### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-0 7 -00 323 -CR

Est e ban G onz ale z , A ppe lla nt

v . The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF HAY S COUNTY , 207TH JUDICIAL DISTRICT NO. CR-06 -35 5 , HO NORAB LE JACK H. RO B ISO N , JUDGE PRESIDI NG

M E M O R

A N D U M O P I N I O N A jury found appe llant Esteban Gonzalez gu i l t y of the a g g ravated kidnapping
an d a g g r a v a te d s e xu a l a s s a u lt o f h is e s tr an g e d w if

e. See Tex. P enal Code A nn. §§ 20.04, 22.021 (We st S upp. 20 07 ). Th e jur y a sse sse d a

pp e lla nt’ s p un ish me nt f

or the kid na pp inga t te n y e a rs ’ imprisonment, probated. The jury assessed a

tw en t y -y ear

prison term and a

$10,000 fine for

the
se xua l a ssa

ult
. I n thr e e po int s o f e rr or , a pp e lla nt c on te nd s th e tr ia l c ourt

e rr e d b y pe rm itt ingthe Sta te to comment on appellant’ s post-arr est silence, by deny i n g ap p el lant the rig ht to cross-examine the complainant r eg ardinga civil lawsuit she had f iled based on the s ame incide nt, and by admitting testimony reg ardingthe pa t t er n of domestic abuse . Finding no reve rsible er ror, we overr

ule the points of error

and af firm the convic tion.2 BACK GR OUND Appellant and the complainant were married in 1996 a nd had thre e childre n. After the death of appe llant’s former wife, his four children from that marria g e came to live with him and t h e c o mp l a i n an t
. InD e c e mb e r 2 0 0 3 , t h e c o mp l a i n an t t o l d a p p e l l an tt h a ts h e w an t e d

a d i v o r c e . In J anuar y 2004, the complainant a nd her thre e childre n moved out o f ap p el l an t ’s hous e and be g an liv ingwi th h e r p are nts
.

On t he morning of F ebrua ry 12, 2004, appellant c alled the c omplainant to tell her that he had r ece ived their income tax ref und chec k. Appellant and the complainant had pr eviously ag ree d that they wer e g oing to use this money —approximately

$5,300—to pay

sever al of their de bts. The complainant ag ree d to meet appe llant later that morningat a c heck- cashingservice
.

After they cashe d the che ck, appellant and the c omplainant sat in appellant’s c ar (the c omplainant sat in the bac k seat) to d i s cu s s t h e bil ls. Appellant suddenly started the c ar a

nd drove a way despite the complainant’s demand that he stop and let her out. The complaina

nt testified that she had he r ce ll phone with her, but she did not ca ll f or help beca

use she did not anticipate w hat would happen. A

ppellant drove to a nea

rby motel, where he told the complainant that ther e
was s o m eo n e in a room who could prove that she had be en unfa ithful during the ir marr iag e. The
c omp la ina

nt a g re e d to g o up sta ir s wi th a pp e lla nt to me e t thi s pe rs on , bu t sh e tol d h im that sh e wo uld
no t g o in sid e the ro om.

When they

arr ived at the second-f

loor room, appe llant pushed open the door , seized the complainant by

the ar m, and beg an to pull her inside. The complainant testified, “I knew I was in tr ou ble .” She g ra

bb e d a ra ili ng and c a lle d out to a n e arb y mot e l ma id f

or he lp. She los t he r g ri pThe police would later find in the room a vide o came ra, lig ature s tied to the bed, a vibrator, 1 and women’ s underwe ar. 3 on the ra iling and appellant succee ded in pulling her into the room. The complainant said that she tried to c all 911, but a

ppellant seized the telephone befor e she could c omplete the ca ll. Meanwhile, the maid re ported what she had seen a nd the desk c lerk c alled the r oom. Appellant answe red the ph on e and

tol d th e c le rk that he an d his wif e we re havin g mari ta l pr ob le ms a nd that th ing s w e re a ll rig ht. The motel staff a cce pted this answer and did not call the police
. I ns ide the ro om, the c omplai nan t no ti c e d a numbe r o f r a g s th a t ha d b e e n c ut i nto str ips
. Ap pe lla

