Opinion
No. 11-14-00048-CR
01-28-2016
On Appeal from the 29th District Court Palo Pinto County, Texas
Trial Court Cause No. 14780
MEMORANDUM OPINION
The jury convicted Appellant of the offense of aggravated sexual assault of a child as charged in the indictment and assessed his punishment at confinement for ninety-nine years and a fine of $10,000. The trial court sentenced him in accordance with that verdict. We affirm.
There is no challenge to the sufficiency of the evidence. Although Appellant offers us neither factual recitations nor factual references in his brief, we will, in an effort to provide context, give a brief overview of the facts.
Appellant is E.C.'s father. Rachel Brunson is E.C.'s mother. Jeri Douglas is E.C.'s maternal grandmother. Douglas testified that in 2011, in accordance with a court order, she was the sole managing conservator of E.C. and E.C.'s younger sister; the children had begun living with her on June 4, 2010. E.C.'s parents had the right to exercise visitation with E.C. and her sister. Visitation usually took place every Saturday for a few hours, but there were times when the children stayed overnight.
In September 2011, Douglas began to notice that E.C. had started masturbating by aggressively rubbing herself with her dolls and stuffed animals. Douglas testified that she had seen E.C. masturbate "five, six [times] at least." She witnessed the behavior "all within a couple of weeks of each other." E.C. had gone to her parents for an overnight visit just prior to the onset of the episodes. Douglas told E.C. to stop, but she did not.
Finally, Douglas asked E.C. how she knew how to "do something like that." Ultimately, even though she said it was a secret, she "burst into tears" and told Douglas that her "daddy" showed her; he was teaching her things. Using terms familiar to her, E.C. told Douglas that Appellant had put his penis in her vagina, bottom, and mouth, and had also put his mouth on her genital area. E.C. was five years old in September 2011, the date of the offense as alleged in the indictment. At the time of trial, E.C. had been undergoing counseling for two years and her parents' parental rights to her and her sister had been terminated.
The State presented testimony from E. Araceli Desmarais, R.N., a Cook Children's Medical Center sexual assault nurse examiner who examined E.C., and from Dr. Denise Paquette Boots, an associate professor of criminology at the University of Texas at Dallas. Both Desmarais and Dr. Boots gave testimony and opinions that supported Douglas's testimony and the State's theory of the case. At the time of trial, E.C. was in the second grade and was available to testify.
Appellant testified that he did not abuse E.C. He claimed that Douglas was testifying the way that she did because she wanted custody of the children.
The jury, as the judge of the credibility of the witnesses and the weight to be given to their testimony, apparently believed the State's evidence and rejected that of Appellant. On appeal, Appellant does not claim otherwise.
In his first issue on appeal, Appellant claims that "[t]he trial court denied Appellant the Right to a Fair trial when it forced him into jail because he did not have an attorney." It seems that Appellant's argument then morphs into one in which he asserts that the trial court erred when it did not advise him of the dangers of self-representation. The argument morphs again into one in which Appellant asserts that he was denied a fair trial because he could have been of more assistance to his counsel if he had not been incarcerated.
First, this is not one of those habeas corpus cases in which the claim is made that the trial court has placed an illegal restriction or condition on an accused's bond. See Meador v. State, 780 S.W.2d 836 (Tex. App.—Houston [14th Dist.] 1989, no pet.). Secondly, the State claims that there is nothing in the record to show that Appellant ever represented himself or even wanted to do so. We have not been able to find any such request or representation in the record, and Appellant has pointed us to none. As far as Appellant's claim that he could have been of more assistance to his counsel if he had not been incarcerated, Appellant has not shown what would have been different or how he could have helped his lawyer had he been allowed to remain on bond while his case was pending. Further, it is far from a rare occurrence that those who are accused of crimes are tried while incarcerated. Importantly, Appellant has cited no authority in support of any of his propositions. See TEX. R. APP. P. 33.1, 38.1(i). We overrule Appellant's first issue on appeal.
In his second issue on appeal, Appellant argues that the trial court abused its discretion when it overruled a challenge for cause that he made against venireperson David McClure. At the conclusion of the initial voir dire by both sides, the trial court allowed the attorneys to individually question those potential jurors against whom Appellant had lodged a challenge for cause.
