Opinion
NO. 03-16-00746-CR
04-06-2018
Misty Rae Hopkins, Appellant v. The State of Texas, Appellee
FROM THE DISTRICT COURT OF BURNET COUNTY, 424TH JUDICIAL DISTRICT
NO. 44558 , THE HONORABLE EVAN C. STUBBS, JUDGE PRESIDING MEMORANDUM OPINION
A jury found appellant Misty Rae Hopkins guilty of multiple child sexual abuse offenses—five counts of aggravated sexual assault of a child, see Tex. Penal Code § 22.021(a)(1)(B), (2)(B), and four counts of indecency with a child by sexual contact, see id. §21.11(a)(1)—for sexually abusing her biological daughter throughout her childhood. The jury assessed appellant's punishment at confinement for life in the Texas Department of Criminal Justice and a $10,000 fine for each count of aggravated sexual assault, see id. § 12.32, and 20 years and a $10,000 fine for each count of indecency with a child by sexual contact, see id. § 12.33. The trial court ordered the sentences to be served cumulatively. See id. § 3.03(b)(2)(A).
On appeal, appellant complains about the admission of unfairly prejudicial evidence, error in the jury charge, and the cumulation of her sentences. Finding no reversible error, we affirm the trial court's judgments of conviction for Counts Two, Three, Six, and Seven. However, through our own review of the record, we have found non-reversible clerical error in the remaining judgments of conviction. We modify these judgments to correct the error and, as modified, affirm the trial court's judgments of conviction for Counts One, Four, Five, Eight, and Ten.
BACKGROUND
The evidence at trial showed that appellant, her husband, John, and their five children, Ashley, Byran, J.D., Cassie, and Ezra, moved from Georgia to Burnet, Texas, where John was pastor of a local church. According to the testimony of J.D. and Cassie, after the family moved to the parsonage, appellant and John began sexually abusing their two youngest daughters. The daughters' testimony reflected that the sexual abuse continued until John died in 2012 when J.D. was 21 and Cassie was 19. The prosecution in the instant case is based on the sexual abuse appellant allegedly perpetrated against J.D.
In this opinion, with the exception of the complainant in this case, we refer to the family members by their first names. At trial, the complainant used the pseudonym of "BPD #190." However, for ease of reading, we refer to her using the initials J.D. for Jane Doe.
Appellant's middle daughter, J.D., was 25 years old at the time of trial. She testified that while there was "mild" touching of her "butt" in Georgia, after the family moved to Texas when she was seven years old, the sexual abuse by her parents began and progressively worsened throughout her childhood. In describing the progression of the sexual abuse, J.D. said that "[t]here was a slow progression where there was more mild things and it just got worse from there." She indicated that due to the ongoing and repetitive nature of the abuse, she had difficulty recalling each specific instance:
It happened -- I mean, it happened quite a bit, so it became a pretty normal thing. It would be like trying to remember how many times you took a shower as a kid growing up. Like, yeah, I took a shower, but I couldn't always tell you necessarily when, or what time of day, or all of that. So it became a fairly normal thing and only -- the only ones I remember in great detail are when something new was introduced, or if we had moved, or [at] a new place because that makes it stand out better because, honestly, at this point I've tried to forget most of them because it's easier that way. So it's -- yeah, I would say that I definitely don't remember necessarily all of it . . . .
J.D. recalled that one of the first incidents that she remembered happened late at night in the nursery at the church when she was seven or eight. She described how appellant took her into the nursery, undressed her, and sucked on her breast. J.D. then testified that appellant sucking on her breasts "happened on many occasions" and "became a fairly normal thing." When asked how many times that happened, J.D. said, "More than even I can say. I don't know how many times specifically. It was quite often." J.D. also testified that appellant would touch her "vagina area." She indicated that appellant often watched her bathe. In addition to watching her, appellant would bathe J.D., rubbing soap all over her, including her breasts, butt, and "vagina area." J.D. explained that this touching while bathing happened "pretty frequently" from the time J.D. was seven until she was 13 or 14—ages when, according to J.D., she did not need help bathing. J.D. testified that she knew it was "sexual" because sometimes appellant joined J.D. in the bath and masturbated.
J.D. also testified about an incident with an ice cube. She explained that on one occasion, after her parents had been fighting, appellant informed J.D. that she (appellant) needed help to make John happy. According to J.D., appellant undressed her and had her lay on the bed in her parents' bedroom. Appellant then put ice between J.D.'s breasts and licked the water drops off as the ice melted. J.D. explained that appellant touched her breasts, back, and abdomen with her hands, squeezed her butt, and kissed her inner thighs. She testified that John had sex with appellant while appellant was touching her. J.D. said that on that occasion appellant "used her fingers some on [J.D.'s] vagina area," rubbing her vagina but not penetrating her. Further descriptions of appellant touching J.D.'s vagina included J.D.'s testimony that on other occasions appellant rubbed her (appellant's) vagina against J.D.'s vagina and that one time appellant "actually used her breasts" to touch J.D.'s vagina. J.D. said that the touching of her vagina happened towards the middle or end of the time the family lived at the parsonage, when she was nine or ten. J.D. also described appellant making her suck on appellant's breasts while telling her to twirl her tongue around the nipples (because that was what appellant liked) and to use her other hand to squeeze appellant's breast or "flick her nipple."
J.D. recounted that when she was ten years old, she started her period, and her mother and father shaved her pubic hair "to make the period easier." She testified that one shaving incident involved more than just touching, and said that "their fingers"—"[her] dad's first and then [her] mom's"—penetrated her vagina. J.D. further testified that on several occasions appellant spread her (J.D.'s) legs out, "mess[ing] with that area" and "separat[ing] the folds of the vagina area," while her father penetrated J.D. with his finger. J.D. also described an incident that occurred while the family was living at the parsonage when her father penetrated her with his penis. She said that her father was on top of her and "penetrated some." She explained that she was unable to tell how far the penetration was because her parents had drugged her with pain medication. She said that she could not feel everything as it happened but afterward she "hurt quite a bit" and "it would burn" when she used the bathroom. J.D. testified that while her father was penetrating her with his penis, appellant was laying on the bed next to her masturbating.
J.D. further testified that while the family was living at the parsonage, her parents starting introducing oral sex. Appellant made her kiss appellant's inner thighs and "vagina area." J.D. also recalled one time at the parsonage when her mother performed oral sex on her. In addition, J.D. described an occasion when she was on the bed and her father was behind her and he penetrated her anus. She testified that her father rubbed his penis against her butt and put his penis "inside, in the inside" of her butt while her mom was on the bed with her. J.D. said that on another occasion "something similar happen[ed]" when she was on top of her father and appellant was behind her. She recounted that appellant held a vibrator "up against [J.D.'s] butt" while appellant rubbed herself against the vibrator that was against J.D. J.D. said that the incidents involving the penetration of and contact with her butt occurred when she was ten or eleven.
In her testimony, J.D. expressed that her parents "would use [her] to get each other off." She explained:
A lot of times they would just be like -- I mean, there would just be different times where they would either be touching me or be doing stuff with me and then they would have sex, or sometimes it involved me, like, doing stuff with my dad or doing stuff with my mom, or one of them would be doing something with me and the other one would be getting off on it.J.D. also testified about an incident where her parents tried to blame her older brother, Byran, for the sexual abuse they perpetrated against her. She said that they beat Byran and locked him in a closet for several days, taking him out only to beat him until he eventually "confessed" to sexually abusing J.D. and Cassie. J.D. denied that her brother had ever molested or sexually abused her.
The evidence at trial indicated that appellant's husband John had removed the door of the closet and secured boards over the opening. The dimensions of the closet were such that Byran was unable to lay down. He was given no food to eat other than an apple on the third day. He was given a bucket to use as a toilet.
