Opinion
No. 2-03-390-CR
Delivered: August 12, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
Appealed from the 362nd District Court of Denton County.
PANEL: LIVINGSTON, C.J.; DAUPHINOT and McCOY, JJ. McCOY, J. filed a dissenting opinon.
MEMORANDUM OPINION ON REMAND
See Tex. R. App. P. 47.4.
Following a jury trial, Appellant Nicholas George Klein was convicted of eight counts of aggravated sexual assault of a child. On appeal, this court held that the evidence was legally insufficient to support convictions on six counts and rendered an acquittal on those counts. Regarding the remaining two counts, this court held that the evidence was legally and factually sufficient to support the convictions, the testimony of the designated outcry witness was admissible under the outcry exception to the hearsay rule, the admission of any testimony of the designated outcry witness at trial that was not included in the summary of outcry witness testimony given to Appellant prior to trial was not error, any probative value of impeachment testimony relating to the complainant's testimony recanting her prior outcry statement was substantially outweighed by its prejudicial effect, the testimony of the Child Protective Services (CPS) investigator and the police officer was not admissible under the prior consistent statement exception to the hearsay rule, and the trial court's error in admitting such testimony was not harmless. On the State's petition for discretionary review, the Texas Court of Criminal Appeals held that the evidence was legally sufficient to support a finding that Appellant had sexually assaulted the complainant (by touching her sexual organ with his tongue and finger) "on at least four separate occasions" and that the complainant's out-of-court statements to the CPS investigator and police officer that she had been sexually abused by Appellant were admissible as nonhearsay prior consistent statements. The Texas Court of Criminal Appeals therefore remanded the case to us for further proceedings. Having already held the evidence legally and factually sufficient on Counts VII and VIII and given the Texas Court of Criminal Appeals's rulings on the testimony from the CPS investigator and the police officer, we must affirm the trial court's judgment as to those two counts. But because we hold that the evidence is factually insufficient to support the verdicts on Counts I through VI, we reverse the trial court's judgments as to those counts and remand this case for new trial on those counts. The majority opinion of the Texas Court of Criminal Appeals summarizes the facts as follows:
Appellant was charged in an eight-count indictment with aggravated sexual assault of a child. The complainant in this case is appellant's daughter, who is a gifted child with a genius-range IQ of 147. When she was ten years old, the complainant told a school counselor (Batchelder) that appellant had sexually abused her. Very soon after this, the complainant repeated these accusations to a CPS investigator (Todd) and to a police investigator (Cook). The complainant subsequently recanted these accusations against appellant. During the State's direct examination of the complainant at appellant's trial almost two years later, the complainant reaffirmed her recantation and testified that appellant did not sexually abuse her. The complainant, however, also testified on direct examination by the State that appellant did sexually abuse her. Appellant's lawyer claimed that the complainant's direct-examination testimony that appellant did sexually abuse her was influenced by the State's trickery in questioning her. The trial court decided that this assertion allowed the State to introduce into evidence the complainant's prior out-of-court statements to Todd and Cook to show that the complainant said the same thing without any "trick" questions from the State. The jury convicted appellant of all eight counts and sentenced him to ten years imprisonment on count 1 and ten years community supervision on the other seven counts.Todd testified that the complainant told him that Appellant touched her sexual organ with his fingers and his tongue on Monday nights when her mother, Sarah Klein, was at dance class. The complainant testified that Sarah attended the dance classes during the period that the complainant was enrolled at McCoy Elementary. Sarah testified that she took dance classes on Monday nights in the fall when the complainant was in the fifth grade. The complainant attended part of the fourth and all of the fifth grade at McCoy Elementary. Appellant testified that the dance classes lasted six to eight weeks, although Sarah testified that she did not attend all the classes. The indictment alleged that the offenses occurred on or about June 1, 2000 (Counts I and II), on or about December 1, 2000 (Counts III and IV), and on or about May 1, 2001 (Counts V and VI). In performing its legal sufficiency analysis, the majority in Klein II observed in a footnote that
