Opinion
No. 05-10-01100-CR No. 05-10-01101-CR
12-20-2011
MICHAEL STEPHEN TAYLOR, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM; Opinion issued December 20, 2011
On Appeal from the 397th Judicial District Court
Grayson County, Texas
Trial Court Cause Nos. 059051 and 059052
OPINION
Before Justices FitzGerald, Murphy, and Myers
Opinion By Justice FitzGerald
A jury found appellant Michael Stephen Taylor guilty of one count of indecency with a child and three different counts of sexual assault of a child. The same child, B.H., was the complaining witness in each charged offense. The jury assessed appellant's punishment at ten years' imprisonment for each of the four offenses. Appellant raises three issues, all related to B.H.'s testimony. We affirm the trial court's judgments. Background B.H. was fifteen years old at the time of the charged conduct; appellant was forty-one. B.H. lived across the street from the Taylor family in Grayson County. Appellant trained horses. B.H. helped take care of the horses and helped show horses in various venues. In return, she was permitted to ride on the Taylors' property. It is undisputed the two became close. Appellant was charged with indecency and sexual assault based in part on B.H.'s statements to authorities and statements she had written and made to appellant and others. However, at trial B.H. denied ever having any sexual relationship with appellant; she testified they were merely friends. The jury convicted appellant, and this appeal followed.
Evidentiary Hearing for Motion for New Trial
In appellant's first issue, he contends the trial court erred when it disallowed certain evidence at the hearing on his motion for new trial. Appellant filed a single motion for both cases, which raised two specific grounds: juror misconduct and the State's use of perjured testimony from B.H., who was the first witness called by the State. At the hearing, the trial court heard evidence on the juror misconduct issue but refused to hear evidence concerning the allegations of perjury. This refusal forms the basis of appellant's first issue.
A defendant is entitled to a hearing on his motion for new trial if (1) the motion and accompanying affidavit raise matters that cannot be determined from the record, and (2) the matters to be raised could indicate the defendant is entitled to relief. Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993). The motion and affidavit must establish that reasonable grounds exist for holding that such relief could be granted. Wallace v. State, 106 S.W.3d 103, 108 (Tex. Crim. App. 2003). The purpose of the hearing is to give the defendant an opportunity to fully develop the matters raised in his motion. Id. We review the trial court's denial of an evidentiary hearing for an abuse of discretion. Id.
In this case, B.H.'s trial testimony was absolutely consistent. Regardless of what she was shown or what she was asked, B.H. denied ever having any sexual contact with appellant. The State confronted B.H. with pages from her diary, and with text messages to Taylor, that indicated the relationship was not platonic. B.H. acknowledged having written them, but she testified either that she had made them up to spite her mother or appellant's ex-wife, or that she did not remember them at all. Likewise, when questioned concerning statements she had made indicating she and appellant did have sexual contact, that they had sex once, and that they had sex multiple times, she testified she had made the statements because her parents were threatening her if she did not say what they wanted, or because she was afraid the authorities would punish her if she did agree with them. In sum, B.H. consistently denied any conduct by appellant that would support his conviction.
Appellant's motion for new trial contends the State called B.H. and elicited false testimony from her. He further contends the State used this testimony during its case in chief and thereby denied him due process. Citing an unpublished case from this Court, appellant argues that "when false testimony is used, due process demands a conviction be set aside." See Nguyen v. State, No. 05-07-01775-CR, 2009 WL 755412, at *3 (Tex. App.-Dallas Mar. 24, 2009, no pet.). Appellant's counsel's affidavit accompanies the motion. It states in relevant part:
During the course of the trial, I also specifically recall the State calling [B.H.] during its case in chief as a principal witness. [B.H.] was the alleged victim in both underlying offenses for which Defendant was being tried. It is my recollection that the State, after considerable effort, believed that [B.H.] was being disingenuine [sic] or providing false testimony. [B.H.] was indeed the State's witness, and her testimony was both elicited and used by the State during its case in chief in the trial of these matters. It is further my understanding that [B.H.] has been charged with Aggravated Perjury allegedly committed on or about June 14, 2010 during the trial of this cause.After reviewing B.H.'s testimony and appellant's motion and affidavit, we conclude appellant's argument must fail under both prongs of the Reyes test. See Reyes, 849 S.W.2d at 816 (testimony should be heard if (1) motion and accompanying affidavit raise matters that cannot be determined from record, and (2) matters to be raised could indicate defendant is entitled to relief). First, given the content of B.H.'s testimony, the only possible inquiry of perjury by the county involved her denial of sexual contact with appellant. She did not testify to any other significant fact. Thus, there was no need for further inquiry into matters that could not be determined from the record. See id. Second-and more importantly-nothing about B.H.'s perjury could have entitled appellant to relief because her perjured testimony was in appellant's favor. If the jury believed her, appellant would not have been convicted. Thus, appellant's effort to brand B.H. a perjurer could not indicate he was entitled to relief of any sort. See id.
