Opinion
No. 05-06-00934-CR
Opinion Filed February 25, 2008. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the 291st Judicial District Court Dallas County, Texas Trial Court Cause No. F03-72061-VU.
Before Justices MORRIS, WRIGHT, and FRANCIS.
OPINION
A jury convicted Leonard Lansford Garreans of the aggravated sexual assault of his granddaughter and assessed punishment at thirty years in prison. In four issues, appellant complains the evidence is factually insufficient to support his conviction and the trial court erred in granting a continuance and allowing evidence of extraneous offenses. We affirm. A.G., who was eleven years old at trial, testified that appellant, her grandfather, molested her between five and ten times and showed her movies with "kids on them doing bad stuff." A.G. testified the abuse began when she was younger than seven and continued for more than a year. Although she could not remember details, A.G. testified that appellant put his penis on her vagina and moved up and down, but did not put his penis inside her vagina. She testified that neither she nor appellant had on pants or underwear. A.G. said the abuse happened at appellant's house in the living room or his bedroom. She did not understand what was happening and did not tell anyone because she did know it was wrong. The abuse was discovered in April 2003 when A.G.'s step-uncle, Danny Atkinson, found A.G., who was eight, on top of his two-year-old daughter, both with their pants down. Atkinson told A.G.'s mother, Juanita Atkinson, who then asked A.G. if anyone had "done that with her." At first, A.G. said no, but then said appellant would take her panties off and touch her private with his private. A.G. also told her mother that appellant would make her watch videos of other children. The State also presented evidence, over defense objection, that appellant had sexually abused his adopted daughter, D.S., when she was younger. D.S., who was twenty-nine years old at trial, testified that appellant began sexually abusing her when she was ten or eleven years old, about one year after she was adopted. Like A.G., D.S. said appellant put his penis on her vagina but did not penetrate it. D.S. said she told her mother, and the abuse stopped for "a little bit" but then started again and continued until she was fourteen or fifteen. D.S., who was a reluctant witness, acknowledged that she had been avoiding a subpoena for the trial. Appellant's defense was that A.G.'s mother had made up the allegations as revenge against appellant's family and that A.G. repeated the allegations because she feared her mother. Appellant testified and admitted sexually abusing D.S. but said he never abused A.G. When asked to explain, appellant said D.S. was not a "blood relative," like A.G., and he did not "have the same type of urge for children anyway," although he acknowledged that D.S. was "fairly young" when he abused her. He said A.G. was never left alone with him in the home but he did take her riding on a motorcycle once or twice. On those occasions, he said he "very careful" and did not "have her put her arms around me, always just put her hands on my shoulders to steady herself." He testified that A.G.'s testimony that he molested her was "falsehoods" and "lies." A.G.'s grandmother and D.S. both testified that appellant could not have assaulted A.G. because the two were never left alone. Additionally, A.G.'s father, David, testified that Juanita Atkinson threatened to destroy his family if he divorced her, and these allegations against his father were made three days after his divorce from Juanita was final. The evidence also showed that A.G.'s parents had been separated for four years when A.G. made her outcry. A.G.'s father and stepmother testified that A.G. told them the allegations were false. However, in a tape-recording made by A.G.'s stepmother of a conversation she had with A.G., A.G. said the allegations were true. In his first issue, appellant argues the evidence is factually insufficient to support the jury's verdict because (1) A.G.'s story lacked details, (2) family members testified he was never alone with A.G., (3) he denied abusing her, (4) A.G. admitted that the allegations were false, and (5) A.G.'s mother had previously threatened to destroy appellant's family On a factual sufficiency challenge, we view all the evidence from a neutral perspective. Watson v. State, 204 S.W.3d 404, 415 (Tex. 2006). The evidence, though legally sufficient, is factually insufficient if it is so weak that the jury's verdict seems clearly wrong and manifestly unjust, or if, considering conflicting evidence, the jury's verdict, though legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Berry v. State, 233 S.W.3d 847, 854 (Tex.Crim.App. 2007). A clearly wrong and unjust verdict occurs where the jury's finding is manifestly unjust, shocks the conscience, or clearly demonstrates bias. Id. A factual sufficiency review permits the reviewing court to substitute its judgment for the jury on credibility and weight determinations but only "to a very limited degree." Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006), cert. denied, 128 S. Ct. 87 (2007) (explaining that factual sufficiency jurisprudence still requires appellate court to afford "due deference" to jury's determination). A person commits aggravated sexual assault of a child if he intentionally or knowingly causes the sexual organ of the child to contact the sexual organ of another person, including the actor, if the victim is younger than fourteen. See Tex. Pen. Code Ann. § 22.021(a)(1)(B)(iii), (a)(2)(B) (Vernon Supp. 2007). The testimony of the child victim alone is sufficient to support a conviction for sexual assault. See Tex. Code Crim. Proc. Ann. art. 38.07(a) (Vernon 2005); Tear v. State, 74 S.W.3d 555, 560 (Tex.App.