Opinion
No. 10-05-00350-CR
Opinion delivered and filed August 30, 2006. DO NOT PUBLISH.
Appeal from the 413th District Court, Johnson County, Texas, Trial Court No. F38757. Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA (Chief Justice GRAY concurs in the Court's judgment without a separate opinion.)
MEMORANDUM OPINION
A jury convicted Phillip Anthony Jagneaux of three counts of indecency with a child. Jagneaux pleaded "true" to enhancement allegations, and the court sentenced him to life imprisonment on each count. Jagneaux contends in eight points that: (1) the evidence is legally and factually insufficient (two points); (2) the court abused its discretion by excluding testimony regarding the complainant's prior sexual conduct and the sexual orientation of one of her friends, the complainant's reputation for truthfulness, and the complainant's criminal history (three points); (3) the court abused its discretion by admitting a counselor's testimony regarding the complainant's hearsay statements; and (4) Jagneaux's convictions on more than one count are barred by double jeopardy (two points). We will affirm.
Legal and Factual Sufficiency
Jagneaux contends in his first and second points respectively that the evidence is legally and factually insufficient to support his three convictions. Specifically, Jagneaux argues that: (1) because the complainant recanted her statement that she had touched his penis, the evidence is legally and factually insufficient to prove the third count; and (2) because he testified that he did not have sexual contact with the complainant before her seventeenth birthday, the evidence is legally and factually insufficient to prove any of the three counts. When reviewing a legal insufficiency complaint, we consider all the evidence in the record and ask "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Moff v. State, 131 S.W.3d 485, 488 (Tex.Crim.App. 2004) (quoting Jackson v. Va., 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979)). When reviewing a factual insufficiency complaint, we ask whether the evidence supporting the verdict is "too weak to support the finding of guilt beyond a reasonable doubt" or whether the contrary evidence is so strong "that the beyond-a-reasonable-doubt standard could not have been met." See Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). The three counts allege that Jagneaux committed indecency with a child by: (1) touching the breast of the complainant A.M., (2) touching A.M.'s genitals, and (3) causing A.M. to touch Jagneaux's genitals. A.M. testified that she met Jagneaux, her step-father's brother, during the summer of 2003 when she was 15. A.M. testified that he touched her breast and vagina on many occasions that summer, which made her feel uncomfortable. She testified that Jagneaux asked her to touch his penis but that she never did. A counselor testified that A.M. reported during therapy that Jagneaux had touched her breasts and vagina and had her touch his penis. A therapist testified that A.M. reported during therapy in December 2004 that Jagneaux had been touching her inappropriately for one and a half years. Jagneaux admitted to all of the allegations in a January 2005 written confession in which he stated that his relationship with A.M. "expanded somewhat" to become sexual in nature "in the past year." At trial though, Jagneaux testified that he was incarcerated on a parole violation from May 11 to August 29, 2004. He specifically denied that any of the allegations happened before mid-October 2004, after A.M. was an "adult" and consensual sexual relations between them were not unlawful. A.M.'s testimony, standing alone, is legally sufficient evidence to support a conviction on the first two counts. See Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon 2005) (conviction for indecency with a child "is supportable on the uncorroborated testimony of the victim"); May v. State, 139 S.W.3d 93, 97 (Tex.App.-Texarkana 2004, pet. ref'd); Perez v. State, 113 S.W.3d 819, 838 (Tex.App.-Austin 2003, pet. ref'd). With regard to the third count, the testimony of the counselor and the therapist, Jagneaux's confession, and Jagneaux's testimony, when viewed "in the light most favorable to the prosecution," constitute legally sufficient evidence to support the third count. A.M.'s recantation of her prior statements regarding Jagneaux having caused her to touch his penis (relevant to the allegations of the third count) is not fatal to the State's case. See Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App. 1991); Jackson v. State, 110 S.W.3d 626, 631 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd); Peters v. State, 997 S.W.2d 377, 382-83 (Tex.App.-Beaumont 1999, no pet.). A.M.'s recantation, a lack of physical evidence, and Jagneaux's testimony that no sexual acts occurred between them until after A.M.'s seventeenth birthday are the primary parts of the evidence contrary to the verdict. However, the record also contains evidence from A.M.'s mother of significant behavioral changes which the counselor and therapist both testified were consistent with conduct which would be exhibited by a child who had been sexually abused. The issues identified by Jagneaux in connection with his factual insufficiency claim largely concern credibility. The jury is "the sole judge of the weight and credibility of witness testimony." Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim.App. 2002). By its verdict, the jury chose to believe the State's version of the events. See Chambers, 805 S.W.2d at 461; May, 139 S.W.3d at 99; Parker v. State, 119 S.W.3d 350, 355 (Tex.App.-Waco 2003, pet. ref'd); Perez, 113 S.W.3d at 838-39. We must defer to the jury in its resolution of such issues. See Vasquez, 67 S.W.3d at 236; May, 139 S.W.3d at 99; Parker, 119 S.W.3d at 355. Thus, we cannot say that the controverting evidence is so strong "that the beyond-a-reasonable-doubt standard could not have been met." See Zuniga, 144 S.W.3d at 484-85; May, 139 S.W.3d at 99. Having found the evidence legally and factually sufficient to support Jagneaux's conviction on all three counts, we overrule his first and second points.Double Jeopardy
