Opinion
No. 05-16-01512-CR
03-28-2018
JOHN ARTHUR HILL, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 363rd Judicial District Court Dallas County, Texas
Trial Court Cause No. F15-76425-W
MEMORANDUM OPINION
Before Justices Lang, Fillmore, and Myers
Opinion by Justice Myers
A jury convicted appellant John Arthur Hill of aggravated sexual assault of a child and assessed punishment at 99 years' imprisonment. Appellant filed a notice of appeal and a motion for new trial in the trial court on December 22, 2016. On February 22, 2017, the trial court granted, in part, appellant's motion for new trial and vacated the 99 year sentence, finding the 99 year sentence could not be reasonably supported by the evidence presented in court. The court's order also found that the State agreed to vacate the 99 year sentence and accept a sentence for appellant of 40 years' incarceration and that appellant waived his right to appeal "as to the sentencing phase only" in return for a reduced sentence of 40 years' incarceration. Appellant contends the trial court erred by (1) prohibiting the defense from presenting its theory of the defense; and (2) allowing a doctor to offer an expert opinion. We affirm.
DISCUSSION
1. Prohibiting the defense from presenting a complete defense
In his first issue, appellant argues that the trial court reversibly erred "by prohibiting the defense from putting forth its complete theory of the defense in direct violation of the United States Constitution and well established federal law." In support of this argument, appellant makes a number of assertions regarding various alleged errors by the trial court, most of them evidentiary in nature—claims that are either not supported by the record or are not preserved. The State argues this issue is multifarious, and we agree. See Davis v. State, 329 S.W.3d 798, 803 (Tex. Crim. App. 2010) ("Because appellant bases his single point of error on more than one legal theory, his entire point of error is multifarious."); Stults v. State, 23 S.W.3d 198, 205 (Tex. App. —Houston [14th Dist.] 2000, pet. ref'd.) (multifarious issue is one that embraces more than one specific ground or that attacks several distinct and separate rulings of the court); see also Smith v. State, No. 05-14-00214-CR, 2015 WL 3831408, *3 (Tex. App.—Dallas June 22, 2015, pet. ref'd) (mem. op., not designated for publication); Solomon v. State, No. 05-14-00634-CR, 2015 WL 3616425, at *3 (Tex. App.—Dallas June 10, 2015, no pet.) (mem. op., not designated for publication); Edwards v. State, No. 05-09-01496-CR, 2011 WL 3795696, at *6 (Tex. App.—Dallas Aug. 29, 2011, no pet.) (not designated for publication). We could refuse to address appellant's complaint on this basis alone. See, e.g., Smith, 2015 WL 3831408, *3; Solomon, 2015 WL 3616425, at *3. But even if we were to consider appellant's first issue, his arguments—to the extent we can discern them—would fail.
A criminal defendant's constitutional right to a meaningful opportunity to present a complete defense is grounded in the Fourteenth Amendment's Due Process Clause and the Sixth Amendment's Compulsory Process and Confrontation Clauses. Anderson v. State, 301 S.W.3d 276, 280 (Tex. Crim. App. 2009) (citing Crane v. Kentucky, 476 U.S. 683, 690 (1986)); see also U.S. CONST. amend. VI, XIV. "Erroneous evidentiary rulings rarely rise to the level of denying the fundamental constitutional rights to present a meaningful defense." Potier v. State, 68 S.W.3d 657, 663 (Tex. Crim. App. 2002). A trial court's exclusion of evidence may rise to the level of a constitutional violation if the ruling excludes otherwise relevant and reliable evidence which "forms such a vital portion of the case that exclusion effectively precludes the defendant from presenting a defense." Wiley v. State, 74 S.W.3d 399, 405 (Tex. Crim. App. 2002) (quoting Potier, 68 S.W.3d at 665). The fact that the defendant was unable to present his case to the extent and in the form he desired does not rise to constitutional error if he was not prevented from presenting the substance of his defense to the jury. Potier, 68 S.W.3d at 66.