-Dallas 2002, pet. ref'd). The crux of appellant's defense was to attack the credibility of A.G.'s mother. He did this by suggesting that Juanita Atkinson made up this story out of revenge and made A.G. tell it. But Juanita Atkinson denied the accusation, and A.G. denied that her mother or anyone else told her what to say. A.G. testified that appellant abused her multiple times. While she did not remember specific details about the incidents, she testified appellant placed his penis on her vagina, while both were unclothed, and moved up and down. While appellant denied abusing A.G., and, along with other family members, said that he was never alone with A.G., the jury heard other testimony allowing them to disregard this evidence. We conclude the evidence supporting the verdict was not so weak as to be clearly wrong and manifestly unjust, nor was the adverse finding against the great weight and preponderance of the available evidence. We reject the first issue. Appellant's second and third issues both address the trial court's rulings related to the testimony of D.S., his adopted daughter. On the first day of trial, the State informed the trial judge that a material witness was avoiding service and asked for a continuance to locate her. The trial judge refused, stating that the witness's testimony would "only be material for punishment" but said he would grant a continuance "between guilt/innocence and punishment" if the jury found appellant guilty and the witness had not been located at that time. Although the witness was not named, it is apparent from the record that the witness was D.S. That same day, A.G.'s mother, Juanita Atkinson, testified. On direct examination, the prosecutor asked her how she felt when her daughter told her about the abuse; she said she was "really upset." The following colloquy occurred:
[PROSECUTOR]: Were you mad at her?
[JUANITA ATKINSON]: No. Of course, I wasn't mad at her.
[PROSECUTOR]: What do you mean by `upset' then?
[JUANITA ATKINSON]: I was disgusted with what I had thought could have been going on with her, that had been done to her.
[PROSECUTOR]: So are you saying you had suspected that if she's doing something, that something must have happened to her?
[JUANITA ATKINSON]: It's happened before.Later, on cross-examination, defense counsel then elicited the following testimony:
[DEFENSE COUNSEL]: When you caught [A.G.] — or excuse me. When Danny Atkinson caught [A.G.] with [his daughter] and you asked [A.G.] if anyone had done this to her and she said, `No,' what was your next question, if you remember?
[JUANITA ATKINSON]: From my recollection, just what I told [the prosecutor on direct], I asked her was she sure that nobody had done this to her before.
[DEFENSE COUNSEL]: Like Grandpa?
[JUANITA ATKINSON]: Like Lance, because I knew it happened before.Appellant did not object on either occasion. Outside the presence of the jury, the State argued that Juanita Atkinson's highlighted answer on cross-examination left a false impression with the jury that A.G. had previously made allegations of sexual abuse. The State then requested that she be allowed to explain what she meant. The trial judge reviewed the testimony and then ruled that "the door has been opened for the extraneous offense of the sexual assault that allegedly occurred between the Defendant and his daughter to come in." The trial judge refused to allow the evidence to come in through "hearsay," ruling that "if the State can produce the victim or produce a witness that has had an admission made about that other offense, it will be allowed." The trial judge also overruled defense counsel's objection, made in chambers, that the evidence was more prejudicial than probative. The following day, the State reurged its motion for continuance, arguing D.S. was a critical witness at guilt-innocence and was "actively avoiding service" of a subpoena issued seven weeks earlier. Defense counsel protested that any continuance would "be highly prejudicial" and constitute "unjust delay." The trial judge granted the continuance. The next day, D.S. appeared in court and was sworn as a witness, but the trial did not resume until nineteen days later because of a juror conflict. The trial judge specifically stated he granted the continuance "to find the missing witness who was avoiding service." In his second issue, appellant complains the trial court abused its discretion in granting the continuance. He generally argues the oral motion failed to comply with articles 29.04, 29.05, 29.08, and 29.13 of the code of criminal procedure. It is well-settled that a criminal action may be continued on the written motion of the State or of the defendant, so long as sufficient cause is shown. Tex. Code Crim. Proc. Ann. art. 29.03 (Vernon 2006); Williams v. State, 172 S.W.3d 730, 732 (Tex.App.-For Worth 2005, pet. ref'd). However, a trial court also possesses discretion to grant an oral motion for continuance on equitable grounds. Williams, 172 S.W.3d at 733. "A motion for continuance, based on equitable grounds rather than statutory grounds, is entirely within the discretion of the court, and will only call for reversal if it is shown that the court clearly abused its discretion." Id. (quoting Alvarado v. State, 818 S.W.2d 100, 103 (Tex.App.-San Antonio 1991, no pet.)). An appellant must show he was actually prejudiced by the trial court's decision to grant the continuance. Id. The record shows that appellant had been indicted on a charge of sexually abusing D.S., and appellant knew why the State wanted D.S. to testify. On the first day of trial, the court determined this evidence was admissible at guilt-innocence after defense counsel had "opened the door" to it. However, the trial court would not allow the State to present the evidence by hearsay testimony, which prompted the State to reurge its motion for continuance so that D.S. could be located. Having heard the State's explanations as to the efforts it had taken to serve D.S. and D.S.'s efforts in avoiding service, the trial court granted the continuance. D.S. was served that same night and sworn in as a witness the following day. Appellant has not articulated any specific prejudice he suffered from the postponement. Given the circumstances in this case, we conclude the trial court was within its discretion to allow a continuance to secure the presence of D.S. We overrule the second issue. In his third issue, appellant complains the trial court erred in allowing evidence