The bare fact a witness lies is not sufficient to require additional evidence at a motion for new trial hearing: evidence must be taken when a motion for new trial provides a reasonable basis to believe that further evidence could entitle the defendant to relief. See Wallace, 106 S.W.3d at 108. Any evidence that B.H. lied in appellant's case would only make his conviction that much more certain. We overrule appellant's first issue.
Admissible Proof of Venue
Appellant's second and third issues are related. In his second issue, appellant contends the trial court erred in admitting hearsay evidence offered to impeach B.H. Appellant further contends the State called the complaining witness for the sole purpose of impeaching her with that evidence. Then, in his third issue, appellant contends the evidence is legally insufficient to establish venue in Grayson County because there was no substantive evidence of any offense committed there. State's Exhibit 8 is the complaining witness's interview with the Grayson County Sheriff's Department; it is central to both of these issues.
We review a trial court's decision to admit evidence under an abuse of discretion standard. McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005). If the trial court's decision was within the "bounds of reasonable disagreement," we do not disturb the ruling. Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim. App. 2005). As a general rule, the credibility of a witness may be attacked by any party, including the party calling the witness. Tex. R. Evid. 607. However, appellant correctly asserts that courts have refused to allow impeachment by prior inconsistent statements to be used "as a mere subterfuge to get before the jury evidence not otherwise admissible." See Hughes v. State, 4 S.W.3d 1, 4 (Tex. Crim. App. 1999).
Appellant argues the State did precisely that: calling B.H., knowing she would lie, so that it could admit her statement to the Sheriff's Department through its representative. The statement, appellant contends, was hearsay; thus, it was otherwise inadmissible. And the statement, appellant further contends, is the only evidence that any charged conduct occurred in Grayson County as venue rules require. But appellant overlooks the totality of the circumstances under which the State called B.H. to testify. She was the complaining witness in all four charged offenses: the State had to try to prove its case through her, given that there would be no eye witnesses to the intimate conduct at issue. Moreover, B.H. assured the prosecutor one week before trial that she would tell the truth. The State was entitled to call her and hope that she would keep her word. Indeed, despite her recantation, B.H. did provide the State with some necessary evidence: she proved up pages from her diary and text messages she had sent and received; she established her age.
We conclude the State acted within its prerogative to choose its witnesses when it called B.H. to testify. We further conclude the trial court did not abuse its discretion in admitting evidence, specifically State's Exhibit 8, that impeached B.H.'s testimony concerning her relationship with appellant. However, appellant is correct that impeachment evidence is not substantive evidence which can be used for the truth of any matter it contains. The jury could use State's Exhibit 8 solely to make credibility decisions. The trial court made this clear when he admitted the exhibit, saying:
Appellant has not challenged any other impeachment evidence on appeal.
but in my view, just for the record, I'm making my ruling based on Rule 613, and the statements of her testimony based on yesterday and, you know, what she said and why she said she did it, I think, it's admissible for those purposes.With this limitation in mind, we overrule appellant's second issue.
