John Cruz Buentello v. State

Opinion issued December 8, 2016

In The

Court of Appeals

For The

First District of Texas

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NO. 01-15-00834-CR

———————————

JOHN CRUZ BUENTELLO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Case No. 1450047

OPINION

John Buentello was convicted of aggravated sexual assault of a child1 and

sentenced to life imprisonment. He argues that there was legally insufficient

evidence of a necessary element of the offense: penetration. He also challenges

1

TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i).

three of the trial court’s rulings during his trial: (1) overruling his objection that the

outcry witness’s testimony was inadmissible because the child’s outcry was not

reliable and the forensic examiner designated as the outcry witness was not the first

adult the child told of the abuse, (2) denying his motion for continuance, and

(3) denying his motion for mistrial. We affirm.

Background

Buentello lived out-of-state but would visit his son and his son’s family in

the Houston area occasionally. The son had a blended family with five children,

including Amy,2 who was Buentello’s son’s step-daughter.

According to Amy’s mother, Buentello visited only occasionally in the

beginning and would spend equal time with all the children. Over time, though, his

visits became more frequent—sometimes more than once a month—and he began

to spend more of his time focused on Amy. When Amy was 10, she disclosed to

her step-father that Buentello had touched her when she was seven years old.

Amy’s step-father—who is Buentello’s son—described what happened the

night that Amy first disclosed that Buentello had touched her. He testified that his

oldest daughter woke him late one night, crying. She took him to Amy’s bedroom,

where Amy was sitting on the floor and also crying. Amy was reluctant to talk

about why she was upset. Eventually she told her step-father that something bad

2

To protect her privacy, we identify the complainant by a pseudonym.

2

had happened because of Buentello. He immediately woke up Amy’s mom, and

Amy told her mom, in general terms, that Buentello had touched her.

The next morning, Amy’s mom called Child Protective Services, which

referred Amy to The Children’s Assessment Center to be interviewed by a forensic

investigator, Susan Odhiambo. The forensic investigator explained to the jury that

she is charged with obtaining facts necessary to investigate accusations of sexual

abuse of a child. Odhiambo conducts multiple child interviews each day.

Odhiambo recorded her interview of Amy. In that interview, Amy

established that she knew the difference between a truth and a lie, and she

promised to tell the truth. Then Amy described specific details about Buentello’s

past conduct toward her. Odhiambo testified that Amy was “certain” about her

recollection and “consistent” with her description of who had assaulted her, the

time frame of the assault, and the location where it occurred.

Two years later, at Buentello’s trial, Amy testified that Buentello assaulted

her late one evening while he was visiting from Louisiana. Amy said that it

happened in 2010, when she was seven. That night, when everyone else went to

bed, she went to her bedroom to watch television. About twenty minutes later, she

became thirsty and went to the kitchen for a drink. Buentello was lying on the

couch in the study. He called her over in a stern voice. When she complied, he told

her, again in a stern voice, to sit on the couch. She hesitated, and he told her in a

3

harsher voice to sit down. Then he told her to lie down. He laid behind her, with

his arms wrapped around her and a blanket spread over them, in silence, for about

five minutes. She felt “uncomfortable” and “awkward” and wanted to leave, so she

told him she was hot and stood to go to her room. He said, “No, just take your

clothes off.” She told him no.

Buentello stood up, raised her arms above her head, and tried to take her

shirt off. Amy resisted, but he took off her shirt and then the rest of her clothes. He

then pushed her to the couch. He laid behind her and told her to go to sleep.

Buentello began rubbing Amy’s legs. She testified that he then moved

“towards my vagina.” When asked whether he “was touching your vagina on the

outside or on the inside,” she testified, “On the inside.” She stated that he began

“moving around . . . forward and back” and that whatever was touching her was

“warm and soft and it hurt.”

When a noise came from the stairs, Buentello told her to go to her room. She

did. Buentello stayed with the family the rest of the weekend; Amy did not tell

anyone what happened.

Amy testified that what Buentello did to her that night made her feel

“scared” and “disgusted.” She testified about additional disturbing events

involving Buentello touching her. She said that Buentello would unexpectedly put

lotion on his hands and rub her legs. Twice when he did this, he reached far into

4

her shorts. On another occasion, he commented to her that her “butt” and “boobs”

were “growing.”

