Freddy Antonio Ruiz Aviles v. State of Texas

11th Court of Appeals Eastland, Texas Opinion Freddy Antonio Ruiz Aviles Appellant Vs. No. 11-01-00243-CR B Appeal from Dallas County State of Texas Appellee The jury convicted Freddy Antonio Ruiz Aviles of the aggravated sexual assault of his step-son, a child younger than 14 years. The jury assessed his punishment at confinement for 40 years. We affirm. Issues Presented Appellant argues in his first issue that the evidence is not Afactually sufficient@ to support his conviction for aggravated sexual assault. Appellant argues in Issue No. 2 (the federal claim) and in Issue No. 3 (the state claim) that the trial court violated his constitutional rights to Aconfrontation@ by allowing the complainant to Atestify via closed circuit television.@ Appellant argues in Issue No. 4 (the federal claim) and in Issue No. 5 (the state claim) that the trial court=s decision to allow the child to Atestify via closed circuit television@ after the trial commenced violated his rights to Adue process@ and to Adue course of law@ because his lawyer was not given the opportunity to voir dire the jury as to whether this procedure would Aerode the presumption of innocence.@ Appellant argues in his final issue that the trial court erred by Afailing to give a burden of proof instruction@ regarding the extraneous offense admitted during the punishment phase. The Evidence Officer Arleen Martinez of the Dallas Police Department testified about her investigation of the complaint filed against appellant by the child=s grandmother. Then Mark Club, a therapist at the Dallas Children=s Advocacy Center, testified about the counseling which he provided for the child. After that testimony, the reporter=s record shows that the jury was in the courtroom when the following statement was made by the presiding judge: THE COURT: Members of the jury, you cannot see me, but we have reconvened in the Court=s chambers. The purpose of being in chambers is to do the testimony of the child witness on closed-circuit television. You will be able to see and hear the witness. You will be able to hear...the witness answer as you observe the witness. The defense attorney is also present in the chambers, the Court=s office, with me, the State Attorney, and the court reporter. There is also a camera operator present. After that explanation, the complainant testified on direct examination that he was born on January 6, 1992.[1] Relevant portions of his testimony on direct examination by the prosecutor read as shown: Q: Did [appellant] touch you somewhere? A: Yes, he did, and he touched me on my private part. And I didn=t like. He did what he wasn=t supposed to do. * * * Q: Did he ever do anything to you with his private part? A: I don=t want to talk about it. Yes. * * * Q: Did [appellant] hurt you? A: Yeah, he hurt me. * * * Q: What part of your body was hurting? A: My bottom * * * Q: You know that [appellant] wasn=t supposed to do that; right? A: Yes. That was wrong....Now, am I finished? The next witness was the Aoutcry witness.@ Pamela Rogers Shepherd testified that she worked for the United States Post Office; that she was 41 years old; that she was a widow; that she had three daughters; and that she had two grandsons. Shepherd testified that she got legal custody of the two grandsons on December 23, 1999, and that they went to a specialized school for children with Apsychological, emotional, and physical or school problems.@ Shepherd testified that she met appellant in February of 1997 and that he married her oldest daughter. Shepherd also testified that, after the two grandsons came to live with her, she noticed that the complainant Awould hunch over his stuffed animals@ and that he would Atouch himself@ and Ado things in the shower.@ Shepherd noticed that the complainant and his little brother Awould touch each other@ and would Atake their penis and rub it.@ Shepherd also testified that the complainant Ahad a lot of nightmares@ and that he would wake up screaming. On the night that she discovered what had happened, Shepherd had separated the two boys and had talked to the complainant by himself. Shepherd testified that she talked Ain a calm tone@ and that she Ahad to pry to get the information.@ After she asked him four or five times if anybody had ever done this to him, the complainant said: AYes.@ Shepherd said that the complainant did not want to tell her because he was afraid that she would get hurt or that his mom would get hurt. Shepherd said that she had to Akeep letting him know@ that it was okay to talk to her and that nobody was going to hurt her or his mother, and then the complainant identified appellant. Relevant portions of the Aoutcry@ testimony read as shown: Q: Did [the complainant] tell you what [appellant] did? A: Yes. Q: What did he tell you? A: He said Freddy stuck his penis in his mouth and permed in it. And he didn=t know how to say Asperm.@ * * * Q: Tell us what the graphics were, though. A: He told me that...Freddy would stick [his penis] in his back end and it hurt him so bad. And that=s when he started - - He would just get welled up. That=s when he would get very, very upset. Shepherd said that her grandson Asaid it happened a lot.@ It would happen at night when appellant came in from work while they lived in the apartment on Surrey Row. Shepherd said that she immediately called A9-1-1" and that they told her to call the police station the next morning. The State=s final witness was Dr. Donna Persaud. She teaches at Southwestern Medical School, and she is on the staff at the children=s medical center at the REACH Clinic. The acronym stands for Referral and Evaluation of Abused CHildren. Dr. Persaud said that she has performed over 2,000 sexual assault exams and that she examined the complainant in this case in February of 2000. The child was referred to her by Officer Arleen Martinez of the Dallas Police Department. Dr. Persaud said that the child=s genitals were normal but that the anal exam revealed unusual findings which are sometimes seen with Achronic trauma.