MARIANO CERVANTES v. THE STATE OF TEXAS (2012)

MEMORANDUM OPINION

Opinion By Justice Francis

Mariano Cervantes appeals his conviction for aggravated sexual assault.   After finding appellant guilty and making an affirmative finding he used a deadly weapon during commission of the offense, the jury assessed punishment at fifty years in prison.   In a single issue, appellant claims the trial court erred in overruling appellant's objection and admitting certain evidence.   We affirm.

Nineteen-year-old A.C. was walking to work on September 20, 2008 when appellant drove up and forced her into his car at gunpoint.   A.C. noticed appellant's penis was exposed and he was touching himself.   He ordered her to perform oral sex on him.   When she refused, he pointed the gun at her and threatened to shoot her.   She complied.   He then forced her to have vaginal intercourse with him.   According to A.C., he did not ejaculate in her vagina but again forced her to perform oral sex.   He ejaculated in her mouth.

Appellant asked A.C. if she had any money.   When she said she did not, he grabbed her purse and went through it, finding about $200 she had saved for her two-year-old daughter's birthday.   Appellant took the money and forced A.C. out of the car in an industrial warehouse area.   A.C. called the police and told them what had happened.   Paramedics arrived and took her to Parkland Hospital where a rape exam was performed.

Appellant's DNA was found on A.C.'s underwear, pants, and body.   A.C. identified appellant's photograph from a photographic line-up.   Police discovered appellant's car using the description A.C. gave and photographs taken by surveillance cameras at one of the warehouses in the area where he released her.   After hearing this and other evidence, the jury convicted appellant and sentenced him to fifty years in prison.

In his sole issue, appellant claims the trial court erred in overruling his hearsay objection and allowing a statement A.C. made to medical personnel at Parkland in evidence.   Appellant claims A.C.'s statement to the attending physician at Parkland that she had consensual sexual intercourse two days before the attack was inadmissible because the information could not have been pertinent to “medical diagnosis or treatment.”

We question appellant's contention that the information could not be pertinent to A.C.'s diagnosis or treatment.   Nevertheless, even if it were inadmissible and the trial court erred in admitting it, we conclude the record fails to demonstrate this error requires reversal.   We must disregard a non-constitutional error that does not affect a criminal defendant's “substantial rights.”

Garcia v. State, 126 S.W.3d 921, 927(Tex.Crim.App.2004);  see Tex.R.App. P. 44.2(b).  Under rule 44.2(b), we may not reverse for nonconstitutional error if, after examining the record as a whole, we have fair assurance that the error did not have a substantial and injurious effect or influence in determining the jury's verdict.  Garcia, 126 S.W.3d at 927.

After examining the entire record of appellant's trial, we have fair assurance the error, if any, did not have a “substantial and injurious effect or influence” on the jury's verdict at punishment.   See id.   Appellant did not object when the State offered State's Exhibit No. 29, the written report of A.C.'s sexual assault examination.   On page three of the report, the question, “Coitus in the 5 days prior to alleged assault?” is answered affirmatively and followed with the date “9/18/08.”   Because the improper admission of evidence is rendered harmless when other properly admitted evidence proves the same fact, we cannot conclude the record in this case shows reversible error.   See Brooks v. State, 900 S.W.2d 278, 287 (Tex.Crim.App.1999) (holding any error in admitting complained-of evidence was harmless in light of other properly admitted evidence proving same fact);  Borque v. State, 156 S.W.3d 675, 677 (Tex.App.—Dallas 2005, pet. ref'd) (same).   We overrule appellant's single issue.

We affirm the trial court's judgment.

101231F.U05 S

Court of Appeals

Fifth District of Texas at DallasJUDGMENT

MARIANO CERVANTES, Appellant

No. 05–10–01231–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 283rd Judicial District Court of Dallas County, Texas.  (Tr.Ct.No.F08–61940–T).

Opinion delivered by Justice Francis, Justices O'Neill and Richter participating.   Based on the Court's opinion of this date, we AFFIRM the trial court's judgment.

Judgment entered April 5, 2012.

/Molly Francis/

MOLLY FRANCIS

JUSTICE

MOLLY FRANCIS JUSTICE