[o]n this record, it would be difficult to conclude that the evidence supports a finding that appellant sexually assaulted the complainant in "April or May of 2001" before the beginning of her fifth grade school year in August or September 2001, since the evidence seems only to indicate that appellant sexually assaulted the complainant when the mother went to her Monday night dance classes during the complainant's fifth-grade school year. It would also be difficult to conclude that the evidence supports a finding that appellant sexually assaulted the complainant after November 2001, since the evidence seems to indicate that the last assault occurred in November 2001. And, even if the evidence did not so indicate, it would also be difficult to conclude that the evidence supports a finding that appellant sexually assaulted the complainant after the complainant made her outcry to Batchelder on January 11, 2002, since appellant apparently had no opportunity to do so after the complainant's outcry to Batchelder. We, therefore, confine our sufficiency analysis to whether the evidence supports a finding that appellant sexually assaulted the complainant "on at least four separate occasions" during the complainant's fifth grade school year in the fall of 2001 and through November 2001.When reviewing the factual sufficiency of the evidence to support a conviction, we view all the evidence in a neutral light, favoring neither party. We then ask whether the evidence supporting the conviction, although legally sufficient, is nevertheless so weak that the factfinder's determination is clearly wrong and manifestly unjust or whether conflicting evidence so greatly outweighs the evidence supporting the conviction that the factfinder's determination is manifestly unjust. To reverse under the second ground, we must determine, with some objective basis in the record, that the great weight and preponderance of all the evidence, although legally sufficient, contradicts the verdict. Unless we conclude that it is necessary to correct manifest injustice, we must give due deference to the factfinder's determinations, "particularly those determinations concerning the weight and credibility of the evidence." Evidence is always factually sufficient when it preponderates in favor of the conviction. In determining whether the evidence is factually insufficient to support a conviction that is nevertheless supported by legally sufficient evidence, it is not enough that this court "harbor a subjective level of reasonable doubt to overturn [the] conviction." We cannot conclude that a conviction is clearly wrong or manifestly unjust simply because we would have decided differently than the jury or because we disagree with the jury's resolution of a conflict in the evidence. We may not simply substitute our judgment for the factfinder's. Unless the record clearly reveals that a different result is appropriate, we must defer to the jury's determination of the weight to be given contradictory testimonial evidence because resolution of the conflict "often turns on an evaluation of credibility and demeanor, and those jurors were in attendance when the testimony was delivered." Our deference in this regard safeguards the defendant's right to a trial by jury. At the same time, the evidence must be factually sufficient to permit a rational jury to find that the prosecution proved each and every element of the offense actually alleged beyond a reasonable doubt. It is not sufficient that the evidence show that the offense actually alleged, or one similar to it, could have been committed. As the Texas Court of Criminal Appeals explained over twenty years ago, "We must take each case and review the entire body of evidence to determine whether the State has proven beyond a reasonable doubt each and every element of the alleged crime and not just a plausible explanation of the crime." The relevant evidence has been recited above, in Klein I, and in Klein II. Although the Texas Court of Criminal Appeals has found the evidence legally sufficient, the great weight and preponderance of all the evidence contradicts the verdict. In particular, the Texas Court of Criminal Appeals acknowledges in Klein II that "it would be difficult to conclude that the evidence supports a finding that appellant sexually assaulted the complainant in `April or May of 2001'" because the evidence showes that the assaults took place during her fifth grade year. Moreover, the Texas Court of Criminal Appeals agrees that there is not enough evidence to support any findings of assault after November 2001. Necessarily, then, the State was required to show that the complainant was assaulted on "four separate" occasions during her fifth grade school year in the fall of 2001 through November 2001. Additionally, however, if the complainant's reports of the events are to be believed (and she was, after all, the only source of any evidence of any assault), the evidence must show not just four separate occasions of assault but that during each assault Appellant committed both offenses, that is, digital penetration and oral-genital contact or penetration. Although all the relevant evidence has been set out previously, in determining whether the evidence is factually sufficient to support a rational jury's finding that the State has proved each and every element of each offense actually alleged, it is important to look at exactly what evidence was presented to the jury. In relevant part, the complainant testified as follows while being questioned by the prosecutor:
Q.. . . . We talked about what you told Ms. Batchelder, that your dad had touched you on your vagina [sic] with his fingers and his tongue. When did that first start happening?
[DEFENSE COUNSEL]: I'm going to renew my objection, your Honor. She has not testified that it started happening. All this child's testified to is what she told someone. There is no evidence that it happened.The defense objection was overruled. The testimony then continued,
A. I don't remember.
Q. Do you have a pretty good memory?
A. Yes.
Q. And how old can you — how old were you that you have memory of? How far back can you remember?
A. I can remember certain things but — like really far back, but only certain things I can remember.
Q. So you don't remember exactly when it first started?
A. No.
Q. What's the first time that you remember?
A. I don't really know.
. . . .
Q. Are there any times that you remember enough to where you can describe them in court?
A. Yes.
Q. Tell us about a time that you remember.
[DEFENSE COUNSEL]: Your Honor, I'm going to object. She hasn't asked her what it is that she does remember.
