AFFI l&i; Opinion   issued   October 3l 2012.




                                            In The
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                                 ttrirt uf Lrxaa at JaUa
                                      No. 05-1 1-00348-CR


                             JOSE LtJIS ROl)RICUEZ, Appellant

                                                 V.

                              THE STATE OF TEXAS, Appellee


                     On Appeal from the Criminal District Court No. 3
                                  Dallas County, Texas
                           Trial Court Cause No. Fl0-52026-J


                                         OPINION
                        I3efore Justices i3ridges, Richter, and Lang
                                Opinion By Justice Richter

       Appellant was convicted of aggravated sexual assault of a child and the court

sentenced him to twenty years’ imprisonment. In a single issue on appeal, appellant asserts

the trial court erred in allowing victim impact testimony during the punishment phase of

trial. Finding no reversible error, we affirm the trial court’s judgment.

       During the guilt/innocence phase of trial, appellant’s daughter testified that she had

a strained relationship with her father and he raped her approximately six times between the

ages of five and thirteen. At the   sentencing   phase of trial, the prosecutor asked the victim

how the oftLnsc had atfcctcd her lit, from thL moment it happened until the present
Defense counsel objected, and the trial court sustained the objection. The following

exchange then occurred:

              PROSECUTOR: Ms. Velcz, has this- the sexual incidences with your
              father, has it affected your life?

              DEFENSE COUNSEL: Again, your Honor, I’d object to victim
              impact testimony.

              THE COURT: Objection overruled. I’ll allow some-- testimony.

              PROSECUTOR: Has what happened to you as a child affected your
              family today?

              WITNESS: Yes

              DEFENSE COUNSEL: Your Honor, getting out of—again, we’re
              moving into victim impact testimony and I would object.

              THE COURT: Objection ovemiled.

       After the trial judge overruled the objection, the witness testified about her need for

ongoing therapy, nightmares, tension between family members, and how appellant’s action

affected her love-life, including her failing marriage. Appellant argues that the trial court

abused it discretion in allowing the testimony because it constitutes impermissible victim

impact testimony in violation of Thx. CODE CiuM. PROC. MN. art. 42.03          § 1 (b) (West
2006). We disagree.

       Article 42.03 pertains to post-sentence victim-impact statements. Id. Such post-

sentence statements can include a person’s views about the offense, the defendant, and the

effect on the victim. See Id. The statements are unsworn and are not transcribed by the court

reporter. See Id. As appellant correctly observes, courts have recognized that the Legislature




                                             —2—
provided for these types of statements to he made only after sentencing to alleviate any risk

that the statements would alThct the partiality o the court during the punishment phase ot

trial. See Johnstni   i’.   State, 286 S.W.3d 346, 349 (Tex. (‘rim. App. 2009 ) Aldrich   i’.   State,

296 S.W.3d 225. 259 (Tex. App.--- Fort Worth 2009, pet refd).

       But while article 42.03 does not authorize the use ol an unsworn victim—impact

statement presented before sentencing, it also does not prohibit the admissibility and

consideration ofrelevant victim-impact testimony prior to sentencing during the punishment

phase of the trial. See Brown v. State, 875 S.W.2d 38,40 (Tex, App.—Austin 1994, no pet.);

Jagaroo v. Stale, 1 80 S.W.3d 793, 799 (Tex. App.—Houston[ 14th Dist.j 2005, pet. ref’d).

As the United States Supreme Court has observed, evidence of the impact of an offense on

the life of the victim and others can be introduced at the punishment phase ota criminal trial

as a way of informing “the sentencing authority about the specific harm caused by the crime

in question.” Payne v. Tnnessee, 501 U.S. 808, 825 (1991); see also haley v. State, 173

S.W.3d 510, 5 17 (Tex. Crim. App. 2005); Stavinoha v. State, 808 S.W.2d 76, 79 (Tex. Crim.

App. 1991) (holding relevant victim impact evidence may include physical, psychological,

or economic effects of a crime on victim or victim’s family). To be admissible the evidence

must have “some bearing on the defendant’s personal responsibility and moral culpability.”

Haley, 173 S.W.3d at 517; Salazar v. State, 90 S.W.3d 330, 335 (Tex. Crim. App. 2002).

Article 37.07 of the Texas Code of Criminal Procedure grants the trial court broad discretion

to admit evidence the court deems relevant to sentencing. See TEx. CODE CRIM. PRoc’. ANN.

art. 37.07* 3 (a)(1 ) (West Supp. 2011). Evidence maybe deemed relevant if the defendant
should have anticipated the particular effect of the otlense on the victim or the victim’s

family. Sec Iorcno v. State, 38 S.W .3d 774, 777 (Tcx. App. }louston [1 4th Dist.j 2(01

no pet.).

       In the instant case, the prosecutor’s questions elicited testimony about the harm to the

victim and her family occasioned by the   offense   .Unlike a unsworn, unrecorded statement

under article 4203, the victim’s sworn testimony was subject to crossexamination, On this

record, the trial court could reasonably deem the testimony relevant to appellant’s personal

responsibility and moral culpability, and appellant could reasonably anticipate that raping

his daughter would have a traumatic impact on family dynamics. Therefore, we cannot

conclude the trial court abused its discretion in allowing the victim’s sworn testimony about

the emotional and psychological harm she suffered as a result of appellant’s actions,

        Appellant’s sole issue is overruled, The judgment of the trial court is affirmed.




Do Not Publish
T[x. R. App. P. 47


1 10348F.U05
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                                      JUDGMENT
JOSE LUIS RO1)RIGUEZ, Appellant                    Appeal from the Criminal District Court No.
                                                   3 of Dallas County. Texas. (TrCtNo, FlO
No, O51 UOO348CR             V.                    52026.4).
                                                   Opinion delivered by Justice Richter,
THE STATE OF TEXAS, Appellee                       Justices I3ndges and Lang participating


       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.



Judgment entered October 31, 2.012.
