Rosales v. State

548 S.W.3d 796

Jesus ROSALES, Appellant

v.The STATE of Texas, Appellee

NO. 14-16-00764-CR

NO. 14-16-00766-CR

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed April 19, 2018

Discretionary Review Refused September 12, 2018

Tonya McLaughlin, Houston, TX, for Appellant.

Patricia McLean, Houston, TX, for Appellee.

Panel consists of Justices Busby, Donovan, and Jewell.

J. Brett Busby, Justice

Appellant Jesus Rosales appeals his conviction for two counts of super-aggravated sexual assault of a child. In his first two issues, appellant contends the trial court abused its discretion in denying his motion for mistrial and his request for an Allen charge after the jury twice indicated it was deadlocked. In his third issue, appellant argues the trial court erred in designating the child-complainant’s mother and a forensic interviewer as outcry witnesses.

We conclude that the trial court acted within its discretion in holding the jury for deliberations for seven and a half hours until it reached its verdict, and in denying the request for an Allen charge. We further conclude that the trial court properly designated the complainant’s mother and the forensic interviewer as outcry witnesses because each was the first person to whom the child complained about one of the charged offenses in a discernible manner. Even if the designations were error, however, those errors are harmless because the testimony was cumulative of other evidence admitted without objection. We affirm the trial court’s judgment.

BACKGROUND

When the child complainant in this case, Chloe, was about seven months old, she and her mother (Mother) began living with appellant.¹ Over the next several years, appellant and Mother moved multiple times and had three children together. Appellant and Mother ended their relationship when Mother became pregnant by another man and moved in with him. Mother and the other man lived together in Houston with the children for approximately eight months before moving with all of the children to Louisiana.

The allegations of abuse

Before she moved to Louisiana, Mother had a conversation with her sister, Mary, in which Mary accused Mother of not taking care of Chloe properly. The trial court heard about this conversation outside the presence of the jury. According to Mary, Chloe told her that appellant had touched Chloe the wrong way and told her to take her pants off. Mother asked Chloe about the comments but at that time Chloe denied being abused.

The jury heard testimony that shortly after moving to Louisiana, Chloe started crying upon being disciplined for fighting with her sister. When Mother asked what was wrong, Chloe told Mother that "Chooch" (a nickname for appellant)² had touched her the wrong way and put his private part or "middle part" in her mouth. Mother called the police in Houston and reported what Chloe had told her. Houston police opened an investigation.

Mother and Chloe travelled from Louisiana to the Children’s Assessment Center in Houston. Chloe first met with forensic investigator Claudia Gonzalez. During the forensic interview, Chloe told Gonzalez that, while she was between the ages of seven and nine, appellant abused her by putting his "middle part"³ in her "butt."⁴ Chloe described many details regarding the abuse and stated that it happened more than one time. Chloe told Gonzalez that appellant threatened he would kill Mother or slap or hit Chloe if Chloe told anyone.

Dr. Marcella Donaruma also examined Chloe at the Center. Dr. Donaruma determined that Chloe’s physical condition was normal, which Dr. Donaruma explained was to be expected given the length of time between the exam and the abuse. Dr. Donaruma noted in her report that Chloe stated that "he put his middle part right here in my butt" and in her mouth. Dr. Donaruma understood "middle part" to mean penis.

The charges and trial proceedings

By two separate indictments, the State charged appellant with super-aggravated sexual assault of a child aged six to fourteen years of age.⁵ Appellant was indicted for intentionally and knowingly causing the anus of the complainant to contact appellant’s sexual organ in cause number 1458488, and intentionally and knowingly causing the mouth of the complainant to contact appellant’s sexual organ in cause number 1458489. The cases were consolidated for trial. Appellant pleaded not guilty and a jury was empaneled.

The guilt-innocence portion of the trial lasted approximately two-and-a-half days, with the jury hearing evidence from seven witnesses and twenty-two exhibits. The trial court designated Mother and forensic interviewer Gonzalez as the outcry witnesses after holding hearings outside the presence of the jury. The trial court designated Mother as the proper outcry witness with regard to appellant putting his "middle part" or penis in Chloe’s mouth.⁶ The court designated Gonzalez as the outcry witness with regard to appellant putting his penis in Chloe’s anus. Mother and Gonzalez testified before the jury as to the statements made by Chloe to them regarding the abuse. Dr. Donaruma also testified regarding the medical examination and the statements made to her by Chloe regarding the abuse.