"[T]he right of cross-examination by the accused of a testifying State's witness includes the right to impeach the witness with relevant evidence that might reflect bias, interest, prejudice, inconsistent statements, traits of character affecting credibility, or evidence that might go to any impairment or disability affecting the witness's credibility." Virts v. State, 739 S.W.2d 25, 29 (Tex. Crim. App. 1987). A trial court may violate a defendant's right of confrontation by improperly limiting cross-examination, but the scope of appropriate cross-examination is not unlimited. Carroll v. State, 916 S.W.2d 494, 497-98 (Tex. Crim. App. 1996); see also Hammer v. State, 296 S.W.3d 555, 561 (Tex. Crim. App. 2009) (trial court has "wide discretion in limiting the scope and extent of cross-examination"). A trial court, for example, may limit the scope of cross-examination to prevent harassment, prejudice, confusion of the issues, harm to the witness, and repetitive or marginally relevant interrogation. See Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986); Hammer, 296 S.W.3d at 561; Carroll, 916 S.W.2d at 498. "Notwithstanding the trial court's discretion in this area, jurors are entitled to have the benefit of the defense theory before them so that they can make an informed decision regarding the weight to accord the witness's testimony, even though they may ultimately reject the theory." Sansom v. State, 292 S.W.3d 112, 119 (Tex. App.—Houston [14th Dist.] 2008, pet. ref'd).
Appellant was charged with aggravated sexual assault of a child under the age of fourteen. See TEX. PENAL CODE ANN. § 22.021(a)(2)(B). The indictment alleged as follows:
That JOHN ARTHUR HILL, hereinafter called Defendant, on or about 15th day of January, 2015 in the County of Dallas, State of Texas, did unlawfully then and there intentionally and knowingly cause the contact of the female sexual organ of [A.M.], a child, who was not then the spouse of the defendant, by an object, to-wit: the sexual organ of defendant, and at the time of the offense, the child was younger than fourteen years of age[.]See id. § (a)(1)(A)(iii), (a)(2)(B). The complainant in this case, A.M., had given birth to a child via C-section in November of 2015, when A.M. was eleven years of age. Appellant, who was A.M.'s step-brother, did not dispute that he was the father of A.M.'s child. His defensive theory was that A.M. artificially impregnated herself with appellant's sperm. Tocorra, A.M.'s mother, and Tanya Gardener, who was appellant's mother, lived together and were involved in a romantic relationship; they were later married. The defense argued in its opening statement that A.M. was raised in a crisis-filled home, full of chaos, and that Tocorra had an "anger management problem" and was "rage-filled" and "constantly yelling and threatening and cussing all the time." Defense counsel argued that appellant was an "oasis of calm" in the home and A.M. "desperately wanted [his] attention." Counsel told the jury appellant used a "Fleshlight," which is a male masturbation aid that is shaped like a flashlight and held appellant's semen when he masturbated. The defense also argued that one of A.M.'s favorite television shows was "Law & Order Special Victim's Unit, or SVU," and that several episodes of this television show included a plotline that involved, as defense counsel said in her opening statement, "self-insemination with a turkey baster or some other implement that you could find in your home." Counsel suggested that A.M. used such a method to artificially inseminate herself using appellant's semen, and that when she became pregnant she told her mother she had had sex with appellant.
Tanya and Tocorra first learned A.M. was pregnant when they took the children to a clinic in October of 2015 for physical examinations so that they could play sports. Tocorra testified that she did not believe the doctor at first when she said A.M. was pregnant, telling her that she had to be wrong because A.M. was only ten years old. Tanya testified that one of A.M.'s favorite shows was Law and Order SVU, and that it was very likely A.M. had seen most of the episodes. Tanya also testified that she knew that appellant kept more than one "Fleshlight" stored in the boxes in which they were shipped under the television in his room. A.M. would sometimes "snoop" in appellant's room when he was not there, and Tanya once saw her at the television stand looking at one of the boxes that contained a Fleshlight. Tanya testified that there was a "turkey baster" or "meat injector" under the kitchen sink and "[e]verybody" had access to it. Tanya also said Tocorra was a "tornado storm of anger," but that she loved her, and that her anger frightened the children. Tanya did not accept that appellant was the father of A.M.'s baby until the DNA report came out in February of 2016. The stipulated-to DNA report, showing a 99.99% probability that appellant was the father, was admitted into evidence.
