Cirino Cosme v. the State of Texas

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Opinion filed September 19, 2024




                                      In The


        Eleventh Court of Appeals
                                   __________

                              No. 11-23-00011-CR
                                  __________

                         CIRINO COSME, Appellant
                                         V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 29th District Court
                          Palo Pinto County, Texas
                         Trial Court Cause No. 17575


                     MEMORANDUM OPINION
      A jury convicted Appellant, Cirino Cosme, of continuous sexual abuse of a
young child, a first-degree felony, and four counts of indecency with a child by
contact, second-degree felonies. See TEX. PENAL CODE ANN. § 21.02(b), (h) (West
Supp. 2023), § 21.11(a)(1), (d) (West 2019). Appellant elected to have the trial court
assess his punishment. Following a punishment trial, the trial court sentenced
Appellant to thirty years’ confinement in the Institutional Division of the Texas
Department of Criminal Justice (TDCJ) for the offense of continuous sexual abuse
and twenty years’ confinement in TDCJ for each count of indecency with a child,
with the sentences to run concurrently. In two issues, Appellant complains that
(1) the evidence was insufficient to support a finding that he “was an adult at the
time of the offenses” and (2) the trial court erred by admitting evidence in
contravention of Article 38.072 of the Texas Code of Criminal Procedure and the
Confrontation Clause of the Sixth Amendment. We affirm.
                                 Procedural History
      A grand jury indicted Appellant for continuous sexual abuse of O.V. and Y.V.,
two children under the age of fourteen, between July 1, 2014, and May 1, 2020. The
grand jury also indicted Appellant for four counts of indecency by touching O.V.
and Y.V.’s breasts with the intent to arouse or gratify his sexual desires. The charge
alleged that the acts of indecency occurred on dates that fell between July 1, 2014,
and May 1, 2020, while O.V. and Y.V. were under the age of seventeen. At trial,
nine witnesses testified, including O.V. and Y.V.
                   Evidence as to Appellant’s Age was Sufficient
      In his first issue, Appellant contends that the State failed to produce sufficient
evidence to “prove to the [j]ury that [Appellant] was an adult” at the time the
offenses were committed.
      A. Relevant Facts
      At trial, Deputy J.R. Patterson of the Palo Pinto County Sheriff’s Department
testified that on July 12, 2020, he responded to a call for emergency services. Upon
arrival, Deputy Patterson encountered a “distraught female,” who alleged that her
two daughters reported being “inappropriately touched” by Appellant. Deputy




                                           2
Patterson testified that Appellant’s birthdate is June 12, 1988. O.V. and Y.V. were
born on November 13, 2007, and February 10, 2011, respectively. O.V. testified
that Appellant began touching her breasts and vagina when she was about six or
seven years old, and Y.V. testified that Appellant began touching her breasts and
vagina when she was about five or six years old.
      B. Standard of Review & Applicable Law
      We review a challenge to the sufficiency of the evidence under the standard
of review set forth in Jackson v. Virginia,
443 U.S. 307
(1979). Brooks v. State,
323
S.W.3d 893, 912
(Tex. Crim. App. 2010); Polk v. State,
337 S.W.3d 286
, 288–89
(Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we review all
the evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the essential elements of the charged offense
beyond a reasonable doubt. Jackson,
443 U.S. at 319
; Zuniga v. State,
551 S.W.3d
729, 732
(Tex. Crim. App. 2018); Brooks,
323 S.W.3d at 895
; Isassi v. State,
330
S.W.3d 633, 638
(Tex. Crim. App. 2010).
      Viewing the evidence in the light most favorable to the verdict requires that
we consider all the evidence admitted at trial, including improperly admitted
evidence. Winfrey v. State,
393 S.W.3d 763, 767
(Tex. Crim. App. 2013); Clayton v.
State,
235 S.W.3d 772, 778
(Tex. Crim. App. 2007). As such, we must defer to the
factfinder’s credibility and weight determinations because the factfinder is the sole
judge of the witnesses’ credibility and the weight their testimony is to be afforded.
Winfrey,
393 S.W.3d at 768
; Brooks,
323 S.W.3d at 899
. The Jackson standard is
deferential and accounts for the factfinder’s duty to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from the facts.
Jackson,
443 U.S. at 319
; Zuniga,
551 S.W.3d at 732
; Clayton,
235 S.W.3d at 778
.




