Margarito Mike Reyes v. State of Texas

Opinion filed April 30, 2009

Opinion filed April 30,

2009

In The

Eleventh

Court of Appeals

__________

Nos. 11-07-00270-CR & 11-07-00271-CR

________

MARGARITO

MIKE REYES, Appellant

V.

STATE

OF TEXAS, Appellee

On

Appeal from the 266th District Court

Erath

County, Texas

Trial

Court Cause Nos. CR12639 & CR12640

M

E M O R A N D U M O P I N I O N

Margarito

Mike Reyes appeals his convictions by a jury for the offenses of indecency with

a child by contact [1] and

aggravated sexual assault. [2] The jury

assessed his punishment for the offense of aggravated sexual assault at ten

years confinement in the Texas Department of Criminal Justice, Institutional

Division, and for the offense of indecency with a child at five years in the

Texas Department of Criminal Justice, Institutional Division. The trial court

ordered that he serve his sentences consecutively. Reyes contends in two

points of error that the trial court reversibly erred and abused its discretion

in overruling his hearsay objections to the testimony of Donna Ann Wright with

respect to what the complainants and their mother told her and that the

evidence is factually insufficient. We affirm.

Reyes

claims in his first point of error that the trial court erred and abused its

discretion when it admitted evidence over his hearsay objection as to what the

complainants and their mother had told Wright. Wright testified that she is a

pediatric nurse practitioner employed at Cook Children = s Medical Center in Fort Worth. She indicated

that the complainants were referred to her by Texas Child Protective Services

due to concerns of sexual abuse. She related that she interviews victims and

their parents for the purpose of obtaining a history so as to determine how to

diagnose and treat the victims. When the State asked her to relate to the jury

statements that the complainants and their mother had made for the purpose of

medical diagnosis or treatment and describing medical history, counsel for

Reyes objected on the basis of hearsay. In one instance, the trial court

sustained the objection with respect to the complainants = mother, except as to history. The State = s attorney rephrased his

question to inquire only about history that would assist Wright in reaching her

diagnosis. In all other instances, the trial court overruled the objection.

Rule

803(4) of the Texas Rules of Evidence provides that statements made for

purposes of medical diagnosis or treatment and describing medical history,

among other things, are not excluded by the hearsay rule even though the

declarant is available as a witness. Tex.

R. Evid . 803(4). Inasmuch as the substance of Wright = s testimony related to

statements made to her for purposes of medical diagnosis or treatment and

describing medical history and inasmuch as such statements are not excluded by

the hearsay rule, the trial court did not err or abuse its discretion by admitting

those statements into evidence.

For

the first time on appeal, Reyes appears to contend that his constitutional

right to confrontation was denied, relying on Crawford v. Washington ,

541 U.S. 36 (2004), and Russeau v. State , 171 S.W.3d 871 (Tex. Crim.

App. 2005). In Crawford , the United States Supreme Court held that

testimonial statements of witnesses who are absent from trial are admissible

only when the declarant is unavailable and only where the defendant has had an

opportunity to cross-examine. Crawford , 541 U.S. at 59 . We first note

that Reyes failed to preserve error by failing to specifically object on this

basis. See Paredes v. State , 129 S.W.3d 530, 535 (Tex. Crim. App.

2004) In any event, had the error been preserved, Reyes = s right to confrontation was not violated

inasmuch as the declarants were all witnesses at trial and Reyes had the

opportunity to cross-examine them. Russeau is distinguishable because

in that case the declarants had never been cross-examined by the defendant and

were not present at trial. Russeau , 171 S.W.3d at 880 . We overrule the

first point of error.

Reyes

urges in his second point of error that the evidence is factually insufficient

to support his convictions. To determine if the evidence is factually

sufficient, the appellate court reviews all of the evidence in a neutral

light. Watson v. State , 204 S.W.3d 404, 414 (Tex. Crim. App. 2006)

(overruling in part Zuniga v. State , 144 S.W.3d 477 (Tex. Crim. App.