The medical report from the clinic, which is dated October 9, 2015, stated that A.M. was then 11 years and 4 months old. It also stated that her pregnancy was "very far along."
One of the many alleged errors raised by appellant in support of his argument that the trial court would not allow him to present his complete defense concerns the court's refusal to allow the defense to present evidence from the Law and Order SVU television episodes. After the jury retired to deliberate, defense counsel made—as previously authorized by the court—an offer of testimony the defense had wanted to present: An investigator who had viewed "a lot of Law and Order SVU" episodes and "found three that directly had something to do with self-insemination, one with a turkey baster." Defense counsel told the court she had "originally planned to enter the video and the transcripts of those into evidence." Defense counsel also said that when she mentioned this to the prosecutor, the prosecutor replied that she would "object to hearsay because I didn't have a Hollywood producer here to authenticate."
Appellant has failed to establish any evidentiary error on the trial court's part, much less that there was a violation of his constitutional right to present a defense. The trial court could have concluded that what was contained in these television episodes was hearsay and inadmissible. See TEX. R. EVID. 801, 802. Moreover, without someone to authenticate the Law and Order SVU episodes, there was no way to show they had not been altered. See TEX. R. EVID. 901, 1002. Additionally, appellant never asked A.M. whether she watched episodes of Law and Order SVU and did not ask her if she ever saw any episodes that involved artificial insemination with a "turkey baster." Without such a predicate, the trial court could have simply concluded that the television episodes—even if they could have been authenticated—were irrelevant. See TEX. R. EVID. 402.
Another alleged error raised by appellant is that the trial court did not permit the defense to ask Tocorra about her older daughter A.L.'s loss of virginity. When the defense attempted to ask Tocorra about this, the State objected that it was "[c]ompletely irrelevant," and defense counsel replied that "[i]t actually is a pattern of behavior within this family." Following a bench conference that was off the record, the defense did not ask any further questions on this issue. Appellant argues this line of questioning was imperative to the defense's theory, but the trial court could have concluded the line of questioning was irrelevant because it did not pertain to the issue of A.M.'s sexual assault by appellant. See TEX. R. EVID. 401, 402. Furthermore, the trial court could have concluded that it was inadmissible character evidence, or that it was inadmissible under rule 403. See TEX. R. EVID. 403, 404, 412. Appellant has again failed to establish any evidentiary error.
Another issue raised by appellant concerns a line of questioning to Tanya Gardener—the woman with whom Tocorra was involved in a romantic relationship, and subsequently married—regarding whether she had been a victim of family violence. The record shows defense counsel asked Tanya if she had ever been the victim of family violence in her lifetime. She said she had been the victim twice, and that the first time it was "Tocorra and [A.L.]." The State's relevance objection was sustained over defense counsel's argument that it went to his defensive theory. But the State did not ask for an instruction to disregard, and the court did not order the jury to disregard the answer. Thus, the testimony was before the jury. In addition, the answer to defense counsel's next question after the State's objection was sustained showed Tocorra was "a tornado storm of anger" that all the children saw, and her anger frightened the children. Such testimony indicates that the issue of Tocorra's anger, which was also part of the defense's theory of the case, was before the jury.
Appellant also complains about the trial court overruling a line of questioning to Tanya regarding whether she had ever heard of the "turkey baster method." The record shows that, after confirming Tanya was a lesbian, defense counsel asked her if she had ever heard of "the turkey baster method," and she replied that she had. When counsel asked how she had heard about it, she replied that she had "worked with a lesbian couple" and then started to say where she worked, but the State objected to hearsay. The trial court sustained the objection. Defense counsel then elicited without objection that Tanya had worked with a lesbian couple. Counsel asked Tanya if she had ever researched ways of getting pregnant as a lesbian, and Tanya responded, "No." Tanya also testified that she had lesbian friends who had conceived. Asked if they went to a fertility clinic, Tanya testified that, no, "they used the turkey-baster method." The State objected to hearsay, and the objection was sustained. Appellant complains that the court did not give defense counsel an opportunity to respond before sustaining the State's objection. Even after the ruling, however, defense counsel made no effort to show the evidence was not hearsay or argue why it was admissible; she passed the witness. Moreover, although the State's objection was sustained, no instruction to disregard was requested or given. Hence, the testimony was before the jury. Appellant has again failed to show any evidentiary error.