nt b e g an to qu e sti on

the c omp la ina

nt a bo ut c e rt a in c a lls he ha d h ig hli g hte d o n th e ir 1 cell phone bill. When the complainant attempted to l eave the room, appe llant seized her and thr ew her onto the bed. The complainant testified that she scr eame d and tried to re sist, but appellant was too str on g . App e lla

nt t ri e d to g a g the c omp la ina nt wi th on e of the ra g s. Th e c omp la ina nt b e g a n to hy pe rv e nti la te , a

nd a pp e lla nt al low e d he r to g e t up and g o to the sink. I n h op e s o f c a lmi nga pp e lla nt, the complainant de cided to tell him “what he wanted to hear ,” which was that she w ould consider
a re conciliation. She also aske d appellant to take her to a restaur ant nea r the motel whe re the y

had previously

eate n. Appellant ag ree d to do this i f the c omplainant would eng ag e in sexual intercourse
. She initially

ref used, but afte r fur

ther atte m p t s t o escape fr om the room wer e unsucc essful, she ag ree d. She explained that she believe d that she “wouldn’t walk out of that room alive” otherwise. T h e c o mp l a i n an tr e m o v e d h e r p an t s an d

u n d e r w e ar , an d a p p e l l an tp e n e t r a t e d

h e r an a l l y. After the as sault, appellant a

nd the complainant lef

t the motel room to drive to the
re sta ur ant. Th e c omp la ina

nt t e sti fi e d th a t sh e did

no t c ry ou t to any on e a s th e y

le ft the ro om b e c a

us e4

she had e arlier

been una ble to g et help at the motel. After appellant a

nd the complainant we re se ated
a t the re sta

ur ant, the c omp la ina

nt e xcu se d h e rs e lf

and we nt t o th e re str oo m. S he loc ke d h e rs e lf in
a sta ll a nd c a lle d th e a tto rn e y sh e ha d hir e d to ha nd le the div or c e . Af

te r he ari ng he r s tor

y , h e tol d he r t o ca ll 911
. She did , an d the n wa ite d in th e sta ll a nd c on tin ue d to ta lk t o th e 91 1 o pe ra tor un til she wa s told that appellant was in c ustody and that police off icer s were waiting outside the restroom do or . App e lla

nt w a s ta ke n in to c us tod

y a s h e sto od

ou tsi de the re sta

ur ant.
DI SCU SSIO N I n point of err or one, a

ppellant co n tends that the trial cour t erre d by permitting the State to comment on his post-arre st silence and by ref us i n g t o i n s t ruct the jury to disreg ard the comment. I n Texas, a def endant’ s post-arr est silence c annot be use d ag ainst him at trial. Sanchez

v . S tat e , 7 07 S.W. 2d

57 5, 57 8 ( Te x. Cr im. Ap p. 19 86 ); Ha mp ton v . S tat e , 121 S.W .3d 778, 782-83 (Tex. App.—Austin 2003, pet. ref ’d). Whil e cross-e x amining one of the office rs who responde d to the complainant’s 911 call fr om the restaur ant, def ense c ounsel took pains to establish that the police had a rre sted appe llant
on the str e ng th o f t

he c omp la ina

nt’ s a c c us a tio ns a

nd wi tho ut f ir st o bta ini nga

state me nt f

ro m hi m. On re direc t, the prosec utor confir med wit h the officer that the t rial was being held t hree y ear s after appellant’ s arr est. She then beg an to ask, “Ha s this defe ndant—.” Def ense counsel interrupte d and, at the benc h, objected that the prosec utor was about to a sk whether appellant had g iven a state ment duri ngthe thr e e y e ars fo llo wi nghis arr e st. Th e c ourt did no t e xpre ssl y

ru le on the ob

je c tio n, bu t it instructed the jury

not to “speculate about what the question was going to be.” The prosec utor then asked the office r, “When a person is take n to the police station, do they have the ab i l i t y t o g ive a5

statement i f t hey want to? ” Ag ain, def ense c ounsel objecte d. The c ourt admonished the pr osecutor,