Amy’s mother testified about two more strange events involving Buentello

that occurred in 2013, when Amy was 10. During a visit, Buentello asked Amy’s

mother if Amy’s younger sister could nap with him in Amy’s bedroom. According

to Amy’s mother, Amy insisted to her that Buentello not be allowed to nap with

the young girl. Amy said she “was afraid that Grandpa was going to hurt her little

sister.”

The second strange event involved Buentello’s asking to take Amy to

Louisiana to stay with him. Amy’s mother testified that she offered to let Amy and

her brother visit Buentello together, but Buentello said no. Buentello became angry

with Amy’s mother because she would not allow Amy to stay with him alone.

Although Amy’s mother thought these two events were strange, at the time

she trusted Buentello. However, looking back on these two specific events and

reflecting on Amy’s behavior during that time, Amy’s mother testified that there

were signs that Amy was uncomfortable: she had begun to avoid Buentello during

his visits and would stay physically close to her when he was nearby.

Around this same time, when Amy was 10 and Buentello was not in the

home, Amy and her older sister were in Amy’s room, laughing and talking. Amy

opened her dresser and unexpectedly saw Buentello’s Bible in her dresser drawer.

5

The realization that he had recently been in her bedroom upset her, and she began

to cry. Her sister asked why she was upset. When Amy told her about Buentello,

her sister was “in shock.” That is when Amy’s sister persuaded her to tell her

parents, and they woke her step-father to tell him what Buentello had done.

The Children’s Assessment Center forensic investigator, Susan Odhiambo,

testified as the designated outcry witness. Before trial began, Buentello had

challenged whether Odhiambo was the proper outcry witness because Amy had

spoken to her step-father and her mother first. He did not call any witnesses in

support of his challenge. The State responded that Odhiambo was the first person

to whom Amy disclosed sufficient details of the encounter to qualify it as an

aggravated sexual assault. The trial court denied Buentello’s challenge and

designated the CAC investigator, Odhiambo, as the outcry witness.

During her testimony, Odhiambo recounted Amy’s description of the

assault, including Amy’s statement that Buentello “was playing with her private.”

When asked whether Amy confirmed that Buentello had touched inside her, and

not just outside her vagina, Odhiambo responded, “She said it three different

times.” Buentello’s counsel asked whether Amy prefaced her statements about

penetration with the phrase “I think,” and Odhiambo confirmed that she had, but

she also indicated that Amy’s phrasing was an affirmation that she had been

penetrated: “She said she thinks she was, yes.”

6

Another trial witness was Amy’s therapist, Stephanie Legendre. About

eleven months before trial, the State notified Buentello that Legendre would be

testifying as an expert and provided her name and address. Next to her name was

the notation, “Therapist/Child Expert.” When Buentello realized, during trial, that

Legendre was going to testify that Amy has post-traumatic stress disorder, he

indicated surprise and moved for a continuance. His motion was denied.

Legendre testified that she is a licensed professional counselor who

specializes in child sexual-abuse victims. She has been treating Amy for two years.

According to Legendre, Amy avoids discussing the assault, and, when she does

discuss it, she demonstrates emotions of “shame and embarrassment.” In their

sessions, Legendre has observed evidence of trauma, including hypervigilance

(described as a startle response), depression, irritability, shame, suicidal ideations,

failure to accept nurture, self-inflicted cuts, and poor self-image.

Legendre opined that Amy’s “core issue” is post-traumatic stress disorder,

which she described as avoidance of discussing a traumatic issue, intrusion of

memories, nightmares, hypervigilance, extreme reactiveness, and altered cognition

(described as having a distorted view of oneself as “disgusting or ugly or fat”).

Legendre also discussed the concept of grooming, in which an offender

identifies a child’s vulnerabilities, uses those to build a relationship with the child,

increases attention to the child, and then uses the developed relationship to coerce

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the child into sexual contact. Legendre also explained how children commonly

disclose sexual assault. She testified that a delayed outcry, like Amy’s, is common

and that an outcry is typically a process in which the child will give more

information about the sexual assault over time.

Harris County Sheriff’s Office Deputy J. Pietsch testified about his criminal

investigation. He testified that, early on in the investigation, he attempted to speak

with Buentello. When asked whether he was able to obtain a statement from

Buentello, Pietsch responded, “I was advised that the defendant had obtained legal

counsel.” At that point, Buentello’s counsel made a non-specific objection, and the

trial court sustained it. He moved to have the jury instructed to disregard the

statement, and the trial court gave the jury that instruction. He then moved for a

mistrial, but the trial court denied his motion.