                                         3
We may not reevaluate the weight and credibility of the evidence to substitute our
judgment for that of the factfinder. Dewberry v. State,
4 S.W.3d 735, 740
(Tex.
Crim. App. 1999). Instead, we determine whether the necessary inferences are based
on the combined and cumulative force of all the evidence when viewed in the light
most favorable to the verdict. Clement v. State,
248 S.W.3d 791, 796
(Tex. App.—
Fort Worth 2008, no pet.). Therefore, if the record supports conflicting inferences,
we presume that the factfinder resolved the conflicts in favor of the verdict, and we
defer to that determination. Jackson,
443 U.S. at 326
; Merritt v. State,
368 S.W.3d
516
, 525–26 (Tex. Crim. App. 2012); Clayton,
235 S.W.3d at 778
.
      As relevant here, a person commits continuous sexual abuse of a young child
if:
      during a period that is 30 or more days in duration, the person commits
      two or more acts of sexual abuse, regardless of whether the acts of
      sexual abuse are committed against one or more victims; and . . . at the
      time of the commission of each of the acts of sexual abuse, the actor is
      17 years of age or older and the victim is . . . a child younger than 14
      years of age, regardless of whether the actor knows the age of the victim
      at the time of the offense.
PENAL § 21.02(b). A person commits indecency with a child if he engages in sexual
contact with a child that is younger than seventeen years of age. Id. § 21.11(a)(1).
      C. Analysis
      The evidence at trial showed that Appellant was nineteen years old when O.V.
was born and twenty-two years old when Y.V. was born. Although Appellant
recognizes that Deputy Patterson’s testimony established Appellant’s age, he
nonetheless argues the evidence was insufficient to show that Appellant was
seventeen years or older when the offenses were committed. However, when the
jury—the sole judge of the weight of the evidence and credibility of the witnesses—




                                          4
found that Appellant committed the continuous-sexual-abuse offense as alleged,
they necessarily found that Appellant was seventeen or older based on his and the
complainants’ birthdates.1 See id. § 21.02(b); Jackson,
443 U.S. at 319
. Moreover,
O.V. testified that Appellant began touching her when she was six or seven years
old, placing Appellant at approximately twenty-five years old at the time of the first
offense. See Jackson,
443 U.S. at 319
. This is simple math. The jury believed that
Appellant committed the offenses, as evidenced by its guilty verdict. Accordingly,
we conclude that there was sufficient evidence for the jury to rationally infer and
conclude that Appellant was seventeen years or older when he committed the
offenses. See PENAL § 21.02(b); Jackson,
443 U.S. at 319
. Appellant’s first issue is
overruled.
                         The Trial Court Properly Admitted Evidence
        In his second issue, Appellant argues that the trial court erred by admitting,
over his objections, certain testimony and evidence from two witnesses because the
admitted testimony violated the Confrontation Clause to the Sixth Amendment and
Article 38.072 of the Texas Code of Criminal Procedure.
        A. Relevant Facts
        During Deputy Patterson’s testimony regarding the information that he
received from O.V. and Y.V.’s mother, Appellant objected on the grounds that


        1
         In his brief, Appellant asks: “Who qualifies as an adult?” He states that “[i]t is not in the elements
of the offenses for which he [is] indicted for[,] [b]ut obviously for one to be tried for [the offenses], the
actor must be an adult.” In seeking an answer, Appellant cites to the Family Code, the Property Code, the
Education Code, the Government Code, the Transportation Code, and the Civil Practice and Remedies
Code. We note that, as stated above, the offense of continuous sexual abuse of a young child requires that
the actor be seventeen years of age or older at the time of the commission of each of the acts of sexual
abuse. PENAL § 21.02(b)(2). We further note that Section 51.02(2) of the Family Code and Section 8.07(b)
of the Penal Code define seventeen-year-olds as adults for purposes of criminal prosecution. TEX. FAM.
CODE ANN. § 51.02(2) (West Supp. 2023); PENAL § 8.07(b). As discussed, the evidence was sufficient for
a rational jury to infer that Appellant was over seventeen at the time the offenses were committed.



                                                      5
Deputy Patterson’s testimony violated his right to confrontation; the trial court
initially sustained Appellant’s objection. After additional testimony from Deputy
Patterson that included statements by O.V. and Y.V.’s mother, Appellant objected
on the basis that Deputy Patterson was not a proper outcry witness under
Article 38.072 of the Texas Code of Criminal Procedure and reiterated that the
testimony violated his right to confrontation. The State argued that it was not
offering the statements to prove the truth of the matter asserted. The trial court
overruled both objections. The following exchange then occurred:
            [THE STATE]: What type of crime? What was the crime you
       were investigating at this point?
            [DEPUTY PATTERSON]: It was stated that the children had,
       over a period of time, been inappropriately touched by a family
       member named Cirino Cosme. Uncle Chino is what -- the name given.
       His birthdate is 6/12/1988.
The trial court instructed the jury: “[T]his testimony about what was reported to him
when he showed up, it’s not being admitted to prove that the defendant did anything;
it’s just being offered to show why [Deputy Patterson] took the actions he took.”
      Theresa Fugate, a registered nurse and sexual assault nurse examiner (SANE),
testified that she performed a SANE exam on O.V. on August 6, 2020. Fugate
explained that everything she does is “for the purpose of medical diagnosis and
treatment.” During the examination, Fugate completed medical records entries
pursuant to “medical protocol.” The State offered a copy of Fugate’s examination
notes and Appellant objected to the notes admission on the basis that the notes
included a statement from O.V. and Y.V.’s mother, which he argued violated
Article 38.072 of the Texas Code of Criminal Procedure and his right to
confrontation. The statement read:




