Full Opinion (html_with_citations)

Affirmed; Opinion Filed December 19, 2014.




                                            S
                                Court of Appeals
                                                In The


                         Fifth District of Texas at Dallas
                                         No. 05-13-01212-CR

                                   SERGIO URESTI, Appellant
                                             V.
                                 THE STATE OF TEXAS, Appellee

                      On Appeal from the Criminal District Court No. 4
                                   Dallas County, Texas
                           Trial Court Cause No. F-1112542-K

                                             OPINION
                              Before Justices FitzGerald, Lang, and Brown
                                     Opinion by Justice FitzGerald
       A jury found appellant guilty of continuous sexual abuse of a child under the age of

fourteen and assessed his punishment at thirty-five years’ imprisonment. In two issues on appeal,

appellant asserts the trial court erred in admitting his wife’s testimony concerning their sexual

relationship and in admitting a chart setting forth the instances of sexual abuse described in the

complaining witness’s testimony. Concluding appellant’s arguments are without merit, we affirm

the trial court’s judgment.

                                              BACKGROUND

       Appellant began sexually abusing his daughter in their home when she was eight or nine

years old and in the third grade. On the first occasion, appellant forced his daughter (the

complainant) to watch a pornographic movie and performed oral sex on her. The sexual abuse

continued until the complainant was in seventh grade. Throughout that period, appellant
performed oral sex on the complainant and forced her to perform oral sex on him. When the

complainant was ten or eleven years old, appellant inserted his penis into her vagina. Appellant

would come to the complainant’s room at night and rub her vagina. On other occasions,

appellant forced the complainant to fondle his penis.

       At some point, the complainant told two of her school friends about the abuse. When she

was thirteen, she told her mother, Aracely Hernandez. Although Hernandez wanted to go to the

police, the complainant persuaded her not to do so because she was afraid her mother would be

deported or that the family would be unable to support itself.

       About two weeks after the complainant told her mother about the sexual abuse, on a

Friday afternoon, appellant caught the complainant holding hands with a boy outside her school.

When they arrived home, appellant slapped the complainant, pulled her hair, and called her a

“stupid bitch.” The following Monday, the complainant reported the sexual abuse to her school

counselor. The police were notified and appellant was eventually arrested and charged.

       The complainant testified at length about the sexual abuse at trial. The State also

presented testimony of the complainant’s childhood best friend, the school counselor, a forensic

interviewer from the Children’s Advocacy Center, the complainant’s mother, a physician from

the hospital where a sexual assault exam had been performed, the detective assigned to the case,

and a counselor who provided the complainant with therapy following her outcry. Appellant

presented no witnesses. The defensive theory was that the complainant fabricated the allegations

because she was angry with appellant for punishing her for interacting with a boy.

       The jury found appellant guilty of continuous sexual abuse of a child under fourteen and

assessed punishment at thirty-five years’ imprisonment. Appellant timely perfected this appeal.




                                               –2–
                                                                    ANALYSIS

Admission of the Chart

          In his second issue, appellant complains the trial court erred in admitting a chart made by

the prosecutor setting forth the instances of sexual abuse testified to by the complainant.

Specifically, appellant asserts that a chart summarizing evidence that is already before the jury is

not admissible under rule 1006 of the rules of evidence, constitutes improper bolstering of the

complainant’s testimony, and circumvents the requirements of article 36.28 of the code of

criminal procedure. The complained-of exhibit is not part of the record on appeal and there is no

discussion of its contents on the record. But appellant posits that if we assume the exhibit was

correctly described at the time it was offered into evidence, “the chart was likely erroneously

admitted.”

          Even if we were able to determine error based on the assumptions appellant advances, the

issue has not been preserved for our review. When the exhibit was offered into evidence at trial,

appellant’s sole objection was that the chart was “hearsay.” It is well-established that a complaint

on appeal must comport with the objection made at trial; otherwise any error is waived. 1

Appellant’s argument on appeal does not comport with the objection asserted at trial. Therefore,

appellant’s complaint about the admission of the chart has been waived. Appellant’s second issue

is overruled.