“ [T]hat ’ s n o t g o i n g t o b e a l l o w e d
. Y o u c an ’ t c o m m e n t o n w h e t h e r o r n o t h e e xe r c i s e d h is F if th Amendment rig ht, period. Ther e will be no discussion on that.” Def ense c ounsel asked the court to instruct the jury

to disre g ard “the same thing.” The c ourt responde d, “I ’m not g oing to instruct the jury any

thing. I just told her she can’ t a sk the question about whether or not he e x er ci sed his Fi ft h Am en dment rig hts.” Counsel then asked the court to instruct the jury to disreg ard “ the implication t h at wa s m ad e.” The cour t did not rule on this request and the of fice r wa s excused without further que stions by the State. T h e S t at e a rgu es t h at ap p el l an t o p en ed t h e d o o r t o t h e p ro s ec u t o r’ s qu es t i o n s t h ro u gh his cross-e x amination of the off icer . But a

ppellant’s questions to the officer co n ce rned whether
a pp e lla nt m a de a state me nt be

for e he was arr ested. The prosec utor’s questions conc erne d whether
a pp e lla nt m a de a

state me nt after

he wa s arr es t ed
. The rig ht to remain silent arises w hen the d ef en dant is arr ested. Sanchez , 7 0 7 S. W. 2 d a t 5 8 0
. Co n tr ar

y to th e St a te ’ s ar g u me n t, it w as not ne cessa

ry for appellant to expressly invoke his rig ht to sil ence . Be cause the rig ht ag ainst selfinc ri min a tio n a

ri se s w he n th e de fe nd ant i s a rr e ste d, any

po st- arr e st s ile nc e is presumed to b e an exercise of

that rig ht. Id
. The trial court corr ectly

preve nted the prose cutor fr om expressly asking the offic er whether , during the three y ear s betwee n his arre st and his trial, appellant ha d g iven a statement to the police deny

ing the complainant’s a lleg ations. Although this was the implication of the prose cutor’s qu e sti on a s to wh e the r a pe rs on “ take n to the po lic e statio n” ha s “ the a bil ity to g ive a state me nt i f they want to,” the que stion was not answer ed and appellant did not obtain a ruling on his r equest for6

an instruction to disreg ard “ the implication that was made .” See T e x. R. A p p . P. 3 3
. 1 ( a ) ( 2 ) ( A )
. We also note that, just be fore the exchang e quoted above, appellant failed to obje ct when the prosec utor asked the office r, “Did [appellant] ever of fer to make a statement to the police? ” The office r
answe red, “ Not to me.” To prese rve error , a par ty must object eac h time the inadmissible evidence is offer ed. Lan e v . S

tat e , 1 51 S.W. 3d 18 8, 19 3 ( Te x. Cr im. Ap p. 20 04 ). B e c a us e su bs tanti a lly identical testimony

wa s offe red w ithout objection, no error is presente d. Point of error one is overrule d. I n h is s e c on d p oin t of e rr or , a pp e lla nt u rg es that th e tr ia l c ou

rt e rr e d b y re fu sin g to allow him to c ross-examine the complainant r eg ardinga civil suit she filed ag ainst the motel where the assault occur

red. We r eview the court’s decision to e x clude evidenc e for an abuse of discre tion. Se e Op re an v . S

tat e , 201 S.W .3d 724, 726 (Tex. Crim. App. 2006). T h e rec ord re flec ts that the complainant filed a lawsuit for damag es ag ainst the operators o f t h e m o t el. The suit was settled two y ear s befor e appe llant’s trial, and a ppellant’s attempt to obtain discovery reg ardingthe details of t h e s ettlement was the subject of a pretria l hear ing. B efor e trial, the State filed a mot ion in limine to preve nt appellant fr om offer ing e vidence reg ardingthe suit. I n acc ord with the State’s motion, appe llant a sked the court for pe rmission during the tr ia l to c ro ss- e xami ne th e com pl ain ant r e g ard ingthe laws uit . T he c ourt re fu se d th is r e qu e st,
ru lin g that “ any mot ive sh e mig ht have ha d to e nh anc e he r fi na nc ia l se ttl e me nt wi th a

laws uit wi th [t he motel] would have expired two y ear s ag o, when she settled it.”