Pietsch was then asked whether Buentello had ever agreed to give a

statement. He answered, “No,” which was immediately followed by a sustained

“asked and answered” objection. Again, Buentello moved for a mistrial, and his

motion was denied.

Buentello did not testify during the guilt/innocence phase of the trial. The

focus of his closing argument was that the offense of aggravated sexual assault

required proof of penetration beyond a reasonable doubt. He argued that the

evidence was insufficient to find penetration and, to the extent the jury believed

8

that there had been any touching, they should convict only on the lesser-included

offense of indecency with a child. The jury convicted Buentello of aggravated

sexual assault of a child.

During the punishment phase of the trial, two adult sisters testified about

events that occurred when they were children parishioners at a church in Corpus

Christi that had been led by Buentello. The younger sister testified about indecent

physical contact Buentello had with her. The older sister testified that Buentello

had sexually assaulted her, including engaging in intercourse, when she was

fourteen. They and other witnesses asked that Buentello be given a life sentence.

Buentello testified that he is a 70-year-old man who is in poor health and

fears dying in prison. He denied any wrongdoing with Amy or the two sisters who

had testified. He said he hoped, “if [he] made [Amy] uncomfortable, made her not

feel special, that she can get over it.” He also expressed his hope that the family

would be “able to forgive and be[ ] able not to make a mountain out of a molehill.”

The jury sentenced Buentello to life imprisonment. Buentello appeals his

conviction.

Legal Sufficiency

In his first issue, Buentello argues that there is legally insufficient evidence

that he penetrated Amy. While he acknowledges that Amy testified that there was

9

penetration, he argues that deficiencies in her testimony “overwhelmingly

outweigh” evidence of penetration.

A. Standard of review

We review sufficiency of the evidence using the standard enunciated in

Jackson v. Virginia, 443 U.S. 307, 318−20, 99 S. Ct. 2781, 2788–89 (1979). See

Brooks v. State, 323 S.W.3d 893, 898–912 (Tex. Crim. App. 2010). Under that

standard, “the relevant question is whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” See Jackson, 443 U.S.

at 319, 99 S. Ct. at 2789; Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App.

2009). We consider all reasonable inferences that may be drawn from the evidence

in making our determination, including all direct and circumstantial evidence.

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

Evidence is insufficient in four circumstances: (1) no evidence exists that is

probative of an element of the offense in the record; (2) only a “modicum” of

evidence exists that is probative of an element of the offense; (3) the evidence

conclusively establishes a reasonable doubt; and (4) the alleged acts do not

establish the criminal offense charged. See Jackson, 443 U.S. at 314, 320, 99 S. Ct.

at 2786, 2789; Laster, 275 S.W.3d at 518; Williams v. State, 235 S.W.3d 742, 750

(Tex. Crim. App. 2007).

10

The jury has the exclusive role of evaluating the facts, the credibility of the

witnesses, and the weight a witness’s testimony should be given. Penagraph v.

State, 623 S.W.2d 341, 343 (Tex. Crim. App. [Panel Op.] 1981); Jaggers v. State,

125 S.W.3d 661, 672 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). The jury

may choose to believe all, some, or none of a witness’s testimony. See Davis v.

State, 177 S.W.3d 355, 358 (Tex. App.—Houston [1st Dist.] 2005, no pet.). And

the jury alone must reconcile any conflicts in the evidence. Wyatt v. State, 23

S.W.3d 18, 30 (Tex. Crim. App. 2000).

Under the Jackson standard, we defer to the factfinder “to resolve conflicts

in the testimony, to weigh the evidence, and to draw reasonable inferences from

basic facts to ultimate facts.” Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton,

235 S.W.3d at 778. If there are conflicts in the evidence, we must presume the

factfinder resolved the conflicts in favor of the verdict and defer to that

determination, as long as it is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at

2793; Penagraph, 623 S.W.2d at 343 (“A jury is entitled to accept one version of

the facts and reject another or reject any of a witness’[s] testimony.”).