J.D. testified that her family moved out of the parsonage when she was 13 or 14 years old. She next recounted an incident that occurred in a hotel room in Marble Falls, shortly after the move from the parsonage, when the family was "sort of celebrating Christmas." She recalled that the family was playing a video game. J.D. was not allowed to play herself but was helping her father play. At one point, John got angry and slapped J.D. because he believed it was her fault that he had been killed in the game. He sent the other children to bed in the adjoining rooms and made J.D. get on the bed. J.D. said that her father got on top of her and held her down while appellant cut her clothes off with scissors. Then, over a long period of time, her father forced her to have sex with him three times, and appellant made J.D. perform oral sex on her, touched J.D. with her hands, and then made J.D. perform oral sex on her again.
J.D. explained that after that hotel stay, the family moved around a bit until they settled in the Round Mountain area in Blanco County. She testified that during that time frame, when she was between the ages of 14 and 16, the sexual abuse continued to get progressively worse. She described the various sexual acts that appellant perpetrated against her, which included making J.D. give appellant oral sex ("more forcefully done" in that appellant held J.D.'s head in place to "[make] her finish"), using massagers on J.D.'s "vagina area," making J.D. use a massager on appellant's vagina (starting out "on the surface with it" and then "go[ing] into her with it" while making J.D. kiss her thighs or "suck her tits"), and performing oral sex on J.D. In addition, J.D. testified that during that time period she was also forced to perform oral sex on her father. Regarding the frequency of the sexual abuse in Round Mountain, J.D. expressed,
But, like, there's -- I mean, there was several times that it happened and picking out just one or being, like, this is the only one that happened or -- they get jumbled together. They were so repetitive. They were so the same. I mean, again, I only remember the ones where something was different, something stood out. So it just, again, gets -- it's like I'm just saying the same thing when it was a different time, so . . .
J.D. testified that when she was 16 years old, the family moved to Kingsland in Llano County. The family lived several different places in Kingsland, including a lake house, a commercial building, and the house where John died. J.D. testified that the sexual abuse by her parents, including the previously described sexual acts with and by appellant, continued in Kingsland until her father died. She indicated that the sexual abuse continued in the same manner so no particular incident stuck out in her mind. According to J.D., the abuse was "more of the same." She also testified that her parents would have her watch pornographic videos and want her to act out the conduct or would do the things from the video to her. She specifically recalled a video depicting "deep throating" that appellant wanted J.D. to do to her father while appellant masturbated.
J.D. testified that when the family lived in the commercial building, not as much abuse happened because, she opined, the location was in close proximity to others: "So actually that was kind of a -- more of a -- not a complete break, but sort of a break for me because it wasn't -- it wasn't near as much that it happened there, but it still happened."
Appellant's youngest daughter, Cassie, was 23 years old at the time of trial. Cassie described her upbringing as "[i]solated, very brainwashed, not at all as [she] would consider normal." She said that her family moved to the parsonage in Burnet when she was five, almost six, years old. Cassie testified that appellant touched her inappropriately when they lived at the parsonage. She described various acts of sexual abuse perpetrated by her mother, including touching Cassie on her breasts and "private areas," meaning her vagina. Cassie also recounted the incident when her older brother, Byran, was locked in the closet for several days. She too explained that the closet door had been removed and replaced with a board. Regarding the circumstances surrounding Byran being locked in the closet, Cassie testified that her parents said that Byran had molested her and J.D. However, Cassie denied that Byran had molested either of them.
Cassie testified that starting when she was about 12 years old, her mother and father would "make [her] and [her] sister do sexual things to them." She tearfully explained that her parents would inject the girls with drugs and then "make [them] do horrible things, inappropriately sexual things, that should never be done." She said that she would have to "suck [her] mom's nipple, and touch her vagina, and put [her] finger up in [appellant's] vagina." She also said that appellant would touch the breasts of both her and her sister, sucking on their nipples. Cassie further testified that her mother would "pleasure herself" while the girls would have to be either "giving [their] dad a blowjob or a hand job." She said that she and her sister "just had to do what [they] were told." She further testified that the sexual abuse got worse as she got older. Cassie said that she was sexually abused "a lot" from the time she was 12 until she was 19 when her father died. She indicated that she vaguely remembered sexual abuse when she was younger but not in good detail.
Regarding the sexual abuse of J.D., Cassie testified that "many times" her parents made her leave the bedroom so J.D. was alone with them. She said that her father expressed to her that he wanted to keep her "pure" by not having her do as many things as her sister. Cassie testified that she witnessed some of the sexual abuse perpetrated against J.D. by her parents but was often made to leave the room. Regarding what she witnessed, Cassie testified that appellant "did sexual things with [her] sister when [Cassie] was in the room." She said that J.D. "had to do the same things [Cassie] had to do, except more," particularly more "sexual things" to her father. Cassie explained that her mother "fully participated in [the sexual things done to J.D.]" Cassie also recounted that her parents often injected drugs into them before doing sexual things to her and J.D.
Appellant's oldest son, Byran, was 26 years old at the time of trial. He said that he did not know what was happening to his sisters while they were growing up. However, he testified that J.D. was in his parents' room by herself "almost constantly." He said that his parents explained that she was taking care of their father who purportedly had multiple sclerosis. Although he thought it was strange, he never suspected his parents were doing "something that awful." Byran recounted the incident where appellant accused him of sexually abusing his sisters, and his parents locked him in the closet, beating him until he "confessed" because he "couldn't take it anymore." Byran testified that his parents told him that he had penetrated the vagina of both girls. However, he explained that, at that point in his childhood, he had had no sexual education and did not even know what a vagina was. Byran testified that after he and J.D. were separated from their mother, J.D. disclosed the sexual abuse to him. He said that he confronted his mother about the sexual abuse. According to Byran, appellant told him that she did perform "these acts" but said that she had no control over it because John told her to do it.
Appellant's youngest son, Ezra, who was 20 years old at the time of trial, also testified. While he had no personal knowledge of the sexual abuse perpetrated against his sisters by his parents, he recalled the girls going into their parents' room often. He said that he and his brother were not allowed to go in there and were kept out for the most part. He indicated that J.D. never came out of the room, saying, "I mean, I never -- I barely ever saw her."
Testimony from other family members reflected that after the move to the parsonage, the family—particularly the children—became increasingly isolated from others. In addition, appellant's brother testified that appellant told him, in a phone call after John's death, that when J.D. was 18, she and John "invited [J.D.] into [their] sexual relationship." Appellant's brother-in-law (John's brother) testified that appellant was "very much in control of" her children. He also recalled an occasion when he visited the parsonage and saw a closet that had a board screwed on the side of it, which he thought was odd. When he asked about it, John said that he would tell him about it later.
Paul Nelson, the chief of police for the Burnet Police Department, testified that he interviewed appellant during the course of the police investigation. An audio recording of the interview was admitted at trial. During the interview, appellant denied doing anything to J.D. or Cassie when they were young. She did, however, admit that she fondled J.D. and did "light sexual things" to her after she turned 18. Appellant eventually clarified that she "sucked on [J.D.'s] boobs, touched [J.D.], and licked [J.D.] on her vagina." These activities, she claimed, happened when John "invited" J.D. to be part of their sexual life. She explained that J.D. slept between her and John because J.D. was taking care of John, and they started to "mess around." Appellant insisted that the sexual conduct was only after J.D. was 18 and said that it happened "about five times."
In the interview, appellant confirmed that both J.D. and Cassie had their pubic hair shaved, although she claimed that her husband alone shaved them. She also confirmed that the family went to Mexico to get medication for her and John. She denied injecting either J.D. or Cassie with the medication. Later in the interview, appellant admitted that she knew that J.D. was giving John "hand jobs" when the family lived in Round Mountain, which, she acknowledged, was before J.D. turned 18. She also admitted that her husband "may have tried to make Cassie come with his hands" when Cassie was a minor. Appellant also acknowledged that Byran was placed in the closet when he was young. However, she said that her husband put him in there and claimed that Byran was not locked in and could have left whenever he wanted.