THE COURT: Overruled.
Q.. . . . That means you can answer.
A. I was in my bed, and he came in.
Q. What happened when he came in?
A. He did what I told the counselor.
Q. You told her that he touched you with his fingers on your vagina [sic] and put his tongue on your vagina [sic].
A. Yes.
Q. Is that what happened?
A. You mean then or at all?
Q. Is that what happened the time that you're telling us about?
A. Yes.
Q. Did that happen one time or more than one time?
A. More than one time.
Q. Did it happen — you said that you lived in Carrollton. Did it happen any other places besides your house in Carrollton?
A. No.
Q. How old were you when you first moved to Carrollton?
A. Eight or nine, I think.
Q. Did you — you said that you went to fourth grade in Carrollton, all of fourth grade, right?
A. Yes.
Q. Did you go to third grade at all in Carrollton?
A. I think so. I think the end of the year I did.
Q. Was that at Homestead Elementary? Does that sound familiar?
A. Yes.
Q. The time that you've told us about and the other times that happened, you said those were all at your house in Carrollton. Is that right?
A. Yes.
Q. Did that happen at night or during the day?
A. Night.
Q. Where was your mom when this was happening?
A. I don't remember.
. . . .
Q. Did you ever tell anyone that what you told Ms. Batchelder wasn't true?
A. Yes.
Q. Who was the first person that you told that to?
A. My mom.
Q. How come you told your mom that?
A. Because she — because it didn't, and she is a person I can trust.
Q. Because it didn't and she's a person that you can trust?
A. Yes.
Q. Explain that to us.
A. Like, I felt that I could tell her because I made a mistake, and it's hard to tell somebody when you make a mistake.
Q. What did you make a mistake about?
A. About saying something that didn't — that wasn't true.
Q. I'm confused. What did you say that wasn't true?
A. I said that my dad touched me, and it wasn't true.
Q. But you just told us that it happened.
A. I thought you were referring to what I said, so. . . .
Q. So you told your mom that it didn't happen.
A. Yes.
. . . .
Q.. . . . Now, you told Ms. Batchelder and you told Dawn Todd with CPS and you told the police that your dad came into your room at night and that he touched you on your vagina [sic] with his fingers and that he licked you on your vagina [sic] with his tongue. Is that something that happened or something that didn't happen?
A. Didn't happen.
Q. So what you were talking about earlier when I asked you to tell me about a time that you remember and you told us about the time that he came in your room at night and you were wearing zip-up pajamas, that was something that you remembered, was that true?
A. No.
Q. You understand that you're under oath to tell the truth?
A. Yes. I thought you were asking, like, if — what I told somebody else.
Q. So when the question was tell me about a time you remember, you misunderstood that?
A. Yes.
Q. Do you remember what you told Dawn Todd when you went to talk to her?
A. No.
Q. Did you tell her that your dad had done these things or that he had not done these things?
A. Had.
Q. Why did you tell Dawn Todd that?
A. Because I was afraid that if I — because I was afraid.
Q. What where you afraid of?
A. I was afraid if I changed my story, I'd get in trouble for lying.
Q. Is lying something that you get in trouble for?
A. Sometimes.The complainant also testified that she had been seeing therapists since she was in kindergarten for problems with stealing and lying. Sarah testified that the complainant had been diagnosed with ADHD and oppositional defiant disorder in late 2000 to early 2001. Batchelder's testimony suggests that there were times that the complainant stayed with her mother and watched the dance class. Batchelder testified, "And she said, I liked — I always begged [M]other to let me stay and watch the dance lessons because when she doesn't, [D]ad picks me up." The complainant told Detective Cook that the last time "it had happened was in November of 2001." Sarah testified that in December 2001 before the January 2002 outcry, she had discovered that the complainant had been stealing items from school: seven recorders stolen from the music teacher; several one-hundred-dollar calculators from her math classroom; textbooks and school supplies from the teacher's desk; and other books from the school and classroom libraries. Sarah testified that the complainant also became more defiant and oppositional at home and at school, and she became more violent with her younger siblings. Sarah also testified that when she told the complainant that her father, Appellant, was no longer living in the home, the complainant became very happy and was in "a great mood." Sarah testified that the complainant said, "I guess you and [D]ad won't be fighting anymore." After the outcry, Sarah had to enforce a safety plan, and she knew what was expected of her because her father was a CPS worker. She told the complainant that she had to limit her extracurricular activities because it was impossible for her to supervise them with three small children. The complainant disobeyed her mother and went to a math club meeting. When her mother found her at school and brought her