Ruiz v. State

272 S.W.3d 819

Anthony RUIZ, Appellant v. The STATE of Texas, Appellee.

No. 03-06-00067-CR.

Court of Appeals of Texas, Austin.

December 18, 2008.

M. Scott Taliaferro, Asst. District Atty., Austin, TX, for State.

David M. Gonzalez, Sumpter & Gonzalez LLP, Leonard Martinez, Karyl Anderson Krug, The Law Office of Karyl Krug, P.C., Austin, for Appellant.

Before Chief Justice LAW, Justices PURYEAR and HENSON.

OPINION

DAVID PURYEAR, Justice.

A jury convicted appellant Anthony Ruiz of aggravated sexual assault of a child, indecency with a child by contact, and indecency with a child by exposure. See Tex. Penal Code Ann. § 21.11 (West 2003) (indecency with a child), § 22.021(a)(1)(B) (West Supp.2008) (aggravated sexual assault of a child). The jury sentenced him to 60 years' imprisonment for sexual assault, 20 years' imprisonment for indecency by contact, and 10 years' imprisonment for indecency by exposure. In five issues, appellant argues that: he was denied his right to confront and cross-examine the witnesses against him in violation of his Sixth Amendment rights, the trial court gave an erroneous jury charge that deprived appellant of his right to a unanimous verdict, the State gave the jury the false impression that there was no outcry made by the complainant against her grandfather, the trial court erred when it refused to give a limiting instruction on erroneously elicited evidence, and the court erred in admitting hearsay evidence. We affirm the trial court's judgments.

Background

K.T., the complainant, was sixteen years' old when she testified against appellant. She testified that when she was four or five, her mother, H.V., began dating appellant and that eventually H.V., K.T., and K.T.'s younger brother began living with him. K.T. testified that when she was in kindergarten, appellant came into the room that K.T. shared with her brother, told her to lie on the floor, lifted her nightgown and removed her underwear, covered her mouth, and touched her "with his penis in [her] private area." When she told him it hurt and started to cry, he got up and left the room, telling her not to tell anyone. She said she was scared that if she told anyone, appellant would hurt someone in her family. K.T. said the abuse continued about twice a week while she lived with her mother and appellant but could not remember how many times she was abused in the different places she lived with them. K.T. testified that appellant repeated his assaults about twice a week while she lived with him and that even after she and her brother went to live with their father, the abuse continued when she visited H.V. on weekends.

K.T. testified that during the first weekend visitation, everyone was happy to see each other and appellant was "being very nice to" K.T. and gave her a necklace he bought for her. That night, however, appellant woke her, took her upstairs, removed his and her clothes, and touched her private area. She testified that he put his penis inside her private area and made a "grunting" noise and that for the first time in the years of abuse, she noticed a substance that was "white and sticky." After the abuse, appellant again told K.T. not to tell anyone or he would hurt her mother or brother. The abuse continued until K.T. decided to cease visitation when she was in the fifth grade. K.T. testified that throughout the years of abuse, appellant put his penis on and in her vagina, put his penis in her mouth, made her touch his penis with her hand, and put his mouth on her breasts and genitals. She testified that she never saw appellant's penis because she always kept her eyes shut but she thought that her "private part was exposed so that he could see it or touch it, skin to skin." K.T. testified that when she was in the eighth grade, she finally told her stepmother about the abuse. K.T.'s stepmother urged K.T. to make a police report, but K.T. was at first "hesitant" to do so. She went to counseling and after several months reported the abuse to the authorities.

The State indicted appellant for three counts. Count I alleged aggravated sexual assault, alleging that appellant knowingly and intentionally:

(a) penetrated K.T.'s female sexual organ with his sexual organ, see Tex. Penal Code Ann. § 22.021(a)(1)(B)(i);

(b) caused K.T.'s sexual organ to contact his mouth, see id. § 22.021(a)(1)(B)(iii); (c) caused KT's sexual organ to contact his sexual organ, see id. § 22.021(a)(1)(B)(iii); and

(d) penetrated K.T.'s mouth with his sexual organ, see id. § 22.021(a)(1)(B)(ii).

