Opinion
05-22-00482-CR
06-28-2023
KRISTIAN MICHAEL WRIGHT, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from the 354th Judicial District Court Hunt County, Texas Trial Court Cause No. 33838CR
Before Justices Nowell, Goldstein, and BreedloveMEMORANDUM OPINION
BONNIE LEE GOLDSTEIN JUSTICE
Kristian Michael Wright appeals his continuous sexual abuse of a young child conviction. A jury convicted appellant and sentenced him to forty-five years' confinement. In four issues, appellant argues: (1) the trial court erred in submitting an instruction on article 38.37 of the code of criminal procedure without also submitting a limiting instruction; (2) article 38.37 section 2(b) of the code of criminal procedure is unconstitutionally void for vagueness; (3) he was egregiously harmed by the prosecutor's argument; and (4) the evidence was legally insufficient to support his conviction. We affirm the trial court's judgment.
BACKGROUND
In August 2021, appellant was charged by indictment with continuous sexual abuse of a child younger than fourteen. Specifically, the indictment alleged appellant intentionally and knowingly engaged in sexual contact with "Jane Doe" by contact between the hand of appellant and the genitals of Doe and causing the penetration of Doe's female sexual organ with appellant's finger and male sexual organ.
At trial in May 2022, Doe testified that, when she was "11 or 12," appellant put his hand in her underwear and "would just leave his hand on [her] vagina." When asked how many times this happened, Doe answered, "[a] lot." Doe testified appellant "actually put his fingers in me," and the sexual abuse continued for more than a year until Doe "told [her] mom." The last thing Doe remembered happening was that appellant got "on top of [her] a little bit and put something in [her] that didn't really feel like his fingers." Doe testified she thought appellant was having sex with her.
Among other things, the jury charge instructed the jury as follows:
Evidence may have been introduced in this case regarding the defendant having committed other offenses of indecency with a child or sexual assault of a child. You are instructed that you can consider any such evidence for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant.
You cannot consider this evidence for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other acts, if any were committed.
The jury convicted appellant of continuous sexual abuse of a child under fourteen, as charged in the indictment. This appeal followed.
DISCUSSION
In his first issue, appellant argues the trial court's instruction on article 38.37 section 2(b) of the code of criminal procedure was "fundamentally erroneous absent a limiting instruction." Specifically, appellant complains that, "without a limiting instruction, the jury could have concluded that they could convict Appellant based on the conduct with the other young women." Appellant also asserts that the charge deprived him of the right to be tried only upon the allegations in the indictment.
A jury-charge-claim analysis involves two steps: first, we determine whether the charge is erroneous; if it is, then we must decide whether the appellant was harmed by the erroneous charge. Alcoser v. State, 663 S.W.3d 160, 165 (Tex. Crim. App. 2022). When a defendant timely objects to the charge at trial, reversal is required if the reviewing court finds "some harm" to the defendant. Mendez v. State, 545 S.W.3d 548, 552 (Tex. Crim. App. 2018). On the other hand, when a defendant does not object to the charge, we review the record for egregious harm. Sanchez v. State, 376 S.W.3d 767,775 (Tex. Crim. App. 2012). To establish egregious harm, appellant must show that he has suffered actual, rather than merely theoretical, harm. Ngo v. State, 175 S.W.3d 738, 750 (Tex. Crim. App. 2005). Errors that result in egregious harm are those that affect the very basis of the case, deprive the defendant of a valuable right, or vitally affect a defensive theory. Id. In examining the record for egregious harm, we consider (i) the entire jury charge, (ii) the state of the evidence, including the contested issues and the weight of the probative evidence, (iii) the final arguments of the parties, and (iv) any other relevant information revealed by the record of the trial as a whole. Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008). Appellant failed to object to the jury instruction.
