Opinion
No. 05-15-01176-CR
01-04-2017
HARVEY CATHCART, IV, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 4 Dallas County, Texas
Trial Court Cause No. F-1476880-K
MEMORANDUM OPINION
Before Justices Francis, Evans, and Stoddart
Opinion by Justice Evans
Appellant Harvey Cathcart, IV appeals from the judgment of conviction for continuous sexual abuse and his accompanying sentence of life imprisonment. Appellant contends that he is entitled to a new trial because the trial court (1) instructed the jury to consider proof of other offenses as acts in conformity with character and (2) admitted evidence to show that he sexually abused complainant's half-sister. Appellant also contends that he is entitled to a new punishment trial because the trial court failed to instruct the jury that he was ineligible for parole. Finding no merit in appellant's arguments, we affirm the trial court's judgment.
BACKGROUND
Appellant was indicted for continuous sexual abuse of a young child. Complainant, appellant's biological daughter, was born in 1999 to appellant and her mother, YT. YT had a second daughter, TT, in 2001 with a different father. Appellant left in 2002 and returned in 2010 and began to live with YT and the two girls.
At trial, complainant testified that appellant began to sexually abuse her in 2010 and it continued through 2011. TT testified that appellant also abused her. YT testified about the graphic sexual letters appellant wrote to complainant which triggered the investigation in this case.
The jury found appellant guilty of continuous sexual abuse of a young child. Appellant testified during the punishment phase of the trial and did not contest his abuse of his daughter and TT. Appellant also admitted to his prior convictions which included evading arrest, unauthorized use of a motor vehicle, felony drug offenses, and assault of prior girlfriends and his sister. The jury sentenced appellant to life imprisonment. Appellant then filed this appeal.
ANALYSIS
A. Instructions to Jury Regarding Extraneous Offenses
In his first issue, appellant contends that the trial court erred by instructing the jury to consider extraneous offenses as proof that appellant committed the instant offense in conformity with character. We disagree.
1. Standard of review
When we review claims of jury charge errors, we first decide whether there was error in the charge. Ferguson v. State, 335 S.W.3d 676, 684 (Tex. App.—Houston [14th Dist.] 2011, no pet.). If there was error and appellant objected to the error at trial, then only "some harm" is necessary to reverse the trial court's judgment. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g). If, however, the appellant failed to object at trial—as in this case—then appellant will obtain a reversal "only if the error is so egregious and created such harm that he 'has not had a fair and impartial trial'—in short 'egregious harm.'" Id. Egregious harm is the type and degree of harm that affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defense theory. Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008). In making an egregious harm determination, "the actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information [revealed] by the record of the trial as a whole." Trejo v. State, 280 S.W.3d 258, 261 (Tex. Crim. App. 2009) (quoting Almanza, 686 S.W.2d at 171). Egregious harm is a difficult standard to meet and must be determined on a case-by-case basis. See Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim. App. 2002).
2. Jury Instruction
The instruction in the jury charge at issue provided as follows:
You are instructed that if there is any testimony before you in this case regarding the defendant having committed offenses, if any, other than the offense described in this paragraph, if any, you cannot consider said testimony for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other offenses, if any were committed. Then you may consider the same for any bearing it has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant.
3. Analysis
a. Jury Charge
Appellant contends that the language described above in the jury charge wrongfully allowed the jury to consider testimony about certain extraneous offenses allegedly committed by appellant as evidence of appellant's character or that the acts were performed in conformity with his character. We will discuss in two groups the evidence related to appellant's complaint of charge error. The first group is comprised of three extraneous offenses involving evidence that appellant committed additional sexually abusive acts against complainant that were not included in the indictment, appellant sexually abused TT, and appellant transmitted an STD to complainant.
The first group of extraneous offenses is within exceptions to the exclusion of such evidence provided in the Texas Penal Code:
Notwithstanding Rules 404 and 405, Texas Rules of Evidence, and subject to Section 2-a, evidence that the defendant has committed a separate offense described by Subsection (a)(1) or (2) may be admitted in the trial of an alleged offense described by Subsection (a)(1) or (2) for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant.See TEX. CODE CRIM. PROC. ANN. art. 38.37 §2(b) (West Supp. 2016). Here, appellant was tried for continuous sexual abuse of a child which is an offense described under subsection (a)(1) of section 2 of article 38.37 of the Texas Code of Criminal Procedure. Accordingly, evidence that appellant committed a separate offense described by subsection (a)(1) or (2) would be admissible to demonstrate appellant's character and acts performed in conformity with his character. Id. The offenses described by subsection (a)(1) and (2) include sex trafficking of a child, continuous sexual abuse of a young child, indecency with a child, sexual assault of a child, aggravated sexual assault of a child, online solicitation of a minor, sexual performance by a child, possession or promotion of child pornography, and an attempt or conspiracy to commit one of these offenses. See TEX. CODE CRIM. PROC. ANN. art. 38.37 §2(a)(1) and (2) (West Supp. 2016). Accordingly, the jury properly considered the evidence of the first three extraneous offenses as proof that appellant committed the instant offense in conformity with character.