                                         6
      Per mom (tearful) “I found out on a Sunday night after dinner, I took a
      shower came out[, and] [Y.V.] was watching TV[.] [S]he said I need
      to tell you something and she started crying[.] I sent [O.V.] into the
      living room and I talked to [Y.V.] by herself and she told me
      [Appellant], my youngest brother[,] had been touching her[.]” [Y.V.]
      relayed to mom it had been on going, that it happened at his house and
      that he had threatened her. “I called [O.V.] in and asked her if this had
      happened to her and she said yes, that he had been touching her private
      parts[.]”
Appellant acknowledged that O.V. and Y.V.’s mother had previously been sworn
and was available for cross-examination, “[i]f [he] decide[d] to call her.” The trial
court overruled both objections.
      B. Standard of Review & Applicable Law
      Hearsay is an out-of-court statement, including a written statement, that is
offered to prove the truth of the matter asserted in the statement; it is inadmissible
absent an exception. TEX. R. EVID. 801, 802. When hearsay is objected to, “it
becomes the burden of the proponent of the evidence to establish that an exception
applies that would make the [hearsay] admissible.” Taylor v. State,
268 S.W.3d 571
,
578–79 (Tex. Crim. App. 2008). In addition to the exceptions found in Rule 803 of
the Texas Rules of Evidence, certain statements made by children regarding sexual
abuse are admissible as an exception to the hearsay rule. See TEX. CODE CRIM. PROC.
ANN. art. 38.072, § 2 (West Supp. 2023); TEX. R. EVID. 803. For the outcry
exception to apply, Article 38.072 requires that (1) on or before the fourteenth day
before proceedings begin, the party intending to offer the statement (a) notifies the
adverse party of its intent to offer the outcry statement, (b) provides the name of the
outcry witness through whom it intends to offer the statement, and (c) provides a
written summary of the statement; (2) the trial court holds a hearing outside the
presence of the jury to determine whether the statement is reliable; and (3) the child



                                          7
testifies or is available to testify at the proceeding. Dority v. State,
631 S.W.3d 779
,
791 (Tex. App.—Eastland 2021, no pet.) (citing CRIM. PROC. art. 38.072, § 2(b)).
      The Confrontation Clause of the Sixth Amendment provides to the one who
is accused the right to cross-examine witnesses who testify against him. See U.S.
CONST., amend. VI; Johnson v. State,
490 S.W.3d 895, 909
(Tex. Crim. App. 2016)
(“The main purpose behind the Confrontation Clause is to secure for the opposing
party the opportunity of cross-examination . . . .”).      The Confrontation Clause
precludes the admission of out-of-court testimonial statements by a witness when
the witness is unavailable to testify, and the defendant has not had the prior
opportunity to cross-examine the witness. Crawford v. Washington,
541 U.S. 36
,
53–54 (2004); Del Carmen Hernandez v. State,
273 S.W.3d 685, 687
(Tex. Crim.
App. 2008) (“[H]earsay statements nevertheless must overcome the Confrontation
Clause bar, which may be implicated if the defendant is not afforded the opportunity
to confront the out-of-court declarant.”). However, “where the declarant is not
absent, but is present to testify and to submit to cross-examination, . . . the admission
of his out-of-court statements does not create a confrontation problem.”
California v. Green,
399 U.S. 149, 162
(1970); see Crawford,
541 U.S. at 59, n.9
(“The [Confrontation] Clause does not bar admission of a statement so long as the
declarant is present at trial to defend or explain it.”). Similarly, out-of-court
statements that are testimonial but not used to prove the truth of the matter asserted
do not offend the Confrontation Clause. Crawford,
541 U.S. at 59, n.9
(“The
[Confrontation] Clause does not bar the use of testimonial statements for purposes
other than establishing the truth of the matter asserted.”) (citing Tennessee v. Street,
471 U.S. 409, 414
, (1985)); Langham v. State,
305 S.W.3d 568, 576
(Tex. Crim.
App. 2010) (recognizing Crawford’s holding that even testimonial out-of-court