A de fe nd ant is e nti tle d to purs ue a ll a ve nu e s of c ro ss- e xami nat io n rea so na bly calculated to expose a motive, bias, or intere st for the witness to testify
. C a r r o l l v . Stat e ,7

91 6 S. W.2 d 4 94 , 4 97 (T e x. Cr im. Ap p. 19 96). Ev ide nc e that th e c omp la ina nt h a s b ro ug ht a

c ivi l suit ag ainst the defe ndant growingout of the same inc ident is admissibl e as te nding to show bias and intere st. Se e Cox v . S tat e , 5 23 S.W. 2d

69 5, 70 0 ( Te x. Cr im. Ap p. 19 75 ). Un de r c e rta in
c ir c ums tanc e s, e vid e nc e of the c omp la ina nt’ s civ il suit a g a ins t a

thi rd pa rt y may a lso be re le va

nt t o show bias. Com

pa re Ho y os v . S tat e , 982 S.W .2d 419, 421-22 (Tex. Crim. App. 1998) (holding there
was no er ro r i n excluding evide nce of complainant’s c ivil sui t), with Sh e lby v . S tat e , 819 S.W .2d 544, 545 (Tex. Crim. App. 1991) (holding tr ial court e rre d by ref using to a llow cross-e x amination
re g ard ingc ivi l su it) ; Fu rg iso n v . S tat e , 800 S.W .2d 587, 589-91 (Tex. App.—Houston [14t h Dist.] 1990, pet. re f’d) (same)
.

A closer question would be pre sented if the c omplainant’s civil suit ag ainst the motel had be en p en d i n g at the time of appe llant’s trial. We ag ree with the trial court, howe ver, that the complainant’s se ttlement of the suit two y ear s befor e trial remove d any appar ent financ ial incentive she mig ht have ha d for testify ing a g ainst appellant. We also note that the tr ial court pe rmitted
a pp e lla nt to of fe r e vid e nc e that the c omp la ina nt ob ta ine d f

ina nc ia l r e mun e ra

tio n f or a pp e lla nt’ s a c ts in the divorce case . No abuse of discre tion is shown, and point of error two is overrule d. Finally , appellant c onten d s that the trial cour t should not have admitted testimony about what the prosec utor ref err ed to a s the “dy

namics” or

“cycles” of domestic abuse . He ur g es that whateve r re levanc e the testimony might have had wa s outweig hed by the dang er of unfair pr ejudice. See Tex. R. Evi d. 403. Once ag ain, we revie w t he trial court’s r uling f or an a buse of discr etion. See Oprean , 201 S.W .3d at 726.8 The witness wa s O ff

i ce r Penny

Dunn, an e ighte en-y ear

veter an of the San Marc os Pol ic e De pa

rtme nt. Dunn

be g an h e r t e sti mony by des cribin g he r s pe c ia l tr a ini ng“ re la te d to domestic violence investigation, . . . sex ual assault investigations, .
. . those ty pes of thing s.” She
sa id t hat sh e wa s p art

of the de pa rtme nt’ s “ do me sti c vio le nc e inv e sti g a tio n te a m . . . th a t r e la te s to specia liz ed training , evidenc e collec tion, dealing with victims after domestic violenc e.” D unn then stated t h at s he had tr ained “ in excess of 500 individuals” including “ [o] ffice rs, dispatche rs and
c ivi lia n s ta ff ” wi th r e sp e c t to do me sti c vio le nc e inv e sti g a tio ns . Be fore Dunn could testify further , appellant c halleng ed her expertise—an issue he does not pur sue on appea l. Appellant also objected to a ny testimony reg arding “batter ed women’ s sy ndrome” on the g round that it would be more pr ejudicial than pr obative, citing rule 403. Appe llant argued that such testimony would cause the jury to “ assume that he’s just be at th e h el l o u t o f her
on a re g ula r b a sis .” Th e tr ia l c ourt

ov e rr ule d th e rul e 403 o bje c tio n, ho ldi ngthat D un n w ou ld be per mitted to testify for “ the limited purpose” of showing that “it’s not unusual for battered w omen to no t l ea v e the home, r emain in the home a nd stay with the person that’ s been the source of their anta g onism.”

