Opinion
No. 05-08-00291-CR
Opinion issued February 10, 2009. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F06-89064-P.
Before Justices BRIDGES, RICHTER, and MAZZANT.
OPINION
Christopher Goodwin was convicted of aggravated sexual assault and sentenced to twenty-five years in prison. In three issues, he argues that his guilty plea was not knowing and voluntary, the trial court abused its discretion by admitting extraneous offense evidence, and the judgment should be modified to show that he pleaded guilty to the offense. As modified, we affirm the trial court's judgment.
Discussion
Probation In his first issue, appellant argues that his guilty plea was not knowing and voluntary because he entered the plea "while laboring under the false impression that the jury would grant him probation." Appellant claims "the record indicates that [he] not only hoped for and anticipated that the jury would give him probation, [but] his whole case at trial centered on this belief." Article 26.13 of the code of criminal procedure provides that the trial court must admonish the defendant of the range of punishment for the offense before the court accepts a plea of guilty or nolo contendre. Lemmons v. State, 133 S.W.3d 751, 757 (Tex.App.-Fort Worth 2004, pet. ref'd) (citing Tex. Code. Crim. Proc. Ann. art. 26.13 (Vernon Supp. 2008)). The purpose of article 26.13 is to ensure that only a constitutionally valid plea is entered by defendant and accepted by the trial court. Meyers v. State, 623 S.W.2d 397, 402 (Tex.Crim.App. [Panel Op.] 1981); Lemmons, 133 S.W.3d at 757; Lord v. State, 63 S.W.3d 87, 90 (Tex.App.-Corpus Christi 2001, no pet.). To be constitutionally valid, a guilty plea must be knowing and voluntary. Brady v. United States, 397 U.S. 742, 748 (1970); Lemmons, 133 S.W.3d at 757; Stephens v. State, 15 S.W.3d 278, 279 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). Substantial compliance with article 26.13 by the trial court establishes a prima facie case that the plea was valid. Tex. Code Crim. Proc. Ann. art. 26.13(c) (Vernon Supp. 2008; Eatmon v. State, 768 S.W.2d 310, 312 (Tex.Crim.App. 1989); Lemmons, 133 S.W.3d at 757; Lord, 63 S.W.3d at 90. A trial court substantially complies with article 26.13 when it admonishes the defendant of the appropriate range of punishment, the sentence given is within the range prescribed by law, and the defendant fails to affirmatively show harm. See Hughes v. State, 833 S.W.2d 137, 139-40 (Tex.Crim.App. 1992); Lemmons, 133 S.W.3d at 757. Upon a showing of substantial compliance, the burden then shifts to appellant to show that he entered the plea without understanding the consequences of his action and that he suffered harm. Eatmon, 768 S.W.2d at 312; Lemmons, 133 S.W.3d at 757; Singleton v. State, 986 S.W.2d 645, 650 (Tex.App.-El Paso 1998, pet. ref'd). A plea of guilty is not rendered involuntary, however, merely because the defendant received a greater punishment than anticipated or because he did not assess every relevant factor when entering into his decision to plead guilty. Tovar-Torres v. State, 860 S.W.2d 176, 178 (Tex.App.-Dallas 1993, no pet.). In this case, the record shows that the trial court provided all of the required admonishments. Appellant was notified of the punishment range — five to ninety-nine years or life in prison and a maximum fine of $10,000 — and told the jury might or might not choose to recommend community supervision. Appellant said that he understood these admonishments, including the punishment range and the sex offender registration requirement. He also said that no one promised he would get community supervision if he pleaded guilty. During his testimony, appellant told the jury that he understood it could sentence him to probation or life imprisonment, or anything in between, and that he was asking for probation. The jury's sentence of twenty-five years and a $10,000 fine is within the range of punishment provided by law. See Tex. Penal Code Ann. §§ 12.32(a), (b), 22.021(a)(1)(B)(ii), (2)(B); see also Tex. Code Crim. Proc. Ann. art. 42.12, § 4(d)(1) (defendant ineligible for community supervision if sentenced to term of imprisonment that exceeds ten years). Because appellant failed to show he was unaware of the consequences of his plea and that he was misled or harmed by the trial court's admonishments, he failed to rebut the prima facie showing that his guilty plea was knowing and voluntary. We therefore conclude appellant knowingly and voluntarily pleaded guilty and that the trial court did not err in accepting appellant's plea. We overrule appellant's first issue. Extraneous Offense Evidence In his second issue, appellant argues that the trial court abused its discretion by admitting evidence of an extraneous offense involving M, appellant's half-brother. According to the record, shortly before trial, the State filed a third notice of extraneous offenses. This document notified appellant of the State's intent