Appellant testified on her own behalf at trial. Regarding the "sexual things" her children said happened, appellant said that she "[didn't] believe that they ever happened" because "they're not in [her] mind." She testified that in the fall of 2010 (when J.D. would have been 18, turning 19), her husband told her that in order for them to have a sexual relationship he needed for appellant to let him be with J.D. She characterized her daughter as "like a handmaid" in the Bible and said she agreed because "it was in the Bible to do that." Appellant also expressed that her husband was very controlling of her and that she believed that it was her role to be submissive to her husband. She asserted that during the time the family lived in the parsonage, because of mental health issues, "For all that time period [she didn't] know what happened. [She didn't] have any memory of it. [She didn't] know what happened, only what people tell [her] had happened." She recalled that when they were living in the motor home in Round Mountain, John had J.D. give him a "hand job" because he was having prostate problems and his prostate "needed milking." Appellant maintained that she told John to let her do it instead of J.D. but that he said that J.D. needed to do it.
On cross examination, appellant said that she did not want to call her children liars but said that she did not have any knowledge of "those things" taking place. She testified that she did remember licking J.D.'s vagina but only after 2010, when J.D. was 18. She insisted that she did not lick J.D. when she was a child. She also insisted that she did not do anything to her daughters in Burnet County while the family lived in the parsonage. She denied ever injecting drugs into her children, insisting that it was John who did that.
Appellant called her oldest daughter to testify on her behalf. Ashley, 30 years old at the time of trial, indicated that when the family lived at the parsonage the family was controlled by both her mother and father. She said that her parents had a good relationship, and her household felt like a normal household to her. She denied ever being sexually abused by either of her parents and indicated that she did not know of anyone else being abused by them. She testified about the various times she and her husband lived with the family after the move from the parsonage but she could not recall the sleeping arrangements. On cross examination, Ashley acknowledged that her younger sisters slept in one bedroom with her parents with the door closed. She agreed that there were periods of time when her sisters were alone with her parents and she did not see them; she conceded that she did not know if anything occurred during those times.
DISCUSSION
Appellant raises seven points of error. In her first point of error, appellant contends that the trial court erred by admitting unfairly prejudicial evidence. In her next two points of error, she asserts that error in the jury charge caused her egregious harm. In her last four points of error, appellant complains about the cumulation of her sentences. We address appellant's points of error in a different order than presented in her brief.
Unanimity Instruction
In her second and third points of error, appellant argues that the trial court's failure to include an incident-unanimity instruction in the jury charge violated her constitutional and statutory rights to a unanimous verdict under the Texas Constitution and the Texas Code of Criminal Procedure.
Standard of Review
We review alleged jury charge error in two steps: first, we determine whether error exists; if so, we then evaluate whether sufficient harm resulted from the error to require reversal. Arteaga v. State, 521 S.W.3d 329, 333 (Tex. Crim. App. 2017); Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005). The degree of harm required for reversal depends on whether the jury charge error was preserved in the trial court. Marshall v. State, 479 S.W.3d 840, 843 (Tex. Crim. App. 2016); see Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g) (setting forth procedure for appellate review of claim of jury charge error). If the jury charge error has been properly preserved by an objection or request for instruction, reversal is required if the appellant has suffered "some harm" from the error. Marshall, 479 S.W.3d at 843; Vega v. State, 394 S.W.3d 514, 519 (Tex. Crim. App. 2013); Almanza, 686 S.W.2d at 171; see Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009) ("If there was error and appellant objected to the error at trial, reversal is required if the error 'is calculated to injure the rights of the defendant,' which we have defined to mean that there is 'some harm.'"). When the charge error was not properly preserved by an objection or request for instruction, the error must be "fundamental" and requires reversal only if it was "so egregious and created such harm that the defendant was deprived of a fair and impartial trial." Marshall, 479 S.W.3d at 843; Villarreal v. State, 453 S.W.3d 429, 433 (Tex. Crim. App. 2015); Almanza, 686 S.W.2d at 171.
The Alleged Error
A trial court is statutorily obligated to instruct the jury on the "law applicable to the case." See Tex. Code Crim. Proc. art. 36.14; Arteaga, 521 S.W.3d at 334. The court's duty to instruct the jury on the "law applicable to the case" exists even when defense counsel fails to object to inclusions or exclusions in the charge. Vega, 394 S.W.3d at 519; Taylor v. State, 332 S.W.3d 483, 486 (Tex. Crim. App. 2011). The trial court is "ultimately responsible for the accuracy of the jury charge and accompanying instructions." Vega, 394 S.W.3d at 518 (quoting Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007)); Taylor, 332 S.W.3d at 488.
Jury unanimity is required in all felony cases by the Texas Constitution, and it is required in all criminal cases by statute. See Tex. Const. art. V, § 13; Tex. Code Crim. Proc. arts. 36.29(a), 37.02, 37.03, 45.034, 45.036; see also Ngo, 175 S.W.3d at 745. "This means that the jury must 'agree upon a single and discrete incident that would constitute the commission of the offense alleged.'" Cosio v. State, 353 S.W.3d 766, 771 (Tex. Crim. App. 2011) (quoting Stuhler v. State, 218 S.W.3d 706, 717 (Tex. Crim. App. 2007)); see Ngo, 175 S.W.3d at 745 ("Unanimity in this context means that each and every juror agrees that the defendant committed the same, single, specific criminal act."). In other words, a jury must agree on the factual elements underlying the charged offense, not just that a statute was violated. See Francis v. State, 36 S.W.3d 121, 125 (Tex. Crim. App. 2000).
One situation in which jury non-unanimity may occur is when the State charges one offense and then presents evidence that the defendant committed the charged offense on multiple but separate occasions. Cosio, 353 S.W.3d at 772. Each of the multiple incidents individually establishes a different offense. Id. In this situation, to satisfy the unanimity requirement, "'the jury must be instructed that it must unanimously agree on one incident of criminal conduct (or unit of prosecution), based on the evidence, that meets all of the essential elements of the single charged offense beyond a reasonable doubt.'" Saenz v. State, 451 S.W.3d 388, 390 (Tex. Crim. App. 2014) (quoting Cosio, 353 S.W.3d at 776). The failure to include such an instruction in the jury charge is error. See Cosio, 353 S.W.3d at 774.
In this case, the State charged appellant with multiple sexual abuse offenses. The indictment contained nine counts, which alleged various sexual acts. Count One alleged that appellant caused the sexual organ of J.D. to contact the sexual organ of appellant. Count Two alleged that, with intent to arouse or gratify appellant's sexual desire, appellant touched J.D.'s breasts. Count Three alleged that, with intent to arouse or gratify appellant's sexual desire, appellant caused J.D. to touch appellant's breasts. The offenses in Counts One, Two, and Three were alleged to have been committed on or about October 5, 1999. Count Four alleged that, acting in concert with John or as a party, appellant spread J.D.'s legs while John digitally penetrated J.D.'s sexual organ. Count Five alleged that appellant acted as a party to John penetrating J.D.'s sexual organ with his penis. Count Six alleged that, with intent to arouse or gratify John's sexual desire, appellant touched J.D.'s genitals. Count Seven alleged that, with intent to arouse or gratify appellant's sexual desire, appellant touched J.D.'s breasts. The offenses in Counts Four, Five, Six, and Seven were alleged to have been committed on or about October 5, 2001. Count Eight alleged that appellant caused J.D.'s mouth to contact appellant's sexual organ on or about October 5, 2003. Count Ten alleged that appellant acted as a party to John contacting or penetrating J.D.'s anus with his penis on or about October 5, 2004. With the exception of Counts Two and Seven, each of the counts alleged a different sexual act.
The original indictment charged appellant with 15 counts: six counts of aggravated sexual assault of a child, four counts of indecency with a child by sexual contact, four counts of indecency with a child by exposure, and one count of sexual performance by a child. Prior to trial, the State abandoned the four counts of indecency with a child by exposure and the count of sexual performance by a child. The trial court amended the indictment and renumbered the counts accordingly. During trial, in response to appellant's motion for directed verdict, the State abandoned Count Nine, one of the counts of aggravated sexual assault.
The jury charge contained instructions consistent with the above allegations. The jury charge also instructed the jurors that "the State [was] not required to prove the exact date alleged in any count of the indictment, but may prove the offense, if any, to have been committed at any time prior to the presentment of the indictment, but within the period of limitations attached to the offense." The charge further instructed that "there is no period of limitations for the offenses charged in the indictment" and that the indictment in this case was presented on October 6, 2015. There is no mention of the word "unanimous" in the jury charge, although in a section entitled "THE VERDICT" the jury was instructed, "You may return a verdict on a Count only if all twelve of you agree on the verdict as to that Count."