Admission of Testimony Concerning Appellant’s Sexual Relationship With His Wife.

          In his first issue, appellant argues the trial court erred in admitting his wife’s testimony

concerning their sexual relationship. According to appellant, his sexual proclivities were not

relevant, the probative value of the evidence was outweighed by the danger of unfair prejudice,

and the evidence constituted improper extraneous offense and character evidence. Because

   1
       Pena v. State,
285 S.W.3d 459, 464
 (Tex. Crim. App. 2009).



                                                                    –3–
appellant did not raise a rule 404(a) or 404(b) objection at trial, we consider only appellant’s

complaint as to relevance. 2

             We review a trial court’s decision to admit or exclude evidence under an abuse of

discretion standard. 3 We will not reverse a trial court’s ruling unless that ruling falls outside the

zone of reasonable disagreement. 4 Likewise, we give deference to a trial court’s determination

that the probative value of the evidence is not outweighed by the danger of unfair prejudice. 5

             “All relevant evidence is admissible, except as otherwise provided by Constitution, by

statute, by [the Texas Rules of Evidence], or by other rules prescribed pursuant to statutory

authority.” 6 “Evidence which is not relevant is inadmissible.” 7 “Relevant evidence” is “evidence

having any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without the

evidence.” 8

             At one point during the direct examination of Hernandez, the State said, “I want to ask

you about your sex life with [appellant].” Defense counsel objected, stating, “Judge, I’m going to

object to the relevance of that to this.” Both counsel then engaged in an off-the-record

conversation with the judge at the bench. The judge called for a ten minute break. After the

break, before the jury returned, the judge stated, “All right. Basically, the whole thing would be



2
 There is also no indication appellant objected that the probative value was outweighed by the danger of unfair prejudice, or that the State relied
on rule 403 to support admission of the testimony. See TEX. R. EVID. 403. Nonetheless, the trial court admitted the testimony on this basis.
3
    Shuffield v. State,
189 S.W.3d 782, 793
 (Tex. Crim. App. 2006).
4
    Torres v. State,
71 S.W.3d 758, 760
 (Tex. Crim. App. 2002).
5
    Moses v. State,
105 S.W.3d 622, 627
 (Tex. Crim. App. 2003).

6
    TEX. R. EVID. 402.
7
Id.
8
 TEX. R. EVID. 401.




                                                                      –4–
weighing the probative value versus the prejudicial affect. The probative does outweigh the

prejudicial, so I am going to allow it.” 9

           When the questioning resumed, the State asked Hernandez why she and appellant didn’t

have sex frequently. Hernandez stated that sometimes appellant told her she was fat and ugly and

that she had lost something. The following exchange ensued:

                      A. No. He - - I don’t know. He would tell me before I was - - I used to
                      smell like a little girl.

                      Q. He would tell you, you didn’t smell like a little girl anymore, that you
                      lost that?

                      A. Uh-huh.

                      Q. And that would be a reason he wouldn’t want to have sex with you?

                      A. It was either because he had prostate issues or it was normal not to be
                      so intimate anymore.

                      Q. So when you had sex would he ever say anything weird to you?

                      A. Well, yea, sometimes he would tell me that he wanted me to be with
                      another woman, and they were just fantasies. And he would also ask me if
                      I had started having sex when I was younger, like, maybe 12 or 13-years-
                      old.

                      Q. He would ask you if you started having sex then?

                      A. He would ask me when we had sex sometimes.

                      Q. I’m unclear about what you’re saying. Are you saying during sex he
                      was asking you to tell him that?

                      A. When we had sex he would ask me if I had had sex when I was 10-
                      years-old, 11, 12, and to answer him yes. And if it was with an adult?

                      Q. So this is while y’all are actually having sex, he’s wanting you to say if
                      you had sex at age 9 or 10 with an older man?

