Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Help support the publication of case reports on MoreLaw
Date: 12-26-2020
Case Style:
Marcus Chavez Ponciano v. The State of Texas
Case Number: 04-19-00649-CR
Judge: Rebeca C. Martinez
Court: Fourth Court of Appeals
San Antonio, Texas
Plaintiff's Attorney: Jay Brandon
Joe D. Gonzales
Defendant's Attorney:
OR
Just Call 855-853-4800 for Free Help Finding a Lawyer Help You.
Description:
San Antonio, Texas - Criminal Defense Lawyer Aggravated Sexual Assault charge.
A Bexar County grand jury charged Ponciano by indictment with the offense of aggravated
sexual assault of B.G., his niece by marriage.1 During an admissibility hearing outside the presence
of the jury, B.G. testified that when she was twelve years old, she told her grandmother and legal
parent,
2 I.G., that Ponciano “made [her] have sex with him for things that [she] had wanted.” She
specified that she told I.G. Ponciano put his penis in her vagina. She also testified that I.G. was the
first adult she told about Ponciano’s conduct. During that hearing, I.G. testified that B.G. told her
Ponciano “put [his penis] inside her private” and “hurt her.” Ponciano objected to I.G.’s testimony
about B.G.’s outcry on the basis that B.G. “never described anything about all” and that admissible
outcry testimony “needs to be more than just mere illusion [sic] of some type of sex.” The trial
court denied Ponciano’s objection and ruled the outcry statement was admissible.
Before the jury, B.G. testified Ponciano got in bed with her with no clothes on, removed
her shorts and underwear, and had penetrative sex with her. I.G. again testified that B.G. told her
Ponciano “had put his private in her and it had hurt her.” I.G. also testified that Ponciano admitted
to her that he had sex with B.G. After considering the evidence, the jury found Ponciano guilty as
charged in the indictment. Ponciano elected to have the trial court assess his punishment, and it
sentenced him to life in prison. Ponciano timely filed a motion for new trial, which was overruled
by operation of law. He now appeals.
SUSPENSION OF PONCIANO’S TRIAL COUNSEL
In his first issue, Ponciano argues his conviction should be reversed because he did not
know that the State Bar of Texas purportedly placed his trial counsel on probated suspension
1 To protect the privacy of the minor child, we refer to the child and her grandmother by their initials.
2 The record shows that I.G. legally adopted B.G. However, because the witnesses at trial consistently referred to I.G.
as B.G.’s grandmother, we will do the same here for the sake of clarity.
04-19-00649-CR
- 3 -
shortly before the trial began. Ponciano contends: (1) the trial court had a duty to inform him of
the disciplinary proceedings against his attorney; and (2) its failure to do so “implicates the
voluntariness of his [not guilty] pleading, of his announcement of ready when trial was called, and
his previous waiver of his right to have the jury assess punishment.”
As the State notes, however, there is nothing in the appellate record about Ponciano’s trial
counsel’s purported suspension. Instead, Ponciano points to materials in the appendix of his brief
to support this argument. We must determine this case on the appellate record as filed and cannot
consider documents that are attached as appendices to Ponciano’s brief. Blank v. State, 172 S.W.3d
673, 675 n.1 (Tex. App.—San Antonio 2005, no pet.). Moreover, Ponciano did not present this
argument to the trial court, even though he retained appellate counsel who timely filed a motion
for new trial on his behalf. TEX. R. APP. P. 33.1; Olivarez v. State, 386 S.W.3d 329, 331 (Tex.
App.—San Antonio 2012, no pet.). Finally, Ponciano cites no authority holding that this error, if
any, is reversible. TEX. R. APP. P. 38.1, 44.1. For these reasons, Ponciano has not preserved his
first issue for our review, and we overrule it.
OUTCRY TESTIMONY
In his second issue, Ponciano argues I.G.’s testimony about B.G.’s outcry was inadmissible
hearsay. In cases involving sexual conduct against a child younger than 14 years of age, an out-ofcourt statement made by the victim to an outcry witness may be admissible hearsay if the
requirements of article 38.072 of the Texas Code of Criminal Procedure are satisfied. TEX. CODE
CRIM. PROC. ANN. art. 38.072; Lopez v. State, 343 S.W.3d 137, 140 (Tex. Crim. App. 2011). The
outcry witness must be the first person over the age of 18, other than the defendant, to whom the
child spoke about the offense. TEX. CODE CRIM. PROC. art. 38.072 § 2(3). “The statement must be
more than words which give a general allusion that something in the area of child abuse is going
on.” Lopez, 343 S.W.3d at 140 (internal quotation marks omitted). The record must show that the
04-19-00649-CR
- 4 -
child described the alleged offense to the outcry witness in some discernible manner. Garcia v.