The State presented evidence that appellant committed the various sexual abuse offenses alleged on multiple but separate occasions over the course of J.D.'s childhood. See id. at 772. Therefore, the trial court should have included an incident-unanimity instruction in the jury charge. See id. at 774. Generic statements regarding unanimity, like the one contained in the jury charge here, are insufficient to prevent a non-unanimous verdict. See id. at 773-74 ("Although the instruction's 'boilerplate' section informed the jury that it must be unanimous, the jury could have understood it to mean that they had to be unanimous about the offense in general, not a particular incident comprising the offense."). Thus, the trial court's failure to include an instruction informing the jury of the incident-unanimity requirement was error.
Harm Analysis
Having found error in the jury charge, we must next consider whether appellant was harmed by the error. Appellant concedes that she did not object at trial to the absence of an incident-unanimity instruction in the jury charge. Thus, the jury charge error was not preserved, and reversal is required only if the error was "fundamental" in that it was "egregious and created such harm that the defendant was deprived of a fair and impartial trial." Villarreal, 453 S.W.3d at 433 (citing Almanza, 686 S.W.2d at 171); see Marshall, 479 S.W.3d at 843; see also State v. Ambrose, 487 S.W.3d 587, 595 (Tex. Crim. App. 2016) (reaffirming that under precedent of Court of Criminal Appeals, unpreserved jury charge error does not require new trial unless error causes "egregious harm").
Jury charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. Arteaga, 521 S.W.3d at 338; Marshall, 479 S.W.3d at 843; Arrington v. State, 451 S.W.3d 834, 840 (Tex. Crim. App. 2015). "Egregious harm is a 'high and difficult standard' to meet, and such a determination must be 'borne out by the trial record.'" Villarreal, 453 S.W.3d at 433 (quoting Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013)); see Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim. App. 2013) ("[Egregious harm] is a difficult standard to meet and requires a showing that the defendants were deprived of a fair and impartial trial."). We will not reverse a conviction unless the defendant has suffered "actual rather than theoretical harm." Villarreal, 453 S.W.3d at 433; see Marshall, 479 S.W.3d at 843 ("[C]ourts are required to examine the relevant portions of the entire record to determine whether appellant suffered actual harm, as opposed to theoretical harm, as a result of the error."); Cosio, 353 S.W.3d at 777 ("An egregious harm determination must be based on a finding of actual rather than theoretical harm."). In examining the record to determine whether charge error has resulted in egregious harm, we consider (1) the entirety of the jury charge, (2) the state of the evidence, including the contested issues and weight of probative evidence, (3) the arguments of counsel, and (4) any other relevant information revealed by the trial record as a whole. Arteaga, 521 S.W.3d at 338; Marshall, 479 S.W.3d at 843; Villarreal, 453 S.W.3d at 433; Almanza, 686 S.W.2d at 171. The analysis is "fact specific and is done on a 'case-by-case basis.'" Arrington, 451 S.W.3d at 840 (quoting Gelinas v. State, 398 S.W.3d 703, 710 (Tex. Crim. App. 2013)).
Entirety of the Jury Charge
The jury charge instructions here permitted non-unanimous verdicts based on the evidence presented in this case—evidence that appellant committed the charged sexual abuse offenses on multiple but separate occasions. Nothing in the jury charge ameliorated the error. The jury charge omitted any reference to the unanimity requirement, with the exception of a single, isolated statement that the jury could return a verdict on a count only if the jurors were unanimous in their verdict as to that count. This statement failed to inform the jury that this meant that it had to be unanimous about which incident of criminal conduct they believed constituted each count in the indictment. See Arrington, 451 S.W.3d at 841; Cosio, 353 S.W.3d at 774. This first factor weighs in favor of a finding of egregious harm.
State of the Evidence
The second factor requires us to review the state of the evidence, including the contested issues and weight of probative evidence. Villarreal, 453 S.W.3d at 433. Under this factor, "we look to the state of the evidence to determine whether the evidence made it more or less likely that the jury charge caused appellant actual harm." Arrington, 451 S.W.3d at 841.
As summarized previously in this opinion, J.D. testified extensively about the ongoing sexual abuse by her mother, beginning while the family lived at the parsonage and continuing until her father's death. J.D.'s description of several incidents was detailed and specific; while some was less detailed but still explicit about the sexual acts perpetrated. Some of her testimony was more generalized, indicating that the described sexual acts were repeated many times throughout her childhood and that the acts of abuse escalated in severity over the years. J.D.'s testimony regarding the offenses alleged in the indictment generally lined up with the counts contained in the jury charge.
In addition, the testimony from Cassie corroborated J.D.'s description of the sexual abuse that J.D. had been subjected to and reflected that Cassie had witnessed some of the sexual abuse of her sister by her parents, including their mother. Further, Byran and Ezra confirmed that J.D. was often alone with her parents in their bedroom, which, according to J.D. and Cassie, was when the sexual abuse of J.D. occurred. Moreover, Byran testified about how he confronted his mother when he learned about the sexual abuse. He said that appellant admitted to him that she had perpetrated the sexual abuse against J.D. although she minimized her responsibility by claiming that her husband told her do it. The jury also heard the audio recording of the police chief's interview with appellant, during which appellant admitted that she was sexually involved with J.D., just not, she claimed, when J.D. was a child. The interview also revealed that appellant knew about several instances when John had sexually abused her daughters when they were minors.
We observe that during trial the defensive theory of the case was not that appellant never engaged in sexual conduct with her daughter. Instead, the defensive theory was that appellant had not done anything sexual to J.D. until after she turned 18 and appellant and John "invited [J.D.] into [their] sexual life." In addition, appellant blamed John for any abuse the children suffered, including the drugging of her daughters, and claimed that she too was a victim of her controlling husband, whom defense counsel characterized as "a drug addict and a pedophile."
Appellant made no significant attack on J.D.'s credibility or the credibility of her other children who testified on behalf of the State. Although she did somewhat attempt to undermine their credibility by calling her oldest daughter, Ashley, who testified that she was unaware of any sexual abuse, appellant declined to call either J.D. or Cassie liars. Instead, appellant maintained that she did not believe the sexual abuse happened because she did not have memories of it. Through much of her testimony, as well as her interview with Chief Nelson, appellant asserted that she "did not remember" such sexual abuse and "did not have it in her memory." Appellant also attempted to shift the blame for any mistreatment of her children, including J.D.'s (and Cassie's) sexual abuse, on her deceased husband. When appellant cross examined J.D. and the other children, the questions focused primarily on John's control of the household, including injecting the "medication" into J.D., John's sexual abuse of J.D. and Cassie, and appellant's mental health issues and "nervous breakdown." The questions did not directly challenge J.D.'s credibility or imply that she was lying.
The record reflects that the jury found appellant guilty of all nine counts in approximately one hour and 20 minutes. Thus, the record indicates that the jury completely rejected appellant's defensive theories. Otherwise, the jury would have acquitted appellant of all of the counts. In all likelihood, the jurors believed J.D.'s testimony in its entirety—as it was corroborated by the other children, especially Cassie's eye-witness testimony—and believed that appellant committed all of the separate incidents of the ongoing sexual abuse. Given the state of the evidence in this case, it is very unlikely that any member of the jury believed that some incidents took place but that the others did not. Thus, it is equally unlikely that some of the jurors relied on one incident to support a finding of guilt while other jurors relied on a different incident to support the finding of guilt. See Jourdan v. State, 428 S.W.3d 86, 98 (Tex. Crim. App. 2014) ("It is also relevant to the egregious harm analysis to inquire about the likelihood that the jury would in fact have reached a non-unanimous verdict on the facts of the particular case."); see, e.g., Arrington, 451 S.W.3d at 844 (noting that jury "clearly credited" complaining witness's story and did not believe defendant's categorical denial of accusations when it found him guilty on six of seven counts on which he was indicted); Cosio, 353 S.W.3d at 777-78 (stating it was logical to suppose that jury unanimously agreed that defendant committed all of separate instances of criminal conduct when victim detailed each incident, her testimony was not impeached, and defense presented was "essentially of the same character and strength across the board"). On the facts of this particular case, the likelihood of non-unanimity is "exceedingly remote." See Jourdan, 428 S.W.3d at 98. The state of the evidence weighs against a finding of egregious harm. See Arrington, 451 S.W.3d at 844.
