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Jackson v. State

Court of Appeals of Texas, Fifth District, Dallas
Nov 3, 2008
No. 05-07-01359-CR (Tex. App. Nov. 3, 2008)

Opinion

No. 05-07-01359-CR

Opinion Filed November 3, 2008. DO NOT PUBLISH. Tex. R. App. P. 47

On Appeal from the Criminal District Court No. 7 Dallas County, Texas, Trial Court Cause No. F05-57957-Y.

Before Justices WRIGHT, LANG-MIERS, and MAZZANT.


MEMORANDUM OPINION


A jury convicted Paulo Jackson of sexual assault of a child and assessed his punishment, enhanced by a prior felony conviction, at five years in prison. In seven issues, appellant contends that the evidence is factually insufficient to support the conviction, and the trial judge abused his discretion by admitting certain evidence and by refusing to allow appellant to reopen his case so that he could testify. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. We affirm.

Factual Insufficiency

In his first issue, appellant contends that the evidence is factually insufficient to support the conviction. In reviewing a claim that the evidence is factually insufficient, we view all of the evidence in a neutral light and ask whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). Evidence is factually insufficient when the evidence supporting the conviction is so weak that the verdict seems clearly wrong and manifestly unjust, or when the evidence supporting the conviction is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App. 2007). When the evidence is in conflict, we may not reverse on a factual insufficiency claim simply because we disagree with the way the jury resolved the conflict. See Lancon v. State, 253 S.W.3d 699, 705 (Tex.Crim.App. 2008). Instead, the record must show some objective basis for concluding that the great weight and preponderance of the evidence contradicts the jury's verdict. See Watson, 204 S.W.3d at 417; Roberts, 220 S.W.3d at 524. The indictment in this case charged that on or about August 18, 2005, appellant did "unlawfully then and there intentionally and knowingly cause the penetration of the female sexual organ of [M.S.], a child, who was not then the spouse of defendant, by an object, to-wit: the sexual organ of defendant. . . ." Appellant contends that there is factually insufficient evidence to prove that he and M.S. had sexual intercourse because M.S.'s testimony is the only evidence to support the verdict and her testimony was not credible. We disagree. The evidence showed that appellant and M.S. were neighbors in an apartment complex. Appellant was 31; M.S. was 14. M.S. testified that she and appellant hung out together with other people in the apartment complex. One day she saw appellant sitting outside and he asked her to come into his apartment. They talked about their feelings for each other and kissed. Then appellant went to the bedroom and she followed him. They undressed and had sexual intercourse. A week later, M.S. went to appellant's apartment before school to have sex. But before she undressed, she heard appellant's sister and hid in the closet. The sister found M.S. and took her home. About three days later, appellant sent M.S. a text message to come outside. She went over to appellant's apartment, and appellant played a pornographic movie while he undressed. Then she undressed and they had sexual intercourse on the couch. M.S. said she wanted to have sex the first time, but not the second. She said she was embarrassed and ashamed. She testified that she sneaked out of her apartment at night to see appellant on more than one occasion. She explained that appellant communicated his desire for her to come outside by knocking on a common wall between their apartments, shining the light from his cell phone into her bedroom window, or throwing rocks at her window. One day when M.S. was visiting her aunt, her aunt discovered a letter in M.S.'s purse that caused her concern. The letter was not signed or addressed to anyone, but the aunt thought it was from appellant to M.S. because of things she had observed between them. When she asked M.S. about the letter, M.S. said appellant had written the letter. M.S. told her aunt a few details of what happened with appellant. The evidence is conflicting about what happened after the letter was discovered. M.S.'s mother testified that she read the letter and confronted appellant about it. Appellant admitted to her that he wrote the letter but said it was intended for his girlfriend, not M.S. He said he did not know how the letter got in M.S.'s purse. M.S.'s mother testified that she did not believe appellant because he had a smirk on his face that "just wasn't right" the entire time he was denying that anything was going on with M.S. But M.S. would not tell her anything either. The aunt testified that appellant denied that he wrote the letter. The evidence is conflicting about whether the aunt and M.S.'s mother both confronted appellant at the same time. After talking with appellant, M.S.'s mother called the police. When the police arrived, M.S. told them that nothing had happened, and they left because they were unable to confirm that a crime had occurred. Shortly thereafter, M.S.'s mother called the police a second time. The evidence is conflicting about what prompted that second call. The same officers responded to the call, and this time the officers requested a female police officer to talk to M.S. alone. After Officer Chantelle Flowers talked to M.S., the officers arrested appellant. The statements M.S. made to Officer Flowers were not admitted. At the police station, appellant gave a statement in which he said that he and M.S. had not had any kind of sex. His statement appeared to accuse M.S. of making up the sexual assault allegations because he would not respond to her sexual advances. Detective Joseph Corden of the Child Exploitation Unit of the Dallas Police Department testified that he took the statement from appellant. He said appellant told him that he wrote the letter, but that he wrote it to his girlfriend, not to M.S. Meanwhile, M.S.'s mother took M.S. to the hospital where she underwent a sexual assault examination. The examination did not reveal any medical evidence of sexual assault. Dr. Laura McCracken, a clinical psychologist at the Dallas Children's Advocacy Center, testified as an expert for the State. She did not interview or treat M.S., but she listened to M.S.'s trial testimony. Dr. McCracken testified that children do not usually come forward with information about an inappropriate relationship and that the relationship is usually discovered accidentally. She said that when children are confronted, usually they will not tell everything right away because they are scared to talk about it, afraid of getting into trouble, afraid it was their fault, or they are embarrassed. She testified that children feel a lot of shame and have to feel safe and comfortable before they give all of the details of what happened. Appellant contends that the contrary evidence outweighs M.S.'s testimony and that M.S.'s testimony is not credible because she lied to her mother and the police about her relationship with appellant; she went to appellant's apartment when she knew she was not supposed to; she testified that a second incident of sexual assault occurred but she had not previously told police about that incident; and appellant denied engaging in sexual intercourse with M.S. However, the jury was in the best position to judge the credibility of the witnesses. It heard the inconsistencies and resolved conflicts in the evidence in favor of the State. Additionally, M.S.'s trial testimony about a second instance of sexual intercourse during which a pornographic movie was shown is not inconsistent with her statements to police in which she did not disclose that incident. Instead, the jury could have concluded that M.S. was revealing more of what happened because she felt safe and comfortable, as Dr. McCracken testified children often do. Having reviewed the evidence under the appropriate standard, we conclude that it is factually sufficient to support the conviction. We resolve appellant's first issue against him.