McClure was one of the potential jurors who was questioned individually. McClure stated that fewer things made him angrier than child molestation. He said that his anger would affect his ability to make a clear judgment because "[a]nger always affects everybody's ability to make clear judgments." However, McClure testified that he would do his best. Appellant's trial counsel asked McClure the question: "[C]an you be fair both to the State and to the Defense to listen to all of the evidence and not have any preconceived notions or let anything affect your judgment other than the facts that are given to you in this trial?" McClure replied, "Well, I just said that I couldn't do it."
After Appellant's attorney had questioned McClure, the attorney for the State told McClure that the question was not whether he could be fair but, rather, that the proper question was, "Would you be able to listen to the facts and the evidence as presented and make a decision as to whether the State of Texas proved the allegations beyond a reasonable doubt? Would you be able to do that?" McClure answered, "Yes." The State's attorney continued, "All emotion aside, would you be able to do that?" Again, McClure answered, "Yes." Under further examination by the State, McClure continued to give assurance that he could follow the trial court's instructions both as to guilt/innocence and punishment.
Upon completion of the State's voir dire of McClure, Appellant's attorney informed the trial court that it had nothing further, and the trial court overruled Appellant's challenge to McClure. Other venirepersons who had been challenged for cause by Appellant were then questioned individually by the trial court and the attorneys. After the trial court and the attorneys had completed their individual voir dire of the venirepersons against whom challenges for cause had been lodged, and after the trial court had made its rulings on those challenges, the trial court recessed so that the attorneys could make their peremptory strikes.
The attorneys subsequently tendered their strikes to the trial court, and the jury was seated. McClure was not seated as a juror because Appellant exercised a peremptory challenge against him.
In order to properly preserve error with respect to a trial court's denial of a challenge for cause, a defendant must (1) assert a clear and specific challenge for cause; (2) use a peremptory challenge on the complained-of venireperson; (3) exhaust his peremptory challenges; (4) request additional peremptory challenges; (5) identify an objectionable juror; and (6) claim that he would have exercised a peremptory challenge against the objectionable juror, if he had had one available. Allen v. State, 108 S.W.3d 281, 282 (Tex. Crim. App. 2003). In a non-capital felony case, each side is entitled to ten peremptory challenges. TEX. CODE CRIM. PROC. ANN. art. 35.15(b)(West 2006). Although the State does not argue the point, the record seems to reflect that Appellant's "strike list" contains only nine peremptory challenges rather than the ten allowed. Even if we are incorrect to assume that Appellant used only nine peremptory challenges, and even assuming that the State did not rehabilitate McClure, Appellant still did not properly preserve error. There is nothing in the record to indicate either that he asked the trial court for additional peremptory challenges or that he identified to the trial court an objectionable juror against whom he would have exercised a peremptory challenge, if he had had one. We overrule Appellant's second issue on appeal.
Appellant's third issue on appeal relates to a question his attorney asked a defense witness regarding Douglas's "reputation for truthfulness in the community." During his case in chief, Appellant called Appellant's sister, Anita Alanis, as a witness. He asked Alanis whether she knew the reputation that Douglas had in the community for telling the truth. Prior to Alanis's answer, on voir dire, the State established that Alanis had not talked to people in the community about Douglas's reputation for telling the truth. Alanis based her answer only on discussions within the family. The State argued to the trial court that Appellant had not laid a proper predicate for the introduction of reputation testimony. At trial, Appellant argued that the testimony was admissible because a family is a community, "a very localized community." The trial court sustained the State's objection.
Under Rule 404(a)(4) of the Texas Rules of Evidence, a defendant may offer evidence of a witness's character—such as truthfulness—under Rules 607, 608 and 609. TEX. R. EVID. 404(a)(4). Under Rule 608(a) of the Texas Rules of Evidence, a party may attack the credibility of a witness by showing that the witness has a reputation for untruthfulness. TEX. R. EVID. 608(a). That reputation may also be attacked "by testimony in the form of an opinion." Id. Appellant has not claimed admissibility under any other rules of evidence. Here, the State concedes that the testimony from Alanis was admissible under Rule 608, but it argues that the exclusion of the testimony was not reversible error.