Chloe, who had just turned twelve years old, testified at the trial and described in detail the instances of abuse by appellant. In her testimony at trial, Chloe identified incidents of appellant putting his penis⁷ in her bottom, stating that it hurt and made her feel sad. She also recounted times when appellant put his penis in her mouth.

The jury also heard from appellant’s sister, who testified regarding the lack of privacy in one of the homes where the family lived during the relevant period. The sister also testified that she had a conversation with Mother, in which Mother admitted that she lied about the accusation of appellant touching Chloe and demanded money from a settlement appellant had received or Mother would press charges. Mother denied lying about the charges or threatening appellant.

The jury began its deliberations at approximately noon on the third day of trial. At 2:15 p.m., the jury sent the first of four notes. The note asked for transcripts of testimony from two of the witnesses and asked two questions regarding Chloe. The trial court responded by bringing the jury back to the courtroom and explaining that there could not be a general read-back of testimony, but that the jury could have certain portions read back if the jurors disagreed as to the statement of a witness. The jury retired to their deliberations, and at 3:10 p.m. sent their second note. The second note read: "After instructions from the Judge, the jury has no questions at this time. However, the jury is unable to reach a unanimous verdict." The trial court responded with "please continue your deliberations." Appellant’s counsel moved for a mistrial on grounds that the jury was deadlocked. The trial court denied the motion.

At 4:34 p.m., the jury sent out its third note. The note read: "The jury remains deadlocked, nine to three." At that point, appellant’s counsel again moved for a mistrial and the trial court again denied the motion. Appellant’s counsel then asked for an Allen charge⁸ specifically reminding the jury not to do harm to or vitiate their conscience, since the jury had indicated it was deadlocked. The trial court noted that the jury had been deliberating for about four hours and forty minutes at that point and the court did not think an Allen charge was yet warranted. The trial court asked the jury to continue their deliberations the next morning as it was almost 5:00 p.m., and the court did "not want to have the late hour affect your deliberations." The jury then adjourned for the evening.

The jury returned the next morning to resume deliberations. At 12:05 p.m., the jury sent out its fourth note. The fourth note informed the court that the foreman had mistakenly signed the wrong portion of the jury charge and asked whether the jury needed a new form. The trial court sent a new verdict form to the jury. At 12:25 p.m., the jury returned its verdict, finding appellant guilty of both charges of super-aggravated sexual assault of a child. Appellant asked to have the jury polled, and each juror indicated that this was his or her verdict. The jury assessed punishment at thirty years in prison for each count, with sentences to run concurrently.

ANALYSIS

I. The trial court acted within its discretion in denying a mistrial.

In his first issue, appellant contends the trial court reversibly erred by failing to grant appellant’s motions for mistrial after being informed of a jury deadlock. We review a trial court’s ruling on a motion for mistrial for an abuse of discretion. Ladd v. State , 3 S.W.3d 547, 567 (Tex. Crim. App. 1999) ; Katzenberger v. State , 439 S.W.3d 566, 570 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd). Under this standard, we will not disturb the trial court’s ruling if the ruling was within the zone of reasonable disagreement. Montgomery v. State , 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) ; Katzenberger , 439 S.W.3d at 570.

Under Article 36.31 of the Code of Criminal Procedure, a trial court has discretion to discharge a jury "where it has been kept together for such time as to render it altogether improbable that it can agree." Tex. Code Crim. Proc. Ann. art. 36.31 (West 2006) ; Katzenberger , 439 S.W.3d at 570. There is no limit on the length of time a jury may deliberate. Melancon v. State , 66 S.W.3d 375, 383 (Tex. App.—Houston [14th Dist.] 2001, pet. ref'd.) (op. on reh'g) (en banc). The length of time the jury may be held rests in the discretion of the trial court, taking into consideration the nature of the case and the evidence to be considered. See Montoya v. State , 810 S.W.2d 160, 166 (Tex. Crim. App. 1989) (en banc); Katzenberger , 439 S.W.3d at 570.

In this case, the guilt-innocence phase of the trial lasted approximately two-and-a-half days and involved charges of super-aggravated sexual assault of...