Count II charged appellant with indecency with a child by contact, alleging that he intentionally and knowingly: engaged in sexual contact with K.T. by (a) touching her genitals and (b) causing her to touch his genitals, see id. § 21.11(a)(1), (c); and count III charged him with indecency by exposure, alleging that appellant (a) exposed a part of his genitals to K.T. and (b) caused her to expose any part of her genitals, see id. § 21.11(a)(2). The jury charge allowed the jury to convict appellant of count I if it found appellant had penetrated K.T.'s sexual organ with his sexual organ, caused her sexual organ to contact his mouth, or caused her sexual organ to contact his sexual organ; the charge did not require a unanimous verdict on which of the three allegations the jurors found to be true. Similarly, the charge allowed the jury to convict appellant of counts II and III if it found one paragraph for each count to be true without requiring unanimity about the allegation the jurors found true. The jury convicted appellant of all three counts.

Jury Unanimity

In his second issue, appellant argues that the trial court's jury charge erroneously allowed the jury to reach a non-unanimous verdict. Appellant claims that because the jury charge instructed jurors in the disjunctive for all three counts, "it allowed the jury to return guilty verdicts without requiring unanimity as to a specific criminal act."

The State concedes that count one, alleging aggravated sexual assault, was erroneous, but argues that counts two and three were not. It argues that section 21.11 of the penal code, defining indecency with a child by contact and by exposure, merely provides different means for committing the offense of indecency, rather than setting out different offenses. We disagree.

Section 21.11(a)(1) "criminaliz[es] only three specific types of acts" as indecency with a child by contact—touching the child's anus, breast, or genitals—and each act "represents a different offense." Pizzo v. State, 235 S.W.3d 711, 717 (Tex.Crim. App.2007). This is true whether the defendant touches the breast, anus, and genitals of the child during the same incident or during three different incidents. Id. at 718; Francis v. State, 36 S.W.3d 121, 124 (Tex.Crim.App.2000). Similarly, section 21.11(a)(2) defines indecency by exposure as exposing a child's genitals or exposing the defendant's genitals to a child. Tex. Penal Code Ann. § 21.11(a)(2).

K.T. testified that appellant assaulted her numerous times over several years, but only provided detailed testimony about a few particular incidents, saying that appellant committed similar acts during the frequent assaults. Thus, in arriving at a verdict, one juror could have believed that appellant touched K.T. on her genitals on one day and another could have believed that he caused her to touch his genitals one year later. See Francis, 36 S.W.3d at 125. We hold that the jury charge erroneously allowed for the possibility of non-unanimous verdicts on all three counts. See Mathonican v. State, 194 S.W.3d 59, 66 (Tex.App.-Texarkana 2006, no pet.) ("Thus, the trial court's charge should have required independent verdicts on each of these different charges [causing victim's penis to penetrate defendant's anus or mouth or causing defendant's penis to penetrate victim's mouth]. Instead, the trial court's general verdict form required only a single verdict, without requiring the jury to differentiate among the charges in the indictment's second count [sexual assault]. Accordingly, the jury charge contained error by not requiring a unanimous verdict.").

Jury-charge error such as this has been labeled "fundamental" error. See Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim.App.2006). However, fundamental, even "constitutional" error, that falls short of being "structural" error is subject to harmless-error analysis. Hedgpeth v. Pulido, ___ U.S. ___, 129 S.Ct. 530, ___ L.Ed.2d ___ (2008) (quoting Neder v. United States, 527 U.S. 1, 11, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999)) ("harmless-error analysis applies to instructional errors so long as the error at issue does not categorically `vitiat[e] all the jury's findings'"); see Neder, 527 U.S. at 19, 119 S.Ct. 1827 (jury charge omitted element of offense; Court held that if, after reviewing the record, "the court cannot conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error ... it should not find the error harmless"); Rose v. Clark, 478 U.S. 570, 579-80, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986) (jury instructions improperly shifted burden of proof as to malice; Court held that despite error, defendant had "full opportunity to put on evidence and make argument to support his claim of innocence" and was tried by "fairly selected, impartial jury, supervised by an impartial judge"; viewed in light of entire record, improper instruction did not "compare with the kind of errors that automatically require reversal of an otherwise valid conviction"); see also Johnson v. State, 169 S.W.3d 223, 236-37 (Tex.Crim.App.2005) (distinguishing between "trial" and "structural" error and noting that fundamental error is not necessarily structural). Error is structural only if it "affects `the entire conduct of the trial from beginning to end'" or "affects `the framework within which the trial proceeds, rather than simply [being] an error in the trial process itself.'" Joh...