Yet another matter raised by appellant concerns testimony from Mary Sifuentes, appellant's grandmother. Sifuentes was asked what happened in October of 2015, and she replied that appellant called her and said, "Midget, I don't know what—," at which point the prosecutor objected to hearsay. The trial court sustained the objection. Although appellant complains defense counsel was not given an opportunity to reply to the objection, counsel made no effort after the ruling to show the testimony was not hearsay or that it was admissible. Appellant also calls our attention to a point in Sifuentes's testimony when she was describing how she had tried to persuade her grandson to leave the house because she feared he was going to be arrested. Defense counsel asked, "And what happened? What did he do?" Sifuentes responded, "He said he wanted to stay because 'I haven't done anything. I want to stay.'" The State objected to hearsay and the trial court sustained the objection. Appellant once again argues he was not given an opportunity to respond, but at no point did defense counsel try to explain that the testimony was not hearsay or show it was admissible. Furthermore, the trial court did not order the jury to disregard the answer, so it was before the jury. We again conclude appellant has not established any evidentiary error.
Sifuentes testified that her grandchildren called her Midget.
Defense counsel emphasized her theory of the case to the jury during her closing argument, reminding the jurors of the evidence they heard and telling them, "DNA can't tell you the whole story." Counsel argued that A.M. needed a way out of the chaos in her family, and that she was afraid of her mother, Tocorra, who was full of rage. A.M. would watch television and learn about things from the internet, and then repeat them. The defense argued that A.M. was obsessed with appellant and thought of him like a knight in a fairy tale, and that she needed appellant's "peace and calm," and had a crush on him. Defense counsel added, "There is nothing wrong with a girl having a crush, but what you do to secure that crush can be a problem." Counsel argued that A.M. would go into appellant's room without permission and "snoop" through his things. She reminded the jury of A.M.'s testimony that, after saying she had never seen sex toys in appellant's room and did not know what a "Fleshlight" was and had never seen one, when she was shown one, she admitted she had once seen it in appellant's room, picked it up, unscrewed it, and threw it down. Defense counsel told the jury, "We are not denying this DNA report, that that [sic] the child is his. We are denying how it happened." Counsel also reminded the jury of the testimony of the defense's expert, Dr. Robert C. Benjamin, a forensic molecular biologist, who said that sperm could live outside of the body for four hours and possibly up to eight, depending on a number of variables. Defense counsel then argued:
She also vigorously denied getting any sperm from the device and said the defense's claim that she artificially impregnated herself by taking appellant's sperm was a lie.
I'm just going to throw this out here. We never said she only tried it once. We are just saying that at least once, it happened. She testified she took it, she unscrewed it, she saw it, and she dropped it. She knew what was in those Fleshlights. She knew. She knew based on her own testimony.Counsel also argued: "There is no forensic evidence of rape at all. Yes, there is a baby, but we all know there are many ways to have and make a baby."
He [the doctor] testified that TV, Internet, and movies has [sic] given people the knowledge that they no longer need a science degree to pull this stuff off anymore. He testified that, yeah, a turkey baster is different than a fertility clinic because if you're going to a fertility clinic, you already have something wrong. You have defective sperm or something like that. So that would hinder pregnancy. But if there is nothing wrong with you, there is no reason a turkey baster wouldn't work.
He even—we've even had testimony that that is used in lesbian circles so it's more intimate among the partners. DNA can't tell you the whole story. It can't tell you how.
Appellant further argues that the trial court demonstrated "judicial bias all the way through the end of trial in the trial judge's rulings in closing arguments." But appellant's brief does not specify what rulings by the court, if any, show this alleged "judicial bias," and provides no supporting citations to the record. In presenting error, an appellant's brief must contain an "argument for the contentions made, with appropriate citations to authorities and to the record." TEX. R. APP. P. 38.1(i). Failure to properly brief an issue presents nothing for us to review; we are not required to make an appellant's arguments for him. See Lucio v. State, 351 S.W.3d 878, 896 (Tex. Crim. App. 2011) (citing Busby v. State, 253 S.W.3d 661, 673 (Tex. Crim. App. 2008)).