to introduce evidence that ". . . in Vicksburg, Mississippi, the defendant, intentionally and knowingly made the [M] [sic] touch the defendant's penis with the complainant's hand and mouth. This happened multiple times as a continuing course of conduct." The trial court ruled that the State's notice was untimely and inadmissible during the State's case-in-chief but left open the possibility that the evidence could be used in rebuttal. In an effort to persuade the jury to recommend probation, appellant testified on direct examination that he was a victim of childhood abuse and neglect. He explained that at age ten he was sexually abused by older boys while living in a group foster home in California. He subsequently went to live with his biological mother and step-father in Mississippi. However, his step-father "kicked [him] out of the house," forcing appellant to stay at a friend's house. Appellant explained that he and his step-father "didn't get along" because his step-father abused appellant's mother and "was a drunk." Appellant also claimed that his friend's father sexually assaulted him on one occasion when he was staying at his friend's home. Appellant told his mother about the abuse, but "[s]he never believed me." This left appellant feeling confused and angry. He stated that "nobody believed me, you know, nobody cared really if I was there or not." He said his mother "just really never had time for me, I guess." Appellant pointed out that his mother was responsible for caring for his two half-brothers, E and M, and that "she was never there." Appellant also claimed he was a suitable candidate for probation and contrasted himself with the "repeat offenders" he met while incarcerated:. . . I'll throw everything in my ability to finish and do this the right way and learn what I have to learn, because there's — I cannot stand for myself to do something like this again. I would put myself on the line in a firing squad if I knew I would do something like this again. You know, I'm — I want to stop the cycle, basically. I need help. I'm pleading, I'm begging, and if I get it, I will do it. Throwing — throwing my life away is — is just give or take. You can put me in prison but it's not going to help anything. I mean, reading pamphlets from law libraries about everything, therapy, and stuff like that in prison, they — it's — it doesn't really — people that I've talked to that have the same cases I have they're — I'm not like them. I am not. They talk about — I mean just God-awful stuff. And I can't say I'm not, because I am. I am charged with this, I'm guilty of it, but I want to stop. And the people that I've seen and talked to are repeat offenders. And I don't want to be like them.Following appellant's direct testimony, the jury was excused and the prosecutor argued to the court that appellant's testimony "opened the door" to evidence of his sexual assaults on M. The trial court agreed:
I believe, based on the Defendant's testimony, that he's gone through a chronology of his life and the different places he's lived and the story of his life, and specifically gone into moving to Mississippi and gone into how his stepdad kicked him out of the house and the reasons for that, and he wasn't asked what the — any other reasons why they didn't get along. And I believe that the — based on the — his testimony concerning Mississippi and the fact that he's gone into the story of his life, that this opened the door to if the State has evidence that he's committed a sexual assault in Mississippi at the home of — where the stepfather was living, and he — then I believe that's opened the door to that.After listening to M's proferred testimony, the court also ruled, in response to appellant's rule 403 objection, that the danger of unfair prejudice did not substantially outweigh the evidence's probative value. On cross-examination, appellant admitted molesting M but denied remembering what had happened and claimed the molestation was not the reason he was thrown out of the house:
[PROSECUTOR]: [The victim] wasn't — this wasn't the first time you did this, was it?
[DEFENDANT]: No, ma'am.
Q. What else has there been?
A. My little brother.
Q. What's his name?
A. [M].
Q. How old was he when you did this to him?
A. Supposedly, from what the State proves, when I was 13 through when I was 14.
Q. How old was he?
A. I cannot recall.
Q. How many years older are you than [M]?
A. Maybe eight — seven or eight. Eight.
Q. So if you were 13 or 14, that would have made him five or six?
A. Yes, ma'am.
Q. What did you do to him?
A. I cannot recall what I did, but it was — it's said that I did the same thing, orally and rubbing, playing.
Q. Are you telling this jury that you don't remember doing this to your brother?
A. I do not recall, but currently, given the situation, I can't say. I might not have did it. So I — I really don't remember doing it, but it's just the fact that it comes to light, I cannot say I did it.
