No. 05-09-00444-CR
Opinion Filed May 19, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 416th Judicial District Court Collin County, Texas, Trial Court Cause No. 416-80517-08.
Before Justices BRIDGES, FRANCIS, and LANG.
Opinion By Justice LANG.
James Lynn Bagley appeals the trial court's judgment convicting him of indecency with a child. The jury found Bagley guilty and assessed his punishment at ten years of imprisonment. Bagley raises fives issues on appeal arguing: (1) the evidence is legally and factually insufficient to support his conviction; (2) the trial court erred when it admitted improper character evidence against him; (3) the trial court erred when it denied his motion for a mistrial; (4) the trial court erred when it sustained the State's objection to Defendant's Exhibit No. 1, a letter written by V.B., the complainant, and did not admit that exhibit into evidence; and (5) the trial court erred when it denied his pretrial motion to substitute counsel. We decide Bagley's issues against him. The trial court's judgment is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
At the age of fifteen, while sharing a bed with her father, Bagley, V.B. awakened when she felt Bagley's hand go down her pants, open the lips of her vagina, and "start to go down." When she complained and rolled away from him, Bagley stopped. After the incident, Bagley told V.B. that he was dreaming and did not know what was happening, he wanted to see if she had any pubic hair, he was sorry, not to tell anyone, and it was her fault for sleeping in his bed. When she was approximately twenty-one years old, V.B. went to the police. Bagley was charged with sexual assault of a child younger than seventeen years of age. After a trial, the jury found Bagley guilty of the lesser-included offense of indecency with a child and assessed his punishment at ten years of imprisonment. II. SUFFICIENCY OF THE EVIDENCE
In issue one, Bagley argues the evidence is legally and factually insufficient to support his conviction. He claims the State failed to prove that he acted with the intent to arouse the sexual desire of either himself or V.B. because there was testimony that he was dreaming and did not know what was happening, he wanted to see if V.B. had any pubic hair, and he said that he was sorry. The State responds that the circumstantial evidence was sufficient to prove his intent. After the briefs were filed in this case, the Texas Court of Criminal Appeals issued its opinion in Brooks overruling Clewis and holding that the Jackson v. Virginia standard is the only standard a reviewing court is to apply when determining whether the evidence is sufficient to support each element of a criminal offense that the State has to prove beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) (plurality op.), overruling Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996). In accordance with Brooks, we review the arguments in issue one under the Jackson v. Virginia standard to determine whether there is sufficient evidence to support the verdict against Bagley. See Jackson v. Virginia, 443 U.S. 307 (1979). A. Standard of Review
Under the proper sufficiency standard of review, an appellate court considers all of the evidence in the light most favorable to the verdict to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. See Jackson, 443 U.S. at 318-19; Brooks, 323 S.W.3d at 899. Appellate courts are required to determine whether any rational juror could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 902 n. 19. An appellate court is required to defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given to their testimony. See Jackson, 443 U.S. at 319, 326; Brooks, 323 S.W.3d at 899. All evidence, whether properly or improperly admitted, will be considered when reviewing the sufficiency of the evidence. See McDaniel v. Brown, 130 S. Ct. 665, 672 (2010); Lockhart v. Nelson, 488 U.S. 33, 41-42 (1988); Jackson, 443 U.S. at 319. B. Applicable Law
The elements of indecency with a child are that the defendant: (1) engaged in "sexual contact"; (2) with a child; (3) younger than seventeen years of age; and (4) whether the child is of the same or opposite sex. Tex. Penal Code Ann. § 21.11(a)(1) (West); see Bazanes v. State, 310 S.W.3d 32, 36 (Tex. App.-Fort Worth 2010, pet. ref'd). "Sexual contact" means the following acts, if committed with the intent to arouse or gratify the sexual desire of any person: (1) any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child; or (2) any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or genitals of a person. Tex. Penal Code Ann. § 21.11(c); see Bazanes, 310 S.W.3d at 36. The specific intent required for the offense of indecency with a child may be inferred from a defendant's conduct, his remarks, and all of the surrounding circumstances. See Bazanes, 310 S.W.3d at 40. A defendant's oral expression of intent is not required; the conduct itself is sufficient to infer intent. See id. Further, intent can be inferred from a defendant's conduct after the incident. See Williams v. State, 305 S.W.3d 886, 891 (Tex. App.-Fort Worth 2010, no pet.). Additionally, a complainant's testimony alone is sufficient to support a conviction for indecency with a child. See Bazanes, 310 S.W.3d at 40. C. Application of the Law to the Facts
