Campos v. State

458 S.W.3d 120

Javier Noel Campos, Appellant

v.The State of Texas, Appellee

NO. 01–13–00415–CR

NO. 01–13–00416–CR

NO. 01–13–00417–CR

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued January 13, 2015

Rehearing Overruled February 19, 2015

Discretionary Review Granted July 29, 2015

Wayne T. Hill, Houston, for Appellant.

Devon Anderson, Dist. Atty., Clinton A. Morgan, Asst. Dist. Atty., Harris County, Houston, for the State.

Panel consists of Justices Keyes, Higley, and Brown.

OPINION

Evelyn V. Keyes, Justice

A jury convicted appellant, Javier Noel Campos, of three counts of the first-degree felony offense of aggravated sexual assault of a child and assessed punishment at sixty-eight years' confinement for all three cases.¹ The trial court ordered that the sentences for cause numbers 1308988 and 1328806 run concurrently and that the sentence for cause number 1328807 be served consecutively.²

In thirteen issues, appellant contends that (1) the State failed to present sufficient evidence that he committed the offense; (2) the trial court erred in overruling his motion for mistrial made when the State referred to an extraneous bad act during opening statements; (3) the trial court erroneously allowed the testimony of the outcry witness to exceed the scope of the information contained in the statutory outcry notice; (4) the trial court erroneously allowed the forensic interviewer to testify to matters outside of her expertise; (5) the trial court erroneously allowed a witness to testify about her suspicions regarding appellant formulated in response to a conversation with another witness; (6) the trial court erroneously admitted the content of text messages through the testimony of a witness when the messages themselves had been deleted; (7) the trial court erroneously denied a motion for mistrial made when the complainant referenced a letter sent to him by appellant while appellant was “in prison”; (8) the trial court erroneously denied his motion to testify free from impeachment by prior convictions; (9) the trial court erroneously allowed the State to impeach him with a conviction that was more than ten years old; (10)-(11) the trial court erroneously allowed the State to impeach him with two misdemeanor convictions for offenses that did not constitute crimes involving moral turpitude; (12) the trial court erroneously overruled his objection that the State improperly shifted the burden of proof to him during closing argument; and (13) the trial court erroneously cumulated his sentence in cause number 1328807.

We affirm.

Background

The State indicted appellant for three counts of aggravated sexual assault of a child. The first count alleged that appellant sexually assaulted C.G.J., the complainant, by placing his sexual organ in C.G.J.'s anus. The second count alleged that appellant placed his sexual organ in C.G.J.'s mouth. The third count alleged that appellant caused C.G.J.'s sexual organ to penetrate appellant's mouth. The three indictments all alleged that these acts occurred on or around July 11, 2005.

In the summer of 2005, A.G., her husband, C.W., her ten-year-old son, C.G.J., and her daughter moved into the Embers Apartments in Pasadena. Appellant, who was thirty-three years old at the time, lived in the same apartment complex. A.G. testified that she thought appellant was polite and a “really nice guy.” Appellant offered to help A.G. drive C.G.J. to school, he bought C.G.J. clothes and toys, and A.G. let C.G.J. spend the night with friends at the apartment in which appellant was also living. A.G. noticed that appellant spent more time with C.G.J. than with other children at the apartment complex, but she believed that appellant thought C.G.J. needed a “good role model in his life,” and she was grateful for any help appellant could provide.

C.G.J. eventually left the Embers Apartments and went to live with A.G.'s sister, M.N., and her family. Subsequently, A.G. started to become suspicious of appellant. At this point in A.G.'s testimony, the State approached the bench to inform the trial court that appellant had sent C.G.J. some text messages that M.N. had seen and then discussed with A.G. and that appellant had then approached A.G. at work because he had not seen C.G.J. in a while. The State wanted A.G. to testify about her conversation with appellant, but it stated that it needed to set up the fact that A.G.'s opinion of appellant had changed. Defense counsel objected on hearsay grounds to any testimony about the text messages, and she also objected on hearsay grounds to any testimony from A.G. about her opinion of appellant changing after she spoke with M.N. After a lengthy discussion with the State and defense counsel, the trial court stated that it would allow the State to ask A.G. if her attitude toward appellant changed at some point and what caused that attitude shift. The court then said that A.G. could respond that a conversation with M.N. changed her opinion.