The second group of extraneous offenses related to appellant's complaints of charge error is composed of four additional extraneous offenses that appellant argues "the trial court should have instructed the jury not to consider the extraneous offenses for any purpose, since there was no relevant purpose, and if there were, a limited instruction was required." These four instances involve evidence that appellant (1) forced complainant to drink bleach, (2) struck TT with a belt, (3) threatened to hurt YT if TT revealed the abuse, and (4) appellant "went away" twice leading the jury to conclude appellant went to prison. Because the instruction in the jury charge was correct as to the first group of extraneous offenses, appellant would have been entitled to at most a limiting instruction as to the second group.
Limiting instructions are governed by rule 105 of the Texas Rules of Evidence that provides that "[i]f the court admits evidence that is admissible against a party or for a purpose—but not against another party or for another purpose—the court, on request, must restrict the evidence to its proper scope and instruct the jury accordingly." TEX. R. EVID. 105(a). The Court of Criminal Appeals has construed rule 105 as requiring a request for a limiting instruction at the time the evidence is admitted. See Delgado v. State, 235 S.W.3d 244, 251 (Tex. Crim. App. 2007); Hammock v. State, 46 S.W.3d 889, 894 (Tex. Crim. App. 2001). If evidence is admitted without a request for a limiting instruction, the evidence becomes admitted for all purposes. See Hammock, 46 S.W.3d at 895. In addition, if a defendant does not request a limiting instruction at the time evidence is admitted, then the trial judge has no obligation to limit the use of that evidence later in the jury charge. Delgado, 235 S.W.3d at 251.
Here, when the evidence of each of the extraneous offenses in the second group was offered and admitted, appellant never requested a limiting instruction. Accordingly, the extraneous offense evidence became admissible for all purposes and the trial court was not required to give the jury a limiting instruction.
Appellant has not cited any other relevant information in the record in support of appellant's complaint of jury charge error.
a. State of the Evidence and Argument of Counsel
Even if the trial court had erred by failing to provide a limiting instruction, however, the trial court's error would be reviewed for a showing of egregious harm pursuant to Almanza. The harm must be actual, not merely theoretical. Almanza, 686 S.W.2d at 174. Based on our review of the record, we cannot conclude that the trial court's error, if any, caused appellant egregious harm.
Jury charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. Allen, 253 S.W.3d at 264. Here, however, the testimony regarding the extraneous offenses consisted of only a small part of the testimony presented by the State. For example, there was only one mention of appellant telling complainant to drink bleach during complainant's testimony and the State only mentioned it once during its closing. In addition, there was only one mention of appellant threatening to harm the girls' mother if the abuse was disclosed and one mention of appellant striking TT with a belt during TT's testimony. The testimony against appellant regarding his sexual abuse of complainant and TT, however, was voluminous and included letters written by appellant to complainant containing graphic sexual content.
In regard to the testimony regarding appellant "going away," appellant argues that the conspicuous absence of any explanation about this testimony made it clear that appellant went to prison. Appellant, however, fails to mention that this type of testimony was discussed during a motion in limine hearing where appellant sought to preclude any mention of the fact that defendant "is incarcerated or has been incarcerated on other offenses." The trial court granted appellant's motion in limine during the guilt/innocence phase regarding any mention of prison and the parties discussed the issue as follows:
[State]: In regards to the defendant being incarcerated, I have made my witnesses aware, and will again tomorrow and this afternoon. I will try to lead them in those parts and we will talk about him going away. I have provided the Defense with a copy of the letters I intend to introduce in guilt/innocence, where I have redacted what I believe are parts that could refer to him being incarcerated, such as his TDCJ number, being in prison, having a dorm, eating chow, rack time, count time, any of those kind of words that appear to be more prison oriented. And I've provided that to the Defense. He can check and see if there's any
additional redactions that he would like for me to make, and if we can agree upon those then, I will.Appellant did not object to the proposed accommodations offered by the State and there is no evidence in the record that the State failed to comply with these accommodations. In addition, appellant did not object at trial when the State introduced appellant's letters with redactions nor did he object when the State asked the witnesses about appellant's absences.