To support his argument that the State failed to prove the element of intent, Bagley points to V.B.'s testimony that he gave her three explanations, i.e., (1) he was dreaming and did not know what was happening, (2) he wanted to see if she had any pubic hair, and (3) he was sorry. He argues that these reasons do not suggest that he touched V.B. with the intent to arouse her or himself. However, V.B. also testified that Bagley stopped when she complained and rolled away from him, he told her not to tell anyone, and he told her it was her fault for sleeping in his bed. Also, Bagley points to his ex-wife's testimony that he would put his hands on her and sometimes hit her in his sleep. However, his ex-wife also stated that his sleep episodes were violent, but she did not recall them ever being of a sexual nature. In addition, the record shows that V.B. stated that when she was younger, Bagley left pornography where she could see it, played a portion of an audio recording of him and his girlfriend having "phone sex," and smoked marijuana with her. Further, V.B. stated that on two occasions, she was awakened when Bagley entered her room naked. The next morning, when she mentioned it to him, Bagley told her that he was just sleep walking. We conclude the evidence is sufficient to support Bagley's conviction. Issue one is decided against Bagley. III. ADMISSIBILITY OF EVIDENCE
In issue two, Bagley argues that the trial court erred when it admitted character evidence against him to show conformity. He claims that V.B.'s testimony included impermissible character evidence and testimony of other crimes, wrongs, or bad acts that he allegedly committed. Bagley contends this testimony was offered for no other reason than to show character conformity. The State responds that the evidence was admissible under Texas Rule of Evidence 404(b) and article 38.37 of the Texas Code of Criminal Procedure. A. Preservation of the Issue for Appeal
In support of his argument that the trial court erred when it admitted character evidence against him, Bagley points to seven areas of V.B.'s testimony. We address the seven areas by dividing them into four groups. First, Bagley complains about V.B.'s testimony that (1) her parents fought on one occasion over Bagley's marijuana use in the home, and (2) Bagley had guns in the house and would get "crazy." The record shows the trial court sustained these objections and Bagley did not request the trial court to instruct the jury to disregard that testimony. See Tex. R. App. P. 33.1; Campos v. State, 946 S.W.2d 414, 417 (Tex. App.-Houston [14th Dist.] 1997, no pet.) (must pursue objection to an adverse ruling). Second, Bagley complains about V.B.'s testimony that (1) he allowed her to look at pornography, (2) he showered with her between the ages of five and six, and (3) he provided "acid" to V.B. and her friends. Bagley did not make timely objections to V.B.'s testimony or object to her testimony on the basis that it was impermissible character evidence. See Tex. R. App. P. 33.1. With regard to V.B.'s testimony about the pornography, the record shows that Bagley did not object until after V.B. testified that, when she was five or six, she recalled seeing pornography around the house. Also, Bagley objected on the basis that the evidence was not relevant. See Tex. R. Evid. 402. He did not object that this testimony was impermissible character evidence. See Tex. R. Evid. 404. With regard to V.B.'s testimony about showering with Bagley, the record shows that Bagley did not timely object to this testimony. Rather, Bagley's only objection was that the State's question regarding whether anything happened in the shower was leading. Further, with regard to V.B.'s testimony that Bagley provided "acid" to V.B. and her friends, the record shows that he did not make a timely objection to this testimony. Also, his objection was not specific. Instead, he objected generally "to [the] mention of drug use by [Bagley] or providing drugs to people, or selling, or anything related to that, and . . . this line of questioning." Third, Bagley complains about V.B.'s testimony that (1) Bagley would get alcohol for V.B. and her friends and (2) Bagley, while naked, walked "into her room" on three occasions. Bagley did not make a timely objection to V.B.'s testimony. See Tex. R. App. P. 33.1. We conclude that the testimony described above was not preserved for appellate review. Accordingly, we review only Bagley's complaint regarding V.B.'s testimony that Bagley and V.B. smoked marijuana together. B. Harm Analysis
Even if the trial court erred when it admitted V.B.'s testimony that Bagley and V.B. smoked marijuana together, an appellate court must review whether the error was harmful. Bagley argues the error was harmful because "[t]here is a high probability that this evidence contributed to his conviction." He claims the State showed that he was a bad parent and made immature and reckless decisions, and wanted the jury to believe that he committed the alleged offense because it was in conformity with his character. The State does not address the issue of harm. Rule 44.2(b) of the Texas Rules of Appellate Procedure provides that any error, other than constitutional error, that does not affect substantial rights must be disregarded. Tex. R. App. P. 44.2(b). A substantial right is affected when the error had a substantial and injurious effect or influence on the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997); see Casey v. State, 215 S.W.3d 870, 885 (Tex. Crim. App. 2007). The erroneous admission of an extraneous offense is nonconstitutional error. Johnson v. State, 84 S.W.3d 729, 729 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd); see Avila v. State, 18 S.W.3d 736, 741-42 (Tex. App.