Affirmed and Memorandum Opinion filed April 25, 2013.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-12-00350-CR

                      DAMON HEATH SAENZ, Appellant
                                          V.

                       THE STATE OF TEXAS, Appellee

                     On Appeal from the 56th District Court
                           Galveston County, Texas
                       Trial Court Cause No. 09CR3635

                  MEMORANDUM OPINION
      Appellant Damon Heath Saenz appeals his conviction for aggravated sexual
assault of a child, asserting that the trial court erred in overruling his objection to
allegedly improper victim-impact testimony. We affirm.

                    FACTUAL AND PROCEDURAL BACKGROUND

      Appellant was charged by indictment with the offense of aggravated sexual
assault of a child, his daughter, by engaging in conduct that was alleged to have
occurred when she was between the ages of seven and twelve or thirteen years old.
Appellant pleaded “guilty” to the charged offense and was placed on ten years’
deferred adjudication on July 9, 2010. The next year, on July 15, 2011, the State
filed a motion to adjudicate guilt, seeking to revoke appellant’s community
supervision.

      At a hearing on the State’s motion, the State presented evidence that
appellant had violated terms and conditions of his deferred adjudication, which the
trial court found to be true. The trial court adjudicated appellant’s guilt of the
charged offense and revoked his probation. In the punishment phase, the State
called the child-complainant to testify about how, when she was between the ages
of seven and thirteen, appellant drugged her with adult cough syrup so that she
would fall asleep, then he would rape her and make her shower and wash the bed
linens the following morning to destroy any evidence of his conduct. The child
expressed anger toward appellant and explained that although he had a “second
chance” when he was given deferred adjudication with community supervision for
the charged offense, she continued to feel threatened by her father. The following
exchange occurred at the end of the complainant’s testimony on direct
examination:

      [Prosecutor]: What would you like to see the Judge do here today?

      Appellant asserted an objection on relevance grounds; the trial court allowed
the complainant to answer the question.

      [Witness]: I would like for him to send him to prison for a long time.

After considering the evidence and arguments on punishment, the trial court
sentenced appellant to forty-five years’ confinement.

      On appeal, in a single appellate issue, appellant asserts that the

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complainant’s testimony, expressing her desires as to the length of his punishment,
was improper victim-impact testimony and that the trial court erred in overruling
his objection to the State’s question.

                                         ANALYSIS

      As a threshold matter, we note that the “relevance” objection appellant
voiced at trial is not exactly the same as the “improper victim-impact testimony”
complaint he now raises on appeal. See Tex. R. App. P. 33.1(a) (providing that to
preserve a complaint for appellate review, a party must present to the trial court a
timely request, objection, or motion stating the specific grounds for the ruling
desired); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002) (noting that
an appellate contention must comport with the specific objection made at trial).
But, presuming for the sake of argument that appellant preserved his complaint for
appellate review, we cannot conclude that the error, if any, warrants reversal.

      During punishment, evidence may be offered on matters the trial court
deems relevant to sentencing. See Tex. Code Crime. Proc. Ann. art. 37.07,
§ 3(a)(1) (West 2011). Relevant evidence in the punishment phase is helpful to the
factfinder in determining the appropriate sentence for a particular defendant in
light of the facts of the case. Hayden v. State, 296 S.W.3d 549, 552 (Tex. Crim.
App. 2009). A punishment recommendation from a non-victim, such as an expert
or a victim’s family members is inadmissible. See Simpson v. State, 119 S.W.3d
262, 272 (Tex. Crim. App. 2003) (providing that the wishes of a victim’s family
members as to a defendant’s fate are beyond the parameters of victim-impact
evidence). See also Taylor v. State, 109 S.W.3d 443, 454 (Tex. Crim. App. 2003)
(suggesting difference between a victim’s punishment recommendation from a
non-victim’s in a harm analysis of error resulting from the trial court’s mistaken
hypothetical as to punishment in voir dire). Some intermediate appellate courts

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have extended that rule to opinions of non-experts regarding punishment, including
victims. See Johnson v. State, 987 S.W.2d 79, 87 (Tex. App.—Houston [14th
Dist.] 1998, pet. ref’d); Wright v. State, 962 S.W.2d 661, 663 (Tex. App.—Fort
Worth 1998, no pet.) (providing that victim’s opinion on type of punishment the
defendant should receive was irrelevant in assessing a proper punishment); Hughes
v. State, 787 S.W.2d 193, 196 (Tex. App.—Corpus Christi 1990, pet. ref’d)
(providing that victim’s testimony on an appropriate sentence was not relevant);
Gross v. State, 730 S.W.2d 104, 105–06 (Tex. App.—Texarkana 1987, no pet.)
(providing that a victim’s testimony on punishment had little value when the
witness was in no better a position to form an opinion than the jury). But, a
victim’s punishment recommendation may be different because the victim
arguably was in a position to give an opinion based rationally upon observations of
the crime itself and is the one who suffered from the crime. See Taylor, 109
S.W.3d at 454; see also Fryer v. State, 68 S.W.3d 628, 630–31 (Tex. Crim. App.
2002) (considering victim’s punishment recommendation that was contained in
pre-sentencing investigation report). We presume, without deciding, that the trial
court erred in admitting the complainant’s testimony about her desire to see
appellant confined for a long time and consider whether this presumed error was
harmful. See Lindsay v. State, 102 S.W.3d 223, 228 (Tex. App.—Houston [14th
Dist.] 2003, pet. ref’d) (analyzing harm for error in admitting improper victim-
impact testimony relating to an extraneous offense).