@ Those findings Acould be consistent with past repeated penetrating trauma.@ Dr. Persaud agreed on cross-examination that she saw Ano fresh trauma to the anus@ and that she could not say Afor sure@ that the findings proved Apast trauma.@ After the State closed, appellant called two witnesses who testified for him, and then appellant took the stand as a witness. Appellant testified that he was 26 years old and that he came to Texas from Managua, Nicaragua. Appellant testified that he had a Agreen card@ which allowed him to work in the United States. Appellant testified that he was married in Nicaragua and that he and his first wife separated in 1993 or 1994. Appellant met his second wife in 1996, and they started living together in 1997. She is the mother of the complainant and his little brother. Appellant described the various jobs which he had; then he said that his second wife, the complainant=s mother, Astarted drinking and doing drugs.@ At that time, appellant left his second wife and her two sons; he went back to his first wife. They lived in the same apartment complex, and he knew that the government took appellant and his brother from their mother. Shepherd later told appellant that she had gotten custody of the children. Appellant testified that he did not stick his penis in the complainant=s mouth and that he did not stick his penis in the complainant=s anus. Appellant testified that he was Ainnocent of these charges@ and that he was telling the truth. During cross-examination, appellant admitted that he was Amarried to two women at the same time.@ After appellant rested, the State read portions of the therapy records to the jury. Those records show that the complainant told his therapist that appellant had Astuck his private into my body.@ During another therapy session, the complainant said that appellant had done Asomething nasty.@ When the therapist asked him what, the complainant said that appellant Ahad sex with him.@ When the therapist asked him what he meant, the complainant said that appellant Astuck his private in his bottom.@ During that session, the complainant also told his therapist that appellant had Athreatened his mom@ if the complainant told anyone what had happened. Sufficiency of the Evidence In reviewing claims that the evidence is not Alegally sufficient@ to support a conviction, an appellate court is required to Aview the evidence in the light most favorable to the verdict@ and determine whether Aany rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.@ Jackson v. Virginia, 443 U.S. 307, 319 (1979); Mason v. State, 905 S.W.2d 570, 574 (Tex.Cr.App.1995), cert. den=d, 516 U.S. 1051 (1996). The jury is the exclusive judge of the credibility of the witnesses and of the weight to be given to their testimony. Barnes v. State, 876 S.W.2d 316, 321 (Tex.Cr.App.), cert. den=d, 513 U.S. 861 (1994). In reviewing claims that the evidence is not Afactually sufficient@ to support a conviction, an appellate court is to set aside the conviction only if it is Aso contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.@ Clewis v. State, 922 S.W.2d 126, 129 (Tex.Cr.App.1996). The evidence which has been quoted or summarized earlier in this opinion is both Alegally sufficient@ and Afactually sufficient@ to support the jury=s finding that, on or about December 25, 1999, in Dallas County, appellant did unlawfully: [C]ause the contact and penetration of the anus of [the complainant], a child, who was not then the spouse of the defendant, by an object, to-wit: the sexual organ, of FREDDY ANTONIO RUIZ AVILES, and, at the time of the offense, the child was younger than 14 years of age. Issue No. 1 is overruled. Confrontation of Witness Appellant argues in his next two issues that the trial court denied his constitutional right to confront the child witness who testified against him. In Issue No. 2, appellant presents his claim under U.S. CONST. amend. VI. In Issue No. 3, appellant presents his claim under TEX. CONST. art. I, ' 10. The United States Supreme Court held in Maryland v. Craig, 497 U.S. 836, 860 (1990), that, when a trial court makes Aa case specific finding of necessity,@ the Confrontation Clause does not prohibit a State from using a one-way closed-circuit television procedure for the receipt of testimony by a child witness in a child abuse case. The reporter=s record shows that the State called the complainant as its first witness. When the complainant did not appear, the trial court had the sheriff take the jury from the courtroom. The following proceedings then took place in open court: THE COURT: Be seated. Let the record reflect the jury has been removed. [Prosecutor], would you please inform the Court of the problem? [PROSECUTOR]: Yes, Your Honor. I believe when the child - - when I went to get him to have him come to the courtroom, he started shaking, crying, saying he=s scared, that he didn=t - - You know, I told him several times that the Defendant was going to be in there, but he didn=t - - he saw through the window, and he said, AIs that him?