Q. Okay. So you don't remember doing this?
A. No, ma'am.
Q. You sexually molested your younger brother and you don't remember doing it?
A. I mean, considering the time —
Q. It's a "yes" or "no" question, sir.
A. No.
Q. Did that come to light in your family, that you had done that?
A. I believe it might have.
Q. Who knew about it?
A. I don't know. I can't recall that, either.
Q. You were kicked out of your family home in Mississippi because of it, weren't you?
A. Not that I'm aware of.
Q. You weren't allowed to come back because of it, were you?
A. No, I don't believe.
Q. I mean, that's the real reason you couldn't go home when you were 14, living on your own.
A. No. Technically, I came back up until I was 19, and then I moved out of state.M testified on rebuttal that he had previously lived in Vicksburg, Mississippi, with his mother, father, brother, and appellant. When he was between five and seven years old, M claimed appellant "would ask me to perform oral sex on him. And most of the time I would say yes." M also claimed that appellant, who was then between thirteen and fifteen years old, would sometimes ask M to "touch him with [his] hand" to which M agreed "most of the time." In addition, appellant would sometimes touch M's penis with his hand, but he did not put his mouth on M's penis. M said he told "parts" of what had happened to his father and mother and that appellant was subsequently prohibited from living in the family home. This was due at least partially to what happened between M and appellant. The abuse was not reported to the police. In response to appellant's contention that the trial court abused its discretion by admitting M's testimony, the State argues (1) M's testimony was admissible under the rule of optional completeness; (2) M's testimony was also admissible for impeachment purposes because appellant repeatedly contrasted himself with repeat offenders; and (3) the error, if any, was harmless because appellant admitted he sexually assaulted M. The first and third arguments will be the focus of our discussion. A trial court's decision to admit or exclude evidence is reviewed under an abuse of discretion standard. McDonald v. State, 179 S.W.3d 571, 576 (Tex.Crim.App. 2005); Willover v. State, 70 S.W.3d 841, 845 (Tex.Crim.App. 2002). A trial court does not abuse its discretion as long as the decision to admit evidence is within the "zone of reasonable disagreement." Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991) (en banc). The appeals court may not substitute its own decision for that of the trial court. Moses v. State, 105 S.W.3d 622, 627 (Tex.Crim.App. 2003). The rule of optional completeness provides in part that when a portion of an act is given in evidence by one party, the whole of the same subject may be inquired into by the other and any other act that is necessary to make it fully understood or to explain the same may also be given in evidence. Tex. R. Evid. 107; Wright v. State, 28 S.W.3d 526, 535-36 (Tex.Crim.App. 2000); Gutierrez v. State, 85 S.W.3d 446, 456 (Tex.App.-Austin 2002, pet. ref'd). When the defendant "opens the door" on an issue by attempting to present an incomplete picture of an incident, the State may complete the picture by presenting evidence that would have otherwise been inadmissible. Skillern v. State, 890 S.W.2d 849, 864 (Tex.App.-Austin 1994, pet. ref'd) (citing Lucas v. State, 791 S.W.2d 35, 53-54 (Tex.Crim.App. 1989)). There are, however, limitations on the scope of the door "opened" by a party under such circumstances: "One, only parts or items germane to the part or item offered (`on the same subject') become admissible. Two, the matter offered on the justification of completeness may be excluded under rule 403 if its prejudicial effect substantially outweighs its probative value." Fuentes v. State, 991 S.W.2d 267, 279 (Tex.Crim.App. 1999) (rule 107 has been recognized as encompassing the "opening the door" situation). Evidence that is used to fully explain a matter opened by the other party need not be otherwise admissible. Gutierrez, 85 S.W.3d at 456; see Parr v. State, 557 S.W.2d 99, 102 (Tex.Crim.App. 1977). In this case, appellant suggested on direct examination that he was kicked out of the Mississippi home because of his alcoholic step-father's abusiveness towards him, his mother, and other members of his family. According to M, however, appellant was actually kicked out of the house, at least in part, because appellant molested M. Pursuant to the rule of optional completeness, the State was entitled to cull details to paint a broader picture of the event referred to by appellant, provided those details were "on the same subject" and the prejudicial value