[Court]: Have you looked at the letters, and are you okay with the redactions?
[Appellant's attorney]: Yes.
Although appellant broadly argues that jury instruction "affected the basis of the case" and "deprived Appellant of a fair trial", the record does not support this contention. In addition, appellant cannot demonstrate that the jury charge vitally affected his defensive theory because appellant only argued that there were "missing pieces," not that the sexual abuse did not take place. In appellant's closing argument, his attorney argued that certain "missing pieces" could amount to reasonable doubt, including why complainant's mother (1) did not identify appellant as complainant's biological father for many years, (2) could not remember all the different places she had lived with appellant, and (3) had a DNA test performed on TT. The jury charge issues raised by appellant would not have "vitally affected" any of these defensive theories. Because we conclude that there was no error in the jury charge and any alleged jury charge error did not result in egregious harm, we overrule appellant's first issue.
We have reviewed the record regarding appellant's complaint of jury charge error but have not found any other relevant information.
B. Admission of Evidence
In his second issue, appellant contends that the trial court erred in admitting evidence that appellant abused complainant's sister. We disagree.
1. Standard of review
A trial court's decision to admit or exclude evidence is viewed under an abuse of discretion standard. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). A trial court abuses its discretion when its decision lies outside the zone of reasonable disagreement. Green v. State, 934 S.W.2d 92, 102 (Tex. Crim. App. 1996).
2. Analysis
Appellant argues that the trial court erroneously reasoned that the abuse of TT was same-transaction contextual evidence and allowed the evidence as an exception to the rule against using character conformity evidence. As he did in his first issue regarding charge error, appellant fails to take into account the exceptions permitting the admission for evidence of extraneous offenses or acts under the Texas Penal Code. See TEX. CODE CRIM. PROC. art. 38.37 §2(b). As we have analyzed and rejected this argument above based upon the exceptions for evidence of extraneous offenses or acts under the Texas Penal Code, we again reject this argument.
See Section A(3).
In a letter brief dated August 12, 2016, appellant argues that the court cannot apply the current version of article 38.37 of the Texas Code of Criminal Procedure because to do so would violate appellant's state and federal ex post facto rights. Appellant also argues that the current version of Article 38.37 is inapplicable because the State failed to satisfy its statutory requirements. Appellant cites to rules of appellate procedure 38.3 and 38.7 in support of this letter brief. See TEX. R. APP. P. 38.3 (reply brief) and 38.7 (amendment or supplementation). To the extent appellant is arguing that this letter brief constitutes a reply brief, we note that new issues may not be raised in reply briefs. Barrios v. State, 27 S.W.3d 313, 322 (Tex. App.—Houston [1st Dist.] 2000, pet. ref'd). To the extent that appellant is seeking to brief these new issues pursuant to rule 38.7, we conclude appellant's arguments are without merit. First, other courts have analyzed and rejected appellant's ex post facto argument. See Baez v. State, 486 S.W.3d 592, 600 (Tex. App.—San Antonio 2015, pet. ref'd) (rejecting ex post facto argument in regard to section 2(b) to article 38.37 of the Texas Code of Criminal Procedure); Robisheaux v. State, 483 S.W.3d 205, 214-15 (Tex. App.—Austin 2016, pet. ref'd) (following Baez).
Second, appellant did not preserve his argument that the State failed to satisfy its statutory requirements. Section 2-a of article 38.37 requires that before evidence of other offenses may be introduced under section 2, the trial judge must determine that the evidence likely to be admitted at trial will be adequate to support a finding by the jury that the defendant committed the separate offense beyond a reasonable doubt and hold a hearing outside the presence of the jury for that purpose. See TEX. CODE CRIM. PROC. art. 38.37 § 2-a(1) and (2) (West Supp. 2016). Section 3 of article 38.37 requires that the State shall give defendant notice of the State's intent to introduce evidence described by section 1 or 2 no later than the 30th day before the date of defendant's trial. See TEX. CODE CRIM. PROC. art. 38.37 § 3 (West Supp. 2016). In his letter brief, appellant argues that the State failed to seek a gatekeeping hearing or comply with the notice requirements. The State contends that it provided timely notice and requested a gatekeeping hearing. Regardless, the record is clear that appellant failed to object either to the alleged lack of a hearing or proper notice. These complaints are forfeited if not raised in the trial court. See Stephens v. State, Nos. 02-15-00046-CR and 02-15-00047-CR, 2016 WL 2586639, at *7 (Tex. App.—Fort Worth May 5, 2016, pet. ref'd) ("Like the hearing required by article 38.072, we conclude that article 38.37's hearing requirement, which does not contain language expressly requiring a waiver, is subject to the general requirement of preservation and is therefore subject to forfeiture."); Belcher v. State, 474 S.W.3d 840, 850 (Tex. App.—Tyler 2015, no pet.) (error not preserved because appellant failed to object to admission of evidence based on the State's failure to give notice required by article 38.37, section 3). Accordingly, appellant has failed to preserve this argument and we overrule appellant's second issue.