2004)); Johnson v. State , 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain

v. State , 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State ,

922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, the reviewing court

determines whether the evidence supporting the verdict is so weak that the

verdict is clearly wrong and manifestly unjust or whether the verdict is

against the great weight and preponderance of the conflicting evidence. Watson ,

204 S.W.3d at 414-15 ; Johnson , 23 S.W.3d at 10-11 .

Reyes

was indicted for the offense of indecency with a child. The indictment alleged

that he touched the complainant = s

genitals with the intent to arouse or gratify his sexual desire at a time when

the complainant was younger than seventeen years of age and not his spouse.

The complainant in this case chose the pseudonym of A Fluffy. @

Reyes was also indicted for the offense of aggravated sexual assault. The

indictment alleged that he intentionally or knowingly caused the penetration or

contact of the sexual organ of the complainant by his sexual organ at a time

when the complainant was younger than fourteen years of age and not his

spouse. The complainant in this case chose the pseudonym of A Junior. @

Wright

testified that, upon referral by CPS for concerns of sexual abuse, she

interviewed the complainants and their mother. Wright indicated that, when

Jessica ( A Fluffy = s @ mother) brought her in, she said it was

because there was A touching

by her stepdad. @

Jessica related that the touching was on A Fluffy = s @ back, her stomach, and her breasts. A Fluffy @ told Wright that her

stepdad touched her on her breasts and A kind

of @ in her private

spot. Wright said that A Fluffy @ answered, A Yes, @ when Wright asked her if her stepdad had

touched her private spot with his private spot and if it went inside her

private spot. She related that A Fluffy @ also said her stepdad put

his finger inside her private spot. A Fluffy @ further indicated that her

stepdad had put his mouth on her private spot and had rubbed her private spot.

According to Wright, A Fluffy @ said that her stepdad = s private spot felt wet.

Wright

acknowledged that her physical exam of A Fluffy @ showed that her female

sexual organ, her genitalia, and her anal area were all within normal limits.

When asked if there was any physical evidence that sexual intercourse had

occurred with the child, Wright replied that there was no trauma. She insisted

that this was consistent with what the child was telling her because of the

nature of the tissue in the genital area and the length of time since the

activity described by the child had occurred. Wright testified that she

diagnosed A Fluffy @ with sexual abuse, no

genital or anal trauma.

Wright

testified that Jessica, the complainants =

mother, told her that, after A Fluffy @ told what Reyes had done, A Junior @ told CPS that Reyes had

raped her. Wright indicated A Junior @ told her that Reyes had

put his penis and his finger into her private part and that he had put his

finger in her anal area. A Junior @ also said that Reyes had

his mouth on her private and that she had to put her mouth on his private. She

also said that he rubbed on her private and touched her on her breasts. Wright

said that A Junior @ told her this had happened

two years before the interview, when she was twelve years of age. Wright

related that she did not expect there to be any physical evidence after that

length of time. Wright acknowledged that her exam of A Junior @

showed no trauma in her genital or anal area. She indicated that her diagnosis

with respect to A Junior @ was sexual abuse, no anal

or genital trauma. Wright related that an intact hymen is not determinative of

whether a person has engaged in sexual intercourse, even if it has been

multiple times.

A Junior @ testified that she did not

love Reyes because he never let them A have

a life. @ She

indicated that she saw him touch her sister A Fluffy @ on her privates. She said

they did not tell their mother because they were scared she would not believe

them. A Junior @ indicated that she told A Fluffy @ what had happened to her

and told her not to tell. She related that she had also told her friends and a

school counselor about what was happening. She also said she told CPS what had

happened to her and her sister. She indicated that she loved her mother and

wanted to go back and live with her and that she knew that, if she said she was

making everything up, she could go home and be with her mom. However, she said

she did not want to do that because Reyes needed to pay for what he did.

A Junior @ testified that, when she

was in fifth grade, Reyes put his penis inside her, in her front part. She

said she was telling the truth but that she was afraid her mother would not

believe her. On cross-examination, A Junior @ testified that her parents

were really strict with her, with Reyes being more strict than her mother. She

enumerated several things he was strict about that related to her hanging out

with friends or making phone calls. She insisted that no one had ever told her

to say anything that was untrue and that she did not want to take any of it

back.

A Fluffy @ testified that, on the

occasion when A Junior @ saw Reyes touch her, he

was touching her under her pants on her female parts. She said this happened

other times as well. She insisted there was nothing she could do to make Reyes

stop touching her.