of such testimony did not substantially outweigh its probative value. See Fuentes, 991 S.W.2d at 279. As the trial court explained, M's testimony was "on the same subject" as appellant's testimony about his life in Mississippi and his relationship with his family and thus completed the picture painted by appellant about his life in Mississippi. As for appellant's rule 403 objection, we note that, for rule 403 purposes, the trial court should balance (1) the inherent probative force of the proffered item of evidence along with (2) the proponent's need for that evidence against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or repeat evidence already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex.Crim.App. 2006). "The rule gives the trial court considerable latitude to assess the courtroom dynamics, to judge the tone and tenor of the witness' testimony and its impact upon the jury, and to conduct the necessary balancing." Winegarner v. State, 235 S.W.3d 787, 791 (Tex.Crim.App. 2007). In overruling a rule 403 objection, the trial court is assumed to have applied a rule 403 balancing test and determined the evidence was admissible. Hinojosa v. State, 995 S.W.2d 955, 957 (Tex.App.-Houston [14th Dist.] 1999, no pet.). Reviewing the rule 403 factors, we agree with the State that the trial court could have reasonably concluded that the prejudicial value of M's testimony did not substantially outweigh its probative value. To begin with, the trial court could have found that the State's need for the evidence was considerable since it suggested that appellant misled the jury about the reason for his expulsion from the family home in Mississippi. See McGee v. State, 233 S.W.3d 315, 318 (Tex.Crim.App. 2007) (evidence of defendant's truthfulness or mendacity when testifying on his own behalf is generally probative of his attitudes toward society and of his prospects of rehabilitation and is relevant to sentencing). In addition, the trial court could have reasonably concluded that M's testimony did not tend to suggest that the jury decide the case on an improper basis. The conduct in which M testified that appellant engaged with him (inappropriate touching and oral genital contact) was no more serious and potentially inflammatory than the offense appellant was charged with committing against the victim (multiple instances of inappropriate touching and oral genital contact). Further, the trial court could have reasonably concluded that M's testimony did not tend to confuse or distract the jury from the primary issues and that it did not cause undue delay or constitute the needless presentation of cumulative evidence. M's testimony did not consume an inordinate or disproportionate amount of the State's case, and his testimony accounts for slightly less than ten pages of the 305-page record of the punishment phase. We also conclude that the time the prosecution devoted to the complained-of evidence, either considered alone or in combination with the rule 403 factors, did not present a danger of unfair prejudice, confusion of the issues, or undue delay which substantially outweighed its probative value. Therefore, the trial court did not abuse its discretion by determining that the probative value of M's testimony outweighed any unfairly prejudicial impact. M's testimony was admissible under the rule of optional completeness. Furthermore, even if the trial court abused its discretion by allowing M to testify, the error was harmless because appellant admitted on cross-examination that he sexually assaulted M. Appellant did not object to the questioning on this subject. Improper admission of evidence is not reversible error if the same facts are shown by other evidence that was unchallenged. See Leday v. State, 983 S.W.2d 713, 717-18 (Tex.Crim.App. 1998); see also Lane v. State, 151 S.W.3d 188, 192-93 (Tex.Crim.App. 2004) (defendant's hearsay objection presented no reversible error because statements had elsewhere come into evidence without objection). We therefore overrule appellant's second issue. Modification of Judgment In his third issue, appellant asks us to modify the judgment to show that he pleaded guilty to the offense. The State agrees the judgment should be modified. The judgment in this case states that appellant pleaded "NOT GUILTY." The record, however, shows that he pleaded guilty to the court and wanted the jury to decide punishment. Therefore, because we have the necessary information to do so, we modify the judgment in this case to show that appellant pleaded guilty to the offense. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex.App.-Dallas 1991, pet. ref'd). As modified, we affirm the trial court's judgment.