Opinion
No. 04-08-00460-CR
Delivered and Filed: November 4, 2009. DO NOT PUBLISH.
Appealed from the 290th Judicial District Court, Bexar County, Texas, Trial Court No. 2008CR4111, Honorable Pat Priest, Judge Presiding. Affirmed.
Sitting: SANDEE BRYAN MARION, Justice, REBECCA SIMMONS, Justice, MARIALYN BARNARD, Justice.
MEMORANDUM OPINION
Gary Alan Gray was convicted by a jury of multiple counts of sexual assault of a child and indecency with a child by contact. We overrule Gray's eleven points of error and affirm the trial court's judgment.
Background
Gray and the complainant's family attended the same church. During a phone conversation, the complainant's father, N.P., discovered that Gray, who was fifty-two years old, had been exchanging e-mails with the complainant, R.P., who was fourteen. A short time later, R.P. told a family friend about the sexual encounters she had with Gray.Reporter's Record
In his first point of error, Gray contends his constitutional rights were violated because the court reporter failed to provide the written transcription of a hearing held in October of 2007. In compliance with an order of this court, the reporter's record from the hearing in question was filed on September 4, 2009. In his supplemental letter brief, Gray concedes that the filing of the reporter's record negates this point of error. Accordingly, Gray's first point of error is overruled.E-Mails
Gray next contends the trial court erred in admitting e-mails into evidence that were sent from Gray to R.P. and printed from her computer. In his second point of error, Gray asserts the e-mails should have been excluded as a sanction for the State's violation of a discovery order. In his third point of error, Gray asserts the e-mails should have been excluded because they were not properly authenticated.A. Discovery Order Sanction
Because the reporter's record from the hearing held in October of 2007 revealed no violation of a discovery order, Gray also conceded in his supplemental letter brief that his second point of error should be overruled. Given that the State did not violate a discovery order, Gray's second point of error is overruled.B. Authentication
A trial court's evidentiary rulings are reviewed under an abuse of discretion standard. Sauceda v. State, 129 S.W.3d 116, 120 (Tex. Crim. App. 2004); Shea v. State, 167 S.W.3d 98, 104 (Tex. App.-Waco 2005, pet. ref'd). Evidence may be authenticated by testimony from a witness with knowledge that the document is what it is claimed to be. Tex. R. Evid. 901(b)(1); Shea, 167 S.W.3d at 104. In this case, the trial court admitted six e-mails from Gray to R.P. The record contains a DVD of an investigator questioning Gray. The investigator read portions of the e-mails that were admitted to Gray, and the trial court did not abuse its discretion in finding that Gray's response was an acknowledgment that he sent the e-mails. As a result, Gray authenticated the e-mails. Moreover, R.P. also subsequently authenticated the e-mails by testifying that she was familiar with Gray's e-mail address and the manner in which he signed his e-mails. See Shea, 167 S.W.3d at 105 (noting e-mails were authenticated by characteristics including e-mail address); see also Massimo v. State, 144 S.W.3d 210, 215-17 (Tex. App.-Fort Worth 2004, no pet.) (same). Finally, Gray himself offered as evidence e-mails from R.P. to Gray with identical e-mail addresses. See Shea, 167 S.W.3d at 105. Therefore, the trial court did not abuse its discretion in determining that the e-mails were properly authenticated. Gray's third point of error is overruled.Spoliation
In his fourth and fifth points of error, Gray contends that his due course of law rights were violated by the State's failure to preserve evidence from R.P.'s computer and that he was entitled to a jury instruction on spoliation of evidence. Gray does not provide any citation to the record where he raised his due course of law complaint at trial. In the absence of such an objection, Gray's complaint is waived. Tex. R. App. P. 33.1; see also Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009). Moreover, Gray relies on the Waco court's analysis in Pena v. State, 226 S.W.3d 634 (Tex. App.-Waco 2007), rev'd, Pena v. State, 285 S.W.3d 459 (Tex. Crim. App. 2009). Initially, we note that the Waco court's judgment in that case has been reversed. Pena, 285 S.W.3d at 465. Moreover, Gray's analysis was based on the Waco court's holding that the due course of law provision in the Texas Constitution provides greater protection that the due process clause of the United States Constitution; however, this court has previously declined to follow that holding. Salazar v. State, 185 S.W.3d 90, 92-93 (Tex. App.-San Antonio 2005, no pet.). With regard to Gray's contention that the trial court erred in denying his request for a spoliation instruction in the jury charge, an appellate court's first duty in evaluating a jury charge issue is to determine whether error exists. Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003); Fulenwider v. State, 176 S.W.3d 290, 298 (Tex. App.