Contradictory evidence will not diminish the legal sufficiency of the evidence that

supports the verdict. See McDonald v. State, 462 S.W.2d 40, 41 (Tex. Crim. App.

1970). If the evidence is insufficient, we must reverse and enter an order of

acquittal. See Tibbs v. Florida, 457 U.S. 31, 41, 102 S. Ct. 2211, 2218 (1982).

11

B. Legally-sufficient evidence of penetration

A person commits the offense of aggravated sexual assault of a child if that

person intentionally or knowingly “causes the penetration of the anus or sexual

organ of a child by any means.” See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i).

Outcry testimony can be legally sufficient evidence to support a conviction without

corroboration or substantiation. Eubanks v. State, 326 S.W.3d 231, 241 (Tex.

App.—Houston [1st Dist.] 2010, pet. ref’d).

Amy testified, unequivocally, that Buentello penetrated her. She did not

know whether it was his finger, penis, or some other object, but it touched her “on

the inside,” was “moving around,” and “hurt” her. This testimony provides legally-

sufficient evidence of penetration. Any of the alleged deficiencies in her

testimony—such as whether Amy told the forensic investigator, Odhiambo, during

her interview about the penetration or disclosed additional aspects of the assault at

trial that she had not previously mentioned—do not diminish the legal sufficiency

of her direct trial testimony on the issue. See Penagraph, 623 S.W.2d at 343. We

hold that Amy’s trial testimony provided legally sufficient evidence of penetration

and overrule Buentello’s first issue.

Forensic Investigator’s Outcry-Witness Testimony

In his second and fourth issues, Buentello argues that the CAC’s forensic

investigator, Odhiambo, should not have been allowed to testify as a designated

12

outcry witness. First, he argues that Odhiambo was not the proper outcry witness

because Amy told her step-father and mother about the sexual assault first.3

Second, Buentello argues that Amy’s outcry was not reliable.

A. Standard of review

A trial court has “broad discretion” in admitting outcry-witness testimony.

Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990). We will not reverse

the trial court’s decision to admit outcry-witness testimony unless it falls outside

the zone of reasonable disagreement. Id.; Tear v. State, 74 S.W.3d 555, 558 (Tex.

App.—Dallas 2002, pet. ref’d).

B. The trial court did not abuse its discretion in determining that the

forensic investigator was the proper outcry witness

The Texas Code of Criminal Procedure allows admission of certain hearsay

testimony in the prosecution of sexual offenses against minors. TEX. CODE CRIM.

PROC. ANN. art. 38.072. The statute allows the designation of an outcry witness to

testify about a child’s disclosure of abuse but requires that the outcry witness be

the “first person, 18 years of age or older, other than the defendant, to whom the

child made a statement about the offense.” Id. § 2(a)(3); Garcia, 792 S.W.2d at 91.

To qualify, the disclosure must include more than “a general allusion that

something in the area of child abuse was going on.” Garcia, 792 S.W.2d at 91. It

3

Amy’s older sister did not qualify as the outcry witness because an outcry witness

must be over 18 at the time of the outcry and Amy’s sister was younger than that

at that time. See TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2(a)(3).

13

must “in some discernible manner describe[] the alleged offense.” Id. This furthers

the societal interest in curbing child abuse by preventing the designation of a

person who only received a vague suggestion of abuse over a later-in-time person

who received a more detailed account of sexual abuse. See id.

Buentello argues that the State failed to prove that Amy did not provide

specific details about the abuse to her parents during their late-night conversation

that occurred before Amy was interviewed by the forensic investigator.

There was no testimony regarding what, exactly, Amy said to her parents

that night. Buentello did not call any witnesses when he challenged the

investigator’s designation as the outcry witness. Both Amy and her parents

testified on direct examination that Amy did not give them any specifics and,

instead, spoke only in “general” terms.

The burden was not on the State to prove a lack of sufficient disclosure in

these earlier conversations; instead, it was Buentello’s burden to establish that one

of the parents was the proper outcry witness instead of the later-in-time forensic

interviewer. See id. at 91–92 (stating that defendant had burden to establish that

other person was proper outcry witness); cf. Davis, 345 S.W.3d at 78 (appellant

must provide record to show trial court abused its discretion).

Buentello’s attorney did not question Amy on what she told her parents, nor

did he question the step-father or mother on what specifics Amy told them.