In the presence of the jury, the State asked A.G., “[D]id you ever become suspicious of the defendant's interactions with [C.G.J.]?” A.G. responded, “I really became suspicious after a conversation I had with my sister. I had a conversation with my brother-in-law and my sister; and it made me very, very suspicious.” A.G. testified that after she had this conversation with M.N., appellant came to see her at work. He was very emotional and was crying, and he apologized to A.G. and told her that “he loved my son and that he just wanted to see him.”

In 2011, A.G. and C.G.J. were having a conversation and appellant's name was mentioned. A.G. asked C.G.J. if appellant had “ever tried anything on you.” C.G.J. said yes, and A.G. asked him if appellant made C.G.J. have sex with him. C.G.J. again said yes, although he did not give any further details about what had happened. A.G. then took C.G.J. to the Pasadena Police Department to report the offenses.

The State called M.N., and, before she testified, the prosecutor informed the trial court that she would testify about text messages C.G.J. had received from appellant. The trial court then held a hearing outside the presence of the jury to elicit testimony from M.N. concerning how she knew the text messages came from appellant. M.N. identified appellant in court, and she testified that when C.G.J. came to live with her he had a cell phone that appellant had given him. She testified that C.G.J. referred to appellant as “Godfather,” that C.G.J. did not refer to anyone else by this name, that the name associated with appellant on C.G.J.'s cell phone was “Godfather,” and that she had seen text messages on the phone from “Godfather.” M.N. saw text messages from “Godfather” stating, “Why haven't you called me? I miss you. I can't live without you. Why are you doing this to me?”

M.N. testified that, based on the text messages, she confronted appellant, warned him to stay away from C.G.J., and told him that she would contact the police. Appellant did not deny sending those messages. Later that day, M.N. asked C.G.J. if she could see his phone, but he had already deleted the text messages at appellant's direction. M.N. filed a police report against appellant for stalking.³ Defense counsel objected to M.N.'s testimony concerning the text messages on both hearsay and authentication grounds. The trial court ruled: “I find that there is sufficient authentication. And, of course, an admission [of a party opponent] is an exception to the hearsay rule. So your objection is overruled.”

Before the jury, M.N. testified that she had concerns about appellant's relationship with C.G.J. because appellant “obviously was way too old to be hanging out with my nephew.” She thought it “wasn't good for [C.G.J.]” that he was at appellant's apartment all the time. M.N. testified that she had observed negative changes in C.G.J.'s behavior, such as an increasing amount of anger, and that he had been performing very poorly in school before coming to live with her family. She testified that she did not allow C.G.J. to have contact with appellant, but because appellant had given C.G.J. a cell phone they were still in contact via text message. She stated that she saw text messages on C.G.J.'s phone from appellant that read, “Why aren't you picking up? Do you not love me? I feel sick without you.” M.N. confronted appellant, who did not deny sending the text messages, and she then filed a police report against appellant. C.G.J. never said anything to M.N. about being sexually abused.

Stephanie Jones, with the Children's Assessment Center, conducted C.G.J.'s forensic interview. The State identified Jones as a person to whom C.G.J. had made an outcry in a pretrial “Notice of Intention to Use Child Abuse Victim's Hearsay Statement.” In that notice, the State summarized C.G.J.'s statements to Jones as follows:

On or about May 9, 2011, the complainant told Stephanie Jones, that the defendant had befriended him and treated him like a son. The defendant had him stand in front of a window and the defendant performed oral sex on the complainant. The complainant further stated that the defendant took advantage of him and raped him. The defendant stated that he had already seen the complainant's penis so he should show it to him. The complainant told Stephanie Jones that the defendant touched his penis. The complainant also stated that if he did sexual favors for the defendant he would buy him things. The complainant stated that he performed oral sex on the defendant. Also, the defendant would masturbate while looking at the complainant and tell the complainant “he had a nice ass.” Also, the defendant placed his penis inside the complainant's anus and licked his anus.

Before Jones testified, defense counsel made the following objection: “My complaint is that according to the notice, that some of those statements are not outcry statements pursuant to 38.071 about a crime or a wrong describing any sex acts.” In overruling appellant's objection, the trial...