                                           8
statements do not violate confrontation when offered for some evidentiary purpose
other than the truth of the matter asserted).         A constitutional ruling, such as
determining whether a statement is testimonial or non-testimonial, is reviewed de
novo. Wall v. State,
184 S.W.3d 730, 742
(Tex. Crim. App. 2006).
      We review a trial court’s decision to admit or exclude evidence for an abuse
of discretion. Martinez v. State,
327 S.W.3d 727, 736
(Tex. Crim. App. 2010);
Ruiz v. State,
631 S.W.3d 841
, 855 (Tex. App.—Eastland 2021, pet. ref’d) (citing
Rhomer v. State,
569 S.W.3d 664, 669
(Tex. Crim. App. 2019)). This standard of
review also applies to a trial court’s decision to admit or exclude extraneous-offense
evidence. De La Paz v. State,
279 S.W.3d 336, 343
(Tex. Crim. App. 2009);
Barron v. State,
630 S.W.3d 392
, 410 (Tex. App.—Eastland 2021, pet. ref’d). We
will not reverse a trial court’s decision to admit or exclude evidence, and there is no
abuse of discretion, unless that decision lies outside the zone of reasonable
disagreement. De La Paz, 279 S.W.3d at 343–44; Ruiz, 631 S.W.3d at 856 (citing
Beham v. State,
559 S.W.3d 474, 478
(Tex. Crim. App. 2018)); Barron, 630 S.W.3d
at 410. Furthermore, we will uphold a trial court’s evidentiary ruling, even if the
trial court’s reasoning is flawed, if it is correct on any theory of law that finds support
in the record and is applicable to the case. Henley v. State,
493 S.W.3d 77, 93
(Tex.
Crim. App. 2016); Dering v. State,
465 S.W.3d 668, 670
(Tex. App.—Eastland
2015, no pet.).
       C. Analysis
       On appeal, Appellant recognizes that the complained-of testimony and
Fugate’s notes were admissible hearsay but argues that they were nonetheless barred
by Article 38.072 and the Confrontation Clause. For the Article 38.072 violation,
Appellant specifically complains that the State did not provide the requisite fourteen-




                                            9
day notice and the trial court did not hold the necessary hearing. See CRIM. PROC.
art. 38.072, § 2(b). However, Article 38.072 operates as an additional exception to
hearsay, not a substitute for the already-existing exceptions. See id. art. 38.072,
§ 2(b) (“A statement that meets the requirements of Subsection (a) is not
inadmissible because of the hearsay rule.”); Long v. State,
800 S.W.2d 545
, 547–48
(Tex. Crim. App. 1990) (noting that once the defendant objected to testimony as
hearsay, “the State had the burden to satisfy each element of . . . Art[icle] 38.072, . . .
or to provide some other exception to the hearsay rule.”); see also Bays v. State,
396
S.W.3d 580, 592
(Tex. Crim. App. 2013) (Keller, J. dissenting) (“By saying, ‘A
statement that meets the requirements of Subsection (a) is not inadmissible because
of the hearsay rule,’ Article 38.072 simply creates a hearsay exception, on par with
other types of exceptions such as excited utterances.”). Appellant provides no other
argument that either statement was inadmissible pursuant to the Texas Rules of
Evidence. Because the testimony and medical notes were admissible hearsay, as
Appellant notes, the State was not required to also comply with the requirements of
Article 38.072. See Long, 800 S.W.2d at 547–48.
      As to Appellant’s Confrontation Clause complaints, the State argued, and the
trial court instructed the jury, that Deputy Patterson’s testimony was not offered to
prove the truth of the matter asserted, but instead to explain why Deputy Patterson
took the steps in his investigation that he did. The trial court further admonished the
jury that it could not consider Deputy Patterson’s testimony to prove that Appellant
committed the alleged offenses. Because the statement was not offered to prove the
truth of the matter asserted, the Confrontation Clause was not violated.               See
Crawford,
541 U.S. at 59, n.9
; Street,
471 U.S. at 414
; Langham,
305 S.W.3d at 576
.
Moreover, Appellant’s right to confrontation was not violated because O.V. and




                                            10
Y.V.’s mother was sworn in as a witness and was available for cross-examination.
See Crawford,
541 U.S. at 59, n.9
; Green,
399 U.S. at 162
. Similarly, Appellant’s
right to confrontation was not violated by the trial court’s admission of Fugate’s
SANE report for these same reasons. See Crawford,
541 U.S. at 59, n.9
; Green,
399
U.S. at 162
. Accordingly, we conclude that the trial court did not err by admitting
the testimony or the evidence. See Martinez,
327 S.W.3d 736
; Wall,
184 S.W.3d at
742
. Appellant’s second issue is overruled.
                                   This Court’s Ruling
      We affirm the judgments of the trial court.




                                                W. BRUCE WILLIAMS
                                                JUSTICE


September 19, 2024
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.




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