C. Parole Instruction
In his third issue, appellant contends that the trial court erred by failing to include an instruction in the punishment phase jury charge that he was ineligible for parole. We disagree.
The trial judge is required to give the jury a written charge "setting forth the law applicable to the case; not expressing any opinion as to the weight of the evidence, not summing up the testimony, discussing the facts or using any argument in his charge calculated to arouse the sympathy or excite the passions of the jury." TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007). Article 37.07 of the code of criminal procedure provides the instructions that trial courts are required to give juries to inform them about the law of parole. See TEX. CODE CRIM. PROC. ANN. art. 37.07 § 4 (West Supp. 2016). Section 4 of Article 37.07 provides as follows:
In the penalty phase of the trial of a felony case in which the punishment is to be assessed by the jury rather than the court, if the offense of which the jury has found the defendant guilty is an offense under Section 71.02, Penal Code, other than an offense punishable as a state jail felony under that section, an offense under Section 71.023, Penal Code, or an offense listed in Section 3g(a)(1), Article 42.12, or if the judgment contains an affirmative finding under Section 3g(a)(2), Article 42.12, unless the defendant has been convicted of an offense under Section 21.02, Penal Code , an offense under Section 22.021, Penal Code, that is punishable under Subsection (f) of that section, or a capital felony, the court shall charge the jury in writing as follows:Id. (emphasis added). As stated above, this section provides that the language usually required in a charge addressing the law of parole does not apply to offenses arising under section 21.02 of the Penal Code. Here, appellant was charged with the offense of continuous sexual abuse of a young child which is an offense under section 21.02 of the Texas Penal Code. TEX. PENAL CODE ANN. § 21.02 (West Supp. 2016). Accordingly, the instructions to inform a jury about parole set forth in article 37.07 of the code of criminal procedure do not apply to appellant.
Appellant argues that an affirmative instruction that he was ineligible for parole would have been more accurate than the absence of any instruction because the absence of such an instruction only "sanctioned the jury's speculation" that "life" meant "something else." The Court of Criminal Appeals, however, has previously held that trial courts cannot cut and paste parole law instructions as they see fit:
The Texas Legislature enacted legislation that requires the trial judge to instruct the jury in the precise wording that the statute recites. Article 37.07, section 4(a) sets out, verbatim, the words that the trial judge is to use. There are even quotation marks around the wording of the instruction. That is at least some indication that the Legislature did not want any creative deviations from its chosen language. The Legislature prefaced its instruction language with directions that "the court shall charge the jury in writing as follows: ..." The use of the word "shall" generally indicates a mandatory duty. There is no reason to think that the Legislature enacted merely a suggested parole law jury instruction, one that trial judges should cut and paste as they see fit.See Luquis v. State, 72 S.W.3d 355, 363 (Tex. Crim. App. 2002). Where, as here, the legislature has not provided for such an instruction, we conclude that appellant was not entitled to a new punishment trial because the trial court declined to provide him with a special, non-statutory instruction. See Walters v. State, 247 S.W.3d 204, 211 (Tex. Crim. App. 2007) (holding that all jury instructions relating to a penal code offense or defense must be statutorily based and that special, non-statutory instructions generally have "no place in the jury charge."). Accordingly, we overrule appellant's third issue.
CONCLUSION
We resolve appellant's issues against him and affirm the trial court's judgment.
/David W. Evans/
DAVID EVANS
JUSTICE Do Not Publish
TEX. R. APP. P. 47
151176F.U05
JUDGMENT
On Appeal from the Criminal District Court No. 4, Dallas County, Texas
Trial Court Cause No. F-1476880-K.
Opinion delivered by Justice Evans. Justices Francis and Stoddart participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 4th day of January, 2017.