that he previously sexually assaulted D.S. because (1) the State failed to provide notice pursuant to rule 404(b); (2) the evidence violated the motion in limine; and (3) the evidence violated rules 403 and 404(b). We begin with the notice complaint. Appellant argues he filed a pretrial motion requesting notice, and the trial court ruled that appellant had to be given written notice by October 14, 2005. Appellant asserts, and the State does not contest, that such notice was not given. The notice provision of rule 404(b), in relevant part, provides that other-crimes evidence may be admissible for limited, non-character conformity purposes provided that the prosecution gives the accused reasonable notice in advance of trial of its intent to use this evidence during its case-in-chief. Tex. R. Evid. 404(b); Hernandez v. State, 176 S.W.3d 821, 822 (Tex.Crim.App. 2005). The rule conditions the admissibility of such evidence on the State's compliance with the notice provision. Id. at 824. Appellant did not raise a notice complaint when the trial court ruled the evidence admissible nor did he complain the following day when the trial court granted a continuance or the day after that when the trial court swore in the witness and ordered her to return to court in nineteen days. Rather, he waited to bring his notice complaint to the trial court's attention until just prior to D.S. taking the stand. Under the circumstances, we question whether his objection was timely. See Tex. R. App. P. 33.1 (requiring complaint to be timely). But even if we assume the complaint was timely, we cannot conclude the State's failure to provide written notice as instructed was harmful error. The purpose of the notice requirement is to enable the defendant to prepare to meet the extraneous offense evidence. Hernandez, 176 S.W.3d at 825. While the failure to provide such notice is error, we consider the harm by analyzing how the deficiency of the notice affected appellant's ability to prepare for the evidence. Id Appellant had been indicted for the sexual assault of D.S., and both cases originally were set for trial on the same date. However, by the date of trial, the cases were not being tried together (for reasons not explained by the record) and the trial court, as previously explained, would not allow D.S.'s testimony at guilt-innocence. Defense counsel, acknowledging that only one case was going forward, then urged a motion in limine "regarding any mention" by the prosecutor of the sexual abuse of D.S. Later, the trial court changed its ruling after determining that the defense's cross-examination of A.G.'s mother opened the door to evidence about D.S. Once the trial court granted the continuance, appellant then had more than two weeks to prepare for D.S.'s testimony. Id. (explaining that trial court has discretion to grant continuance to reduce surprise to permit State to bring itself in compliance with the notice requirement). Even appellant, in his brief, does not argue surprise. Further, he makes no showing as to how his defense strategy might have been different had the State explicitly, and in writing, notified him of its intent. We conclude the trial court did not err in excluding the evidence because of the failure to provide notice. Appellant next complains that Juanita Atkinson's testimony violated the trial court's ruling that granted his motion in limine regarding extraneous offenses. Appellant did not object to her testimony, and a motion in limine, whether granted or denied, preserves nothing for review. Griggs v. State, 213 S.W.3d 923, 926 n. 1 (Tex.Crim.App.), cert. denied, 128 S. Ct. 153 (2007). Consequently, this complaint is waived. Finally, appellant argues that D.S.'s testimony violated Texas Rules of Evidence 404 and 403 because it was improper character evidence and more prejudicial than probative. We review a trial court's evidentiary ruling for an abuse of discretion. State v. Mechler, 153 S.W.3d 435, 439 (Tex.Crim.App. 2005). The test for whether the trial court abused its discretion is whether the action was arbitrary or unreasonable. Id. An appellate court should not reverse a trial judge whose ruling was within the zone of reasonable disagreement. Id. After hearing Juanita Atkinson's testimony, the trial court reversed an earlier ruling and allowed D.S.'s testimony at guilt-innocence, stating that the door had been opened to such evidence. "Otherwise inadmissible evidence may be admitted if the party against whom the evidence is offered `opens the door.'" Schutz v. State, 957 S.W.2d 52, 71 (Tex.Crim.App. 1997); Carter v. State, 145 S.W.3d 702, 707 (Tex.App.-Dallas 2004, pet. ref'd). Appellant does not argue on appeal that the door was not opened to this testimony or that, if opened, the State exceeded its scope. Rather, he complains it was inadmissible under rule 404(b). Because appellant has failed to brief the specific theory of admissibility upon which the trial court allowed the testimony, we conclude he cannot show reversible error on this issue. Moreover, appellant has failed to provide any analysis with respect to his rule 403 complaint. Although he sets out the factors to be considered in making a rule 403 analysis, he fails to apply any of these factors to the facts of this case. Rather, his entire argument is nothing more than a single conclusory statement that the "admission of [D.S.'s] testimony clearly led the jury to believe that [appellant] was `once a sex offender, always a sex offender.'" Consequently, we conclude this complaint is not adequately briefed. See Tex. R. App. P. 38.1. We reject the third issue. In his fourth issue, appellant argues the trial court erred in admitting evidence of child pornography seized from his computer. He argues admission of this evidence violated rules 403 and 404(b). Appellant testified at trial and admitted sexually abusing D.S. but denied molesting A.G. The following then occurred:
[DEFENSE COUNSEL]: Well, whatever urges it was, Mr. Garreans, that caused you to abuse and molest [D.S.], your adopted daughter, some people might wonder if you didn't have those same desires or urges for your granddaughter, [A.G.]?