home, the complainant started to cry and told her mother for the first time that nothing was going on, that her father had never done anything to her. She had been angry at him because he had disciplined her. She was sobbing and said she had made a mistake and did not know how to fix it. Although Sarah was asked about the dance classes, no one asked her how many classes she attended that fall through November 2001; she did testify that she did not attend all the classes. She testified that she had a car pool arrangement with another mother because her daughter's dance class and her dance class overlapped. Contrary to what Batchelder testified the complainant had told her, Sarah said that Appellant never picked the complainant up from the dance class. There was evidence that he took care of the three younger children. Sarah also testified that she had told Todd that the complainant occasionally stayed for her mother's dance class and seemed to enjoy it. Although the complainant testified that she would wear zip-up pajamas to prevent Appellant's touching her between her legs, Sarah testified that the complainant had no such pajamas and that she had never seen zip-up pajamas for ten-year-olds. The State describes Appellant's testimony that the dance class lasted six to eight weeks as "self-serving." The State had ample opportunity to subpoena evidence or witnesses to contradict this testimony, or even to ask Sarah how many classes she actually attended, but it did not. We do not agree that testimony that does not support the State's theory of prosecution must be dismissed as "self-serving." A person accused of a criminal offense has no obligation to prove the State's case; that is the State's burden. Further, the State must prove not that something happened at some time but that the person accused committed the specific offense alleged, and to meet its burden the State must prove beyond a reasonable doubt each and every element of the specific offense alleged in the indictment. From the record before us it is impossible to determine whether the complainant claimed that Appellant assaulted her by touching her female sexual organ with his fingers and tongue on one or two or three or four or five or any other number of times in the fall of 2001 while Sarah was at dance class. The evidence indicates only that Appellant assaulted the complainant during the six to eight weeks of Sarah's dance class while the complainant was in the fifth grade at McCoy Elementary and that Appellant touched her sexual organ "most nights" or "many times" with his fingers and tongue. That is, the evidence is that many or most, but not all, of the Monday nights that Sarah went to dance class, Appellant touched the complainant with both his fingers and his tongue. Sarah testified that she did not "always make it" to class and that sometimes the complainant stayed to watch the class. The evidence supporting the verdict was too weak as to the specific incidents, or at the very least, insufficient to allow the jury to be able to determine beyond a reasonable doubt that a minimum of four separate incidents of two sexual assaults, one digital-genital and one oral-genital, occurred. Based solely on the record before us, we therefore conclude that the evidence is factually insufficient to support Appellant's convictions on Counts I through VI of the indictment. We therefore sustain Appellant's second point regarding Counts I through VI. Because of this disposition, we do not reach Appellant's sixth point, which concerns the issue of stacking. Having held that the evidence is legally and factually sufficient to support the judgment as to Counts VII and VIII, and bound by the Texas Court of Criminal Appeals's holding that the evidence of Batchelder and Todd was properly admitted, we affirm the trial court's judgment as to those counts. But having held that the evidence is factually insufficient to support the convictions on Counts I through VI, we reverse the trial court's judgments as to those counts and remand this case for a new trial on Counts I through VI only.
Klein v. State, 191 S.W.3d 766, 775 (Tex. App.-Fort Worth 2006) ( Klein I), rev'd, 273 S.W.3d 297, 298-99 (Tex. Crim. App. 2008) ( Klein II).
Id. at 774, 778.
Id. at 780.
Id. at 781.
Id. at 783.
Id. at 784.
Id. at 785.
Klein II, 273 S.W.3d at 303.
Id. at 317.
Id. at 298-99.
Id. at 303 n. 3 (citation omitted).
Steadman v. State, 280 S.W.3d 242, 246 (Tex. Crim. App. 2009); Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006).
Steadman, 280 S.W.3d at 246; Watson, 204 S.W.3d at 414-15, 417.
Watson, 204 S.W.3d at 417.
Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000); see Steadman, 280 S.W.3d at 246.
Steadman, 280 S.W.3d at 247; see Watson, 204 S.W.3d at 417.
Watson, 204 S.W.3d at 417.
Id.
Johnson, 23 S.W.3d at 12; Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).
Johnson, 23 S.W.3d at 8.
Lancon v. State, 253 S.W.3d 699, 704 (Tex. Crim. App. 2008).
Butler v. State, 769 S.W.2d 234, 239 (Tex. Crim. App. 1989), overruled on other grounds by Geesa v. State, 820 S.W.2d 154, 161 (Tex. Crim. App. 1991), overruled on other grounds by Paulson v. State, 28 S.W.3d 570, 571 (Tex. Crim. App. 2000).