On

cross-examination, A Fluffy @ acknowledged that Reyes

and her mother were pretty strict on her. Additionally, she acknowledged that

she was upset when, after she went to a football game instead of a volleyball

practice, her mother and Reyes made her quit volleyball. She indicated that it

was the next day when she told the counselor at school that Reyes was touching

her under her shirt. She also acknowledged that she told Jack Carr that Reyes

touched her in her private part with his hand, while telling someone at Cook

Children = s Hospital

that he touched her with his penis and his finger. She denied that she told

her mother that she had A made

all of this up. @

Later, when asked if Carr wanted to talk to her about things she had told her

mom about this not happening, she replied, A I

don = t remember. @

Carr

testified that he is employed as a reserve investigator with the Erath County

Sheriff = s Department.

He referred to several interviews with Reyes prior to his arrest. He indicated

that Reyes was cooperative and that he did not admit to committing any crime.

He related that he gave both girls every opportunity to correct what they were

telling him if they were saying it for some other reason but that they

reaffirmed their statements. He denied that the complainants = mother ever came to him

and said that one of the girls wanted to change her story.

The

defense offered a video of an interview in September with Reyes, which was

played for the jury. Carr acknowledged that Reyes was not arrested after the

interview and, in fact, was not arrested until after the case = s second presentation to

the grand jury the following February.

On

redirect examination, Carr testified that he did not find anything in his

investigation indicating that the girls were using their story as a front. On

recross-examination, Carr said that A Junior @ said in a statement that

Reyes put his finger in her private part and also A put his penis . . . and he kept touching her

with his finger in her private parts. @

He also indicated she said she saw Reyes touching her sister in her private

parts with his finger. He also said that she said in the statement that it

happened over a long period of time. He related that she said that there was

penetration with Reyes = s

penis and with his finger, as well as touching with his hand. Also on

recross-examination, Carr said that A Fluffy @ indicated in her statement

that Reyes had touched her breasts and private parts with his hand.

Sergeant

Matthew Mull of the Texas Department of Public Safety testified that he

interviewed Reyes concerning the charges made by the complainants. He

indicated Reyes at first denied having any contact at all with A Fluffy, @ while later saying that he

had contact with her breasts on numerous occasions while they were engaged in

wrestling or horseplay. He stated that, with respect to A Junior, @ Reyes at first denied

contact with her. Then he said that he had touched her breasts on two

occasions and once A had

placed his hand and grabbed [the] waistband of her pants. @ He related that Reyes

denied touching A Junior = s @ vagina. On cross-examination, Sergeant Mull

acknowledged that Reyes had not admitted to any criminal activity. On redirect

examination, Sergeant Mull testified that he did not feel like Reyes was being

truthful.

Tracy

Bettis testified that she is a junior high school counselor for the

Stephenville Independent School District. She indicated that she knew both of

the complainants because they were each receiving special education services

for deficiencies in English and reading or writing. She said that neither

child was retarded. She related that, in September 2006 after a conversation

with A Fluffy, @ she took her to talk to

the school nurse, Joan Pope. Bettis said that, following that conversation,

she made a report to the CPS Statewide Abuse Hotline. She indicated that the

reputation of both A Fluffy @ and A Junior @ for truthfulness was

good. During cross-examination, she acknowledged that A Fluffy @

was only in school for about six weeks. However, she said that that was enough

time for her to express an opinion as to Fluffy = s

truthfulness because those who are not truthful really stand out.

Pope

testified that she is the school nurse to whom Bettis testified she brought A Fluffy @ before reporting abuse to

CPS. She indicated that she knew both complainants. With respect to A Junior, @ she related that she had

not had any encounters of A a

non-truth. @ She added

that she had not heard about any non-truth from anyone else. With respect to A Fluffy, @ she stated that she had

never heard of anything being not true. She stated that, if she was told

something by either of the complainants, she would believe it.