-San Antonio 2000, no pet.). V.B. testified that Bagley's hand went down her pants, opened the lips of her vagina, and "start[ed] to go down," but he stopped when she complained and rolled away from him. Also, V.B. stated that Bagley told her that he was dreaming and did not know what was happening, he wanted to see if she had any pubic hair, he was sorry, not to tell anyone, and it was her fault for sleeping in his bed. Further, the trial court's jury charge instructed the jury that they could not consider the evidence of any extraneous offense, unless they found and believed beyond a reasonable doubt "that [Bagley] committed such other acts." Finally, the record shows that the jury was manifestly able to consider the probative evidence and separate it from marginally relevant evidence because it convicted Bagley of the lesser-included offense of indecency with a child, rather than the charged offense of sexual assault of a child. See Casey, 215 S.W.3d at 885 (jury manifestly able to consider probative evidence and separate it from marginally relevant evidence because it convicted appellant of lesser-included offense of sexual assault rather than charged offense of aggravated sexual assault). Accordingly, we conclude that, even if the trial court erred when it admitted V.B.'s testimony that she and Bagley smoked marijuana together, that erroneous admission was harmless error. See Tex. R. App. P. 44.2. Issue two is decided against Bagley. IV. MOTION FOR MISTRIAL
In issue three, Bagley argues that the trial court erred when it denied his motion for a mistrial. He claims that V.B.'s testimony that she visited him in jail was highly prejudicial and that without mention of this fact, it is likely that he would not have been convicted. The State responds that V.B.'s statement was unintentional, quickly stopped, and cured by the trial court's limiting instruction. A. Standard of Review
An appellate court reviews a trial court's decision to deny a mistrial under an abuse of discretion standard. See Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004); see also Dukes v. State, 239 S.W.3d 444, 450 (Tex. App.-Dallas 2007, pet. ref'd). An appellate court must uphold the trial court's ruling if it is within the zone of reasonable disagreement. See Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). B. Preservation of Error and Applicable Law
The traditional and preferred procedure for a party to preserve error is to (1) object in a timely manner; (2) request an instruction to disregard; and (3) move for mistrial if the instruction to disregard seems insufficient, but such a sequence is not essential to preserve complaints for appellate review. Cruz v. State, 225 S.W.3d 546, 548 (Tex. Crim. App. 2007) (citing Young v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004)). The purpose of an instruction to disregard is to attempt to cure any harm or prejudice resulting from events that have already occurred and the desired effect is to enable the continuation of the trial by an impartial jury. Young, 137 S.W.3d at 69-70. A request for an instruction to disregard is essential to the preservation of error only when such an instruction could have had the effect desired by the requesting party. Cruz, 225 S.W.3d at 548. However, if an instruction to disregard would not be sufficient, i.e., if the harm caused by the objectionable statements is incurable, then the defendant is entitled to a mistrial, and the denial of the motion for mistrial is sufficient by itself to preserve error for appellate review. Id. If counsel does not pursue his objection to an adverse ruling, error is not preserved. Tex. R. App. P. 33.1; see Ramirez v. State, 815 S.W.2d 636, 643 (Tex. Crim. App. 1991). A mistrial is an extreme remedy for prejudicial events occurring during the trial process. See Archie, 221 S.W.3d at 699 (quoting Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004)). A prompt instruction to disregard will ordinarily cure the prejudicial effect. See Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). The jury is presumed to follow the trial court's instruction to disregard improperly admitted evidence in the absence of evidence indicating the members of the jury failed to do so. See State v. Boyd, 202 S.W.3d 393, 402 (Tex. App.-Dallas 2006, pet. ref'd). A mistrial is required only when the improper question or evidence is clearly prejudicial to the defendant and is of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors. See Ladd, 3 S.W.3d at 567. Generally, a witness's reference to a defendant's criminal history, standing alone, is cured by a prompt instruction to disregard. See, e.g., Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000); Ladd, 3 S.W.3d at 571; Whitaker v. State, 977 S.W.2d 595, 600 (Tex. Crim. App. 1998); Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992); Nobles v. State, 843 S.W.2d 503, 514 (Tex. Crim .App. 1992). C. Application of the Law to the Facts