                      A. He would ask me when we had sex.

9
  Rule 403 provides that: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.”
TEX. R. EVID. 403.




                                                                      –5–
                         Q. So he wanted you to say - -

                         A. He would ask me how old I was when I had sex for the first time?

                         Q. So he would want you to say yes to the questions about you having sex
                         when you were 9 or 10?

                         A. He would ask me at what age, whether it was 12, 11, or when.

             Assuming without deciding that the trial court abused its discretion in admitting the

above testimony, we cannot conclude appellant was harmed by its admission. A violation of

evidentiary rules resulting in the erroneous admission of evidence is nonconstitutional error,

subject to a harm analysis under rule 44.2(b). 10 Any nonconstitutional error that does not affect

substantial rights must be disregarded. 11 A substantial right is affected when the error had a

substantial and injurious effect or influence in determining the jury’s verdict. 12 A criminal

conviction should not be overturned for nonconstitutional error if the appellate court, after

examining the record as a whole, has fair assurance the error did not influence the fact-finder, or

had but a slight effect on its verdict. 13

             In determining the harm, we consider the existence and strength of other evidence, the

emphasis given to the erroneously admitted evidence, and any limiting instructions. 14 Here, there

were no limiting instructions specific to the complained-of testimony. 15 And after the testimony

was elicited, the State referenced the testimony again in closing argument, characterizing

appellant’s proclivities with his wife as “sick” and “disgusting.” Nonetheless, the evidence

against appellant was overwhelming.

10
     See TEX. R. APP. P. 44.2(b); Coble v. State,
330 S.W.3d 253, 280
 (Tex. Crim. App. 2010).
11
     TEX. R. APP. P. 44.2(b).
12
     Coble,
330 S.W.3d at 280
.
13
Id.
14
   See Chaddock v. State,
203 S.W.3d 916
, 928–29 (Tex. App.—Dallas 2006, no pet.) (discussing harm in the context of erroneously overruled
rule 403 objection).
15
     The jury charge did contain a general instruction concerning extraneous offense evidence.


                                                                       –6–
       The complainant testified extensively about appellant’s sexual abuse of her, and this

testimony was corroborated by other witnesses. Caitlin Cleveanger, former forensic interviewer

with the Children’s Advocacy Center testified about her interview of the complainant. The

complainant was thirteen years old at the time of the interview, and described the first instance of

sexual abuse by her father when she was in the third grade. The complainant told Cleveanger that

her father had shown her a “dirty” movie and asked her if she wanted to do the things depicted in

the movie. The child said “no,” and went downstairs to watch television. But her father came

downstairs and removed her pants and performed oral sex on her. The complainant explained

that she just “froze” and it scared her. The complainant also described another instance that

occurred when she was in the fourth grade. She reported that her father called her upstairs to the

master bedroom. When she arrived, he asked her to take off her clothes and get on the floor. Her

father then removed his clothes and put his penis inside her vagina. The complainant was

screaming and crying and telling him to stop. At one point, appellant stopped, and the

complainant pushed him and ran into the bathroom. The complainant disclosed another instance

with appellant involving oral sex and reported that there were several times she observed her

father masturbating. The complainant was able to provide sensory details about the instances of

abuse she described.

       The complainant told Cleveanger the abuse stopped when her mother stopped working at

night. The complainant said that her father would try to keep her separated from her mother, and

told her father/daughter relationships “are like this.”

       Hernandez also testified about her daughter’s outcry to her. She explained that she did

not go to the police because she was afraid that she would be deported or that CPS would take

her children away. Hernandez also testified that on more than one occasion when the

complainant was between the ages ten and twelve, appellant saw the complainant eating a

                                                 –7–
banana and commented that she had a “sucking mouth.” If the complainant or her sister was

taking too long on her bath, appellant would tell Hernandez to go check to make sure the girl

“was not playing with her thing.” When the complainant wore shorts, appellant would check to

see if the shorts were an appropriate length by having the complainant bend over and touch her

toes in front of him. After the complainant’s outcry, Hernandez became watchful of her

daughters. Appellant asked Hernandez whether she was afraid that he was going to rape her girls.

