      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-06-00406-CR



                             John Thomas Mendoza Jr., Appellant

                                                 v.

                                  The State of Texas, Appellee


      FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
         NO. CR-05-799, HONORABLE JACK H. ROBISON, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Appellant John Thomas Mendoza, Jr., appeals his convictions on five separate counts

of aggravated sexual assault of a child and one count of indecency with a child. See Tex. Penal Code

Ann. § 21.11(a)(1) (West 2003), § 22.021(1)(B) (West Supp. 2008). After the jury found him guilty

on all counts, the trial court assessed punishment at fifty years’ imprisonment and a $10,000 fine on

each of the aggravated sexual assault of a child counts and at twenty years’ imprisonment and a

$10,000 fine on the indecency with a child count. The sentences were made to run concurrently.
                                       POINTS OF ERROR

               Appellant’s brief is difficult to decipher.1 We have tried to determine appellant’s

points of error from the somewhat disjointed and confusing discussion. Initially, we find the

following:


       Point of Error #1: Although the State represented to trial counsel that it would not
       present SANE nurse Salley as an expert or attempt to elicit expert testimony through
       examination of her, the State did both and flagrantly disregarded numerous proper
       objections and trial court rulings. Because this was intentional, reversal should be
       automatic, but the harm was clearly identifiable and the evidence of guilt not
       overwhelming. The trial court and trial counsel made a minor error, caused in part
       by the State’s neglect, which also contributed, but should not be used to affirm the
       conviction.


               In a multifarious vein, appellant asserts: “Point of Error #2: Improper Leading

Questions and prosecutorial Remarks in Examination of A— M— and in Closing.”

               In what appears to be appellant’s third point of error, he asserts: “Evidence of guilt is

not overwhelming.” If there are other points raised by the numerous questions propounded without

briefing and in many instances without record page references, we decline to address them under the

circumstances presented. See Tex. R. App. P. 38.1(i) (providing that brief must contain clear and

concise argument for contentions made, with appropriate citations to authorities and to record).




       1
           The State points out: “First, appellant’s issues are not properly briefed and are
unintelligible . . . .” Later, the State responds: “Here, appellant’s objection seems to be confusion.
The only one that seems to be confused is him and now me because I have to respond to his
confusion.”

                                                  2
                                         BACKGROUND

               Appellant does not challenge either the legal or factual sufficiency of the evidence

to sustain the convictions. Perhaps for this reason, neither party has honored us with a summary of

the facts. A statement concerning the facts will place the points of error in proper perspective.

               Terri DeLeon, mother of A.M., the complainant, was the outcry witness. DeLeon

testified that A.M. had lived with appellant, her father, while DeLeon was in prison for welfare

fraud, theft, and injury to a child.2 DeLeon recalled that A.M. was staying with her in the summer

of 2005, while appellant was in a state jail facility in Bartlett. One morning in July 2005, at about

3 a.m., DeLeon was having difficulty getting A.M. to go to bed. A.M. began crying and blurted out

that appellant had molested her and described the details. DeLeon telephoned her sister-in-law,

Nancy DeLeon, who lived next door. Both of the women then talked to A.M. Terri DeLeon stated

that she telephoned some members of the Mendoza family. She then called the San Marcos police

department and was told that she needed to file a “police report.” DeLeon testified that she did not

file a report because she had some outstanding arrest warrants for traffic violations. DeLeon

estimated that about fifteen days passed before she reported A.M.’s accusation to the police.

               On cross-examination, DeLeon acknowledged that she had written a letter dated

June 16, 2005, to Augustine Mendoza, appellant’s uncle, asking him not to allow A.M. to be

“around” appellant. She could not recall whether A.M.’s outcry was made in June or July 2005.

DeLeon admitted that after the outcry, A.M. disappeared or left her house in the company of




       2
        It appears the injured child was the daughter of Cindy Mendoza, a relative of the appellant.
The record indicates that Terri DeLeon had many difficulties with the Mendoza family.