Con tin uin g he r t e sti mony , D un n s a id t hat in sta nc e s o f d ome sti c vio le nc e that r e su lt in police ca lls are usua lly prec eded by

sever al unre ported instance s of ab u s e; t h e av era g e is eig ht unrepor ted incidents. She said that ty pically there is a “long mani p u l at i v e p rocess” duringwhich abuse vic tims are made “more vulnera ble and less likely

to outcry .” Dunn indicated t hat it was not unusual for dome stic abuse victims to re m ain wit h their abusive pa rtner a nd to keep the a

buse a9

secr et, eve n from close family members. She opined that domestic abuse victims fail to report the
a bu se du e to f

e ar, sh a me , a

nd e mba rr a ssm e nt. Then, over appellant’s objection t hat i t was irreleva nt, Dunn was a llowed to descr ibe
a re cent, unr elated inve stigation in which she was invol ved. I n that case , the abuse d wife ha d been battere d and sexually

assaulted by

her husba nd for y ear s, but she never soug ht he lp. The wife called the police, sa id Dunn, only afte r the husband “ strang led her and she lost consc iousness.” Dunn next described he r involvement in th e i n vestig ation of this case . Over appellant’ s objection that she wa s invading the province of the jury , Dunn expressed the opinion that the complainant ha d been the victim of domestic violence.

F ina lly , a ft e r a

no the r r ule 40 3 o bje c tio n w a s o ve rr ule d, Dunn

te sti fi e d th a t do me sti c
a bu se inv olv e s a

“ c y c le of vio le nc e .” F ir st, the re is t he “ te ns ion -b uil din g sta g e ” in w hic h th e vic tim seeks to a void a violent inc ident. Next, ther e is the violence itself, “which may be brief or g o for a lon g pe ri od

of tim e .” L a st, the re is the “ re sp ite or ho ne y moo n p ha se ” duri ngwh ic h th e a bu se r w ill be apolog etic and sug g est to the victim that the violence was the vic tim’s fault. Dunn testified that for this cy cle to end, the re must be “some ty pe of inter vention or some conse quence s suffer ed by the battere r to make the m stop.”

The State argues that Dunn’s testimony was rele vant to r ebut appellant’ s d efe nse, which wa s that the complainant ha d volunta ri l y g one to the motel room, had c onsented to the sex act, a nd had fa lsely

acc used appe llant in order to help he r divorce case . This, sug g ested the def ense, explained wh y t h e co mplainant did not cry out for help a s she left the r oom following the alleg ed assault and why

persons standingoutside the room hea rd no unusual noises while the as s au l t was10

alleg edly taking place
. The State primar ily relies on the opinion in Sc ugoz a v . S tat e , a prose cution
o f a h u s b an d f o r t h e a s s a u l to f h i s w i f e , i nw h i c h t h e c o mp l a i n i n g w i t n e s s , i nh e r t r i a l t e s t i m o n y, disavowed muc h of what she had told the pol ice on the ni g ht of t he assault. 949 S.W .2d 360, 362-63 (Tex. App.—San Antonio 1997, no pet.). The c ourt of appe als co n cl u d ed that expert testimony descr ibing the c y cle of

abuse in fa

mily violence situations was pr operly admitted to ex p l ain the inconsistencies be tween the complainant’s testim ony and her previous st atements to the pol ice. Id
. at 363. Appellant a cknowledg es the holding in Sc ugoz a , but urg es that it is n o t ap p l i cable here b e c a u s e t h e c o mp l a i n an tm a d e h e r o u t c r y a l m o s ti m m e d i a t e l y an d n e v e r c h an g e d h e r s t o r y. Appellant argues that Dunn’s testimony was not r eleva nt to any issue in the case , and that it serve d only to sugg est to the jury