During cross examination, defense counsel asked V.B. how old she was when she had a specific conversation with her grandmother. In response, V.B. stated, "It was the very last time I went to visit my father in jail so I would have been-." At that point, the proceedings were stopped, the jury was excused, and defense counsel objected to V.B.'s statement. Defense counsel argued that V.B.'s statement was highly prejudicial because it implied that Bagley had a prior criminal history and the jury was likely to assume that "once you're in jail, you've probably convicted of something criminal," and it violated the motion in limine. Also, defense counsel requested a mistrial. The trial court noted that defense counsel had not requested an instruction for the jury to disregard V.B.'s statement. Defense counsel responded that if the mistrial was denied, she intended to request a limiting instruction, but she believed it would only highlight the issue, making it even more prejudicial to the defense. See Cruz, 225 S.W.3d at 548 (instruction to disregard essential to preserve error when instruction could have desired effect). The trial court denied the motion for mistrial. Then, defense counsel requested that the jury be instructed to disregard the reference to Bagley's presence in jail. The trial court granted that request and instructed the jury accordingly. See Tex. R. App. P. 33.1; Ramirez, 815 S.W.2d at 643 (must pursue to an adverse ruling). Assuming, without deciding, Bagley's issue was preserved for appellate review, we will consider whether the trial court erred when it denied his motion for mistrial. First, defense counsel elicited V.B.'s response during cross examination. V.B. was asked when a certain event occurred and she answered with a temporal response that it was the last time she visited Bagley in jail. Second, although Bagley argues V.B.'s reference to his presence in jail was highly prejudicial because it indicated that he was incarcerated before this case, the jury heard evidence of other extraneous offenses without a timely objection. Specifically, the jury heard testimony that Bagley provided "acid" and alcohol for V.B. and her friends. Third, Bagley claims that without V.B.'s mention of the fact that she visited him in jail, it is likely that he would not have been convicted. However, the record shows that the jury was able to consider the probative evidence and separate it from marginally relevant evidence because it convicted Bagley of the lesser-included offense of indecency with a child, rather than the charged offense of sexual assault of a child. Finally, the trial court instructed the jury to disregard V.B.'s testimony that she visited Bagley in jail. See, e.g., Ovalle, 13 S.W.3d at 783 (generally, instruction to disregard reference to defendant's criminal history is cured by prompt instruction to disregard). We conclude the trial did not err when it denied Bagley's motion for a mistrial. Issue three is decided against Bagley. V. INADMISSIBILITY OF DEFENSE EXHIBIT
In issue four, Bagley argues that the trial court erred when it sustained the State's hearsay objection to the admission of Defendant's Exhibit No. 1, a letter written by V.B. He claims that the exhibit should have been admitted because it was proper impeachment evidence, a self-authenticating document filed in the State of Texas, admissible under the existing mental and emotional state exception to hearsay, and was a statement against interest. The State responds that V.B.'s letter was not offered or admitted for record purposes, Bagley did not make an offer of proof as to the contents of the letter, and the letter is not properly included in the record on appeal. In his reply brief, Bagley argues that V.B.'s letter is properly authenticated based on sworn testimony. Also, Bagley asserts that as to this issue, we should consider the document in the supplemental clerk's record identified as Leticia Anaya's affidavit, to which is attached a copy of the same letter that was offered at trial as Defendant's Exhibit No. 1. A. Applicable Law
In order to preserve error regarding a trial court's decision to exclude evidence, the complaining party must comply with Texas Rule of Evidence 103 by making an "offer of proof" which sets forth the substance of the proffered evidence. Tex. R. Evid. 103; Mays v. State, 285 S.W.3d 884, 889 (Tex. Crim. App. 2009). Texas Rule of Evidence 103(a)(2) provides: "Error may not be predicated upon a ruling which . . . excludes evidence unless a substantial right of the party is affected, and . . . the substance of the evidence was made known to the court by offer, or was apparent from the context within which questions were asked." Tex. R. Evid. 103(a)(2); Mays, 285 S.W.3d at 889. The offer of proof may consist of a concise statement by counsel, or it may be in question-and-answer form. Mays, 285 S.W.3d at 889. If in the form of a statement, the proffer must include a reasonably specific summary of the evidence offered and must state the relevance of the evidence unless the relevance is apparent, so that the court can determine whether the evidence is relevant and admissible. Id. at 889-90. The primary purpose of an offer of proof is to enable an appellate court to determine whether the exclusion was erroneous and harmful. Id. at 890. A secondary purpose is to permit the trial judge to reconsider his ruling in light of the actual evidence. Id. B. Application of the Law to the Facts