Arguments of Counsel
Under this factor, we consider whether any statements made during the trial by the prosecutor, the defense counsel, or the trial court may have exacerbated or ameliorated the error in the jury charge. Id.
Neither the prosecutor nor defense counsel directly addressed the incident-unanimity issue during the trial. At some points during the State's closing argument, the prosecutor focused the jurors' attention on specific incidents and urged them to rely on these particular incidents to find appellant guilty of the particular count that she related the incident to. Appellant correctly notes that, for some counts, the prosecutor mentioned that multiple incidents proved the offense. However, the prosecutor did not suggest that the jury did not have to be unanimous about which specific incident appellant committed when reaching a verdict for these counts. By way of comparison, in Ngo v. State, there were three different ways in which the charged offense could have been committed, and the State argued that it could "prove one to the satisfaction of part of the jury, another one to the satisfaction of others, [and] the third one to the satisfaction of another part of the jury." 175 S.W.3d at 750-51. This argument exacerbated the jury charge error because "the jury was affirmatively told . . . that it need not return a unanimous verdict." Id. at 751. No such argument was made here. At no point did the State argue to the jury that it need not be unanimous about which incident appellant had committed to find appellant guilty of a particular count.
Thus, the record reflects that, throughout the course of trial, neither the parties nor the trial court exacerbated the jury charge error by suggesting to the jury that it did not have to be unanimous in its decision. Accordingly, this factor weighs neither for nor against a finding of egregious harm. Compare Arrington, 451 S.W.3d at 844 ("[N]either the State nor appellant told the jurors that they must be unanimous about which criminal episode constituted each offense, nor were they told that they need not be unanimous. This factor, therefore, weighs neither for nor against finding egregious harm."), and Cosio, 353 S.W.3d at 777 ("[N]either of the parties nor the trial judge added to the charge errors by telling the jury that it did not have to be unanimous about the specific instance of criminal conduct in rendering its verdicts."), with Ngo, 175 S.W.3d at 751 (error of omitting unanimity instruction from jury charge was compounded by fact that jurors were affirmatively told on three occasions (twice by prosecutor and once by trial judge) that they could "mix and match" and that they need not agree on particular criminal act to return guilty verdict), and Gomez v. State, 498 S.W.3d 691, 699 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (factor weighed strongly in favor of egregious harm where "[t]he only time the jury received any instruction regarding the necessity of unanimously finding a single incident of conduct, it was affirmatively told it did not need to do so").
Other Relevant Information in the Record
This factor has been used by courts to consider additional information presented by circumstances such as where the jury rejected one count but convicted on all other counts, see Arrington, 451 S.W.3d at 844-45, or where the jury sent a question during deliberations that suggested confusion about unanimity, see Gonzales v. State, No. 03-16-00541-CR, 2017 WL 6756812, at *9 (Tex. App.—Austin Dec. 21, 2017, pet. filed) (mem. op., not designated for publication); Gomez, 498 S.W.3d at 699.
Appellant asserts that the fact that the jury was not polled following its verdict constitutes additional information weighing in favor of harm because "there is no independent assurance of unanimity by polling." However, we note that before receiving the jury's verdicts, the trial court addressed the presiding juror about the unanimity of the verdict in front of the other jurors. The court asked the presiding juror if the jury had returned a verdict as to each count; the presiding juror confirmed that it had. The court further asked if the verdict was unanimous; the presiding juror confirmed that it was.
We find that there are no additional circumstances in this case that require consideration. Nothing in the record shows that the jurors failed to agree about the specific crime committed for each count. Nor does the record show, or even suggest, that the jurors were confused or misled about the incident-unanimity requirement. This factor, like the third, weighs neither for nor against a finding of egregious harm.
Conclusion Regarding Harm
In sum, of the four factors, the only factor that weighs in favor of a finding of egregious harm in this case is the jury charge itself. The state of the evidence weighs against a finding of egregious harm; the other two factors weigh neither in favor of nor against a finding of egregious harm. In both Arrington and Cosio, the Court of Criminal Appeals found no egregious harm where the erroneous jury charge that permitted a non-unanimous verdict was the only factor weighing in favor of a finding of harm. See Arrington, 451 S.W.3d at 845; Cosio, 353 S.W.3d at 777-78. Although the jury charge in this case permitted non-unanimous verdicts, the strength of the probative evidence presented combined with the jury's rejection of appellant's defensive theories demonstrates that appellant did not suffer actual harm. See Arrington, 451 S.W.3d at 845 ("Although the instructions failed to identify the particular acts necessary to support each count, the evidence in the entire record and the analytical meaning of the jury's verdicts in the aggregate show that the erroneous instructions did not cause actual harm to appellant."). We, therefore, conclude that appellant was not egregiously harmed by the trial court's failure to include an incident-unanimity instruction in the jury charge. We overrule appellant's second and third points of error.
Evidentiary Claim
In her first point of error, appellant challenges the trial court's ruling admitting testimony about a comment that John made to appellant's oldest daughter, Ashley, before her wedding when he explained what her wedding night would be like.
Standard of Review
We review a trial court's evidentiary ruling for an abuse of discretion. Jenkins v. State, 493 S.W.3d 583, 607 (Tex. Crim. App. 2016); Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011); see Dabney v. State, 492 S.W.3d 309, 316 (Tex. Crim. App. 2016) ("[B]ecause trial courts are in the best position to decide admissibility questions, appellate courts must review a trial court's decision under an abuse-of-discretion standard."). A trial court abuses its discretion only if its determination "falls outside the zone of reasonable disagreement." Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016); see Henley v. State, 493 S.W.3d 77, 83 (Tex. Crim. App. 2016) ("Before a reviewing court may reverse the trial court's decision, 'it must find the trial court's ruling was so clearly wrong as to lie outside the zone within which reasonable people might disagree.'" (quoting Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008))).
We consider the trial court's ruling in light of what was before the trial court at the time the ruling was made. Billodeau v. State, 277 S.W.3d 34, 39 (Tex. Crim. App. 2009); see Rodgers v. State, 205 S.W.3d 525, 529 (Tex. Crim. App. 2006); Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). If the trial court's evidentiary ruling is correct on any applicable theory of law, we will uphold it, Jenkins, 493 S.W.3d at 607; Henley, 493 S.W.3d at 93; De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009), even if the trial court failed to give any reason or gave a wrong reason for the ruling, Jenkins, 493 S.W.3d at 607; Bowley v. State, 310 S.W.3d 431, 434 (Tex. Crim. App. 2010); De La Paz, 279 S.W.3d at 344.
The Testimony
Several extended family members, siblings of John or appellant or their spouses, testified at trial about appellant's relationship with John, their drug use and odd behavior, the increasing isolation of the family over the years—particularly that of the children,—and some disturbing aspects of the children's physical appearance and behavior. Through Kristine Hopkins, appellant's sister-in-law, the State sought to admit evidence of a comment made to or about Ashley, appellant's oldest daughter, before her wedding. Specifically, the prosecutor asked Kristine if appellant had "specifically [said] something either about Ashley or to her that kind of was shocking to [Kristine]?" Kristine began to answer, but appellant interrupted, objecting to relevance.
The record reflects that at one point, appellant's sister contacted Child Protective Services because she was so concerned about the children's welfare. She explained that they "tried to take the kids away"
[b]ecause the kids weren't educated, and because there were surveillance cameras all over their house, and because they wouldn't let us see their kids, and because they were weird. You know, they weren't schooling them. You couldn't get into their house. The teaching and preaching at the church was not biblical and it was just -- there were just a lot of things that made us think that there were bad things going on.
The record reflects that Kristine was married to John's brother, Dale, who also testified at trial.