                                                 3
Augustine Mendoza and that A.M. began to live with Augustine and his family. DeLeon explained

that she repeatedly asked that A.M. be brought home but to no avail. She revealed that she could

not pick up A.M. because she was under a protective order preventing her from going to the homes

of members of the Mendoza family.

                Later, DeLeon reported that with the aid of the Kyle city police, she was able to

regain custody of A.M. It was not until September 19, 2005, that she reported A.M.’s outcry to

Child Protective Services in Seguin. DeLeon related that she talked to Scott Johnson, a San Marcos

police officer, on October 7, 2005, about A.M.’s outcry. She admitted that there was some delay

between the outcry and her actual contact with law enforcement authorities.

                A.M., who was ten-years-old at the time of the April 2006 trial, testified that she was

between seven and eight years old when her father began to molest her.3 She testified that the abuse

first occurred at her great grandmother Patsy’s house, then at her grandmother Estella’s house, and

again at a hotel, where appellant lived with his girlfriend and their two children. She related that

appellant had both vaginal and anal sexual intercourse with her. She stated that the intercourse hurt

her, that sticky white stuff came out of appellant’s private part, and that it got on her body, the bed,

and a blanket. On one occasion, she bled and the blood got on her clothes. Appellant threw her

clothes in the trash. A.M. further related that appellant would cause her to rub his private parts with

her hand, that he would place his private part in her mouth, and that the white stuff tasted nasty.

A.M. further testified that appellant would stick his tongue in her private part.




       3
           The six-count indictment alleged “on or about” dates ranging from July to November 2003.

                                                   4
                  On cross-examination, A.M. admitted that she had practiced her testimony on three

separate days before the trial with the prosecutor. She acknowledged that she had talked with and

given statements to others in Seguin and San Marcos. A.M. related that at the time of the trial, she

had finished the fourth grade and that she was now living with her mother. She explained that after

a disagreement with her mother in the summer of 2005, she went to live with Augustine Mendoza

and spent some weeks with her grandmother, Estella. A.M. testified that she loved her father and

that she had gone to visit him in jail because it was her desire to do so. She identified several letters

that she had written to her father in jail while she was living with her grandmother. The letters

were introduced into evidence, the latest bearing the date September 10, 2005. In these letters, A.M.

told her father that she loved him, asked how much longer he had to serve, and described some of

her activities.

                  A.M. testified that her grandmother never asked her what her father had done to her,

but had only told A.M. to tell the truth. A.M. told her grandmother that what she had said was the

truth. Her grandmother never inquired about the facts of the abuse.

                  A.M. reported that at the end of the summer in 2005, she was enrolled in the fifth

grade in the Kyle school district by the Mendoza family. One day A.M.’s mother picked her up from

school, took A.M. to her home, and later enrolled A.M. in the San Marcos school district. A.M. had

been living with her mother since that time. She further related that her mother told her not to

contact her grandmother or her uncle Augustine, but admitted that when her mother was not home,

she would telephone Augustine.




                                                   5
               Mary Morgan, custodian of the medical records at the Guadalupe Regional Center

Hospital, testified that the records in her possession were the business records of the hospital.

Through Morgan’s testimony, the State sought to introduce medical records related to A.M.’s

examination and treatment. After a lengthy colloquy at the bench and some objections, a page

was redacted from the records, which were then admitted without further objection as State’s

exhibit No. 1. Christina Salley, a sexual assault nurse examiner (SANE) at the hospital, testified that

she was present at the examination of A.M. and took a medical history from her on October 10,

2005, which was included in the hospital records that were introduced at trial. Christy Williams, a

forensic interviewer with the Children’s Advocate Center, conducted an interview with A.M. on

September 28, 2005. A tape was made of the interview and was introduced into evidence without

objection. Nancy DeLeon also testified and confirmed that Terri DeLeon had contacted her on the

night of the outcry and that she had talked with A.M.