14

Buentello presents no evidence of how Amy described the events to her parents or

whether those descriptions were detailed enough to describe the offense of

aggravated sexual assault. Thus, we cannot say that the trial court abused its broad

discretion in overruling Buentello’s objection to Odhiambo being designated the

outcry witness.

We overrule Buentello’s second issue.

C. The trial court did not abuse its discretion in concluding that Amy’s

statement was sufficiently reliable

Before a designated outcry witness may testify about the child’s disclosure,

the trial court must find, “in a hearing conducted outside the presence of the jury,

that the statement is reliable based on the time, content, and circumstances of the

statement.” TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2(b)(2). “The phrase ‘time,

content, and circumstances’ refers to ‘the time the child’s statement was made to

the outcry witness, the content of the child’s statement, and the circumstances

surrounding the making of that statement.’” Broderick v. State, 89 S.W.3d 696,

699 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (quoting MacGilfrey v.

State, 52 S.W.3d 918, 921 (Tex. App.—Beaumont 2001, no pet.)).

In such a hearing, the trial court’s focus is whether the child’s outcry

statement is reliable, not whether the outcry witness is credible. Sanchez v. State,

354 S.W.3d 476, 487–88 (Tex. Crim. App. 2011); see TEX. CODE CRIM. PROC.

ANN. art. 38.072, § 2(b)(2). The trial court considers the circumstances of the

15

outcry, not the abuse itself. Sanchez, 354 S.W.3d at 487. Outcry reliability is

determined on a case-by-case basis. Davidson v. State, 80 S.W.3d 132, 139 (Tex.

App.—Texarkana 2002, pet. ref’d).

Outcry testimony admitted in compliance with Article 38.072 is considered

substantive evidence and is admissible for the truth of the matter asserted in the

testimony. Duran v. State, 163 S.W.3d 253, 257 (Tex. App.—Fort Worth 2005, no

pet.).

Buentello challenged the reliability of Amy’s outcry, and the trial court

overruled his challenge. On appeal, he notes that some intermediate appellate

courts have enumerated eleven “indicia of reliability” that a trial court may

consider in determining the reliability of a child’s outcry.4 See Buckley v. State,

4

The Texarkana court has listed eleven factors that trial courts may consider to

evaluate the reliability of an outcry:

(1) whether the victim testifies at the trial and admits making the

out-of-court statement; (2) whether the child is of a level of maturity

to understand the need to tell the truth and to have the ability to

observe, recollect, and narrate; (3) whether the child’s out-of-court

statement is corroborated by other evidence; (4) whether the child’s

out-of-court statement was spontaneously made in the child’s own

terminology or whether there is evidence of prior prompting or

manipulation by adults; (5) whether the child’s out-of-court

statement is clear and unambiguous and rises to the needed level of

certainty; (6) whether the statement is consistent; (7) whether the

statement describes an event that a child of his or her age could not

be expected to fabricate; (8) whether there is abnormal behavior by

the child after the contact; (9) whether there is a motive for the child

to fabricate the out-of-court statement; (10) whether the statement is

against the interest of the child, e.g., the child expects punishment

because of reporting the conduct; and (11) whether there was an

16

758 S.W.2d 339, 343–44 (Tex. App.—Texarkana 1988), aff’d on other grounds,

786 S.W.2d 357 (Tex. Crim. App. 1990); see also Torres v. State, 424 S.W.3d 245,

257 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d); In re M.R., 243 S.W.3d

807, 813 (Tex. App.—Fort Worth 2007, no pet.); Norris v. State, 788 S.W.2d 65,

71 (Tex. App.—Dallas 1990, pet. ref’d); but see Broderick, 89 S.W.3d at 699

(stating, “Although courts have enumerated factors that may assist in ascertaining

the reliability of an outcry statement, the focus of the inquiry must remain upon the

outcry statement, not the abuse itself” and holding that child’s outcry may be

reliable even if it contains vague or inconsistent statements about details of sexual

abuse); Carty v. State, 178 S.W.3d 297, 306–07 (Tex. App.—Houston [1st Dist.]

