3d at 314. The record reflects that both parties agreed that a sexual assault occurred on the night in question; the debate was whether the victim of the sexual assault was Olivarez or the complainant. Ms. Husbands’s counseling notes consistently characterize the complainant as the victim of the sexual assault. Moreover, the counseling records are cumulative of testimony regarding each of the credibility-related subjects Olivarez identifies in her brief. The complainant testified at trial that he was protective of his parents, including physically fighting a boy who made an offensive statement about his mother. He also agreed that he was angry with his father for reporting the sexual assault to law enforcement and that he was upset that he had to be separated from his mother due to the criminal charges initiated by Olivarez’s report to his father. The complainant explained that on the night of the incident, he was intoxicated to the point of becoming physically sick and unable to move while Olivarez was sexually assaulting him. In line with the counseling records, when defense counsel asked the complainant at trial whether he was too intoxicated to remember what The State of Texas v. Stephanie Olivarez Page 14 happened, the complainant stated that he “had a good amount to drink” and he remembered “some, not all” of what happened. Olivarez also argued at the motion for new trial hearing that she could have cross-examined the complainant at trial about his lack of significant discussion about his feelings associated with being a victim of sexual assault and minimal discussion of the offense. However, the counselor agreed at the motion for new trial hearing that she does not take very detailed notes4 and that “everything that [the complainant] said is not in those notes.” She specifically confirmed that even though the complainant “admitted [the sexual assault] happened[,]” she did not include this information in her notes, and that she did not record his “reactions” in her notes. There is no reasonable view of the record that would support the trial court’s implied finding that the absence of the counseling records during trial had a “substantial and injurious effect” on the jury verdict. The untimely disclosure's effect, if any, was slight. Therefore, the trial court erred in granting the motion for new trial in the interest of justice based on a violation of article 39.14(h). 4 The counseling records are approximately 30 pages in total, and several pages do not contain more than one-half page of content. The State of Texas v. Stephanie Olivarez Page 15  Rule 21.3(e) We will uphold the trial court's judgment if any appropriate ground exists to support it. See Provost, 205 S.W.3d at 566. Thus, we must address the other ground raised in Olivarez’s timely motion for new trial even though it is apparent that the trial court did not grant a new trial on that ground. Rule 21.3(e) requires that the evidence tending to establish the defendant’s innocence be “intentionally” destroyed or withheld. See TEX. R. APP. P. 21.3(e). We note that Olivarez appeared to abandon this ground at the motion for new trial hearing by repeatedly asserting that she was not claiming the State acted willfully, intentionally, or maliciously in failing to provide the counseling records. The trial court included a finding that the State failed to provide the counseling records to the defense; however, there was no finding that this was intentional conduct. The record does not contain any evidence that the State intentionally destroyed or withheld the counseling records. The only evidence regarding the whereabouts of the counseling records after Ms. Husbands provided them to the District Attorney’s Office was that the records could not be found in either digital or paper form despite search efforts by at least one prosecutor and investigator. The record does not reasonably support a grant of a motion for new trial under Rule 21.3(e). The State of Texas v. Stephanie Olivarez Page 16  Conclusion The trial court’s grant of Olivarez’s motion for new trial is unsupported by any reasonable view of the record. Therefore, the trial court abused its discretion in granting Olivarez’s motion for new trial, and the State’s second issue is sustained. The trial court’s order granting Olivarez’s motion for new trial is reversed and the case remanded to the trial court with instructions to reinstate the judgment of conviction and the sentence. STEVE SMITH Justice OPINION DELIVERED and FILED: September 29, 2026 Before Justice Smith, Justice Harris, and Senior Justice Davis5 Reversed and remanded Do Not Publish CR25 5 The Honorable Rex Davis, Senior Justice (Retired) of the Tenth Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Texas. The State of Texas v. Stephanie Olivarez Page 17