Opinion
No. 05-03-01286-CR
Opinion Filed June 10, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-39919-TU.
Affirmed.
Before Justices WRIGHT, O'NEILL, and FRANCIS.
OPINION
A jury convicted Stephen Andre Martin of aggravated sexual assault of his daughter and assessed punishment at fifteen years in prison. In three issues, appellant complains about the factual insufficiency of the evidence and two evidentiary rulings. We affirm. In February 2002, a teacher intercepted a note written by appellant's then twelve-year-old daughter, K.M., which referred to "the rape thing." K.M. was questioned about the note and told authorities that her father had "raped" her five months earlier. At trial, K.M. said she was sleeping with her father in her parents' bedroom. She awakened and appellant was rubbing his penis against her "private part." Both were naked. K.M. told her father to stop, and he did. K.M. said appellant did not penetrate her. He blamed his conduct on "his medicine." Appellant left the room, and K.M. put on her clothes and went back to sleep. Although K.M. testified that she too believed her father acted because of the medication he was taking, she also testified that her father had touched her private parts on previous occasions. Once the incident was reported, appellant was arrested and gave the police a signed, written statement. In the statement, appellant explained that he had "many medical difficulties" and was taking Lithium and two other drugs. The drugs caused problems with his memory and focus. Appellant said he was "doing things that were not characteristic" of him, such as leaving the coffee pot on and losing his keys. According to appellant's statement, this went on for several months and got worse:
I didn't know where I was half the time and I didn't know what to do, I was so confused and the medicines were not doing what they said, I had turned to my daughter for strength during this time, she was always reminding me to take my medicine and asking if I felt alright. Basically Trying to take care of me since Tina (my Wife) was working so much. One night last year around September Tina was at work and I was at home with The kids, everyone had gone to bed and [K.M.] had come into my room to say good night and we started talking we talked for a while and then somewhere the tone change and we were laying in my bed holding each other things got out of hand and There was a lot of Touching and Kissing. I don't know how this happened I'm totally against stuff like this But I do know all of the sudden something snapped and I put a stop to it, I could not believe it. The last thing That I wanted ever to happen was to hurt my daughter I love her so much, and now, even though there was no penetration I Felt dirty and discussted and Thank god it stopped.Appellant said within the two weeks of the incident, he stopped taking all the medication and felt "much better now." Appellant did not testify at trial. His defense was that he was on Lithium, thought he was in bed with his wife, and when he realized it was his daughter, he stopped. Tina Martin, K.M.'s mother and appellant's wife, testified that she believed appellant's actions were caused by the drugs. Mrs. Martin testified the medications "completely changed" appellant and made him "disoriented, confused." One day, she came home and found him passed out on the floor and it took her thirty minutes to rouse him. She said these reactions to the medicine lasted about six months, and it was during this six months that K.M. was assaulted. Once appellant stopped taking the medicines, Mrs. Martin said he "had a clearer mind" and "was more focused." Appellant's psychiatrist, Dr. Frank E. Lane, testified he began treating appellant in May 2002, which was eight months after the incident and three months after appellant's arrest. Dr. Lane concluded that appellant suffered Lithium neurotoxicity, a condition in which Lithium accumulates in a patient's brain and disrupts its normal functioning. Lithium toxicity can cause a "broad range of disturbances in thought and behavior," according to Dr. Lane, who likened the condition to "poisoning of the brain." Dr. Lane believed appellant was affected by Lithium neurotoxicity at the time he assaulted K.M. and believed appellant was "confused and foggy" and "thought he was in his bedroom and getting in bed with his wife." On cross-examination, Dr. Lane acknowledged his opinion was based on facts given to him by appellant, including the dosage of the medication he was taking at the time of the assault. However, appellant had not shared some of the facts found in his voluntary statement, such as that he and K.M. had become close while his wife was working long hours; that the two had been kissing and touching prior to the assault; or that he had put K.M. on top of him. When asked if his opinion would change if appellant had assaulted another twelve-year-old girl, Dr. Lane replied it depended on whether appellant was under the influence of Lithium at the time because "any aberrant behavior could be possible." In rebuttal, the State called K.M.'s friend, H.C.H.C. testified she spent the night with K.M. on several occasions. In 2001, she and another friend, M.R., spent the night with K.M.H.C. was asleep on the couch and awakened to find appellant standing over her with his hand down her pants. Appellant asked