        J. Smeltzer, an officer with the Balch Springs police department, testified about her

investigation of the offense. Smeltzer was present when Cleveanger conducted the forensic

interview with the complainant. During the interview, the complainant described where her

father kept the pornography he made her watch and identified one of the movies entitled “Asian

Buffet.” Smelter went to the complainant’s home and spoke with Hernandez. She photographed

the inside of the home and retrieved the pornographic movies, including the movie “Asian

Buffet” from the location the complainant had described.

       During the course of the investigation, Smeltzer also spoke with Ruth Lopez, a friend of

the complainant’s. Lopez told her that appellant was a “bad man.” Lopez had been friends with

the complainant since the girls were eight or nine years old, and that she could tell there was

something wrong with the complainant. When the complainant finally opened up to her, she told

Lopez that she had lost her virginity to her father and “that had been going on for a long time.”

       Smeltzer also testified that based on her observation of the complainant’s forensic

interview, the complainant “had details that a child her age should not know,” and Smeltzer

believed she was telling the truth.

       Patricia Mulligan, the complainant’s school counselor testified that she had been

counseling the complainant for a while, and she ultimately confided that her father had sexually

abused her. Mulligan contacted CPS. When the complainant told Mulligan about the abuse, she

                                               –8–
also told Mulligan that on the preceding Friday, her father caught her holding hands with a boy,

was very angry, and had slapped her. On cross-examination, defense counsel inquired whether

the counselor thought it strange that complainant made an outcry of abuse the following

Monday. The counselor replied, “No. If something pushed her to the point where she was ready

to come out with it then, no.”

       The jury also heard from Kenita Taylor-Holsworth, a counselor at the Children’s

Advocacy Center. The complainant met with Taylor-Holsworth because there were reports that

complainant had been sexually abused and the complainant was experiencing symptoms of

depression and “cutting.” Taylor-Holsworth explained that “cutting” means using objects like

razor blades, knives, needles, or fingernails to cut the skin to create injuries on the body. Taylor-

Holsworth believed that complainant’s problems included depression and post-traumatic stress

disorder. Taylor-Holsworth met with the complainant once a week for about a year and a half.

During her sessions with the complainant, Taylor-Holsworth learned that the perpetrator of the

abuse was complainant’s father.

       At some point during the course of therapy, Taylor-Holsworth met with the complainant

twice a week. During this time, the complainant was presenting with extreme flashbacks, and

had been passing out at school. She was throwing temper tantrums at home where she would lose

control and become incredibly angry. These symptoms became so severe that the complainant

was missing school because she could not complete the day. Initially, because the complainant

was so depressed and suicidal, the counseling was performed on an individual basis. As the

complainant’s condition improved, she was referred to a group session for girls who had

experienced similar issues.




                                                –9–
       Given the strength of the evidence against appellant, we conclude that the admission of

Hernandez’s testimony about her sex life with appellant, even if erroneous, was harmless.

Appellant’s first issue is overruled.

       Having resolved all of appellant’s issues against him, we affirm the trial court’s

judgment.




                                                 /Kerry P. FitzGerald/
                                                 KERRY P. FITZGERALD
                                                 JUSTICE




Do Not Publish
TEX. R. APP. P. 47
131212F.U05




                                            –10–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

SERGIO URESTI, Appellant                            On Appeal from the Criminal District Court
                                                    No. 4, Dallas County, Texas
No. 05-13-01212-CR        V.                        Trial Court Cause No. F-1112542-K.
                                                    Opinion delivered by Justice FitzGerald.
THE STATE OF TEXAS, Appellee                        Justices Lang and Brown participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 19th day of December, 2014.




                                            –11–