[APPELLANT]: I can't explain it except for saying that I guess I would say, you know, with [D.S.] although she was our daughter, she wasn't a blood relative and [A.G.] is. And I don't have the same type of urge for children anyway, you know. Although [D.S.] was fairly young, eleven or twelve.After appellant's testimony, the trial court ruled that appellant had "opened the door" to evidence that child pornography had been found on his computer. On rebuttal, the State called appellant, who testified that he had a computer that was kept in the bedroom. He said images of naked children would "pop up from time to time" and he deleted them. He said he did not go to the websites intentionally, although he did visit adult porn sites. He said he was not aware that there were hundreds of images of child pornography on his computer. He also testified that it was "possible" that he surfed the web with the keyword "Lolita," but denied that the keyword was used by adults looking for child pornography. Rather, he said he thought Lolita meant "a young woman." The State then presented evidence that appellant's computer was seized and subsequent testing revealed pornographic images of children on it. Three exhibits were admitted into evidence: (1) State's Exhibits 5 and 6 depict an unclothed young girl apparently performing oral sex on an adult penis and (2) State's Exhibit 7 depicts a web page entitled "The Incest: The Best Incest Site in the Adult Web." On appeal, appellant argues the computer lab reports supported his assertion that he deleted the files from his computer since they were found on temporary internet files and on deleted files in the hard drive. He argues the images did not make the issue of whether he sexually assaulted A.G. more or less probable and asserts the evidence prejudiced the jury. Again, as before, appellant does not challenge the trial court's specific ruling that he opened the door to the evidence nor does he address the factors to consider in a rule 403 analysis. Regardless, given appellant's testimony that he would not abuse A.G. because she was a "blood relative" and that he did not "have the same type of urge for children," we conclude the evidence was admissible under rule 404(b) to rebut that claim. See Casey v. State, 215 S.W.3d 870, 879 (Tex.Crim.App. 2007) (explaining that extraneous offense evidence admissible under rule 404(b) when offered to rebut an affirmative defense or a defensive issue that negates element of crime). As for rule 403, this rule allows for the exclusion of otherwise relevant evidence when its "probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, or needless presentation of cumulative evidence." Tex. R. Evid. 403. Rule 403 favors admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial. Gallo v. State, No. AP-74900, 2007 WL 2781276, *1 (Tex.Crim.App. Sept. 26, 2007). A proper rule 403 analysis includes, but is not limited to, four factors: (2) the probative value of the evidence; (2) the potential to impress the jury in some irrational yet indelible way; (3) the time needed to develop the evidence; and (4) the proponent's need for the evidence. Mechler, 153 S.W.3d at 439. The State offered limited visual evidence of what was found on appellant's computer: two exhibits show a young girl performing oral sex and the third depicts a webpage. While the images of the young girl may have generated an emotional response, we cannot say the trial court abused its discretion in declining to find that the risk of unfair prejudice from admission of the images substantially outweighed the probative value. Appellant was charged with sexually abusing his granddaughter, and he denied the charge by saying that he was not attracted to blood relatives or children. These exhibits rebut that claim. In other words, the complained-of evidence does not tend to prove some adverse fact not in issue; rather, the evidence goes to the heart of appellant's claim. It was not offered merely to excite emotions against appellant. The evidence was presented in about forty pages, and did not duplicate other evidence. Finally, appellant had the opportunity to explain how these images appeared on his computer and to deny ever seeing them. Having considering the factors of a rule 403 analysis, we conclude the trial court's ruling was not an abuse of discretion. We overrule the fourth issue. We affirm the trial court's judgment.