H.C. if he was "going to arouse" her, and she rolled over on her stomach and pretended to be asleep. H.C. said appellant seemed "perfectly fine" and did not seem to be dazed or confused. The next morning, she and M.R. were talking about what happened, and K.M. overheard part of the conversation. K.M. asked, "It was my dad, wasn't it?" M.R. and H.C. did not respond. According to H.C., M.R. told her appellant had done the same thing to her. In his first issue, appellant argues the trial court erred in admitting the extraneous offense involving H.C. at the guilt-innocence phase of trial. Within this issue, he complains the trial court erred (1) by not conducting a hearing outside the presence of the jury on the extraneous offense evidence, (2) in finding the evidence admissible under Texas Rule of Evidence 404(b), and (3) in finding its probative value was not outweighed by danger of unfair prejudice pursuant to rule of evidence 403. We address each argument in turn, beginning with his complaint that the trial court was required to hold a hearing before admitting the evidence. At trial, the defense offered Dr. Lane's testimony that appellant's abuse of his daughter was caused by Lithium neurotoxicity. At the time, there was a discussion as to whether the evidence raised a "mistake of fact" issue, and the State informed the judge and defendant that if the psychiatrist were allowed to testify, the State intended to present evidence of "other victims." After Dr. Lane testified, the State announced its plans to call H.C. in rebuttal. This offense, according to the trial judge, was the subject of a different indictment, and appellant was on notice of it. Appellant objected to the "extraneous offense" and sought a hearing outside the presence of the jury to see if the offenses were "credible beyond a reasonable doubt" and "to see if the probative value outweighs the prejudicial value." The parties then "went off the record" to discuss the matter. Subsequently, on the record, appellant's counsel told the judge any such hearing was discretionary, and the judge said, "Then I'll exercise my discretion and not have the hearing." Appellant's complaint on appeal suggesting such a hearing was required is contrary to the representation he made to the trial judge. We consider this complaint waived for appellate purposes. Regardless, no such hearing is required. See Malpica v. State, 108 S.W.3d 374, 377 (Tex. App.-Tyler 2003, no pet.); Moore v. State, 82 S.W.3d 399, 409 (Tex. App.-Austin 2002, pet. ref'd). The trial judge must make a preliminary determination of relevance and admissibility, which can be satisfied by some form of preliminary review other than a hearing in which the witness testifies. Malpica, 108 S.W.3d at 377. Here, the record is clear the judge was aware that H.C. was the complaining party in another indictment, appellant was aware of the indictment, and the evidence was being offered to show that appellant did not mistakenly sexually assault his daughter. Ample information existed from which the judge could make a preliminary evidentiary ruling. Appellant next argues the evidence was inadmissible under rule 404(b). Rule 404(b) disallows evidence of other crimes, wrongs, or acts to prove a person acted in conformity with their character by committing the charged offense. See Tex. R. Evid. 404(b). However, extraneous offense evidence is admissible for other purposes, such as to show intent or absence of mistake. See Tex. R. Evid. 404(b). In this case, H.C. testified that while spending the night with K.M., appellant put his hand down her pants and asked if "he was going to arouse" her. According to H.C., appellant did not appear to be dazed or confused at the time. This evidence had a purpose apart from character conformity; it was relevant to show that appellant acted intentionally and knowingly with respect to K.M. and to rebut the defense theory it was an accident. See Bradshaw v. State, 65 S.W.3d 232, 237 (Tex. App.-Waco 2001, no pet.). The trial court did not err in admitting the evidence over a rule 404(b) objection. Last, appellant argues the evidence was inadmissible under rule 403. Appellant did not object to the evidence when it was admitted and did not object on this basis before it was admitted. Rather, appellant objected to the "extraneous offenses" and asked for a hearing "to see if" the probative value outweighed the prejudicial effect. Because this ground was not raised in the trial court, we conclude it is waived. See Tex.R.App.P. 33.1. The first issue is without merit. In his second issue, appellant argues the evidence is factually insufficient to support the jury's finding that he acted intentionally or knowingly. In particular, he asserts that he was on medication, Lithium, which caused him to act as he did. When conducting a factual sufficiency review on an issue, we review all the evidence in a neutral light and determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, No. 539-02, slip op. at 8, 2004 WL 840227 (Tex.Crim.App. Apr. 21, 2004). Evidence of guilt is factually insufficient if, when considered by itself, it is too weak to support the finding of guilt beyond a reasonable doubt. Id. When there is evidence both supporting and contrary to the verdict, "the contrary evidence may be so strong that the beyond-a-reasonable-doubt standard could not have been met." Id.