Jessica

Reyes, the complainants =

mother, testified that she and Reyes had been married almost twelve years. She

indicated that the children and Reyes had a good relationship and that he

treated them like they were his children. She said she and Reyes both were the

disciplinarians in the family. She related that they disciplined the

complainants by sending them to their room, taking away the television,

grounding them, or adding chores, as opposed to hitting them. She spoke of

restrictions concerning their movement around the neighborhood, their bedtime,

and their clothing. She indicated that the complainants would lie but A not big, big lies @ and that they did not lie

very often. Jessica testified that A Fluffy @ lied to her by telling her

she was going to volleyball practice when she had gone to a Tarleton football

event instead. She indicated that, as punishment, she and Reyes had taken her

out of volleyball but that she had continued in it without their knowledge.

She insisted that A Fluffy @ was really upset about

being taken out of volleyball. She said A Fluffy @ was upset with Reyes about

this.

Jessica

testified that, after being notified by CPS about the allegations the

complainants were making, she called Reyes and told him about them. A tape

recording made of a telephone conversation between Jessica and Reyes was played

to the jury. According to Jessica, the conversation took place when she called

Reyes from the police station after the initial conversation in which she told

him about the charges. She insisted that, if Reyes had sexually assaulted A Junior, @ she would have known it

because she slept with her bedroom door open and lived in a very small trailer

house. She said that neither girl told her what happened.

Jessica

testified that at first she believed the complainants but that she changed her

mind later when they seemed happy and not traumatized after Reyes was out of

the house. She indicated that, one day when she was with A Fluffy, @ A Fluffy @

said, A [I]t didn = t happen, @ without saying what she

was referring to.

Jessica

acknowledged that CPS had previously removed her son from her custody because

of a failure to protect him. She said she did not have anything against CPS

over that. She acknowledged that she lied to the grand jury when she testified

that Reyes had not had contact with the complainants since they were removed.

She later contended that Reyes = s

visit to the house was beyond the time limit specified on the CPS safety plan.

She concluded her cross-examination testimony by saying that she did not know

if the complainants were telling the truth. On redirect examination, Jessica

said she believed they were lying.

Wayne

Samuel Weaver testified that he was appointed to represent the complainants in

a CPS case in which they had been removed from their home. He indicated that,

when he told them they could go live with their mother if they would tell

everyone that they had made the story up, A Fluffy @ said, A [O]kay. @ He stated that she said

she really wanted to go home that badly. However, when he asked her if she was

making it up, she said, A [N]o. @ He said he had no reason

to doubt the credibility of the complainants.

Reyes

testified that he and Jessica were strict on the girls. He said this included

monitoring who their friends were and where they went and denying the use of

cell phones and internet. He indicated that, if he ever touched the

complainants in an inappropriate place, it was not intentional and would have

occurred in the context of wrestling or horseplay. He denied ever having sex

with either of the complainants. He testified that A Fluffy @

was mad at him for taking her off the volleyball team. He indicated that all

of these allegations came right after the volleyball incident. He spoke of his

cooperation with law enforcement authorities and CPS, saying that he did

everything that was ever asked of him by any authority figure dealing with the

case.

On

cross-examination, Reyes testified that, before these accusations, he would not

have considered the complainants as liars. He indicated that they had never

accused anyone else of sexually assaulting them. He said he was aware of the

incident when A Junior @ walked in when he was with

A Fluffy @ but denied that his hands

were in her pants. He concluded his testimony by saying that he did not have

sexual intercourse with or touch either of the complainants inappropriately and

that they were saying he did because they were mad at him and wanted him out of

the house. He indicated that, in the end, they would probably get their way.

Considering all of the evidence in a neutral light, we conclude that the

evidence supporting the verdict is factually sufficient to support the

conviction because it is not so weak that the verdict is clearly wrong and manifestly

unjust and that the verdict is not against the great weight and preponderance

of the conflicting evidence. We disagree with Reyes = s contention that, because the complainants

had reason to be mad at him and because there was no physical evidence

supporting the complainants =

testimony, the evidence is factually insufficient. We overrule the second

point of error.

The

judgments are affirmed.

April 30, 2009 PER

CURIAM

Do not publish.

See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Hill, J. [3]

[1] Cause No. 11-07-00270-CR.

[2] Cause No. 11-07-00271-CR.

[3] John G. Hill, Former Justice, Court of Appeals, 2nd

District of Texas at Fort Worth, sitting by assignment.