Jagneaux contends in his seventh point that his convictions for both the first and second counts violate the state and federal constitutional protections against double jeopardy. He contends in his eighth point that all three convictions violate these protections. The essence of Jagneaux's seventh point is that, because the court did not define the term "genitals" in the charge, the jury may have convicted him for touching A.M.'s genitals if it found that he touched her breast. The essence of his eighth point is that the allegations of the three counts "are simply `stop-action' snapshots of one continuing course of conduct." Before we reach the jeopardy issue however, it must be noted that Jagneaux did not raise this objection at trial. Jagneaux will be excused from the ordinary rules of procedural default "when the undisputed facts show the double jeopardy violation is clearly apparent on the face of the record and when enforcement of usual rules of procedural default serves no legitimate state interests." Gonzalez v. State, 8 S.W.3d 640, 643 (Tex.Crim.App. 2000); accord Murray v. State, 24 S.W.3d 881, 888 (Tex.App.-Waco 2000, pet. ref'd). Here, because we have a complete record, "it can be determined from undisputed facts clearly apparent on the face of the record" whether there has been a jeopardy violation. See Murray, 24 S.W.3d at 889. If a term used to describe an offense is not statutorily defined, "the trial court is not obligated to define the term when it `has such a common and ordinary meaning that jurors can be fairly presumed to know and apply such meaning.'" Resendiz v. State, 112 S.W.3d 541, 550 (Tex.Crim.App. 2003) (quoting Phillips v. State, 597 S.W.2d 929, 937 (Tex.Crim.App. [Panel Op.] 1980)); accord Tovar v. State, 165 S.W.3d 785, 790 (Tex.App.-San Antonio 2005, no pet.); Roise v. State, 7 S.W.3d 225, 242 (Tex.App.-Austin 1999, pet. ref'd). The term "genitals" is not statutorily defined, but it does have "such a common and ordinary meaning that jurors can be fairly presumed to know and apply such meaning." See id. Therefore, because touching of the breast involves distinct conduct from touching of the genitals, Jagneaux's conviction under count one does not bar his conviction under count two. See Lopez v. State, 108 S.W.3d 293, 300 n. 28 (Tex.Crim.App. 2003); Hanson v. State, 180 S.W.3d 726, 732-33 (Tex.App.-Waco 2005, no pet.); Elder v. State, 132 S.W.3d 20, 25 (Tex.App.-Fort Worth 2004, pet. ref'd), cert. denied, 544 U.S. 925, 125 S. Ct. 1645, 161 L. Ed. 2d 484 (2005). Regarding Jagneaux's contention that the prosecution of "`stop-action' snapshots of one continuing course of conduct" is jeopardy-barred in a case involving sexual assault or indecency with a child, we have already rejected a similar complaint. See Hanson, 180 S.W.3d at 732-33 (citing Patterson v. State, 152 S.W.3d 88, 92 (Tex.Crim.App. 2004); Lopez, 108 S.W.3d at 300 n. 28). Because the three counts allege distinct offenses based on different conduct, Jagneaux's conviction for any one of these counts does not bar his conviction for the others also. See id.; Elder, 132 S.W.3d at 25. Thus, we overrule Jagneaux's seventh and eighth points.Complainant's Prior Sexual Conduct
Jagneaux contends in his third point that the court abused its discretion by excluding testimony regarding A.M.'s prior sexual conduct and the sexual orientation of one of A.M.'s friends. During cross-examination, Jagneaux asked A.M.'s mother about a note A.M. had received from a female friend. The State promptly objected, and a hearing was held outside the presence of the jury. A.M.'s mother testified that A.M.'s friend indicated in the note that she was "very attracted to" A.M. and that the two of them had "experimented" sexually during a recent visit. When A.M.'s mother found the note, she forbade A.M. from spending the night with this friend anymore. The court sustained the State's objection to the admission of testimony about the note. Jagneaux contends that the court abused its discretion by excluding this testimony because the testimony is relevant to show that A.M.'s "`sexual abuse' has not only been at his hands but by others, even a consensual lesbian encounter set down in her own hand in a note." The State counters that no abuse of discretion is shown because the note constitutes inadmissible hearsay. We agree. Contrary to Jagneaux's assertion however, the note was not written by A.M. Rather, it was written by her friend. Nevertheless, even if A.M. had written the note, it would have still been inadmissible under the hearsay rule. See Burks v. State, 40 S.W.3d 698, 701 (Tex.App.