      Erroneously admitted victim-impact testimony is non-constitutional error.
Id. In assessing harm resulting from the trial court’s error, we examine the record
as a whole and determine whether the error violated appellant’s substantial rights
and whether appellant’s punishment was affected by the judgment. See Tex. R.
App. P. 44.2.(b); Reese v. State, 33 S.W.3d 238, 243 (Tex. Crim. App. 2000)


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(applying harm analysis to admission of improper victim-impact photographic
evidence at punishment); Lindsay, 102 S.W.3d at 228. A substantial right is
affected when the error had a substantial and injurious effect on a factfinder’s
verdict or decision on punishment. See King v. State, 953 S.W.2d 266, 271 (Tex.
Crim. App. 1997); Lindsay, 102 S.W.3d at 228. We may not reverse if, after
examining the record, we are fairly assured that the error did not influence the
decision or had but a slight effect on it. See Tex. R. App. P. 44.2.(b); Reese, 33
S.W.3d at 243.

      The record reflects the child-complainant’s testimony describing appellant’s
sexual abuse of her that occurred on a continued basis for five or six years. The
complainant offered a detailed account of appellant’s conduct, to which he had
pleaded “guilty.” The complainant expressed her anger toward her father for his
conduct and expressed disdain that he had received a “second chance” when he
received deferred adjudication. The complainant’s comment on her desires for
appellant’s punishment was brief and comprised only one sentence. In light of the
facts of the case, the trial judge assessing punishment likely would not have been
surprised that the child-complainant desired the imposition of a lengthy
punishment, something the factfinder may have assumed without the disputed
testimony. See Simpson, 119 S.W.3d at 274 (considering admission of improper
victim-impact testimony as harmless when the jury could understand that a
victim’s family would not be objective about punishment). Appellant testified and
called the child-complainant a liar, claiming that he engaged in only masturbation
and oral sex with his daughter, but not sexual intercourse. The State, in its closing
statements, sought a sentence of confinement “for a very long period of time,”
echoing the child-complainant’s sentiments, but it does not appear as if the State
unduly emphasized the child’s wishes for appellant’s punishment in making its


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request for a life sentence. See Hoffman v. State, 874 S.W.2d 138, 141 (Tex.
App.—Houston [14th Dist.] 1994, pet. ref’d) (holding that one “hint” during
argument is insufficient to show the State emphasized the error). Moreover, the
trial judge did not assess the maximum punishment sought by the State.

      The record contains the following remarks by the trial court:

      Okay. First of all, [Defense Counsel], you are right. The Defendant
      got a second chance by getting a deferred probation July, 2010; and
      that’s a huge second chance. That’s one of those giant halftime
      second chances. But it did not appear to go well after that second
      chance. And that’s because I know that I had to admonish him and
      then add in an administrative hearing March 28th[,] 2011 because he
      was not doing his [sexual] offender therapy.
      And there were some allegations or issues concerning the use of
      [illicit] drugs; and, of course, there was community service done at
      that time. But instead of a motion being filed to adjudicate and revoke
      his probation, he got that third chance at the administrative hearing.
      But it does not appear to have gone well because after hearing
      evidence concerning new offenses, I found that the allegations in [the
      State’s motion for adjudication] to be true, that he violated the laws of
      the State of Texas by possession of a controlled substance in both of
      those cases. And that’s in spite of me telling the Defendant if you
      have a drug problem, talk to me about [it,] let’s do something to fix it.
      And that does not [mean] getting more drugs. Add to that he has a
      continuing [issue] of not doing community service. I really want
      someone who gets a second and certainly a third chance not to just do
      okay on probation but to be a really absolute good citizen.
      In terms of punishment, it appears that the Defendant does not agree
      with the testimony of his own daughter. Unfortunately, he almost
      seemed to make it sound okay to masturbate in front of his daughter
      and perform oral sex on his daughter. And that did not make me any
      happier.
      So it is the order of this Court that the Defendant, his probation is
      revoked and sentenced to 45 years[’] confinement in the Institutional
      Division of the Texas Department of Criminal Justice.
      Tellingly, based on these remarks, appellant’s own testimony at the

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punishment phase likely had the most controlling impact on his punishment
sentence. At no point did the trial judge indicate that he had given any weight to
the complainant’s stated desire in assessing appellant’s punishment.

      After examining the record as a whole, we cannot conclude that any
erroneous admission of the child-complainant’s stated desires for appellant to be
imprisoned for a long time, as presumed improper victim-impact testimony, had a
substantial and injurious effect on the trial court’s decision in punishment. See
Lindsay, 102 S.W.3d at 229. Accordingly, we conclude that even if the trial court
erred in admitting this testimony, the error does not warrant reversal. See id. We
overrule appellant’s sole issue on appeal.

      The trial court’s judgment is affirmed.




                                       /s/       Kem Thompson Frost
                                                 Justice



Panel consists of Justices Frost, Brown, and Busby.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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