Because an accused must be tried only for the offense for which he is charged and may not be tried for a collateral crime or for being a criminal generally, extraneous offense evidence is usually not admissible "to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." Stafford v. State, 813 S.W.2d 503, 506 (Tex. Crim. App. 1991); see also Tex. R. Evid. 404(b)(1) (evidence of "a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character").
In prosecutions for crimes against children, however, article 38.37 permits admitting evidence of extraneous offenses under certain circumstances. This exception exists because society, the legal system, and in particular, the legislature, have recognized that the unique nature of sexual assault crimes justifies admitting extraneous offense evidence, even though traditional notions of due process generally caution against admitting such evidence. See Jenkins v. State, 993 S.W.2d 133, 136 (Tex. App.-Tyler 1999, pet. ref'd) ("The special circumstances surrounding the sexual assault of a child victim outweigh normal concerns associated with evidence of extraneous acts."). Child sex offense prosecutors encounter evidentiary problems because they must typically rely on largely uncorroborated testimony of the child victim, making the child's credibility the focal point. See Belcher v. State, 474 S.W.3d 840, 845 (Tex. App.-Tyler 2015, no pet.); see also Harris v. State, 475 S.W.3d 395, 388-403 (Tex. App.-Houston [14th Dist.] 2015, pet. ref'd) (legislature carved out specific and limited exceptions to prohibition against using extraneous offenses).
Thus, in prosecutions for sexual offenses against children under the age of seventeen, section two of article 38.37 permits admitting evidence concerning extraneous offenses committed by the defendant:
Notwithstanding Rules 404 and 405, Texas Rules of Evidence, and subject to Section 2-a, evidence that the defendant has committed a separate offense described by Subsection (a)(1) or (2) may be admitted in the trial of an alleged offense described by Subsection (a)(1) or (2) for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant.Tex. Code Crim. Proc. art. 38.37, § 2(b).
Before evidence described by section two may be introduced, the trial judge must:
(1) determine that the evidence likely to be admitted at trial will be adequate to support a finding by the jury that the defendant committed the separate offense beyond a reasonable doubt; and
(2) conduct a hearing out of the presence of the jury for that purpose.Tex. Code Crim. Proc. art. 38.37, § 2(a).
Prior to trial, the trial court conducted a 38.37 hearing at which the trial court determined certain testimony from other victims of appellant's abuse "could lead the jury to find beyond a reasonable doubt that [appellant] committed the offense." The jury charge here tracked the statutory language and required the jury to first "find and believe beyond a reasonable doubt that the defendant committed such other acts" before considering for any purpose other offenses of indecency with a child or sexual assault of a child. Thus, the jury charge conformed to the language of article 38.37. Moreover, appellant did not object to the jury charge at trial nor request any further limiting instruction. Appellant has never specified, either at trial or on appeal, what additional limiting instruction the trial court might have included in the charge. Under these circumstances, we conclude the trial court did not err in instructing the jury as it did with respect to the consideration of evidence pursuant to article 38.37. See Tex. Code Crim. Proc. art. 38.37, § 2(a), (b); Jenkins, 993 S.W.2d at 136. Even assuming for the sake of argument that the trial court erred, we cannot conclude appellant was egregiously harmed by the charge as submitted. See Ngo, 175 S.W.3d at 750. We overrule appellant's first issue.
Prior to the charge being read to the jury, the trial court conferred with counsel and confirmed that the corrections discussed were all made, including a discussion of the 38.17 language, and elicited that there was no objection to the wording.
In his second issue, appellant argues article 38.37 § 2(b) is "unconstitutionally void for vagueness." This Court has previously held that article 38.37 is constitutional. See Mayes v. State, No. 05-16-00490-CR, 2017 WL 2255588, at *18-19 (Tex. App.-Dallas May 23, 2017, pet. ref'd) (mem. op., not designated for publication), cert. denied, 139 S.Ct. 77 (2018) (rejecting, among other things, appellant's complaint that section 2's "grant of any broad character evidence on this vague topic" was "completely unconstitutional"). We overrule appellant's second issue.