-Waco 2001, pet. ref'd). Thus, we cannot say the court abused its discretion by excluding this testimony. With regard to testimony about the sexual orientation of A.M.'s friend, A.M.'s mother had testified about A.M.'s friend Joseph during direct examination. Jagneaux later asked additional questions about Joseph during a hearing outside the presence of the jury on another topic. In doing so, counsel warned the court that he was pursuing an "[a]rea of inquiry that might get a little dicey." Counsel asked A.M.'s mother whether she liked A.M.'s friendship with Joseph. She responded that she "never was concerned about their friendship" but added somewhat non-responsively that A.M. had told her that Joseph was "gay" and needed friends. The State objected that this characterization of Joseph's sexual orientation is irrelevant, and the court sustained the objection. Jagneaux suggests that the State opened the door to this line of inquiry. However, he does not cite any particular evidence or testimony to support this assertion. Our reading of the record does not convince us that the State ever broached this subject. Thus, we cannot say that the court abused its discretion by finding that this evidence is irrelevant. Accordingly, we overrule Jagneaux's third point.Complainant's Reputation for Truthfulness
Jagneaux contends in his fourth point that the court abused its discretion by excluding testimony regarding A.M.'s reputation for truthfulness. Jagneaux's parents own the acreage where A.M.'s family (and Jagneaux at the time) lived. In response to a question about A.M.'s reputation for truthfulness, Jagneaux's mother testified that A.M. is "not very truthful." The court then sustained the State's objection to any further questioning on this issue. On cross-examination, the State established that Jagneaux's mother had not talked to any community members about A.M.'s reputation. Rather, she had based her opinion solely on conversations within the family and her own knowledge of A.M. Jagneaux does not identify any testimony on the subject of A.M.'s reputation for truthfulness which the court excluded. The court was not asked to instruct the jury to disregard this testimony and did not do so. Error may not be premised on the exclusion of evidence unless the proponent of the evidence makes an offer of proof or the substance of the excluded evidence is apparent from the context. See TEX. R. EVID. 103(a)(2); Warner v. State, 969 S.W.2d 1, 2 (Tex.Crim.App. 1998) (per curiam); Haygood v. State, 127 S.W.3d 805, 812 (Tex.App.-San Antonio 2003, pet. ref'd); Guidry v. State, 121 S.W.3d 849, 853 (Tex.App.-Beaumont 2003, no pet.). Because Jagneaux did not make an offer of proof and the substance of the testimony at issue is not apparent from the context, his fourth point presents nothing for review. Id. Thus, we overrule his fourth point.Complainant's Prior Criminal History
Jagneaux contends in his fifth point that the court abused its discretion by excluding evidence of A.M.'s prior criminal history. However, as with the purportedly excluded evidence of A.M.'s reputation for truthfulness, Jagneaux failed to make an offer of proof with regard to any prior criminal history A.M. had and such history is not apparent from the context. Thus, Jagneaux's fifth point presents nothing for review and is overruled. Id.Hearsay Testimony
Jagneaux contends in his sixth point that the court abused its discretion by admitting a counselor's testimony regarding the complainant's hearsay statements. The pertinent questioning follows:Counselor: . . . And so at that point she talked about what had happened.
Prosecutor: Okay. And specifically what did she tell you had happened.
Counselor: She stated that there had been — do you want me to use more my words or her words?
Prosecutor: I want her words. I want to know what she told you.
Counselor: All right. That her stepfather's brother had touched her all over her body on top of and under her clothing; had had her touch him on top of and under his clothing; that he had given her alcohol, given her money to buy cigarettes; and had discussed that some of the things that happened at the cliffs and some at an apartment on her aunt's property, I think in the bathroom.
Prosecutor: Okay. So did she indicate — you say all over. Did she indicate whether or not he had touched her on the breast area?
Counselor: Included the breasts and genitals.
Prosecutor: Okay. Now, when she said that she touched — she touched him all over, did she specifically include his genitals?
Counselor: Yes.
Prosecutor: Okay. Did she say how long this had been going on?
Defense: Your Honor, I object to this as hearsay.The court overruled the objection after the State argued that the testimony was admissible under the medical diagnosis exception to the hearsay rule. To preserve a complaint regarding the admission of evidence, a party must make a timely objection. See TEX. R. EVID. 103(a)(1); Moff, 131 S.W.3d at 489; Mallard v. State, 162 S.W.3d 325, 335 (Tex.App.-Fort Worth 2005, pet. ref'd); Jones v. State, 111 S.W.3d 600, 604 (Tex.App.-Dallas 2003, pet. ref'd). An objection is considered timely if it is made at the first opportunity or as soon as the basis for the objection becomes apparent. See Lagrone v. State, 942 S.W.2d 602, 618 (Tex.Crim.App. 1997); Mallard, 162 S.W.3d at 335; Jones, 111 S.W.3d at 604. Here, the counselor testified three times about A.M.'s statements about what Jagneaux had done before he objected. The need for an objection was apparent from the moment the prosecutor asked the counsel to use A.M.'s words. Thus, Jagneaux's objection was untimely, and this point has not been preserved for appellate review. Id. Accordingly, we overrule Jagneaux's sixth point. We affirm the judgment.