The record shows that Bagley offered Defendant's Exhibit No. 1 for admission into evidence during the trial. The State objected on the basis of hearsay. Bagley responded that V.B.'s letter was admissible pursuant to Texas Rule of Evidence 803(3), the then existing mental, emotional, or physical condition exception to the hearsay rule. Before ruling, the trial court allowed Bagley to ask V.B. some additional questions, before the jury, related to the letter. V.B. stated that she had issues with her mother, her mother hit her with a hairbrush, and she blamed her mother for her troubles. Then, the trial court sustained the State's objection and excluded the exhibit. During the trial, Bagley did not seek to include the exhibit in evidence for record purposes or make an offer of proof regarding the contents of the letter. In order to preserve the issue for appeal, Bagley was obliged to proffer the substance of the letter he intended to present with some degree of specificity. See Mays, 285 S.W.3d at 890. As stated above, nothing in the record shows that this was done. Because Bagley failed to make a proper offer of proof, we conclude that he did not preserve this issue for appeal. See id. at 891. Additionally, we note that after Bagley was convicted and after he filed his notice of appeal, he filed Anaya's affidavit that attached as Exhibit A a certified copy of a letter signed by V.B. Bagley requested that the affidavit and exhibit be included in a supplemental clerk's record that would be transmitted to this Court for purposes of this appeal. Anaya's affidavit states that she was "present in the courtroom at various times through [Bagley's] trial," she obtained a certified copy of a letter that was admitted into evidence "[i]n previous litigation" in Denton County, Texas, and that certified letter was the same letter that was offered as Defendant's Exhibit No. 1, but not admitted into evidence. In response, the State filed a letter with the Collin County District Clerk's Office objecting to Bagley's request that Anaya's affidavit and attachment be included in a supplemental clerk's record. The record shows Bagley made no request to include Defendant's Exhibit No. 1 in the record while the case was before the trial court. Although a party may request that additional items be included in the record or seek to have the record supplemented, it may only seek to supplement the record with parts of the trial record that were omitted from the record on appeal. On this record, we cannot conclude the submission of the letter by way of Anaya's affidavit causes the letter to be properly before this Court for consideration. See Tex. R. App. P. 34.5(c); Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001); Berry v. State, 995 S.W.2d 699, 702 n. 5 (Tex. Crim. App. 1999). Issue four is decided against Bagley. VI. MOTION TO SUBSTITUTE COUNSEL
In issue five, Bagley argues that the trial court erred when it denied his pretrial motion to substitute counsel. Bagley sought to substitute his appointed counsel with retained counsel. He argues the trial court made no finding that substitution would have unreasonably delayed the Court or the State would be unnecessarily burdened by such a delay. The State responds that there is no notation on the docket sheet indicating the motion was denied and the trial court did not make an oral ruling on the record. Further, the State argues that the record shows that Bagley's retained counsel appeared during voir dire. At the request of this Court, a supplemental reporter's record of the hearing on Bagley's motion to substitute counsel was filed as part of the record on appeal. The record reflects that before trial, Bagley filed a motion to substitute counsel, seeking to replace his appointed counsel with retained counsel, and his first motion for continuance. Without ruling, the trial court indicated that it intended to deny Bagley's first motion for continuance. After the trial court indicated its intention, retained counsel withdrew her motion to substitute counsel. Further, the trial court specifically stated that it would not rule on the motion to substitute counsel. Accordingly, there is nothing for this Court to review. Tex. R. App. P. 33.1(a)(2). Issue five is decided against Bagley. VII. CONCLUSION
The evidence is sufficient to support Bagley's conviction. Bagley's claims that the trial court erred when it admitted the following testimony of V.B. were not preserved for appellate review: (1) her parents fought on one occasion over Bagley's marijuana use in the home; (2) Bagley had guns in the house and would get "crazy"; (3) he allowed her to look at pornography; (4) he showered with her between the ages of five and six; (5) he provided "acid" to V.B. and her friends; (6) he would get alcohol for V.B. and her friends; and (7) while naked, he walked into her room on three occasions. However, with regard to his claim that the trial court erred when it admitted V.B.'s testimony that she and Bagley smoked marijuana together, even if the trial court erred, the admission of that evidence was harmless. Also, the trial court did not err when it admitted the character evidence against Bagley, denied his motion for a mistrial, sustained the State's objection to Defendant's Exhibit No. 1, and denied his pretrial motion to substitute counsel. The trial court's judgment is affirmed.