In his third issue, appellant asserts that the prosecutor's "argument misstating the law" egregiously harmed appellant. Specifically, appellant complains of the following argument:
Normally the law says that just because you killed someone with an ax in the past doesn't mean that I can say that you did it this time with an ax just because this person died with an ax.
However, in cases like this where it meets the criteria of 38.37 in sexual assault cases against children where there are other sexual assault allegations that meet the criteria, you are allowed to not only consider that evidence, but consider it for any purpose.
Appellant argues that, "[I]f art. 38.37, § 2 is void for vagueness, the argument could not be correct," and "the thrust of the prosecutor's argument was that Appellant could be convicted alone upon this evidence." We reject appellant's arguments.
Because section 2 of article 38.37 is not void for vagueness, the prosecutor's argument was a correct statement of article 38.37's effect. See id. Further, "[a]ppropriate jury argument generally falls within only four areas: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) answer to argument of opposing counsel; and (4) a plea for law enforcement." Ex parte Scott, 541 S.W.3d 104, 119 (Tex. Crim. App. 2017). The prosecutor's argument did not state that appellant could be convicted solely on the basis of extraneous offense evidence; instead, the argument correctly summarized the effect of article 38.37. See Tex. Code Crim. Proc. art. 38.37, § 2(a), (b); Ex parte Scott, 541 S.W.3d at 119. Accordingly, we conclude the prosecutor's argument in this case was proper. See Ex parte Scott, 541 S.W.3d at 119. We overrule appellant's third issue.
In his fourth issue, appellant argues the evidence was insufficient to support his conviction for continuous sexual abuse of a child. Specifically, appellant complains that "the complainant provide[d] no time references" regarding the abuse and only testified the abuse occurred "when she was between 11 and 12 years of age."
When an appellant challenges the sufficiency of the evidence to support a conviction, we review all 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. Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012). Evidence is sufficient if "the inferences necessary to establish guilt are reasonable based upon the cumulative force of all the evidence when considered in the light most favorable to the verdict." Id. If the evidence is conflicting, we "'presume that the factfinder resolved the conflicts in favor of the prosecution' and defer to that determination." Id. (quoting Jackson v. Virginia, 443 U.S. 307, 326 (1979)). This standard is the same for both direct and circumstantial evidence. Id.
The testimony of a child victim alone is sufficient to support a conviction for continuous sexual abuse of a child. See Tex. Code Crim. Proc. Ann. art. 38.07; Lee v. State, 186 S.W.3d 649, 655 (Tex. App.-Dallas 2006, pet. ref'd). A child victim is not required to be specific about the dates the abuse occurred. See Dixon v. State, 201 S.W.3d 731, 736 (Tex. Crim. App.2006) ("Especially where young children are involved, we have cautioned that courts cannot impose unrealistic expectations regarding proof of when an offense actually occurred[.]"); Sledge v. State, 953 S.W.2d 253, 256 n.8 (Tex. Crim. App. 1997) ("[I]t is not often that a child knows, even within a few days, the date that she was sexually assaulted. . . . In this case, for instance, the child victim was repeatedly sexually assaulted over a period of seven years, but she never could name an exact date of any of the offenses."); Williams v. State, 305 S.W.3d 886, 890 (Tex. App.-Texarkana 2010, no pet.).
Here, Doe testified that appellant repeatedly sexually assaulted her when she was "11 or 12," and she testified the sexual abuse continued for more than a year until Doe "told [her] mom." Doe testified to the specific details of the sexual assaults, and her testimony established the elements of the offenses as alleged in the indictment. We conclude that a rational jury could have found the State proved the elements of continuous sexual abuse of a child beyond a reasonable doubt. See Wise, 364 S.W.3d at 903. We overrule appellant's fourth issue.
We affirm the trial court's judgment.
JUDGMENT
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.