Opinion
No. 05-02-01755-CR
Opinion Filed May 15, 2003 Do Not Publish
On Appeal from the County Court At Law No. 2, Collin County, Texas, Trial Court Cause No. 002-83893-00. AFFIRMED
Before Justices JAMES, BRIDGES, and RICHTER.
OPINION
Robert Alvin Bailey appeals the trial court's October 31, 2002 order denying relief on his application for writ of habeas corpus. In his sole point of error, appellant contends the trial court erred because prosecution of this case is barred by double jeopardy. We affirm. In cause no. 002-84106-00, a jury convicted appellant of indecent exposure occurring "on or about" April 27, 2000. The jury assessed punishment at 180 days confinement and a $500 fine. On the jury's recommendation, the trial court probated appellant's sentence for eighteen months. After his conviction, appellant filed an application for writ of habeas corpus contending the State is jeopardy-barred from prosecuting cause no. 002-83893-00-charging him with committing indecent exposure "on or about" April 26, 2000-because evidence of the April 26th offense was admitted during the previous trial. On October 31, 2002, the trial court conducted a hearing on the merits of appellant's application. Appellant admitted into evidence the clerk's and reporter's records from the earlier trial. The State conceded that the same evidence of the April 26th offense used in the first trial would be introduced when cause no. 002-83893-00 was tried. The State contended, however, that the trial court's limiting instructions to the jury, delivered orally before the evidence was introduced and in the jury charge, served as an election and, therefore, it was clear the jury in cause no. 002-84106-00 convicted appellant of the April 27th offense. The trial court denied appellant relief on his application. On appeal, appellant complains the trial court failed to give a limiting instruction about the extraneous offense before showing a videotape of an interview appellant gave to a police detective. Appellant further contends the limiting instruction in the jury charge failed because the jury charge authorized the jury to convict appellant if he committed an offense "on or about" April 27, 2000. Appellant contends the State should not be allowed to use the phrase "on or about" when the two offenses occurred so close together in time because it nullified the trial court's limiting instruction and created uncertainty regarding which offense the jury used to convict appellant. The State responds, initially, that appellant did not preserve in the trial court his complaint about the limiting instruction for the videotape. The State contends appellant's references to "evidence" of the April 26th offense in his writ application and in the hearing were not specific enough to preserve a complaint about use of the videotaped interview. We disagree. Appellant's writ application complains about admission of evidence of the offense of April 26th. During the hearing on the writ application, the trial court took judicial notice that evidence was introduced regarding the April 26th offense. The State affirmed the trial court's statement "that the allegation [the jury] heard of extraneous misconduct was the same that forms the basis of this offense." The only evidence of the April 26th offense admitted at trial was a neighbor's testimony and, in appellant's view, the videotape. We conclude appellant has preserved his complaint. Tex.R.App.P. 33.1. However, we further conclude appellant's contentions lack merit. Appellant bears the burden of persuasion to prove by a preponderance of the evidence the allegations in his application for writ of habeas corpus. Ex parte Lafon, 977 S.W.2d 865, 867 (Tex.App.-Dallas 1998, no pet.). Ordinarily, we review the trial court's ruling on a writ application for an abuse of discretion. Id. However, in this case, because no testimony was taken at the habeas hearing and resolution of the appeal does not turn on the credibility or demeanor of witnesses, we conduct a de novo review. Ex parte Peralta, 87 S.W.3d 642, 645 (Tex.App.-San Antonio 2002, no pet.); Ex parte Wheeler, 61 S.W.2d 766, 770 (Tex.App.-Fort Worth 2001, pet. filed). An accused may not be retried for the same offense after being acquitted or convicted. SeeU.S. Const. amend. V; Tex. Const. art. I, § 14. By alleging in the information in cause no. 002-84106-00 that appellant committed the described offense "on or about" April 27, 2000, the State put appellant on notice that he was being prosecuted for an offense meeting the description of the information and occurring within the limitation period. Sledge v. State, 953 S.W.2d 253, 256 (Tex.Crim.App. 1997). When the State introduces evidence showing a defendant has committed two offenses that would meet the description in the charging instrument, the defendant may raise a plea of double jeopardy to bar a subsequent prosecution for either offense on the theory that it is unclear which of the offenses was tried in the first proceeding. Ex parte Goodbread, 967 S.W.2d 859, 860-61 (Tex.Crim.App. 1998); Walker v. State, 473 S.W.2d 499, 500 (Tex.Crim.App. 1971). However, the State or the trial court may exclude one of the offenses from the jeopardy bar by making an election to show which of the offenses is being tried. Goodbread, 967 S.W.2d at 861. An "election" in this context means "some action that excludes or limits the jury's consideration of an offense: for example, by instructing the jury to disregard the evidence or by limiting the purpose for which the evidence is offered." Id. at n. 2. During the trial of cause no. 002-84106-00, three neighbors testified appellant was washing his car in the nude and masturbating on his driveway during the early morning hours of April 27, 2000. One of the neighbors also testified, over appellant's objection, that appellant engaged in similar behavior on April 26, 2000. The State also introduced into evidence, over appellant's objection, a videotape of appellant's interview with a police detective. On the videotape, the jury heard appellant admit he "sometimes" washes his car in the nude. Some of appellant's responses on the videotape could also be interpreted as admissions that he had masturbated while washing his car on at least one occasion. Before allowing the neighbor to testify about the April 26th offense, the trial court instructed the jury: Members of the jury, we had a hearing regarding certain information that may be provided to you and it does result in my giving you an instruction that limits your consideration of the words that you may hear. You are to take this instruction as instruction under the law given by the judge and follow it. I will also repeat the instruction in a