               Appellant called his uncle, his mother, and his girlfriend, Veronica Garcia,

as witnesses before testifying himself. Appellant admitted to prior felony and misdemeanor

convictions,4 but denied that he committed the alleged offenses against A.M., his daughter.

Appellant stated that he and Terri DeLeon had never been divorced. Witnesses from his family

acknowledged the family’s troubled relationship with Terri. Estella Ledesma, appellant’s mother,

testified that it was in the early morning hours of June 12, 2005, that Terri DeLeon had telephoned

her about A.M.’s accusations, not in July. She related that A.M. spent a good part of the summer


       4
          Appellant testified that he had been convicted of burglary of a vehicle, organized criminal
activity in connection with the burglary, and misdemeanor offenses of DWI, driving with a
suspended license, and trespass at a women’s shelter.

                                                  6
of 2005 with her. She further testified that she had asked A.M. about the accusations and A.M.

replied that her mother told her “to say that” and later added that her mother had “put her up” to

making the outcry.

               Augustine Mendoza, appellant’s uncle, testified that Terri DeLeon had contacted him

by telephone on June 6, 2005, about the accusations. He stated that later in the summer, he picked

up A.M. and took her to live at his house until A.M. later moved to Estella Ledesma’s home. On

cross-examination, the following exchange took place:


       Q.      And are you familiar with [A.M.]’s reputation for truthfulness?

       A.      No. She . . . she lies.



                                         EXPERT WITNESS

               In his first point of error, appellant claims that the State presented SANE nurse

Christina Salley as an expert and attempted to elicit expert testimony from her when it had

represented that it would not do so and “despite objections and court rulings” that Salley not be

allowed to testify as an expert witness.

               The State did not designate any witness as an expert witness. The record from the

pre-trial hearing reflects the following:


       [Prosecutor]:           I have a SANE nurse, but that’s not an expert. I don’t have an
                               expert on this, so that’s it.

       [Defense counsel]:      And our response to that was as long as that SANE nurse says
                               what her findings were and not what her opinion is, I have no
                               problem with it either.



                                                 7
                During trial, the State offered the hospital records regarding A.M. through the

testimony of Mary Morgan, custodian of the records. Appellant’s trial counsel asked for time to

examine the extensive records and apparently “paper-clipped” portions of the records to which he

wanted to object. During the discussion of the admission of the hospital records, the name of

the next witness, Salley, was mentioned. This diverted the discussion as to Salley’s status as an

expert witness. The State made clear that Salley had not been designated as an expert witness and

would not be called to testify as an expert. The prosecutor pointed out that Salley would testify as

to statements made to her by A.M. under an exception to the hearsay rule, testifying only to “what

the history was and what she saw when she examined the child.” The prosecutor insisted that Salley

would not give an opinion about whether the child had been sexually abused. Appellant’s counsel

replied, “I have no problem with her testifying as to what she did.” Counsel indicated, however, that

he had a problem with the “history.” Eventually, at the conclusion of the colloquy, in response to

counsel’s objection, the trial court redacted a page of the hospital records. State’s exhibit No. 1 was

then admitted into evidence without further objection. The “history” of what A.M. told Sally was

included in the exhibit admitted. The trial court, however, made clear that appellant had followed

the proper procedure and that the State had failed to designate an expert witness so Salley could

not testify as such. The trial court ruled that what A.M. told Salley would be admissible under

Rule 801(e)(1)(B) of the Texas Rules of Evidence5 because of the earlier testimony implying that


       5
           Rule 801(e)(1)(B) provides:

       (e) Statements which are not hearsay.

       A statement is not hearsay if:


                                                  8
the child was a liar and that her story was fabricated while she was under the influence of her mother.

To this ruling, there was no objection to preserve error. See Tex. R. App. P. 33.1(a)(1)(A).

               Salley testified that she became a SANE nurse in 2001 and spoke at some length

about her educational background, her employment as a nurse in various capacities, and her

attendance at seminars and other continuing education programs.6 Salley testified that she examined

A.M. at the hospital on October 10, 2005, and discussed the procedures used in the examination.