Evidentiary Ruling

In his second issue, appellant contends that the trial judge abused his discretion by admitting the unsigned letter into evidence. We review the admissibility of evidence for an abuse of discretion and will reverse only when the judge's decision was so clearly wrong as to lie outside the zone of reasonable disagreement. See Willover v. State, 70 S.W.3d 841, 845 (Tex.Crim.App. 2002). The State offered the letter through M.S.'s testimony. Appellant objected that M.S. was not a handwriting expert, and it "is a blank letter from no one to no one and I object." On appeal, appellant argues that the letter was not admissible because it was not properly authenticated. See Tex. R. Evid. 901. He contends that M.S. did not have knowledge that the letter was written by appellant, she could not testify that it was appellant's letter because she is not a handwriting expert, and the State did not offer an exemplar from appellant so that the jury could compare the two writings. See Tex. R. Evid. 901(b)(3). Again, we disagree. The State did not ask M.S. to compare the handwriting in the letter to appellant's handwriting, nor did appellant request, or object to the omission of, a jury instruction asking the jury to compare the handwriting in the letter to any other document known to have been written by appellant. Instead, M.S. testified that she knew appellant had written the letter to her. She said that she left her purse on the steps near appellant's apartment one morning while she walked her brother to the school bus. When she came back, her purse was open and the letter was inside. She testified that she did not read the letter until her aunt found it in her purse and asked her about it. But after she read it, she knew it was from appellant because she recognized it. She said that she saw appellant sitting outside and writing the letter the day before she found the letter in her purse. She also testified that the letter contained statements that only she and appellant knew about, such as the reference to an appointment on Saturday at 9:45 a.m. and shining the light in her window, which was appellant's signal that he wanted her to come outside. Additionally, both M.S.'s mother and Officer Corden testified that appellant admitted that he wrote the letter. There was no need for a comparison of the letter and a known exemplar of appellant's handwriting because the testimony of these witnesses was sufficient to authenticate the letter. As a result, the trial judge did not abuse his discretion by admitting the letter. We resolve appellant's second issue against him.