2005, pet. ref’d) (considering reliability based on time, content and circumstances

of child’s statement, without reference to Buckley multi-factor test); Jones v. State,

No. 10-13-00106-CR, 2014 WL 3556520, at *3–4 (Tex. App.—Waco July 3,

2014, pet. ref’d) (mem. op., not designated for publication) (rejecting mechanical

application of Buckley factors). However, he does not analyze Amy’s outcry in

light of all eleven factors. Instead, he identifies three aspects of Amy’s disclosure

that he argues demonstrate its unreliability. We address each in turn.

opportunity under the evidence for the alleged act to have been

committed by the defendant.

Buckley v. State, 758 S.W.2d 339, 343–44 (Tex. App.—Texarkana 1988), aff’d on

other grounds, 786 S.W.2d 357 (Tex. Crim. App. 1990) (not addressing factors

listed by intermediate appellate court).

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First, he argues that Amy did not tell Odhiambo that Buentello had

penetrated her. Odhiambo testified that Amy did disclose penetration. But, even if

she did not, inconsistency in a child’s outcry and later trial testimony “is a matter

of credibility and goes to the weight of the evidence,” not the reliability of the

statement or its admissibility. Marquez v. State, 165 S.W.3d 741, 747 (Tex. App.—

San Antonio 2005, pet. ref’d).

Second, Buentello argues that the State did not present any other witness or

physical evidence to corroborate Amy’s outcry statement. But neither

corroboration nor physical evidence is required for an outcry to be determined

reliable. See Gonzales v. State, 477 S.W.3d 475, 479 (Tex. App.—Fort Worth

2015, pet. ref’d). Furthermore, when a lengthy period of time passes between an

assault and a child’s outcry, “little weight” should be given to the lack of physical

evidence in determining whether the outcry was reliable. Naranjo v. State, No. 06-

03-00056-CR, 2004 WL 420145, at *2 (Tex. App.—Texarkana Mar. 9, 2004, pet.

ref’d) (mem. op., not designated for publication).

Third, Buentello argues that the outcry was unreliable because it occurred

two to three years after the alleged assault. Amy’s therapist, Legendre, testified

that it is “typical” for children to delay disclosing abuse for “months or years.” In

her opinion, a delayed outcry is more common than a close-in-time disclosure.

Moreover, “delay in the report of sexual abuse is to be expected when there is a

18

close personal relationship between the victim and the perpetrator . . . .” Madrid v.

State, No. 08-15-00195-CR, 2016 WL 3092575, at *5 (Tex. App.—El Paso June 1,

2016, no pet.) (mem. op., not designated for publication). Legendre’s testimony

indicates that an outcry that occurs two to three years after abuse may be reliable,

and Buentello does not cite to any authority suggesting the span of time required to

call into question the reliability of an outcry from a child abused at a young age.

Timing is one of three factors that the statute requires trial courts to consider

when analyzing the reliability of an outcry. TEX. CODE CRIM. PROC. ANN. art.

38.072, § 2(b)(2) (stating that reliability is determined “based on the time, content,

and circumstances of the statement”); Carty, 178 S.W.3d at 306. The trial court did

not abuse its discretion in determining that the content and circumstances of Amy’s

disclosure supported a conclusion of reliability. As the trial court noted when it

ruled, the outcry statement was made at the CAC very shortly after the initial

disclosure, and Amy acknowledged that she knew the difference between a lie and

the truth when she gave the statement. Further, as Odhiambo discussed, Amy

responded to open-ended questions by using terminology consistent with her age to

describe a sexual act that is beyond the common understanding of a child her age.

Moreover, the disclosure occurred immediately after Amy realized that Buentello

had been in her bedroom, and her outcry was generally consistent with the trial

testimony. See Carty, 178 S.W.3d at 307 (concluding that child’s outcry was

19

reliable because child disclosed abuse even after being told not to talk about it,

confirmed knowing difference between lies and truth, promised to be truthful, used

immature language to describe assault, and disclosed it in response to open-ended

questions and in manner that was consistent with trial testimony).

We conclude that a three-year delay by a young child in disclosing sexual

abuse by a relative does not, by itself, demonstrate unreliability to the extent that

would require a conclusion that the trial court was outside the zone of reasonable

disagreement in admitting the statement. See Davidson, 80 S.W.3d at 139 (on

mixed evidence of reliability, concluding trial court did not err by concluding that

outcry was reliable and admitting testimony of outcry statement).

We overrule Buentello’s fourth issue.