-Houston [1st Dist.] 2004, pet. ref'd). If the court finds error, it must determine whether sufficient harm resulted from the error to require reversal. Middleton, 125 S.W.3d at 453; Fulenwider, 176 S.W.3d at 298. Gray contends that he was entitled to a spoliation instruction because e-mails were deleted from R.P.'s computer. Gray asserts, "Even though the complainant's e-mails to [Gray] might be on his computer, it was her computer that was necessary for showing any original content of those e-mails." R.P. testified at trial that she erased certain e-mails that she sent to Gray, but she also testified that neither she nor her mother erased a significant number of e-mails from her to Gray. Investigator Arevalos testified that he had requested copies of the e-mails that R.P. sent to Gray; however, Investigator Arevalos stated that he believed the e-mails were deleted. Investigator Arevalos testified that he believed one of the family members admitted to deleting them, but he was not sure. Investigator Arevalos testified that he did not know whether the e-mails were deleted before or after he asked for them. At most, the testimony shows that the e-mails might have contained potentially useful evidence, as opposed to material, exculpatory evidence. See State v. Vasquez, 230 S.W.3d 744, 747 (Tex. App.-Houston [14th Dist.] 2007, no pet.). Where evidence is potentially useful, the state only violates a defendant's due process if the state acted in bad faith in destroying the evidence. Id. Similarly, a defendant should only be entitled to a spoliation instruction if the state acted in bad faith. See White v. State, 125 S.W.3d 41, 43-44 (Tex. App.-Houston [14th Dist.] 2003), pet. ref'd, 149 S.W.3d 159 (Tex. Crim. App. 2004) (holding trial court did not err in refusing requested spoliation instruction where defendant made no showing of bad faith). Because Gray failed to establish that the State acted in bad faith in connection with the deletion of the e-mails from R.P.'s computer, the trial court did not err in denying Gray's request for a spoliation instruction. Gray's fourth and fifth points of error are overruled.Opening Door to Evidence
In his sixth point of error, Gray contends the trial court erred in allowing evidence to be admitted that was previously suppressed based on the trial court's determination that Gray had opened the door to the evidence. The record citations provided by Gray as support for this point of error refer to an exchange between the trial court and defense counsel. In the exchange, the trial court cautioned defense counsel that if he said one more word about the e-mails on Gray's computer from R.P., he would permit the State to admit the contents of Gray's computer that was previously suppressed based on defense counsel's motion to suppress. Because the trial court did not rule that Gray had opened the door to the evidence but only cautioned Gray against doing so, the citations provided in Gray's brief fail to support his contention on appeal. Accordingly, Gray's sixth point of error is overruled.Judicial Comment on Evidence
In his seventh point of error, Gray asserts the trial court abused its discretion in making an inappropriate comment on the weight of the evidence, exhibited improper bias by erroneously admonishing defense counsel, and interjected himself into the trial in violation of Gray's constitutional and statutory rights. Gray focuses his complaint on the trial court's comment in overruling an objection during the following exchange:Q. Okay. Thank you, sir. You can just take a seat. Okay. Sir, was there ever a time between the period of July 2005 and January of 2007 where you saw some conduct or contact between the Defendant and [R.P.] that caused you some concern?
A. Yes.
Q. What did you see, sir?
A. Well, I'm used to calling her [name omitted]. She walks up. I'm here. We have swivel seats and she needed to pass by us, so we pivoted our seats and Gary pivoting this way, and she — when she walked by, he just patted her like that.
Q. Patted her where? What part of his hand did he pat? What part of her body did he pat?
A. Just below her belt, kind of on her back, rear.
Q. Did he pat her on the butt?
MR. KAHN: Object. This is leading, also repetitive. The question has been asked and answered. He said "the back."
THE COURT: "Below her belt on her rear," is what he said. I overrule your objection.During cross-examination, defense counsel clarified that the witness saw Gray pat R.P. on her low back just below the belt not on her bottom. It is improper for the judge to comment on the weight of the evidence. Tex. Code Crim. Proc. Ann. art. 38.05 (Vernon 1979). However, the record does not reflect that Gray objected to the trial court's comment. Therefore, he presents nothing for review. Green v. State, 912 S.W.2d 189, 192 (Tex. Crim. App. 1995); Gibbs v. State, 7 S.W.3d 175, 178 (Tex. App.-Houston [1st Dist.] 1999, pet. ref'd); Tex. R. App. P. 33.1. Gray's seventh point of error is overruled.
Jury Charge
In his eighth point of error, Gray contends that the trial court should have specifically instructed the jury that it was required to reach a unanimous verdict as to each count of the indictment. The jury, however was given separate verdict forms for each offense and was instructed, "It is [the foreman's] duty to preside at your deliberations, vote with you and, when and if you all agree upon the same verdict — that is, when you are unanimous — to certify to your verdict by signing the same as foreman." As a result, the jury charge was adequate to ensure that the jury's verdict was unanimous as to each separate offense. See Martinez v. State, 225 S.W.3d 550, 555 (Tex. Crim. App. 2007) (noting trial judge commits no error in submitting the various offenses alleged in separate counts of an indictment in separate verdict forms and that the simplest way to ensure offenses are decided unanimously is to submit separate verdict forms); see also Brite v. State, No. 04-07-00820-CR, 2009 WL 1617741, at *10 (Tex. App.-San Antonio June 10, 2009, no pet.) (rejecting complaint that jury charge did not provide adequate language to ensure jury's verdict was unanimous as to each separate offense) (not designated for publication). Gray's eighth point of error is overruled.Sufficiency of the Evidence
In determining the legal sufficiency of the evidence, we review all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). In conducting a factual sufficiency review, this court views all of the evidence in a neutral light and sets aside the verdict only if: (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust; or (2) the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). "[D]ue deference must be accorded the fact finder's determinations, particularly those determinations concerning the weight and credibility of the evidence," and a reviewing court's disagreement "with the fact finder's determination is appropriate only when the record clearly indicates such a step is necessary to arrest the occurrence of a manifest injustice." Id. at 9. In his ninth point of error, Gray challenges the sufficiency of the evidence to support his conviction. Gray first summarizes the evidence in a specific facts section of his brief. Gray then summarizes the standard of review and argues: (1) with regard to count 2, R.P. testified only to Gray's attempted penetration of her anus; (2) with regard to counts 3 and 8, R.P. never testified that Gray's tongue penetrated her vagina; (3) with regard to counts 1 and 6, R.P. testified that Gray put his finger in her vagina on one occasion and her response was vague; and (4) with regard to counts 4, 9, and 11, R.P.'s testimony about Gray touching her breasts was too general to support three separate counts. With regard to count 2, R.P. testified she told Gray to stop after his finger "got in" her anus, but she was uncertain how far his finger went inside her anus. With regard to counts 3 and 8, the jury was properly charged that Gray would commit the offense of sexual assault if he caused R.P.'s sexual organ to "contact" Gray's mouth. See Tex. Pen. Code Ann. § 22.011(a)(2)(C) (Vernon 2003) (defining offense as causing sexual organ of child to contact or penetrate mouth of another person). R.P. testified that Gray would put his mouth on her vagina, and this contact would occur routinely on Sundays. With regard to counts 1, 4, 6, 9, and 11, R.P. testified that Gray would put his hands on her breasts and "put his finger in [her] vagina" in describing the contact that would routinely occur on Sundays. Because R.P.'s testimony is legally and factually sufficient to support the jury's verdict, Gray's ninth point of error is overruled.Polygraph Test
In his tenth point of error, Gray complains that his right to present a defense, right to cross-examine, and right to confrontation were violated when the trial court sustained an objection to questioning regarding a polygraph test. Although the trial court sustained two objections regarding the polygraph testing, defense counsel was able to elicit testimony that Gray was asked to submit to a polygraph test as an investigative tool and that he readily agreed to do so. Gray cites Buckley v. State, 46 S.W.3d 333 (Tex. App.-Texarkana 2001, pet. dism'd), as support for his contention that the trial court should have permitted further questioning regarding a polygraph test. In Buckley, however, the Texarkana court was considering whether the trial court erred in failing to grant a mistrial when a witness made a statement referring to a polygraph test even though the statement did not reflect the results of such a test or even whether the defendant took such a test. 46 S.W.3d at 336-37. The court noted, "A trial court may not admit polygraph examination evidence or consider it for any purpose, even if the State and the defendant agree and stipulate to use the results of the polygraph examination at trial." Id. at 336. Accordingly, the trial court did not err in limiting cross-examination regarding polygraph testing. Gray's tenth point of error is overruled.Closing Argument
In his eleventh point of error, Gray contends the trial court erred in overruling his objection to the prosecutor commenting on Gray's failure to testify. Gray's complaint is directed at the following argument:MR. HARRIS: . . . Your job, ladies and gentlemen, at the conclusion of argument is to go back in that room and deliberate about what you know all too well. You know what the relationship was. You know she was credible and believable. He talks about — he didn't want Gary to be hit with his own words. She was on that stand for six and a half hours. "Well, you say he penetrated your anus. How far did it go? One knuckle, two knuckles, an eighth of an inch?"
MR. KAHN: I object. That is a comment on the Defendant not testifying.
THE COURT: Overruled.In order to preserve error for appellate review, an objection must be timely. Tex. R. App. P. 33.1(a)(1). In order to be considered timely, an objection must be made as soon as the ground for the objection becomes apparent, i.e., as soon as the defense knows or should know that an error has occurred. Smith v. State, 842 S.W.2d 401, 406 (Tex. App.-Fort Worth 1992, pet. ref'd). In this case, no objection was made until several sentences after the prosecutor commented on Gary not wanting to be "hit with his own words" and after the prosecutor had changed the topic of his argument. Accordingly, Gray's objection was not timely, and Gray's eleventh point of error has not been preserved for our review. See id.