We reach the same conclusion regarding appellant's complaint that the trial court's prejudice against him was "palpable from the moment the parties walked into the court room the first morning of trial. . . ." Appellant argues that the trial court's rulings favored the prosecution and prevented the defense from presenting its defensive theory, but his brief provides no citations to the record in support of this argument. See Lucio, 351 S.W.3d at 896 (we are not required to make an appellant's arguments for him).
We have reviewed appellant's various arguments to the extent possible and have found that his allegations are either refuted by the record or have no merit. The record shows appellant had ample opportunity to present to the jury the substance of his defense, i.e., that A.M. lived in a chaotic family household; that her mother, Tocorra, had anger issues; that appellant was kind to A.M.; and that she impregnated herself with appellant's sperm using a "turkey baster" method of artificial insemination. The record also shows the State presented substantial evidence of guilt—e.g., undisputed DNA evidence showing appellant was the father of A.M.'s child, and A.M. giving birth to that child when she was only eleven years old. The jury simply chose, in its role as the judge of the weight and credibility of the evidence, to reject the defense's theory of the case. We conclude appellant has not shown there was a violation of his constitutional right to present a defense, and we overrule appellant's first issue.
2. The doctor's testimony
In his second issue, appellant contends the trial court erred by allowing a doctor, Dr. Molly McStravick, the OB/GYN who operated on A.M. and delivered her baby via C-section, to offer an expert opinion on a matter to which the doctor had "extremely limited knowledge," i.e., artificial insemination.
An appellate court reviews the trial court's decision to admit or exclude evidence under an abuse of discretion standard. Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996); Montgomery v. State, 810 S.W.2d 372, 379-80 (Tex. Crim. App. 1990). The reviewing court should not reverse a trial judge whose ruling was within the "zone of reasonable disagreement." Green, 934 S.W.2d at 101; Montgomery, 819 S.W.2d at 391.
Dr. McStravick testified about her medical and educational background, telling the jury that she was in private practice in Rockwall as an OB/GYN and, prior to that, she had been a resident at U.T. Southwestern, Parkland. She was a graduate of the Drexel University College of Medicine. Dr. McStravick testified that she had performed over 200 C-section operations. After explaining how she treated A.M.'s pregnancy and performed the C-section, the prosecutor asked the doctor if she had "ever performed any kind of . . . insemination types" of procedures. She responded, "I've been part of the discussions for that and present in the room, but I myself have not done it." The prosecutor then asked the doctor to talk "a little bit about that process," at which point defense counsel objected that the doctor was "clearly not an expert in insemination techniques." The trial court overruled the objection.
Dr. McStravick testified regarding artificial insemination based on her experience during discussions of artificial insemination in a medical setting and being present during the procedure. The doctor also testified about a female's menstruation cycle and the conditions under which artificial insemination occurs in a medical setting. The doctor testified that if the donor sperm is collected at home, "It needs to be brought to the lab, usually within 20 to 30 minutes, and kept warm." She acknowledged that she was not an expert in "these details," but she knew that the lab concentrated "in cleaning the sperm" or doing "something to it to make it more pure." She also explained a woman's fertility cycle and how the doctors perform the artificial insemination. When the State asked Dr. McStravick about how long semen could survive outside of the vagina, appellant objected and the following occurred:
[DEFENSE COUNSEL]: Objection, Your Honor. Unless she has peer-reviewed studies and scientific experiments that she can present, she would not be an appropriate expert in this matter.
THE COURT: Do you have an expert opinion about how long semen is viable outside of the body?
THE WITNESS: In order of hours, I don't have a citation for that.
[DEFENSE COUNSEL]: Your Honor, that didn't answer whether or not she is claiming to be an expert in this.
THE COURT: Overruled.
Q. [PROSECUTOR]: How long can semen be viable outside of the body?
[DEFENSE COUNSEL]: Your Honor, asked and answered. Objection.
[PROSECUTOR]: Your Honor, I just wanted to get a clear answer from her. I don't think it was clear what her answer was.