Prosecutor’s Questions about Buentello’s

Pre-Arrest Refusal to Give a Statement

In his third issue, Buentello challenges the State’s attempt to ask a testifying

police officer whether, during his crime investigation, he contacted Buentello to

request a statement and whether Buentello gave him a statement. Although the trial

court sustained Buentello’s objections during this line of questioning and granted

his motion to instruct the jury to disregard an answer by Deputy Pietsch, Buentello

argues that the “attempt to introduce evidence that [he] refused to cooperate with

the police by giving a statement was the equivalent of a comment on [his] failure to

20

testify” and required a mistrial. He argues that the trial court erred when it denied

his motion for mistrial.

A. Standard of review

We review the trial court’s denial of a defendant’s motion for mistrial for an

abuse of discretion. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999);

Williams v. State, 417 S.W.3d 162, 172 (Tex. App.—Houston [1st Dist.] 2013, pet.

ref’d). A trial court may declare a mistrial when an error occurs that is so

prejudicial that the expenditure of further time and expense would be wasteful.

Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000). Whether a trial court

abused its discretion in denying a motion for mistrial depends on whether the

court’s instruction cured any prejudicial effect. See Dinkins v. State, 894 S.W.2d

330, 357 (Tex. Crim. App. 1995); Faulkner v. State, 940 S.W.2d 308, 312 (Tex.

App.—Fort Worth 1997, pet. ref’d). Generally, an instruction to disregard cures

the prejudicial effect. Dinkins, 894 S.W.2d at 357; Woodall v. State, 77 S.W.3d

388, 399 (Tex. App.—Fort Worth 2002, pet. ref’d). However, a comment may be

so egregious or inflammatory as to render the instruction ineffective in curing the

prejudice. See Dinkins, 894 S.W.2d at 357; Woodall, 77 S.W.3d at 400.

B. The questioning Buentello challenges

During the State’s direct examination of Deputy Pietsch, the officer testified

that he attempted to contact Buentello during the early stage of his investigation

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but was unable to speak with him. He was asked whether he requested Buentello to

give a statement. Pietsch answered that he had requested a statement but was told

that Buentello had a lawyer. Buentello interrupted the answer to assert a non-

specific objection, which was sustained. He then successfully obtained an

instruction to the jury to disregard Pietsch’s answer. Buentello also moved for a

mistrial, but his motion was denied.

The State’s next question to Pietsch was whether he had requested a

statement from Buentello. Pietsch answered affirmatively, without objection. The

State next asked whether Buentello ever agreed to give a statement. Pietsch

answered, “No.” Buentello asserted an “asked and answered” objection, which the

trial court sustained. The State asked the same question twice more, and both times

the trial court sustained Buentello’s “asked and answered” objections. Buentello

moved for a mistrial, but the court again denied his motion.

C. The trial court did not abuse its discretion by denying motion for

mistrial

Buentello argues that the State’s line of questioning was “equivalent” to a

comment on his failure to testify at trial. The right not to testify in one’s own

criminal trial is protected by the Fifth Amendment to the United States

Constitution, which states, “No person . . . shall be compelled in any criminal case

to be a witness against himself.” U.S. CONST. amend. V.

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“The plain language of the Fifth Amendment protects a defendant from

compelled self-incrimination.” Salinas v. State, 369 S.W.3d 176, 179 (Tex. Crim.

App. 2012), aff’d, 133 S. Ct. 2174 (2013). But a suspect’s interactions with police

officers are not compelled in “pre-arrest, pre-Miranda circumstances.” Id.

(referencing Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966)). Therefore,

a suspect’s decision to remain silent in a pre-arrest encounter does not implicate

the Fifth Amendment right against compulsory self-incrimination. Id.

The Fifth Amendment “is ‘simply irrelevant to a citizen’s decision to remain

silent when he is under no official compulsion to speak.” Id. (quoting Jenkins v.

Anderson, 447 U.S. 231, 241, 100 S. Ct. 2124, 2131 (1980) (Stevens, J.,

concurring)). Accordingly, a prosecutor can comment on pre-arrest silence at trial

without implicating the Fifth Amendment. See id.; Morales v. State, 389 S.W.3d

915, 921–22 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (holding that

prosecutor’s exchange with investigator, which confirmed that defendant did not

respond to investigator’s attempts to call him, was admissible because these

actions constituted pre-arrest, pre-Miranda silence).