She reported that A.M.’s examination was “normal” and that A.M. did not have any sexually

transmitted disease. Salley related that it took two hours to obtain the history from A.M. The

trial court sustained appellant’s objection when the prosecutor asked whether the two hour-period

was “usual or unusual.” Still later, the record reflects the following exchange on direct examination:


       Q:      Okay. And you talked earlier about the difference between an acute and
               chronic exam and the differences between the two. What was [A.M.]’s case?

       A:      [A.M.]’s was chronic. It happened . . . the last things that happened 30 to 96
               hours ago, which is very common for kids . . . .




       (1) Prior statement by witness. The declarant testifies at the trial or hearing and is
       subject to cross-examination concerning the statement, and the statement is:

               (B) consistent with the declarant’s testimony and is offered to rebut an
               express or implied charge against the declarant of recent fabrication or
               improper influence or motive.

Tex. R. Evid. 801(e)(1)(B).
       6
         Although appellant now contends that the State was attempting to make Salley a “make-
shift” expert witness by eliciting her qualifications at length, appellant offered no objection and
therefore preserved no error.

                                                  9
               Appellant’s “unresponsive” objection was sustained and at appellant’s request, the

trial court instructed the jury to disregard the answer. The matter was not pursued. Salley continued

her testimony. When the prosecutor asked, “Okay, can you explain to the jury your knowledge

about the hymen and how quickly it heals,” The trial court sustained appellant’s objection that the

question was “asking for an opinion.”

               Our examination of the facts fails to reveal that Salley testified as an expert witness

regarding the behavior of sexually abused children or otherwise. We do not conclude that the State

elicited improper testimony from Salley. The “history” was a part of the hospital records admitted

into evidence without objection after redaction. In her testimony, Salley read the “history,” which

she had taken from A.M. and which was already in evidence without objection. The statements were

consistent with A.M.’s trial testimony. Further, Christy Williams, a forensic interviewer, made a

tape of her interview with A.M. that was admitted without objection. Point of error one is overruled.


                                     LEADING QUESTIONS

               In his second point of error, appellant complains of improper leading questions in the

examination of the child witness and prosecutorial jury argument concerning the same questions.

This is a multifarious point of error, which we will nevertheless address.

               Rule 611(c) provides in part that “[l]eading questions should not be used on the

direct examination of a witness except as may be necessary to develop the testimony of the witness.”

Tex. R. Evid. 611(c). “The rule clearly contemplates that some leading questions are acceptable at

the trial court’s discretion.” Wyatt v. State, 23 S.W.3d 18, 28 (Tex. Crim. App. 2000) (discussing

former rule 610(c), now codified as rule 611(c)). Prior to the adoption of the rule and its forerunner,

                                                  10
whether leading questions were permissible on direct examination was a matter within the sound

discretion of the trial court. Id. An abuse of discretion cannot be demonstrated “unless [appellant]

can show that he was unduly prejudiced by virtue of such questions.” Id. (quoting Hernandez

v. State, 643 S.W.2d 397, 400 (Tex. Crim. App. 1982)). The adoption of rule 611(c) has not changed

this long-standing proposition. Id.

               In cases dealing with child witnesses, the rule against leading questions is somewhat

relaxed. Clark v. State, 952 S.W.2d 882, 886 (Tex. App.—Beaumont 1997, no pet.). A prosecutor’s

leading questions to a child witness on direct examination will seldom be the basis for reversal. Uhl

v. State, 479 S.W.2d 55, 57 (Tex. Crim. App. 1972).