See Klein II, 273 S.W.3d at 299-303; Klein I, 191 S.W.3d at 771-78.
See Watson, 204 S.W.3d at 417.
Klein II, 273 S.W.3d at 303 n. 3.
Id. at 303.
See id.
See id.
See Tyler v. State, 950 S.W.2d 787, 789 (Tex. App.-Fort Worth 1997, no pet.) (pointing out the anatomically correct usage of the word vagina).
Klein II, 273 S.W.3d at 301.
See Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005).
See Tex. R. App. P. 47.1.
See Watson, 204 S.W.3d at 414; see also Clewis v. State, 922 S.W.2d 126, 133-34 (Tex. Crim. App. 1996).
DISSENTING MEMORANDUM OPINION ON REMAND I respectfully dissent from the majority opinion and would hold instead that the evidence was factually sufficient to support the jury's verdict on Counts I through VI of the indictment. On appeal, Klein argues that the "evidence is factually insufficient to support the jury's verdict in that the only probative evidence is the outcry statement which lacks any specifics as to the allegations in the indictment." [Emphasis added.] Specifically, Klein asserts that Miriam consistently recanted her allegations up to and during the trial and that the testimony of Todd, Officer Cook, and Miriam's classmate, S.A., was inadmissible hearsay. Furthermore, Klein argues that "[w]ithout these statements[,] the State has no evidence of any of the allegations set out in the indictment. CPS made no home visits, no physical evidence was recovered nor was there any attempt to have [Miriam] physically examined." However, the jury heard Miriam's outcry statements and her testimony recanting those statements. The reconciliation of evidentiary conflicts is a function solely within the province of the jury. Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986). Thus, the jury could have chosen to believe either Miriam's outcry statements, her testimony recanting those statements, or neither. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 2003) (stating that the jurors are the exclusive judges of the credibility of the witnesses and the weight to be given the evidence, and they are free to choose to believe all, some, or none of it). Furthermore, in our prior opinion, we noted that in a sufficiency review "`all the evidence' means all admitted evidence, even evidence improperly admitted." See Klein v. State, 191 S.W.3d 766, 775 (Tex. App.-Fort Worth 2006) ( Klein I), rev'd, 273 S.W.3d 297, 298"99 (Tex. Crim. App. 2008) ( Klein II). Therefore, Todd's, Officer Cook's, and S.A.'s testimonies are admissible for sufficiency purposes. Finally, a child victim's outcry statement alone can be sufficient to sustain a conviction for aggravated sexual assault. Kimberlin v. State, 877 S.W.2d 828, 831 (Tex. App.-Fort Worth 1994, pet. ref'd) (citing Rodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim. App. 1991)). There is no requirement that properly admitted outcry testimony be corroborated or substantiated by the victim or independent evidence. Id. Here, the jury heard Batchelder testify that Miriam told Batchelder that Klein had touched her between her legs with his fingers and with his tongue most nights when her mother was at a dance class. The jury also heard Todd testify that Miriam had told Todd that Klein had touched her vagina with his fingers and with his tongue many times when her mother was at a dance class on Monday nights. And, the jury heard Klein testify that his wife's dance classes lasted six to eight weeks. Thus, as the court of criminal appeals pointed out in Klein II, "The evidence that [Klein] touched [Miriam's] sexual organ with his fingers and with his tongue `most nights' or `many times' when the complainant's mother was at dance class on Monday nights is `specific evidence of separate' sexual assaults that occurred `on at least four separate occasions' during this six to eight week period of time." Klein II, 273 S.W.3d at 303. Therefore, after viewing all the evidence in a neutral light, favoring neither party, I would hold that the evidence presented was not so weak that the jury's verdict on Counts I through VI was clearly wrong or manifestly unjust, and that the conflicting evidence does not so greatly outweigh the evidence supporting the jury's verdict as to render the verdict manifestly unjust. See Watson v. State, 204 S.W.3d 404, 414-15, 417 (Tex. Crim. App. 2006); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Accordingly, I would overrule the remaining portion of Klein's second point that is on remand and address Klein's remaining argument that the trial court erred by stacking his seven probated sentences on top of his sentence of incarceration.
See Tex. R. App. P. 47.4.
Moreover, the court of criminal appeals concluded that Miriam's prior out-of-court statements to Todd and Officer Cook, were "offered to rebut an express or implied charge against [Klein] of recent fabrication or improper influence or motive" and therefore the trial court's decision to admit the statements was entirely within the bounds of reasonable disagreement. See Klein II, 273 S.W.3d at 313, 316-17.