THE COURT: Okay. Overruled.
Q. [PROSECUTOR]: How long is semen viable outside of the body?
A. On the order of hours. I don't have an exact number for you.
Q. So in order for someone to inseminate themselves outside of, like, a clinical environment, I mean, is it possible?
A. If everything lined up exactly right, I mean, I couldn't say that it's impossible.
Q. So everything, the ovulation cycle, the semen would have to be collected right away, it would have to be inseminated in the appropriate space, the woman would have to be ovulating at the right—at that time. There are a ton of factors that would have to be taken into consideration—
A. Everything would have to be pretty lined up perfectly for that to be possible.
Q. And even in artificial insemination, done in a clinical environment, doesn't "take" very often?
A. Right. It doesn't always work.
Q. You said about 10 to 20 percent; is that correct?
A. That is correct.
Q. And how does insemination work? It's not like you just stick a tube up in a vagina and empty the components in there—
A. The theory behind insemination—to make it more easily that the sperm and egg meet, that's the idea behind it. So by running the cleaned and concentrated sperm directly into the uterus at the time that ovulation is most likely, making those two things meet, is the goal behind it.
Q. Can you thread this up at home in that manner?
A. I would think it would be very difficult.
Q. Would a 10-year-old know how to do that?
A. I would not think so.
Q. So it's your opinion that, although it may be possible, everything would have to line up perfectly for this process to impregnate someone?
A. Correct.
Rule 702 provides that an expert may testify if the expert's "scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue." TEX. R. EVID. 702; Duckett v. State, 797 S.W.2d 906, 914 (Tex. Crim. App. 1990), disapproved on other grounds, Cohn v. State, 849 S.W.2d 817 (Tex. Crim. App. 1993) (to be admissible, expert testimony must assist trier of fact). A witness may be qualified as an expert to give such testimony on the basis of his or her knowledge, skill, experience, training, or education. TEX. R. EVID. 702. "Because the possible spectrum of education, skill, and training is so wide, a trial court has great discretion in determining whether a witness possesses sufficient qualifications to assist the jury as an expert on a specific topic in a particular case." Rodgers v. State, 205 S.W.3d 525, 527-28 (Tex. Crim. App. 2006). "For this reason, appellate courts rarely disturb the trial court's determination that a specific witness is or is not qualified to testify as an expert." Id. at 528 n. 9.
In the present case, the trial court could have concluded that Dr. McStravick's testimony regarding artificial insemination was admissible as an expert opinion under rule 702. The doctor testified regarding her knowledge, experience, training, and education. She had not personally performed an artificial insemination procedure but had been "part of the discussions for that" and was "present in the room" when it took place. Based on the record before us, we cannot say the trial court abused its discretion by overruling the objection. Furthermore, even if we were to conclude the trial court erred, that error was harmless under rule 44.2(b) because, given all of the evidence of appellant's guilt, the admission of the complained-of evidence did not have a substantial and injurious effect or influence on the jury's verdict and did not affect appellant's substantial rights. See TEX. R. APP. P. 44.2(b); Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001); Motilla v. State, 78 S.W.3d 352, 357 (Tex. Crim. App. 2002); Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). We overrule appellant's second issue.
We affirm the trial court's judgment.
/Lana Myers/
LANA MYERS
JUSTICE Do Not Publish
TEX. R. APP. 47.2(b)
161512F.U05
JUDGMENT
On Appeal from the 363rd Judicial District Court, Dallas County, Texas
Trial Court Cause No. F15-76425-W
Opinion delivered by Justice Myers. Justices Lang and Fillmore participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:
"Sex Offender Registration Requirements do not apply to the Defendant. TEX. CODE CRIM. PROC. chapter 62" should be changed to "Sex Offender Registration Requirements apply to the Defendant. TEX. CODE CRIM. PROC. chapter 62" "The age of the victim at the time of the offense was N/A" should be changed to "The age of the victim at the time of the offense was younger than 14 years of age" As REFORMED, the judgment is AFFIRMED. We direct the trial court to prepare a new judgment that reflects these modifications. Judgment entered this 28th day of March, 2018.