Reopening the Case

In his third, fourth, fifth, sixth, and seventh issues, appellant contends that the trial judge abused his discretion and violated appellant's state and federal constitutional and statutory rights to testify by denying his motion to reopen the case. After both sides had rested and closed, the trial judge confirmed, on the record and outside the presence of the jury, appellant's desire not to exercise his right to testify. The judge explained that he would reopen the case if appellant wanted to testify, and appellant stated, "I do not choose to testify." Accepting appellant's decision, the judge read the charge to the jury and both sides made their closing arguments. After the jury was dismissed for the day, appellant advised the trial judge that he wanted to reopen the evidence to exercise his right to testify and clarify some things about the letter. Appellant's actual request was not made on the record. Before deliberations began the next morning, the trial judge stated that he had reviewed article 36.02 of the Texas Code of Criminal Procedure and case law concerning when a case may be reopened, and, based on that research, denied appellant's request. Appellant argues that the trial judge abused his discretion because a procedural statute cannot trump his fundamental right to testify. As a threshold matter, the State argues that appellant did not preserve error on his constitutional and statutory claims because he did not object on these bases when the trial court refused his request to reopen. We agree. It is clear that the trial judge's denial of appellant's request to reopen was based on article 36.02, which states that "[t]he court shall allow testimony to be introduced at any time before the argument of a cause is concluded, if it appears that it is necessary to a due administration of justice." Tex. Code Crim. Proc. Ann. art. 36.02 (Vernon 2007). When the trial judge denied appellant's request to reopen, he asked appellant whether he objected to the court's ruling and appellant's counsel responded, "Yes, sir, I do. For the record, I object." But this general objection could refer to appellant's statutory right to testify, his state or federal constitutional rights to testify, or to the trial judge's interpretation of article 36.02 concerning a court's discretion to reopen the case. See Tex. R. App. P. 33.1(a) (specific objection required to preserve error); Reyna v. State, 168 S.W.3d 173, 179 (Tex.Crim.App. 2005). It did not put the trial judge on notice that he was contending that article 36.02 cannot trump his constitutional and statutory rights to testify. See Reyna, 168 S.W.3d at 179. As a result, the trial judge did not have an opportunity to rule on appellant's constitutional and statutory complaints and only his objection under article 36.02 is properly before us. See id. The purpose of article 36.02 is to give trial judges greater discretion in determining whether to reopen a case to admit additional evidence. Peek v. State, 106 S.W.3d 72, 78-79 (Tex.Crim.App. 2003). In making this decision, a court must consider whether the motion to reopen was timely and if the evidence would materially change the case in the defendant's favor. Id.; Reeves v. State, 113 S.W.3d 791, 794 (Tex.App.-Dallas 203, no pet.). If a motion is not timely, i.e., it is made after the arguments are concluded, the statute does not grant a trial judge discretion to reopen a case for additional evidence. See Peek, 106 S.W.3d at 78 (statute permits evidence to be admitted after arguments have begun as along as they have not yet concluded); Allman v. State, 164 S.W.3d 717, 721 (Tex.App.-Austin 2005, no pet.) (statute makes clear that court had no discretion or authority to admit evidence after close of argument). It is undisputed in this case that appellant's motion to reopen was made after both sides had finished their closing arguments. Consequently, the motion was not timely under article 36.02. See Tex. Code Crim. Proc. Ann. art. 36.02; Peek, 106 S.W.3d at 78; Allman, 164 S.W.3d at 721. We conclude that the trial judge did not abuse his discretion by denying appellant's motion to reopen. We resolve issues three, four, five, six, and seven against appellant.

Conclusion

We affirm the trial court's judgment.
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Summaries of

Jackson v. State

Court of Appeals of Texas, Fifth District, Dallas
Nov 3, 2008
No. 05-07-01359-CR (Tex. App. Nov. 3, 2008)
Case details for

Jackson v. State

Case Details

Full title:PAULO JACKSON, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals of Texas, Fifth District, Dallas

Date published: Nov 3, 2008

Citations

No. 05-07-01359-CR (Tex. App. Nov. 3, 2008)