At a hearing outside the presence of the jury, the prosecutor explained that the testimony related to a statement that appellant made to Kristine some time prior to or during the time that Ashley was getting married. The prosecutor indicated that the testimony would be that "appellant said to [Kristine] that 'Tonight,' or something like that, 'Ashley will kiss [her husband] like you only kiss your husband or your father.'" The State maintained that the testimony was relevant
to show the sexual motive of the defendant and the fact that sexual acts between parents and children in this family are accepted. And that's not a -- most people wouldn't -- like you kiss your father and a husband are not the same, and, clearly, that shows her intent and her -- goes to knowledge and intent and then the sexual motive of other conduct.Appellant objected to the admission of the testimony, arguing that
There's no abuse against Ashley that's alleged in any of these charges. I don't think this -- this statement can be interpreted in many ways I think, so I think it's convenient to interpret it as another sign of abuse, but I think that it is more prejudicial than it is probative in this case. We don't know what the meaning of the statement was, so I just think it's not relevant and I think it's prejudicial.The trial court overruled appellant's objection, stating, "All right. Well, I'm going to overrule the objection. And if you want to clear up what you believe the meaning of statement was, you can do that through cross-examination."
Under the circumstances here, we construe the trial court's ruling as overruling both appellant's relevance objection and her Rule 403 objection or as an implied overruling of appellant's 403 objection. See Tex. R. App. P. 33.1(a)(1)(A).
After the objection was overruled, the evidence was admitted in the following exchange:
Q. Ms. Hopkins, we were talking before about a statement that the defendant made to you or in front of you at Ashley -- or around the time Ashley and [her future husband] were getting married. What was that statement?
A. It was -- it was something to the effect of that John had explained to Ashley what her wedding night would be like and that she would be kissing her husband the way that -- the way Misty put it was like the way she had kissed her father. And I found it such an odd comment and I thought I must have misunderstood that somehow. It didn't make sense to me.
We note that the proffer of the testimony indicated that appellant had made a comment to or about Ashley regarding her wedding night. However, Kristine's testimony reflected that appellant was relating a comment that John had made to Ashley when giving her advice about her wedding night. This discrepancy does not impact our analysis.
In her first point of error, appellant contends that the trial court erred by admitting the evidence of appellant's statement about John's comment to Ashley because it was more prejudicial than probative. See Tex. R. Evid. 403 (allowing for exclusion of otherwise relevant evidence when probative value is substantially outweighed by danger of "unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence"). Assuming, arguendo, the trial court erred by admitting Kristine's testimony about appellant telling her about John's comment to Ashley, the admission of the evidence was not harmful.
The erroneous admission of evidence is non-constitutional error. Sandoval v. State, 409 S.W.3d 259, 287 (Tex. App.—Austin 2013, no pet.); see Barshaw v. State, 342 S.W.3d 91, 93 (Tex. Crim. App. 2011); Casey v. State, 215 S.W.3d 870, 885 (Tex. Crim. App. 2007). Non-constitutional error requires reversal only if it affects the substantial rights of the accused. See Tex. R. App. P. 44.2(b); Barshaw, 342 S.W.3d at 93; Sandoval, 409 S.W.3d at 287. "'A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict.'" Thomas v. State, 505 S.W.3d 916, 926 (Tex. Crim. App. 2016) (quoting King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997)). We will not overturn a criminal conviction for non-constitutional error if, after examining the record as a whole, we have fair assurance the error did not influence the jury, or influenced the jury only slightly. Barshaw, 342 S.W.3d at 93; Sandoval, 409 S.W.3d at 287.
In assessing potential harm, our focus is not on whether the outcome of the trial was proper despite the error but on whether the error had a substantial or injurious effect or influence on the jury's verdict. Barshaw, 342 S.W.3d at 93-94; Sandoval, 409 S.W.3d at 287-88. We review the entire record to ascertain the effect or influence on the verdict of the wrongfully admitted evidence. Barshaw, 342 S.W.3d at 93; see Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010) (in conducting harm analysis "we examine the entire trial record and calculate, as much as possible, the probable impact of the error upon the rest of the evidence"). We consider all the evidence that was admitted at trial, the nature of the evidence supporting the verdict, the character of the alleged error, and how the evidence might be considered in connection with other evidence in the case. Barshaw, 342 S.W.3d at 94; Sandoval, 409 S.W.3d at 288. We may also consider the jury instructions, the parties' theories of the case, closing arguments, voir dire, and whether the State emphasized the error. Barshaw, 342 S.W.3d at 94; Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000); Sandoval, 409 S.W.3d at 288. The weight of evidence of the defendant's guilt is also relevant in conducting a harm analysis under Rule 44.2(b). Neal v. State, 256 S.W.3d 264, 285 (Tex. Crim. App. 2008); Motilla v. State, 78 S.W.3d 352, 356-57 (Tex. Crim. App. 2002).
In the instant case, the jury heard extensive testimony from J.D. describing the ongoing sexual abuse that her mother (and father) perpetrated against her throughout her childhood. The jury heard J.D. testify about how the sexual abuse began and how it progressively worsened over the years. J.D. described the various ways her parents "would use [her] to get each other off," including how, on repeated occasions, appellant touched J.D.'s breasts, made J.D. touch appellant's breasts, touched J.D.'s genitals, caused J.D.'s sexual organ to contact appellant's sexual organ, spread J.D.'s legs while John penetrated J.D.'s sexual organ with his fingers, penetrated J.D.'s sexual organ with her fingers, made J.D. penetrate appellant's sexual organ with massagers, performed oral sex on J.D., made J.D. perform oral sex on appellant, made J.D. perform oral sex on John, acted as a party to John penetrating J.D.'s sexual organ with his penis, and acted as a party to John penetrating or contacting J.D.'s anus with his penis. J.D. provided details about some of the abuse incidents—including specifics about what appellant did, how she did it, when she did it, where they were, and who else was involved in the activity—and described the ongoing and repetitive nature of the abuse. She also detailed appellant's use of pornographic videos and massagers.
In addition to J.D.'s testimony, the jury heard other evidence supporting a finding of appellant's guilt, such as the testimony of J.D.'s sister, Cassie, who testified about witnessing and having to participate in some of the sexual abuse acts J.D. described, and J.D.'s brother, Byran, who testified that he confronted appellant about the sexual abuse and she admitted that she had sexually abused J.D. The jury was able to observe the demeanor of J.D. and her siblings during their testimony. The jury also heard the audio recording of the police chief's interview with appellant where she admitted that she "sucked on [J.D.'s] boobs, touched [J.D.], and licked [J.D.] on her vagina," which she characterized as "light sexual things," and where she explained that she and John invited their biological daughter to be part of their sexual life.
Appellant presented evidence supporting her defensive theories that she was a victim of John's controlling ways and that she never engaged in sexual conduct with J.D. when was she was a child, including her own testimony that she only engaged in sexual conduct with J.D. after J.D. turned 18 when she and John invited J.D. into their sexual life.
Considering the evidence as a whole, we conclude that the evidence supporting the jury's verdict was strong and whether the testimony at issue was admitted does not strengthen or detract from that evidence. The testimony concerning appellant's statement about John's comment to Ashley did not inherently reflect appellant's sexual attraction to J.D. or connote illegal sexual misconduct with her middle daughter. Further, given the state of the record, the comment was fairly innocuous. We also note the State's limited focus on the comment. Only Kristine testified about the comment, and the State made no references to the comment in closing argument. Removing the testimony of appellant's statement about John's comment to Ashley from consideration, there remains significant evidence supporting the jury's finding of appellant's guilt.
Given the nature of J.D.'s testimony and other evidence in the record, we have fair assurance that hearing the brief testimony concerning appellant's statement about John's comment to Ashley did not influence the jury, or influenced the jury only slightly. Thus, because the error, if any, did not have a substantial and injurious effect or influence in determining the jury's verdict, it did not affect appellant's substantial rights. Accordingly, the trial court's error, if any, was harmless. We overrule appellant's first point of error.
Cumulative Sentences
In her last four points of error, appellant complains about the trial court's cumulation of her sentences.