One may claim an error relative to the exclusion of evidence only if the error affects a substantial right of the party who claims the error and if the proponent of the evidence informs the trial court of the substance of the evidence by an offer of proof, unless the substance is apparent from the context. TEX. R. EVID. 103(a)(2). Although Appellant did not make an offer of proof, we think that the substance of the evidence was apparent from the relationship of the parties, the history among them, and the context of the other facts developed.
We do not, however, believe that the error affected Appellant's substantial rights. In addition to the provisions of Rule 103, Rule 44.2(b) of the Texas Rules of Appellate Procedure provides that an error is not reversible error unless it affects a substantial right of the defendant. TEX. R. APP. P. 44.2(b). A substantial right is affected when the error has a substantial and injurious effect or influence in determining the jury's verdict. Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001); King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). An accused's substantial rights are not affected by the erroneous exclusion of evidence if the court, after examining the record as a whole, has fair assurance that the error did not influence the jury or had but a slight effect. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).
Douglas testified as to the things that E.C. was doing to herself with her dolls and toys after she returned from an overnight visit with Appellant. Other witnesses who had become involved in the treatment and care of E.C. corroborated those observations. Those things about which E.C. spoke—the sexual things that she said her "daddy" was teaching her—were not things that a normal five-year-old girl would know. Appellant has not shown that the erroneous exclusion of evidence affected his substantial rights, and, after a review of the record as a whole, we have fair assurance that the error did not influence the jury or had but a slight effect. We overrule Appellant's third issue on appeal.
In his fourth issue on appeal, Appellant claims that the trial court erred when it admitted testimony relating to a lie detector test. Appellant testified that, when the police originally asked him to voluntarily come to the police station, he did. When Appellant arrived at the police station, the officers confronted him with the allegations against him. The State's attorney asked Appellant, "And isn't it true that you also told them that you would be willing and more than willing and, in fact, even demanded to take a lie detector test, right?" Appellant answered, "Yes." The State continued, "And then subsequent to that, the police continued to try to contact you --." At this point in the proceedings, Appellant's counsel objected: "That's not admissible in this court." The trial court stated that he did not yet know what the question would be and that he would wait "for the question first." The State then continued: "Subsequent to that, the police tried to contact you to tell you that they had set up the lie detector test, didn't they?" At the conclusion of the question, Appellant stated, "No. They was talking that they --." At that point, Appellant's attorney interposed the objection that "any further than that is inadmissible in this court." The trial court sustained the objection to any further questions about the polygraph. The prosecutor then argued that the question was about a phone call, not about a polygraph.
After the trial court told the State's attorney to "get to the phone call," the State's attorney then questioned Appellant as to whether law enforcement left several messages in which they asked him to call them. Appellant testified that law enforcement officers told him that they could set up the polygraph. Appellant testified that, by that time, he had been advised not to take a polygraph, and he told the officers that he would not take it. Appellant lodged no objections to any of this testimony.
Appellant did not obtain an adverse ruling as to the polygraph testimony. The trial court sustained the only objection that Appellant made. In order to preserve a complaint for appeal under Rule 33.1(a) of the Texas Rules of Appellate Procedure, a party must pursue his objection in the trial court until he obtains an adverse ruling. TEX. R. APP. P. 33.1(a); Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003). The proper way to pursue an objection to an adverse ruling is to object, request an instruction to disregard, and move for a mistrial. Koller v. State, 518 S.W.2d 373, 375 n.2 (Tex. Crim. App. 1975). Here, Appellant did not pursue his objection to an adverse ruling; the trial court granted him all the relief that he sought.
Furthermore, after the trial court sustained Appellant's objection, the State elicited additional testimony from Appellant regarding the polygraph. Appellant did not lodge any further objections to that testimony. An objection must be specific and timely and must be made each time inadmissible evidence is offered. Geuder, 115 S.W.3d at 13. Although Appellant argues on appeal that he had a running objection to this testimony, the State disputes the existence of a running objection, and we can find no indication in the record that the trial court gave Appellant a running objection to the polygraph testimony. Appellant has not preserved error in connection with the polygraph testimony, and we overrule issue number five.
We affirm the judgment of the trial court.
JIM R. WRIGHT
CHIEF JUSTICE January 28, 2016 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.