that he wa s a long -term a buser of his wife. Appellant did not object on rule 403 g rounds to Dunn’s testi m ony descr ibing he r other re cent investig ation or to her opinion that the complainant wa s the victim of domestic violence
. Th e re fo re , w e do no t r e a c h th e qu e sti on wh e the r t ha t te sti mony

wa s mo re pr e

jud ic ia l th an r e le va

nt. We ag re e wi th ap pe lla

nt that Dun n’ s des c ri pti on of the patte rn s and dy namic s of s po us a l a

bu se , to which he did make rule 403 objec tions, had li t tle rele vance to this case. The complainant did not dis pla y the be havio r o f the “ ty

pic a l” a bu se d sp ou se a s d e sc ri be d b y Dunn or of the a bu se d s po us e in Sc ugoz a . She did not delay making her outc ry

agai n s t appellant by

even a fewday s, and her testimony was consistent with he r initial outcry . Dunn’s opinion as to why an abuse d spouse might allow t he abuse to continue for months befor e making an outcry did not speak to the c omplainant’s failure to ca l l 9 1 1 o n her c ell phone while a ppellant drove from the c heck c ashing service to the mot e l or to h e r f a ilure to c ry ou t to by sta

nd e rs wh e n le a vin g the mot e l to g o to the re sta ur ant, no r d id11

it rebut appe llant’s defe nsive theory that the complainant’ s acc usations were false. I n short, Dunn’s testimony did not serve to make more proba ble any fac t of conseque nce to the State at this trial. See Mo ntgom e ry

v . S tat e , 8 10 S.W. 2d

37 2, 38 9- 90 (T e x. Cr im. Ap p. 19 91 ) (o p. on re h’ g ). At

the same tim e , a pp e lla nt w a s c or

re c t to argue that D un n’ s te sti mony ha d the po te nti a l to imp re ss t he jur y in an irrational but neverthe less indelibl e way by raising a suspicion in the minds of the jurors that appellant had abused the complainant in the past. Se e id . We hold that the trial court er red by
o v e r r u l i n g a p p e l l an t ’ s r

u l e 4 0 3 o b

j e c t i o n s t o D u n n ’ s t e s t i m o n y. Ha vin g fo un d e rr or

in t he a dmi ss io n o f t

his e vid e nc e , w e e xami ne the re c or d to deter mine if the er

ror a ffe cted a

substantial rig ht. See Tex. R. App. P. 44.2( b). The c omplainant’s
cre dibilit y

was the primary issue for the jury at t he guilt-innocenc e st ag e. Her testimony

reg arding the scuff le outside the motel room and he r cr y for he lp was corroborated by the testimony

of the motel maid. The jury

also hea rd police te stimony reg arding the complainant’s e motional state when they found her

at the re staurant a

nd, later, at the police station. The defe nse also offe red te stimony from re staurant e mploy ees w ho said they noticed nothing out of the ordinary when a ppellant and the complainant ar

rived. The complainant offe red plausible explanations for why she wa ited until she
re a c he d th e re sta

ur ant t o c a ll fo r he lp, and

the dis sim ila

ri ty be tw e e n th e “ ty

pic a l” sp ou sa l a

bu se c a se descr ibed by

Dunn and the c ircumstances o f t his case sug g ests that the jury was unlikely

to have g iven her testimony

much weight in deter

mining the complainant’s credibility
. We believe that the jury would have be en no less li kely to believe the complainant had Dunn not testified at all. At the punishment stag e, the complainant testified that appellant threatened violence and suicide a fter she told him t hat she wa

nted a divorc e, but she did not testify to a ny acts of phy sical abuse by appellant12

befor e or since the eve nts on Fe bruar y 12, 2004. The jury

assessed punishments at the low e nd of the applica

ble ra ng e for first deg ree felonies. On this re cord, w e ar e satisfied t h at t he er roneous admission of Dunn’s testimony did not affe ct appe llant’s substantial rig hts. See id . Point of error three is overrule d.

The judg ment of convic tion is affirmed

__________________________________________ J an P. Patterson, J ustice Be fore J ustices Patterson, Pury ear and He nson Affir med Filed: Jul y

10, 2008 Do No t Pu

bli sh