written charge so if you forgot it, you can remember it again. Certain evidence may be admitted from this witness regarding an event other than the one for which the defendant is on trial. There is a potential that you may consider that the other event is also an offense under the law. That is a conclusion that you don't have to draw but you may. You are specifically instructed in a limiting fashion that if such evidence does come in, it's coming in for a limited purpose only, and that is you may use such evidence to, if it assists you, if it doesn't, don't use it at all, but you may use it for only for the purpose of determining whether or not the state has proved beyond a reasonable doubt the intent of the defendant to arouse and gratify the sexual desire of any person, whether the identity of the person in the information is the same as the person for whom the state seeks a conviction, and whether there is absence of mistake or accident. Now, you are instructed that although you may use that evidence-the evidence that you're about to hear of another event, if you wish, but you're not required to do so, you are prohibited from considering the evidence for any other purpose. For example, it would be extremely illegal for you to do so, and you should not use such evidence to find that the defendant is a criminal generally, and therefore, should be convicted of this offense because he may have done something else and you think, Well, if he did that, he must have done this too. You're specifically prohibited from thinking and doing such a thing. This limiting instruction is very important. Through it and only it can the jury stay focused on the actual event that you're trying. Remember that the state has limited-has elements of the offense that it must try before you and whether or not he is-the defendant is involved in any other event should be only used in a limiting fashion that I just gave you to determine whether he is guilty or not guilty of the event for which you are charged. Remember this instruction during deliberations and follow its admonition very strictly. Before playing the videotape to the jury, the trial court held a lengthy hearing outside the jury's presence to review the videotape and to hear appellant's objections. During this hearing, the trial court determined that one short exchange on the videotape, in which the detective states appellant's offense was not a "one-time event," would not be played for the jury because it would take the focus of the trial off of the April 27th offense. At the conclusion of the hearing, the trial court informed defense counsel that the trial court would give limiting instructions suggested by the defense regarding appellant's request for counsel and the detective's statements about the law. When the trial court asked if there were any other instructions needed, defense counsel responded, "No." When the videotape was played, the jury heard appellant admit he had "sometimes" washed his car in the nude. Appellant also gave answers that could be interpreted as admitting that he had masturbated while washing his car on one or more unspecified occasions. After the parties rested and closed, the trial court's jury charge included a more specific limiting instruction reading as follows: Certain evidence was admitted regarding an event other than the one for which the defendant is on trial. Before you are allowed to even consider another offense you are instructed that you must find beyond a reasonable doubt that the other so-called offense was committed. The elements of Indecent Exposure are located later within this charge. If you have a reasonable doubt about whether the other so-called offense was committed you are not to consider any testimony or other evidence about any conduct of the defendant other than on April 27, 2000. If you consider the other event to be an offense proved behyond [sic] a reasonable doubt, you are instructed that such evidence was admissible only for a limited purpose, as follows. You may use such evidence if you wish, but are not required to do so, to determine whether the state has proved beyond a reasonable doubt the intent of the defendant to arouse and gratify the sexual desire of any person, or whether the identity of the person in the Amended Information is the same as the person being tried, or whether there is absence of any mistake or accident. You are prohibited from considering the evidence for any other purpose. Particularly, it would be extremely illegal to, and you should not use, such evidence to find from knowledge of such other uncharged offense, for example, that the defendant is a criminal generally; and, therefore, should be convicted of the offense now being tried. This limiting instruction is very important. Through it and only through it can the jury stay focused on the actual offense before it. Remember this instruction during deliberations and follow its admonition very strictly. In cause no. 002-84106-00, both the April 26th offense and the April 27th offense meet the description of the offense occurring "on or about" April 27, 2000 as alleged in the information. The State introduced evidence of both offenses at trial. However, the trial court issued limiting instructions to the jury both before testimony about the April 26th offense and in the jury charge. The trial court excluded from the jury's viewing of the videotape the overt reference to other offenses, thus averting the need for a limiting instruction. The record is replete with references to the April 27th offense as being the one at issue. The jury charge expressly charges the jury that appellant is being tried only for the April 27th offense. We presume the jury followed the trial court's instruction and considered evidence of the April 26th offense only for the limited purposes for which it was offered. Colburn v. State, 966 S.W.2d 511, 520 (Tex.Crim.App. 1998). The record demonstrates the clear intent of the trial court and counsel to try only the April 27, 2000 offense. The limiting instructions delivered by the trial court constitute an election to try only the April 27th offense. See Goodbread, 967 S.W.2d at 861. Therefore, we conclude the State is not jeopardy barred from prosecuting appellant for committing the second, extraneous act of indecent exposure on April 26, 2000 as charged in the information in trial court cause no. 002-83893-00. See Goodbread, 967 S.W.2d at 861; Johnson v. State, 709 S.W.2d 345, 347 (Tex.App.-Houston [14th Dist.] 1986, pet. dism'd, improvidently granted, 786 S.W.2d 709 (Tex.Crim.App. 1989). Appellant's sole point of error is overruled. We affirm the trial court's order denying appellant's application for writ of habeas corpus.