Section 3.03 of the Texas Penal Code sets out when sentences that arise out of the same criminal episode must be served concurrently and when they may be served consecutively. Generally, when multiple offenses arising out of the same criminal episode are tried in the same criminal action, the sentences must be served concurrently. See Tex. Penal Code § 3.03(a); see also id. § 3.01 (defining "criminal episode"). However, there are specific statutory exceptions to that rule. See id. § 3.03(b); Bonilla v. State, 452 S.W.3d 811, 818 (Tex. Crim. App. 2014). One such exception permits the trial judge to cumulate sentences for certain child sexual abuse offenses. See Tex. Penal Code § 3.03(b)(2)(A).
In this case, after the jury returned its guilty verdicts, the State filed a motion to cumulate appellant's sentences pursuant to section 3.03(b)(2)(A). When the jury returned its punishment verdicts, the trial court formally accepted the verdicts and then sentenced appellant in accordance with the jury's verdicts. In sentencing appellant, although the trial court did not explicitly grant the State's motion to cumulate, the court cumulated each of the sentences. After the court finished imposing the sentences, the trial court briefly informed appellant about her right to appeal. The court then inquired of each of the parties—first the State, then the defense—if "there was anything else." In response to the inquiry of the defense, appellant responded, "We would object to the sentence, which comes to 380 years, as against the Eighth Amendment, cruel and unusual punishment." The trial court overruled the objection.
After imposing the life sentence for Count One, the trial court ordered each successive sentence to begin after the sentence for the previous count ceased to operate: the 20-year sentence for Count Two was ordered to begin after the life sentence for Count One ceased to operate, the 20-year sentence for Count Three was ordered to begin after the 20-year sentence for Count Two ceased to operate, and so on until the life sentence for Count Ten was ordered to begin after the life sentence for Count Eight ceased to operate.
In her fourth and fifth points of error, appellant asserts that the trial court erred in cumulating her sentences in violation of the United States and Texas constitutions because, she contends, the cumulation of sentences penalized her for exercising her right to jury trial. In her sixth and seventh points of error, she argues that the cumulation of her sentences constitutes cruel and unusual punishment in violation of the United States and Texas constitutions.
To preserve a complaint for appellate review, a party must raise the complaint to the trial court by a timely request, objection, or motion that states the grounds for the ruling sought with enough specificity to make the trial judge aware of the complaint, unless the specific grounds were apparent from the context. Tex. R. App. P. 33.1(a)(1)(A); see Thomas, 505 S.W.3d at 924; Yazdchi v. State, 428 S.W.3d 831, 844 (Tex. Crim. App. 2014). While no "magic words" or citation to specific statutes or rules is required to preserve a complaint for appeal, a party must convey the substance of the complaint to the trial court clearly enough to provide the judge and the opposing party an opportunity to address and, if necessary, correct the purported error. Ex parte Marascio, 471 S.W.3d 832, 842 (Tex. Crim. App. 2015); Pena v. State, 353 S.W.3d 797, 807 (Tex. Crim. App. 2011); see Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012) ("While no 'hyper-technical or formalistic use of words or phrases' is required in order for an objection to preserve an error, the objecting party must still 'let the trial judge know what he wants, why he thinks he is entitled to it, and to do so clearly enough for the judge to understand him at a time when the judge is in the proper position to do something about it.'") (citations omitted); see also Love v. State, — S.W.3d —, No. AP-77,024, 2016 WL 7131259, at *14 (Tex. Crim. App. Dec. 7, 2016) ("This means that the party must 'let the trial court know what he wants and why he feels himself entitled to it clearly enough for the judge to understand him.'" (quoting Vasquez v. State, 483 S.W.3d 550, 554 (Tex. Crim. App. 2016)).
Here, appellant's objection at trial complained that the sentence(s) assessed by the jury and imposed by the court constituted cruel and unusual punishment in violation of the Eighth Amendment of the United State Constitution. Appellant never complained about the cumulation of her sentences. An order cumulating sentences is distinct from the sentences imposed. See, e.g., Ex parte Carter, 521 S.W.3d 344, 347 (Tex. Crim. App. 2017) (observing that labeling improperly cumulated sentences as "void sentences" is inaccurate because "the infirmity lies in the order setting how the sentences will be served, not in the assessed sentences themselves"); see also 43B George Dix & John Schmolesky, Texas Practice Series: Criminal Practice and Procedure § 59:57.50 (3d ed. 2011) ("Although the cumulation order may be unauthorized, Carter observed, this does not mean the sentences themselves are 'void' or 'unauthorized.'"). In no way did appellant inform the trial court (or the State) that she was asserting that the trial court's cumulation of the jury-assessed sentences violated her federal or Texas constitutional rights. Thus, the record reflects that appellant failed to properly preserve the complaints regarding the cumulation of her sentences for appellate review.
Appellant acknowledges that her objection at trial did not preserve her complaints about the cumulation of her sentences. Nevertheless, she maintains that under Rule 103(e) of the Texas Rules of Evidence this Court can consider "even unpreserved fundamental errors affecting a substantial right." To support her claim of fundamental error, appellant claims that the trial court's decision to cumulate her sentences infringed on her constitutional rights to a jury trial, see U.S. Const. amend. VI; Tex. Const. art. I, § 15, which she characterizes as a "sacred right." However, the decision of whether to cumulate sentences is "a normative, discretionary function that does not turn on discrete findings of fact" and, therefore, "does not infringe upon the Sixth Amendment guarantee of a jury trial." Barrow v. State, 207 S.W.3d 377, 380 (Tex. Crim. App. 2006).
Appellant cites to Texas Rule of Evidence 103(d) to support her position concerning unpreserved fundamental error. In the prior version of Rule 103, subsection (d) stated, "Nothing in these rules precludes taking notice of fundamental errors affecting substantial rights although they were not brought to the attention of the court." However, Rule 103 was amended in 2015, see Texas Supreme Court, Final Approval of Amendments to the Texas Rules of Evidence, Misc. Docket 15-9048 (Tex. Mar. 10, 2015), reprinted in 78 Tex. B.J. 374, 380-81 (2015); Texas Court of Criminal Appeals, Final Approval of Amendments to the Texas Rules of Evidence, Misc. Docket 15-001 (Tex. Crim. App. Mar. 12, 2015), reprinted in 78 Tex. B.J. 376, 380-81 (2015), and the rule regarding unpreserved fundamental error was re-codified as in subsection (e), and now reads, "In criminal cases, a court may take notice of a fundamental error affecting a substantial right, even if the claim of error was not properly preserved." See Tex. R. Evid. 103(e). We assume that appellant cited subsection (d) in error and meant to cite to subsection (e).
Moreover, appellant's reliance on unpreserved fundamental error under Rule 103(e) is misplaced. As the Court of Criminal Appeals recently observed, Rule 103(e) is, by its very style, a "Rule of Evidence." Proenza v. State, — S.W.3d —, No. PD-1100-15, 2017 WL 5483135, at *6 (Tex. Crim. App. Nov. 15, 2017). Thus, the Court concluded, it is "inaccurate to cast Rule 103(e) as an exception to the rules of procedural default in situations where . . . the perceived error did not arise from the trial judge 'ruling to admit or exclude evidence.'" Id. (quoting Tex. R. Evid. 103(a)). Here, the trial court's cumulation of appellant's sentences was not an evidentiary ruling. Rule 103(e) is inapplicable and does not operate to excuse appellant's procedural default of her cumulation complaints.
Further, appellant's reliance on unpreserved fundamental error ignores the classification of rights outlined in Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993), overruled on other grounds by Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997), the watershed decision differentiating between rights that are mandatorily enforced, rights subject to waiver, and rights subject to forfeiture, and discussing which rights are subject to procedural default and the general preservation requirement of Texas Rule of Appellate Procedure 33.1. In Marin, the Court of Criminal Appeals delineated three distinct categories of rights belonging to litigants: category one rights that are "absolute requirements and prohibitions," which are not optional and can never be waived or forfeited; category two rights that are "waivable rights," which are rights that must be implemented unless expressly waived; and category three rights that are "forfeitable rights," which are rights that must be requested in order to be implemented. Id. at 279-80; see Marascio, 471 S.W.3d at 835 (discussing categorization structure outlined in Marin); Ex parte Heilman, 456 S.W.3d 159, 162 (Tex. Crim. App. 2015) (same).