According to Pietsch’s testimony, during the first week of his investigation,

he reviewed Amy’s forensic interview and interviewed her parents. During the

second week of his investigation, he requested a copy of Amy’s sexual-assault-

examination records and called Buentello to attempt to interview him. Buentello

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had not been arrested. He had not been formally charged with assaulting Amy.

There is no evidence he had had any contact with the police, at that point, other

than the phone call. At that stage of the investigation—before his arrest and before

being read his Miranda rights—Buentello’s silence was not protected by the Fifth

Amendment right against compelled self-incrimination. See Salinas, 369 S.W.3d at

179. As such, the prosecutor was permitted to comment at trial on that silence. Id.

Because the State’s line of questioning did not implicate Buentello’s Fifth

Amendment right against compelled self-incrimination and, therefore, was not

objectionable on that basis, Buentello’s argument that the line of questioning

required a mistrial fails.5 We overrule his third issue.

Motion for Continuance

In his fifth issue, Buentello argues that the State did not give him adequate

notice regarding one of its witnesses, Amy’s treating therapist, Stephanie

Legendre. He contends that the trial court erred by denying his motion for

continuance based on the lack of adequate notice.

Buentello does not argue that the State failed to disclose Legendre’s identity.

Instead, he argues that he was not told that she would testify that she had

5

Alternatively, we would hold that Buentello did not preserve his Fifth Amendment

arguments for appeal. To preserve an issue for appeal, the party must present a

timely objection to the trial court, state specific grounds for that objection, and

obtain a ruling. TEX. R. APP. P. 33.1(a). Buentello did not present his argument to

the trial court that his Fifth Amendment right to remain silent was violated by the

prosecutor’s line of questioning; he only objected generally, without a specific

basis given, and then objected that the question had been “asked and answered.”

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diagnosed Amy with post-traumatic stress disorder. When he moved for a

continuance, he argued that “his defense would be prejudiced by . . . not [being]

provided with any documents related to [Legendre’s] testimony of PTSD with

which to fully investigate for cross-examination.”

A. Standard of review

A trial court has “broad discretion” in determining whether to grant a motion

for continuance. McAleer v. McAleer, 394 S.W.3d 613, 616 (Tex. App.—Houston

[1st Dist.] 2012, no pet.). To show that the trial court abused its broad discretion in

denying the motion, the movant must show that (1) the trial court wrongly denied

the motion and (2) the movant was prejudiced by the denial. Gonzales v. State, 304

S.W.3d 838, 843 (Tex. Crim. App. 2010). The trial court wrongly denies such a

motion when “the case made for delay was so convincing that no reasonable trial

judge could conclude that scheduling and other considerations as well as fairness

to the State outweighed the defendant’s interest in delay of the trial.” Id.

B. The trial court did not abuse its discretion by denying Buentello’s

motion for continuance

“Generally, notice of the State’s witnesses must be given upon request by

the defense.” Hamann v. State, 428 S.W.3d 221, 227 (Tex. App.—Houston [1st

Dist.] 2014, pet. ref’d). The Code of Criminal Procedure outlines the requirements

for the notice the State must provide:

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On a party’s request . . . the party receiving the request shall disclose

to the requesting party the name and address of each person the

disclosing party may use at trial to present evidence under Rules 702,

703, and 705, Texas Rules of Evidence.

TEX. CODE CRIM. PROC. ANN. art. 39.14(b) (emphasis added).

The State provided this required notice. About eleven months before trial,

the State disclosed a list of witnesses that it intended to call at Buentello’s trial,

including Legendre. The notice included the name and address of each witness,

and—in addition to the statutory requirements—a brief description of each witness.

Legendre’s name and address was included on this notice, along with the following

brief description: “Therapist/Child Expert.”

Buentello argues that the State should have provided even more

information—that the therapist would discuss Amy’s PTSD diagnosis. But

Buentello does not cite any authority to support his argument that the State was

required to provide this information, and we decline to hold that it was required.

Because the State gave Buentello the required notice about its expert witness—and

more—we hold that the trial court did not abuse its discretion by denying the

continuance motion.

We overrule Buentello’s fourth issue.

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Conclusion

We affirm Buentello’s conviction.

Harvey Brown

Justice

Panel consists of Justices Jennings, Keyes, and Brown.

Publish. TEX. R. APP. P. 47.2(b).

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