               Here, on redirect examination of the ten-year-old A.M., the prosecutor revisited

matters established on cross-examination that A.M. loved her father, the appellant, had visited him

in jail, and had written letters to him while she was living with her paternal grandmother. Then the

prosecutor asked A.M. four times, “Would you want to go live with him if he got out of jail right

now?” Each time the prosecutor received no audible response, although A.M. stated that she

understood the question and did not need a “break.” Appellant did not object to these questions or

to the line of the interrogation on any basis. The prosecutor then inquired, “Do you think if you lived

with him that he would do something to you again?” The record then reflects:


       [Defense counsel]:      Objection. I’ve sat here all morning through leading
                               questions, Judge.

       The Court:              Sustained.

       [Prosecutor]:           Your Honor, she’s 10 years old. I think I have to get some
                               leeway to ask her a question.

                                                  11
       The Court:              Well, that’s a little bit off of the topic you’ve been on. That’s
                               too suggestive.


                The only complained-of question was never answered, and there was no request for a

jury instruction to disregard the question. Appellant obtained all the relief requested.

                Appellant further complains, however, that the prosecutor made improper reference

to her interrogation of A.M. during the State’s argument at the guilt/innocence stage of the trial. The

prosecutor argued:


       Do you know what? The one question I couldn’t get her to answer? “If your dad got
       out of jail right now, would you want to go live with him?” She couldn’t answer that
       question. Ask yourself why. Because he’s right there and so is the rest of his family.
       What the heck is she going to say? She loves her Dad. She wants to go live with his
       mother. She can’t answer that question.


                There was no trial objection to these statements and no jury argument issue was

preserved for review. See Tex. R. App. P. 33.1(a)(1)(A). For the first time on appeal, appellant

asserts that the prosecutor’s argument distorted the meaning of A.M.’s “non-response.” Topics

within the proper area of jury argument are: (1) summation of the evidence presented at trial;

(2) reasonable deductions drawn from the evidence; (3) answer to opposing counsel’s argument; or

(4) a plea for law enforcement. Berry v. State, 233 S.W.3d 847, 859 (Tex. Crim. App. 2007); Gaddis

v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988). On this record, the prosecutor’s remarks

were within the proper area of jury argument. Because it is without merit, the second point of error

is overruled.




                                                  12
                              LACK OF OVERWHELMING GUILT

                   We turn to what for convenience we have designated point of error number three.

Appellant’s brief lists in the Table of contents the heading “III argument,” under which is found

“Point of Error #1,” “Point of Error #2.” This contention is labeled, “Evidence of Guilt Not

Overwhelming.” The argument under this heading is found at the conclusion of the discussion of

the second point of error. Appellant does not challenge the sufficiency of the evidence, legally or

factually, to sustain the convictions, nor does he brief his contention along these lines. Rather, he

asserts that evidence of guilt is not overwhelming. Appellant cites no authorities and does not

describe the legal relief to which he is entitled. In support of the contention, appellant presents a

rehash of some of the evidence in the light most favorable to himself and derogatory to the State’s

witnesses. He claims that the charges against him grew out of a battle of control between

Terri DeLeon and A.M. regarding bedtime; that the manipulative child used the charges to take

control and divert her mother’s attention from the chronic issue of bedtime; and that the situation

festered in the long-standing difficulties between DeLeon and the Mendoza family. Appellant

acknowledges that this was essentially his trial counsel’s argument.

                   The jury is the exclusive judge of the facts and the weight to be given to the

testimony. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979). The jury was duly charged on

the law. See Tex. Code Crim. Proc. Ann. art. 36.14 (West 2007). The jury resolved the issues

submitted to them by the trial court against appellant. Appellant is entitled to his opinion about

whether the guilt was overwhelming, but is not entitled to any relief under the third point of error.

It is overruled.



                                                  13
               The judgments of conviction are affirmed.




                                             John F. Onion, Jr., Justice

Before Chief Justice Law, Justices Henson and Onion*

Affirmed

Filed: December 4, 2008

Do Not Publish




* Before John F. Onion, Jr., Presiding Judge (retired), Texas Court of Criminal Appeals, sitting by
assignment. See Tex. Gov’t Code Ann. § 74.003(b) (West 2005).

                                                14