The ultimate issue, then, becomes whether there is evidence of an offense in Grayson County. The State is required to prove venue by a preponderance of the evidence. See Tex. Code Crim. Proc. Ann. art. 13.17 (West 2005); Murphy v. State, 112 S.W.3d 592, 604 (Tex. Crim. App. 2003). Thus, when reviewing whether there is legally sufficient evidence of venue, we view all the evidence in the light most favorable to the verdict and then determine whether a rational trier of fact could have found venue was proper by a preponderance of the evidence. Dewalt v. State, 307 S.W.3d 437, 457 (Tex. App.-Austin 2010, pet. ref'd). Venue may be proven by direct or circumstantial evidence. Braddy v. State, 908 S.W.2d 465, 467 (Tex. App.-Dallas 1995, no pet.). The fact-finder may draw reasonable inferences from the evidence. Id.
Appellant contends that the State must prove venue beyond a reasonable doubt, because the venue allegation was included within the application paragraph of the charge. However, the charge also instructed the jury that venue need be proven only by a preponderance of the evidence. Moreover, the sufficiency of the evidence is judged by the hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 239-40 (Tex. Crim. App. 1997). We reject appellant's contention that an error in the charge increased the State's burden in this case.
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State's Exhibit 8 cannot provide the answer on its own. As we have discussed, it is not substantive evidence. However, it does provide a broad basis for adjudging the complaining witness's credibility. The jury clearly believed B.H. had not told the truth concerning her relationship with appellant. Part and parcel of denying the conduct was a denial of any specific location of the conduct. Jurors could very well have believed she was not telling the truth about anything the State asked her, including where she had spent time with appellant. However, we conclude the jury could have rationally reached its venue finding without regard to State's Exhibit 8 at all. As the State argues, it presented evidence from which jurors could have inferred that appellant had implicitly admitted that charged conduct had occurred in Grayson County. Appellant's wife, suspicious of a relationship between him and B.H., created and disseminated a story that she had videotaped the two of them having sex. When telling the story, she displayed a camera and an extension cord that was estimated to be 50 to 100 feet long. And while appellant's wife would not divulge precisely where she had purportedly recorded the tapes, she did say they could have been made at her home, lake house, or barn. All of those locations, it was confirmed, are in Grayson County. The story traveled through two women who were mutual friends of appellant and his wife. When the story reached appellant, he met with his wife and acknowledged what he had done. A rational juror could have concluded appellant would not have done so unless he believed the videotapes could have been made where his wife claimed they were made. Thus, jurors could have inferred that appellant acknowledged charged conduct occurred in Grayson County. When we look at the evidence in the light most favorable to the verdict, we conclude a rational trier of fact could have found venue in Grayson County was proper by a preponderance of the evidence. See Dewalt, 307 S.W.3d at 457.
But even if there had been insufficient evidence of venue in this case, we would find any error harmless. Failure to prove venue is non-constitutional error; it will not result in reversal unless the error affected the defendant's substantial rights. State v. Blankenship, 170 S.W.3d 676, 683 (Tex. App.-Austin 2005, pet. ref'd). "A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict." Id. The issue of venue did not affect the court's jurisdiction; venue was not an element of any charged offense. See Dewalt, 307 S.W.3d at 460. Venue in Grayson County was also consistent with the legislative purposes of the venue statutes:
Venue statutes function to ensure that jurors have a natural interest in the case because it touched their community; to ensure that prosecutions are initiated in counties that have some factual connection to the case, thus minimizing inconvenience to parties and witnesses; to aid predictability in judicial caseloads, and to prevent forum-shopping by the State.Id. (citing George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 2.02 (2001)). In this case, appellant and the complaining witness both lived in Grayson County. Appellant worked in the county, and B.H. lived with her parents and attended school there. Their daily interaction happened there. We have no indication that the State was engaged in forum-shopping when it brought this case in Grayson County. On the record before us, we cannot conclude that venue in Grayson County could have affected appellant's substantial rights. We overrule appellant's third issue.
We have decided each of appellant's issues against him. We affirm the judgments of the trial court.
ERRY P. FITZGERALD
JUSTICE
Do Not Publish
Tex. R. App. P. 47
101100F.U05