"This standard acknowledges that evidence of guilt can `preponderate' in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt." Id. Resolution of conflicts in the evidence and credibility of witnesses lies within the fact finder's exclusive province. Obigbo v. State, 6 S.W.3d 299, 305 (Tex. App.-Dallas 1999, no pet.).Appellant points to evidence that (1) K.M. testified that appellant's behavior completely changed due to the medication and that he would not have committed the offense if he had not been taking the medication; (2) Mrs. Martin testified the medications affected his personality and actions; (3) Dr. Lane attributed appellant's conduct to Lithium neurotoxicity and testified appellant was in a "confusional state that would be similar to a delirium where [appellant's] thinking process was impaired, his perception of the world around him was impaired, and that he couldn't really interpret reality correctly"; (4) evidence supports the inference that appellant believed he was in bed with his wife when he assaulted K.M; and (5) he was remorseful. Having considered all the evidence in a neutral light, we conclude the jury was rationally justified in finding beyond a reasonable doubt that appellant acted intentionally and knowingly when he sexually assaulted his daughter. While appellant presented a defense that Lithium neurotoxicity was to blame for his actions with his daughter, there was other evidence that he had fondled his daughter on previous occasions and he had engaged in inappropriate sexual behavior with at least one of his daughter's friends. His voluntary statement indicates his daughter had taken over the role of his wife. In his statement, appellant specifically said he and K.M. were in bed talking and holding each other when "things got out of hand" The jury could have believed that statement did not fit with appellant's defense that he thought he was in bed with his wife and then "snapped out of it" when K.M. asked him to stop. A jury could interpret appellant's statement to show that he knew he was kissing, touching, and engaging in sexual contact with his daughter. The evidence presented was neither too weak to support the finding of guilt beyond a reasonable doubt nor was contrary evidence so strong that the standard could not have been met. We reject appellant's second issue. In his third issue, appellant contends the trial court erred in admitting his written statement because it was not voluntary. Appellant first asserts that Detective John Stetser induced him to give the statement by promising that (1) he would go home immediately after writing the statement, (2) his family would get help, (3) he would be back with his family that night, and (4) he would be able to pick up his wife after work. Appellant also asserts he was under the influence of prescription drugs when he gave the statement. To be admissible, a confession must be freely and voluntarily made. Tex. Code Crim. Proc. Ann. art. 38.21 (Vernon 1979). A confession may be deemed involuntary if it is taken in violation of due process or due course of law because it was not freely given (e.g. coercion, improper influences). Wolfe v. State, 917 S.W.2d 270, 282 (Tex.Crim.App. 1996). In reviewing the voluntariness of a confession, we give almost total deference to the trial court's determination of historical facts in a suppression hearing. State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App. 2000). The trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. State v. Ballard, 987 S.W.2d 889, 891 (Tex.Crim.App. 1999). We review the evidence in the light most favorable to the trial court's ruling and cannot reverse the trial judge's decision on the admissibility of the evidence absent a clear abuse of discretion. Id. In the suppression hearing, Detective Stetser testified that he arrested appellant and took him to the Mesquite Police Department and interviewed him. Stetser read appellant his Miranda warnings and appellant signed the Miranda card. Twenty minutes later, appellant signed a five-page handwritten statement. Stetser said he did not coerce or force appellant to give a statement nor did he make appellant any promises in return for the statement. On cross-examination, Stetser testified he had a warrant for appellant's arrest and would not have told appellant he would be free to leave after talking to him. He did not recall telling appellant to tell his two sons that he would be right back and did not recall telling appellant that he would be able to "get his family back together that night." He also testified he saw no "impairment whatsoever" in appellant. Appellant testified he was on Lithium, Trazadone, and Zyprexa when he made his statement. He said he had a "total lack of focus and concentration" and had "no idea what was going on." Appellant testified that when Stetser came to his residence, Stetser did not show him an arrest warrant. He said Stetser told him that he had talked with K.M. and wanted appellant to come to the police station to talk. According to appellant, Stetser told him to tell his sons that he would be right back. Appellant said Stetser did not read him his Miranda rights before he gave his statement. He testified he was induced into giving the statement by Stetser's promises that his family would get the help they needed to "get you guys back together," and that he would be home by that night. On cross-examination, appellant identified his initials on the copy of the Miranda warning signature card, but said the time on the card was wrong. He acknowledged that despite his assertions that medication affected him, he remembered "clearly" what happened that day. He testified the medication did not cause him to give the statement, but impaired his judgment. With respect to both of appellant's complaints, the evidence is conflicting. Although appellant testified Stetser made certain promises that induced him to give the statement, Stetser testified he made no promises. Similarly, appellant's testimony that he was on medication at the time he gave the statement was contradicted by the statement itself. The trial court made any determinations as to witness credibility and weight to be given their testimony. We conclude the trial court did not err in failing to suppress appellant's written statement. Issue three is without merit. We affirm the trial court's judgment.