State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990). We review a trial court’s ruling on the
admissibility of an outcry statement for abuse of discretion. Mireles v. State, 413 S.W.3d 98, 103
(Tex. App.—San Antonio 2013, pet. ref’d), abrogated on other grounds by Meadows v. State, 455
S.W.3d 156, 171 n.2 (Tex. Crim. App. 2015). A trial court abuses its discretion when its ruling is
outside the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.
Crim. App. 1990).
Ponciano contends B.G.’s outcry to I.G. was no more than a “general allusion that
something in the area of child abuse was going on.” During the admissibility hearing, the trial
court heard testimony that B.G. told I.G. that Ponciano “hurt her” by putting his penis in her vagina
and “ma[king] [her] have sex with him” in exchange for things she wanted. Additionally, I.G.
testified that B.G. told her Ponciano would “send [his wife] to the store, McDonald’s, Dairy Queen
every night to rape [B.G.].” I.G. also testified that B.G. told her the abuse first happened “in the
summer after school had ended, so it was between June and July” of 2015. While Ponciano
correctly notes that B.G. did not complete her outcry to I.G. in a single conversation and finished
it in a second conversation with both I.G. and Ponciano’s wife, he cites no authority for his
assertion that those facts rendered I.G.’s testimony about the outcry inadmissible. TEX. R. APP. P.
38.1.
On this record, we cannot say the trial court abused its discretion by concluding the outcry
statement was admissible. See MacGilfrey v. State, 52 S.W.3d 918, 920–21 (Tex. App.—
Beaumont 2001, no pet.). The trial court’s conclusion that B.G.’s description of Ponciano’s
conduct went beyond a general allusion of abuse is not outside the zone of reasonable
disagreement. See id. We therefore overrule Ponciano’s second issue.
04-19-00649-CR
- 5 -
IMPEACHMENT EVIDENCE
In his third issue, Ponciano argues the trial court should have allowed him to impeach B.G.
with psychological records purportedly showing she had recanted an earlier allegation of sexual
assault against her stepbrother. He contends this evidence goes to “accusatory behavior by a
complainant” and thus is proper impeachment evidence. He also argues B.G.’s psychological
records were necessary to rebut medical testimony introduced by the State. See TEX. R. EVID.
412(b)(2)(A).
As the State notes, however, these arguments do not comport with the arguments Ponciano
raised at trial. See Clark v. State, 365 S.W.3d 333, 339–40 (Tex. Crim. App. 2012); Orcasitas v.
State, 511 S.W.3d 213, 220 (Tex. App.—San Antonio 2015, no pet.). In the trial court, Ponciano
did not contend that B.G. had recanted any previous allegations of sexual assault.3 Instead, he
explicitly argued he should be allowed to impeach her with evidence of her “past sexual
behavior”—specifically, with evidence of “the stepbrother having sex with her or something to
this nature.” Moreover, while Ponciano argued both at trial and on appeal that B.G.’s psychological
records were admissible “if the State tries to introduce any evidence of medical evidence,” he
limited his trial argument on that point to an assertion that B.G.’s “prior sexual behavior” was
admissible. On appeal, in contrast, he disclaims any reliance on evidence of B.G.’s prior sexual
behavior, arguing, “The issue here is one of non-sexual conduct which may tend to impeach the
truthfulness of the witness.” Because the arguments Ponciano asserted in the trial court do not
comport with his argument on appeal, he has not preserved those issues for our review. See Lucio
v. State, 351 S.W.3d 878, 902 (Tex. Crim. App. 2011).
3 Ponciano also argued in the trial court that he should be allowed to impeach B.G. with evidence that another
individual accused him of sexual assault around the same time as B.G. but later recanted her accusation. Although
Ponciano briefly reiterates this complaint on appeal, he cites no authority showing the trial court erred by refusing to
allow him to impeach B.G. with this purported recantation. TEX. R. APP. P. 38.1.
04-19-00649-CR
- 6 -
We overrule Ponciano’s third issue.
EXPERT TESTIMONY
In his fourth issue, Ponciano challenges the testimony of the State’s medical expert, Dr.
Nancy Kellogg. He argues that, by testifying that her examination of B.G. supported “a concern
for sexual abuse,” Dr. Kellogg offered an inadmissible opinion on the truthfulness of B.G.’s own
testimony. He also argues Dr. Kellogg’s testimony constituted improper bolstering of B.G.’s
testimony.
“[A] party must object each time the inadmissible evidence is offered or obtain a running
objection.” Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003). Here, Ponciano objected
when the State first asked Dr. Kellogg, “Was there concern for sexual abuse?” The trial court
overruled that objection. Ponciano did not request a running objection, and he did not object again
when Dr. Kellogg later testified that B.G.’s “history supported a concern for sexual abuse.”
Because “[a]n error in the admission of evidence is cured where the same evidence comes in
elsewhere without objection,” Ponciano waived his objection to the testimony he challenges in his
fourth issue. See id. Ponciano’s fourth issue is overruled.
Outcome: We affirm the trial court’s judgment.
Plaintiff's Experts:
Defendant's Experts: Dr.Nancy Kellogg
Comments: