Opinion
No. 05-05-00848-CR
Opinion Filed June 27, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-73542-M. Affirm.
Before Justices FITZGERALD, FRANCIS, and LANG-MIERS.
OPINION
A jury convicted Andrea Venoir Johnson of aggravated sexual assault and assessed punishment at 99 years' confinement and a $10,000 fine. On appeal, Johnson complains that: the evidence was insufficient to support the jury's findings that the assault was aggravated and that the sexual contact was without consent; the admission of the sexual examination report and the forensic biology report violated Johnson's confrontation rights; and the prosecutor inappropriately injected her opinion of Johnson's guilt in her closing argument. We affirm the trial court's judgment.
Evidence of Aggravation
In his first and second issues, Johnson argues the evidence is legally and factually insufficient to support the jury's finding that the assault was aggravated in nature. In this regard, the State charged that:by acts and words, [Johnson] did place the complainant in fear that death, serious bodily injury, and kidnapping would be imminently inflicted on [the complainant].On appeal, Johnson urges specifically that the complainant's subjective fear of death or serious bodily injury was not reasonable in light of Johnson's overall conduct. In a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). In a factual sufficiency review, we view all of the evidence in a neutral light, and we determine whether the evidence of appellant's guilt, taken alone, is too weak to support the finding of guilt beyond a reasonable doubt, or the evidence contrary to the verdict is so strong that the beyond-a-reasonable-doubt standard could not have been met. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). As to the evidence we look for, an allegation that the defendant placed his victim in fear of imminent death or serious bodily injury allows the jury to consider:
the actor's objective conduct, his acts, his words, or deeds and then infer from the totality of the circumstances whether or not his overall conduct placed the complainant in fear of serious bodily injury. It is . . . not necessary to demonstrate that the accused could have inflicted serious bodily injury. It is not necessary that a threat or being placed in a state of fear be communicated verbally.Nickerson v. State, 69 S.W.3d 661, 669 (Tex.App.-Waco 2002, pet. ref'd) (quoting Ontiveros v. State, 890 S.W.2d 919, 927 (Tex.App.-El Paso 1994, no pet.)). The complaining witness testified at trial. She was a 63-year-old woman who lived alone in an apartment in North Dallas. On the night of the assault, while she slept, Johnson entered her apartment through the bedroom window. He took all his clothes off, and awakened her. He "jerked" her up from the couch where she was sleeping and told her to "get your pants off." He told her: "You're not going to get out of this, there's no use in fighting." It was dark; she never got a very good look at his face, but she determined he was muscular. The intruder "pushed [her] down" and began raping her. She tried to resist at first, but knew she could not get away. He raped her throughout the night, following repeatedly a pattern of vaginal, anal, and oral assaults. She was able to interrupt the attacks for a short time by asking to go to the bathroom and asking to have a cigarette; once he sat at the table and drank a beer. However, after each distraction, he resumed the attacks on the complainant. When he finally left, she locked the door behind him, checked the other doors and windows, and discovered her bedroom window was unlocked. (Later, police discovered the screen had been removed and was on the ground.) The complainant then sat for some time, prayed, and eventually called her daughter and son-in-law. Her son-in-law told her to call the police, which she did. Then she started picking up around the apartment. She was not sure what all she picked up and threw away: she remembered some beer cans, and maybe cigarette butts. When it was light, she took some trash out; she said she was just trying to keep busy until the police came. She also noticed during this time that a light bulb outside her door had been unscrewed; she screwed it back in. She told the police what she had done with both the trash and the light bulb. The police took her to Parkland Hospital, where she was examined. The complainant testified that she felt violated "physically, mentally, emotionally, even spiritually" and only called police and put herself through trial to keep her assailant from doing this to someone else. She did not see a weapon, and she did not know whether her attacker had a weapon or not. Despite defense counsel's efforts to elicit testimony that she was not threatened, she testified:
I was threatened in every kind of way you could think about, him just merely being there and telling me to get off my pants and that I wasn't going to get out of it. I mean I was threatened in every way that you can think of.She also testified:
Anybody that's attacking you or in your home as a violator, you don't know who he is or what he's got or what he's going to do. And then during a rape, you don't know those things. I would have no way of knowing.Although only the complainant could testify as to Johnson's conduct, her son-in-law could and did testify to her condition following the attack. He testified that when he arrived at the complainant's apartment, she looked like she was in shock. Johnson stresses that there was no evidence of a weapon or of explicit threats. But these are not necessary components of the State's proof. See Nickerson, 69 S.W.3d at 669. He questions the complainant's smoking a cigarette and perhaps drinking a beer during the course of the night. We do not see the complainant's efforts to distract her assailant as evidence that she was not placed in fear by his conduct. Indeed, when we look at the totality of the circumstances described by the complainant, including Johnson's acts, words, and deeds, we conclude his conduct could certainly have placed the complainant in fear of death or serious bodily injury. See id. Moreover, we conclude that her fear was reasonable, given evidence that he broke into her home at night, accosted her roughly and told her she "would never get out of this," and then repeatedly assaulted her over a period of hours. We conclude a rational trier of fact could have found that the element of aggravation beyond a reasonable doubt. See Jackson, 443 U.S. at 319. We further conclude that, viewing all of the evidence in a neutral light, the evidence of aggravation taken alone is not too weak to support the finding beyond a reasonable doubt, and the evidence contrary to the verdict is not so strong that the beyond-a-reasonable-doubt standard could not have been met. Zuniga, 144 S.W.3d at 484-85. The evidence was legally and factually sufficient to support the jury's finding that the assault on the complaining witness was aggravated. We decide Johnson's first and second issues against him.
Evidence of Lack of Consent
In his third issue, Johnson argues the evidence was factually insufficient to support his conviction because the State did not prove lack of consent. Again, we apply the Zuniga standard, viewing all of the evidence in a neutral light and asking whether the evidence — here of lack of consent — taken alone, is too weak to support the finding of guilt beyond a reasonable doubt, or the evidence to the contrary is so strong that the beyond-a-reasonable-doubt standard could not have been met. Zuniga, 144 S.W.3d at 484-85. The complaining witness testified clearly and directly that she did not consent to sex with the man at any time that night. Dr. Elliston, who performed the mental health evaluation of the complainant, testified that her responses and behavior were consistent with being "forcefully raped." There is no such direct or clear evidence on the other side. Johnson points to the complainant's "destruction" of evidence, i.e., her disposing of beer cans and cigarette butts and her handling the light bulb. However, the complainant told the police she had done these things, and Doctor Ellen Elliston testified that it is not unusual for a victim raped in her home to clean up as way to try to put her life back together. Johnson also challenges the evidence of forced entry and argues the evidence of bruising on the complainant could be attributed to the aging process. None of these points by Johnson presents more than speculation for our review. The jury's verdict indicates jurors found the complainant credible in her report of the rape, and we will not substitute our judgment for the factfinder's on the issue of credibility. Viewing all of the evidence in a neutral light, we conclude the evidence of lack of consent is factually sufficient to support the verdict against Johnson. See Zuniga, 144 S.W.3d at 484-85. We overrule Johnson's third issue.Confrontation Issues
At trial, the State offered the complainant's sexual examination report. The report was prepared by Dr. S. Thomas Allen, who examined the complainant at Parkland Hospital. The report described bruising on and around the complainant's vulva. At the time of trial, Dr. Allen had moved to California. His report was offered and admitted through Dr. Claudia Werner, who teaches obstetrics and gynecology at the University of Texas Southwestern Medical School and is a staff physician at Parkland Hospital. The State also offered a forensic biology report, created by Dr. Timothy J. Sliter. This report included a DNA analysis, which concluded the DNA profile taken from the complainant's rape exam matched the profile of Johnson to the extent that only one person in 64.5 quadrillion in the African-American population group would have the same DNA profile. At the time of trial, Dr. Sliter was on vacation. His report was offered and admitted through Melissa Sweetland, a forensic biologist who was also the custodian of the record. Johnson's fourth and fifth issues on appeal complain that the admission of these reports violated his confrontation rights. The Sixth Amendment's Confrontation Clause provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. This procedural guarantee bars the admission of testimonial statements of a witness who does not appear at trial, unless the witness is unavailable to testify and the defendant had a prior opportunity to cross-examine him. Crawford v. Washington, 541 U.S. 36, 59 (2004). Johnson correctly argues that the threshold question in our analysis of these issues is whether the challenged reports were testimonial, within the meaning of Crawford. The Supreme Court declined in Crawford to provide a comprehensive definition of "testimonial," but the court did state that the term applies "at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." See id. at 68 (describing these categories as "the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed"). The reports at issue in this case do not fall within the Crawford testimonial categories. Instead, these documents contain reports of physical evidence collected during the investigation of a crime. They set forth matters observed pursuant to a duty imposed by law. See Mitchell v. State, 191 S.W.3d 219, 221 (Tex.App.-San Antonio 2005, pet. ref'd) (concluding admission of autopsy report through non-author did not violate Crawford). The reports do not accuse Johnson of wrongdoing. They merely provide factual evidence that may support his conviction, in the same manner all evidence discovered or developed in an investigation has the potential to do. Any opinions based on the factual reports were offered by Dr. Werner or Ms. Sweetland, both of whom were present and cross-examined by Johnson. We conclude neither the rape examination report nor the forensic biology report is testimonial, within the meaning of Crawford, for purposes of confrontation rights. Where non-testimonial hearsay is at issue, we apply our State's traditional understanding of hearsay law and the reliability standard set forth in Ohio v. Roberts, 448 U.S. 56 (1980). See Crawford, 541 U.S. at 68. Johnson does not challenge the trial court's ruling that the reports at issue fall within the business or public records exceptions to the hearsay ban. And pursuant to the Roberts standard, these exceptions are reliable because they are firmly rooted exceptions to the hearsay ban. See Roberts, 448 U.S. at 67 ("Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception."); see also Ford v. State, 179 S.W.3d 203, 209 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd) (public records exception is firmly rooted); Huff v. State, 897 S.W.2d 829, 843 (Tex.App.-Dallas 1995, pet. ref'd) (business records exception is firmly rooted). We conclude admission of the non-testimonial records at trial did not violate Johnson's confrontation rights. We decide Johnson's fourth and fifth issues against him.Jury Argument
Finally, in his fifth issue, Johnson argues the prosecutor erroneously injected her personal opinion of Johnson's guilt into her final argument. Johnson complains of the following portion of the prosecutor's argument:[The Prosecutor]: Do you really think that [the complainant] is such a great actress that she's going to fool her son-in-law who she calls after this happens, sobbing, telling him I've been raped; that she is going to fool those police officers who respond to that scene; that she is going to fool Dr. Allen over at Parkland Hospital when she's being subjected to this rape exam; that she's going to fool Detective Skelly, a seasoned detective with the Dallas Police Department who has investigated over 2,000 sexual assault cases. She's going to obviously fool me because I'm prosecuting this case on her behalf —
[Counsel for Defendant]: Judge, what the prosecutor believes is not evidence, and we object to it.
The Court: Overruled.
[The Prosecutor]: Then she's going to come into the courtroom and she's going to take the stand and she's going to lie to the 12 of y'all and commit aggravated perjury and keep up this whole charade for four years, all because it was consensual sex and she's just out to frame this man who she doesn't even identify and doesn't even know? Doesn't make any sense because that's not the way it happened.(Emphasis added.) Johnson argues the emphasized line above amounted to the prosecutor giving the jury her personal opinion as to the guilt of Johnson. He cites to cases that prohibit a prosecutor's implying that she has special expertise, on which the jury should rely in making its decisions. See Johnson v. State, 698 S.W.2d 154, 167 (Tex.Crim.App.). Generally, proper jury argument should fall within one of the following areas: summation of the evidence; reasonable deduction of the evidence; answer to argument of opposing counsel; or pleas for law enforcement. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Crim.App. 2000). Johnson claims the prosecutor's argument does not fall within any of these protected categories. We disagree. The prosecutor's argument was clearly intended to respond to defense counsel's argument that the State had not proved the sexual acts involving Johnson and the complainant were nonconsensual. Moreover, we do not read the challenged argument as a veiled statement of what the prosecutor believed. On the contrary, we read the prosecutor's statement as a clear challenge to the vague basis of defense counsel's consent argument. According to the prosecutor, if the defense was correct, then the complaining witness would have had to deceive everyone with whom she came in contact in the medical and criminal justice fields, including a number of experts with extensive experience in this type of case. And the only possible "motive" for such deceit would have been to set up a man she never identified to the police. The prosecutor answered the speculative nature of the consent argument by laying bare its underpinnings. The prosecutor's efforts to expose what was perceived to be the unreasonable nature of the defense counsel's argument was not error. We overrule Johnson's sixth issue.