@ And he was shaking and crying. He said he was scared to go in here and see him. * * * THE COURT: Did you anticipate this problem? [PROSECUTOR]: I had no anticipation. When I have talked to him in my office, he=s been fine. * * * THE COURT: Let the record reflect the jury is not present. Let the record further reflect that the State is bringing the Complainant in. The Complainant=s head is down, his eyes are closed, and his hands over his eyes. He will not look toward the Defendant=s side of the room....The Court has serious concerns over the ability of the State to put this witness on the stand in the jury=s presence. [PROSECUTOR]: We just, upon our own motion, would do a motion for closed circuit. THE COURT: [Defense Counsel]? [DEFENSE COUNSEL]: Your Honor, we=ll object to the motion for closed circuit. At the onset of this trial, it was made clear to me that this witness was able to testify in court. Therefore, I don=t believe we did a sufficient voir dire to find out whether these jurors would be prejudiced in that the presumption of innocence would be eroded by the mere fact the witness testifies via closed-circuit TV. Therefore, under the circumstances, we=ll object. And we also feel that this witness would be competent to testify here in court and does not require closed-circuit TV. THE COURT: Let the record reflect that the child still has not raised his head. He still has his eyes closed, and [one of the prosecutors] is now taking him out of the room. * * * THE COURT: I am going to grant the State=s motion for closed circuit. And frankly, I would have granted it on my own motion had the State not made it. I will allow the State a few more minutes to see if they can prepare the witness....I will certainly allow him to testify live in front of the jury if he can do so. At this moment, I=m overruling the Defendant=s objection and granting my own motion and the State=s motion for closed circuit. Before the jury was brought back into the courtroom, the trial court examined the complainant to make sure that he was competent to testify and that he knew the difference between Atelling the truth@ and Atelling a lie.@ The complainant was then sworn, and he promised that he would tell the truth and nothing but the truth. Then the jury was brought back into the courtroom, and the complainant attempted to testify in the presence of the jury. He was able to tell the jury his name, his age, and where he went to school. He was also able to answer some general, background questions; however, when the questioning got to what appellant had done to him, the record reads in relevant part as shown: Q: What=s the first thing you remember that you didn=t like? Did [appellant] touch you somewhere? A: Yes. Q: And was it a touch that you didn=t like? A: Yes. Q: Where did he touch you? A: (No audible response.) Q: [The complainant], do you not like talking about it? A: No. Q: How come? A: I don=t want to talk about it. Q: It=s real important that you tell these nice people, okay, what happened. Where did he touch you? A: (No audible response.) * * * Q: Did he make you do something to him that you didn=t like? A: Yes. Q: Can you take your hands off your face so we can hear you? A: (Witness complies.) Q: [The complainant], what did he make you do? A: ([No audible response.) * * * THE COURT: Let the record reflect that the witness was brought in at 10:40 and the jury was removed from the courtroom at 10:53. The Court=s of the opinion, based upon the observation of the witness, that the closed circuit is the only way that the witness should testify in this trial. We hold that the trial court made the Acase-specific finding of necessity@ which is required by Maryland v. Craig, supra at 860, to permit the State to use Aa one-way closed circuit television procedure for the receipt of testimony by a child witness in a child abuse case.@ This court held in Hightower v. State, 736 S.W.2d 949, 951 (Tex.App. - Eastland 1987), aff=d, 822 S.W.2d 48 (Tex.Cr.App.1991), that this procedure in a child abuse case did not violate the Confrontation Clause. See also TEX. CODE CRIM. PRO. ANN. art. 38.071 (Vernon Pamph. Supp. 2002); Marx v. State, 987 S.W.2d 577, 580 (Tex.Cr.App.1999); Gonzales v. State, 818 S.W.2d 756, 764 (Tex.Cr.App.1991). Issues Nos. 2 and 3 are overruled. Jury Voir Dire The trial court=s decision to allow the child to Atestify via closed circuit television@ did not violate appellant=s rights to Adue process@ and Adue course of law.@ There is no showing that this procedure would Aerode the presumption of innocence.@ Marx v. State, supra at 581. Issues Nos. 4 and 5 are overruled. Extraneous Offense During the punishment phase of trial, the complainant=s younger brother was permitted to testify about acts of child abuse which appellant did to him. The trial court=s charge to the jury on the punishment portion of trial contained the following instruction: You are instructed that if there is any testimony before you in this case regarding the Defendant having committed extraneous offenses or bad acts you may not consider such evidence for any purpose, unless you find and believe beyond a reasonable doubt that the Defendant committed such offenses or bad acts, if any. The burden is upon the prosecution to prove such extraneous offenses or bad acts beyond a reasonable doubt. The prosecution does not have to prove extraneous offenses or bad acts beyond all possible doubt. The prosecution=s proof must exclude all reasonable doubt concerning the extraneous crime or bad act. Therefore, if you find and believe beyond a reasonable doubt that the Defendant committed an extraneous offense or bad act, then you may consider such evidence in assessing the Defendant=s punishment. If you do not so find or you have a reasonable doubt as to whether the Defendant committed an extraneous offense or bad act, then you may not consider such evidence, if any, for any purpose. (Emphasis added) Since the trial court did not fail to give a Aburden of proof@ instruction regarding the extraneous offense testimony given during the punishment phase of trial, Issue No. 6 is overruled. This Court=s Ruling The judgment of the trial court is affirmed. BOB DICKENSON SENIOR JUSTICE August 15, 2002 Do not publish. See TEX.R.APP.P. 47.3(b). Panel consists of: Wright, J., and McCall, J., and Dickenson, S.J.[2] [1]He was 9 years old at the time of trial, and he was 7 years old Aon or about@ December 25, 1999, the date of the offense which was alleged in the indictment. [2]Bob Dickenson, Retired Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.