The Court of Criminal Appeals recently rejected a freestanding doctrine of "fundamental error," observing that "[t]he 'fundamental error[s]' described in Rule 103(e) . . . are simply category-one and -two Marin errors." Proenza, 2017 WL 5483135, at *6-7. The Court concluded that "Marin leaves no room for a harm-based doctrine of error-preservation" such as the one appellant suggests here. See id. at *6. The Court reaffirmed Marin's holding and once again explained that the question of error preservation turns on the nature of the right allegedly infringed as opposed to the circumstances under which the error was raised. Id. at *6-7; see Heilman, 456 S.W.3d at 165-66 ("When we analyze rights under our Marin framework, we focus on the nature of the right at issue—not the circumstances under which it was raised."). Thus, the Court concluded that "a proper determination of a claim's availability on appeal should not involve peering behind the procedural-default curtain to look at the particular 'circumstances' of the claim within the case at hand." Proenza, 2017 WL 5483135, at *6. With this in mind, we look at appellant's claim that the cumulation of her sentences constitutes "fundamental error."
In spite of appellant's attempts to characterize the alleged error as a violation of her constitutional rights to a jury trial, appellant is complaining about the trial court's exercise of its discretion in cumulating her sentences. The Court of Criminal Appeals has determined that the improper cumulation or "stacking" of sentences under section 3.03(a) of the Penal Code is a Marin category two, waiver-only right and thus such an error can be raised on direct appeal despite the lack of a trial court objection. See Carter, 521 S.W.3d at 347 (noting that the Court previously held "that § 3.03 confers a Marin waiver-only right—a right that must be implemented unless affirmatively waived") & 348 (confirming that as Marin category two, waiver-only right, improper-cumulation claims are not subject to procedural default by inaction and can be raised for first time on appeal); see also 43B George Dix & John Schmolesky, Texas Practice Series: Criminal Practice and Procedure § 59:57.50 (3d ed. 2011). However, the Court was addressing the mandatory concurrent-sentence provision of section 3.03 set forth in subsection (a). The right at issue here concerns the permissive cumulation provision in subsection (b). Appellant's complaints do not involve a claim of improper stacking. She does not contend that the trial court lacked authority to cumulate her sentences; she asserts that the court inappropriately exercised its discretion in cumulating them.
In Ex parte McJunkins, the Court of Criminal Appeals concluded that Penal Code section 3.03(a) confers a waivable right, observing that "the mandatory concurrent-sentence provision of Penal Code Section 3.03 is altogether dependent on the choices of the parties" and thus, "[b]ecause the operation of Section 3.03 requires the consent of both litigants, it is properly characterized as a right of a litigant rather than as an absolute requirement or prohibition which cannot be waived or forfeited." 954 S.W.2d 39, 40-41 (Tex. Crim. App. 1997) (internal citations omitted).
"[C]hallenges to the propriety of trial-court rulings must be preserved for appeal." Moore v. State, 371 S.W.3d 221, 225 (Tex. Crim. App. 2012). Therefore, in the context of cumulative sentences, while complaints about the trial court's authority to cumulate sentences (an improper-cumulation claim) are not subject to procedural default, see Carter, 521 S.W.3d at 348; Ex parte McJunkins, 954 S.W.2d 39, 40-41 (Tex. Crim. App. 1997), and complaints about the "factual basis" of a trial court's cumulation order may be raised for the first time on appeal, see Moore, 371 S.W.3d at 225, complaints about the "appropriateness" of a cumulation order must be preserved in the trial court, see id. (rejecting appellate court's holding that appellant's complaint about cumulation of sentences was procedurally defaulted because complaint raised evidentiary sufficiency challenge to cumulation order). See, e.g., Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010) (observing that appellant did "not challenge the propriety of assessing attorney's fees" but complained about sufficiency of evidence of financial resources and ability to pay and thus complaint was not waived by failure to raise at trial); Idowu v. State, 73 S.W.3d 918, 921 (Tex. Crim. App. 2002) ("If a defendant wishes to complain about the appropriateness of (as opposed to the factual basis for) a trial court's restitution order, he must do so in the trial court.").
We conclude that a complaint about the propriety of the trial court's permissive cumulation of sentences under Penal Code section 3.03(b)(2)(A) involves a category three, forfeitable right under Marin and is, therefore, subject to procedural default if not raised at trial. Accordingly, because appellant did not complain about the cumulation of her sentences at trial, which she concedes in her brief, her complaints challenging the propriety of the trial court's cumulation of her sentences have not been preserved for appeal.
We also observe that appellant's complaints in her fourth and fifth points of error are based on comments made by the trial court, which appellant claims demonstrate the court's intent to penalize her for exercising her right to a jury trial. However, in looking at the circumstances of the trial court's imposition of cumulative sentences rather than the nature of the right itself, appellant seeks to "peer behind the procedural default curtain" by looking at the particular circumstances of the claim rather than the claim itself, which the Court of Criminal Appeals has indicated is not permissible in resolving questions of error preservation. See Proenza v. State, — S.W.3d —, No. PD-1100-15, 2017 WL 5483135, at *6 (Tex. Crim. App. Nov. 15, 2017).
Preservation of error is a systemic requirement on appeal. Darcy v. State, 488 S.W.3d 325, 327 (Tex. Crim. App. 2016); Bekendam v. State, 441 S.W.3d 295, 299 (Tex. Crim. App. 2014). A reviewing court should not address the merits of an issue that has not been preserved for appeal. Blackshear v. State, 385 S.W.3d 589, 590 (Tex. Crim. App. 2012); Wilson v. State, 311 S.W.3d 452, 473-74 (Tex. Crim. App. 2010). Accordingly, we overrule appellant's fourth, fifth, sixth, and seventh points of error due to lack of preservation.
Error in the Written Judgements
On review of the record, we observe that the written judgments of conviction for aggravated sexual assault of a child in Counts One, Four, Five, Eight, and Ten, contain non-reversible clerical errors. Each of the judgments states that the "Statute for Offense" is "22.021(a)(2)(B) Penal Code." This statutory provision establishes that the offense of sexual assault is aggravated sexual assault when the offense is perpetrated against a victim younger than 14 years of age, which is the case here. However, the applicable statutory provisions for the offenses of aggravated sexual assault of a child for which appellant was convicted also include section 22.021(a)(1)(B) of the Penal Code, the statutory provision that defines the offense of aggravated sexual assault of a child.
This Court has authority to modify incorrect judgments when the necessary information is available to do so. See Tex. R. App. P. 43.2(b) (authorizing court of appeals to modify trial court's judgment and affirm it as modified); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993) (concluding that Texas Rules of Appellate Procedure empower courts of appeals to reform judgments). Accordingly, we modify the judgments of conviction for Counts One, Four, Five, Eight, and Ten to reflect that the "Statute for Offense" is "22.021(a)(1)(B), (2)(B) Penal Code."
CONCLUSION
Having concluded that appellant did not suffer egregious harm from the trial court's failure to include an incident-unanimity instruction in the jury charge, that any error in the trial court's admission of evidence concerning John's comment to Ashley about her wedding night was harmless, and that appellant failed to properly preserve her complaints regarding the cumulation of her sentences for appellate review, we affirm the trial court's judgments of conviction for Counts Two, Three, Six, and Seven. Having found non-reversible clerical error in the written judgments of conviction for Counts One, Four, Five, Eight, and Ten, we modify these judgments as noted above to correct the error and, as modified, affirm the trial court's judgments of conviction for Counts One, Four, Five, Eight, and Ten.
/s/_________
Cindy Olson Bourland, Justice Before Justices Puryear, Field, and Bourland Counts Two, Three, Six, and Seven: Affirmed Counts One, Four, Five, Eight, and Ten: Modified and, as Modified, Affirmed Filed: April 6, 2018 Do Not Publish