Opinion
09-20-00034-CR
01-31-2022
TREVOR CRAIG JOHNSON, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish
Submitted on November 12, 2021.
On Appeal from the 1st District Court Newton County, Texas Trial Cause No. ND1507069
Before Golemon, C. J., Kreger and Johnson, JJ.
MEMORANDUM OPINION
W. SCOTT GOLEMON Chief Justice
A jury convicted Trevor Craig Johnson of aggravated sexual assault of a child and the trial court assessed punishment at twenty-five years of confinement and a $5,000 fine. The indictment alleged that on or about March 13, 2015, Johnson intentionally and knowingly caused the penetration of the mouth of M.H., a child younger than 6 years of age, by his sexual organ. See Tex. Penal Code Ann. § 22.02 l(a)(1)(B)(ii), (f)(1). On appeal, Johnson challenges the legal sufficiency of the evidence to support his conviction. He complains of hearsay admitted in evidence in the trial, a statement of a witness's opinion on guilt, and improper arguments by the prosecutor concerning matters outside the record and a statement of her personal opinion. Johnson claims he was denied the effective assistance of counsel. We overrule the six issues raised in the appeal and we affirm the trial court's judgment.
We identify the victim and her family members by their initials to protect the identity of the victim. See Tex. Const, art I, § 30(a)(1) (granting crime victims "the right to be treated with fairness and with respect for the victim's dignity and privacy throughout the criminal justice process").
The Evidence
Newton County Deputy Caleb Slager and his partner, Cody Downs, responded to a call concerning a sexual assault of M.H., a three-year-old girl. When they arrived, three Jasper County deputies were already on the scene and there had been an altercation between M.H. 's father and Johnson. Johnson explained that he was trying to change M.H.'s diaper but did not know how. The father, R.J.H, identified Johnson as his roommate and claimed he heard Johnson assaulting M.H. in the children's bedroom. According to Slager, R.J.H. said he "could hear sucking sounds" and said, "I know what a blow job sounds like. "In his report, Slager noted that R.J.H. listened outside the bedroom for five minutes. No DNA evidence was found in a rape kit collected from M.H. The officers' body cameras were not operating properly. They did not swab Johnson's hands to test for evidence.
On March 13, 2015, Jasper County Sheriff s Sergeant Cody Downs, was on patrol for Newton County. In his report, Downs noted that R. J.H. reported that he had waited listening outside the bedroom for thirty minutes. That night R. J.H. took M.H. to a hospital for a sexual assault nurse examination. R. J.H. testified that he is currently serving a twenty-year prison sentence for sexually assaulting M.H. The 2019 judgment in his criminal case stated that the offense occurred in 2018. The judgment also recited that the State agreed to dismiss another case. That charge alleged indecency with a child by sexual contact and R.J.H.'s son was the victim alleged in the indictment.
R.J.H. and Johnson were close friends since childhood and R.J.H.'s two children, M.H. and five-year-old J.H., called Johnson "Uncle Trevor." That night, a few minutes after Johnson took the two children into their bedroom R.J.H. heard Johnson moaning and heard him say M.H. 's name and "oh yea, oh, yeah, right there, that's the spot." Johnson came out of the room pulling his pants up and suggested they go outside to smoke a cigarette. R.J.H. called to M.H., who came out of the room naked. R.J.H. asked her what happened, and her response caused him to lose control and assault Johnson. He sent J.H. to his grandmother's house, telling him, "go get granny, go get pops, and go get the gun." R.J.H. broke his hand. At the deputies' instruction, he took M.H. to a hospital in Beaumont for a sexual assault examination that night. A few days later R.J.H. and his mother took M.H. to an interview at a child advocacy center.
Without objection, R.J.H. stated that he understood that he is serving a twenty-year sentence for doing the same crime Johnson is accused of committing, adding, "I signed for my time for my crime. It's time for him to sign for his time for his crime." R.J.H. stated there was no doubt in his mind that Johnson did what he is accused of and he should not get a free ride.
In cross-examination R.J.H. admitted he would "get loud with my children" but denied that the altercation with Johnson occurred because Johnson was going to turn him in to Child Protective Services. R.J.H. admitted the statement the officer wrote for him that night does not mention that Johnson pulled his pants up, but R.J.H. insisted he told the officer about it. He also denied telling the officer that he waited for thirty minutes. R.J.H. explained that the officer wrote the statement because R.J.H. had broken his hand. R.J.H. claimed he scanned the document and signed it while he was distraught over his daughter.
M.H.' s paternal grandmother, T.H., testified that at the time of this offense she and her husband lived in a house located several hundred yards from the farmhouse where Johnson stayed with her son, R.J.H., and grandchildren. T.H explained that in 2018 she had M.H. tested for sexually transmitted diseases, discovered that R. J.H. had infected M.H., and co-operated with his prosecution. On the night of March 13, 2015, T.H.'s grandson, J.H., was knocking on her door at midnight. She described J.H. as "frantic." Over a hearsay objection and offered as an excited utterance, T.H. testified that J.H. told her that "Uncle Trevor had made [M.H.] put his winkie in her mouth and that he and daddy were fighting and that Uncle Trevor said he was going to get his knife and kill daddy." J.H. said his father had sent him to get her and her husband and "tell Pop s to bring his gun." T.H. ran to the farmhouse, where she heard Trevor yelling, "I told you I didn't put it in her, I was playing with my self. "The two men were fighting, by her estimate for forty-five minutes, while she called the police.
When the law enforcement officers arrived, they told T.H. Johnson was too intoxicated for transport and instructed her to let him sleep it off in the farmhouse. R. J.H. took M.H. to the hospital, and T.H. took J.H. with her. The next day T.H.'s husband went to the farmhouse with his gun and escorted Johnson off the property. T.H. claimed that before that night she was unaware of any abuse of the children by anyone.
Kim Hanks, a forensic interview supervisor, interviewed the two children at the child advocacy center in 2015, three days after the alleged incident. Video recordings of the 2018 interview with M.H. and the 2015 interviews with M.H. and J.H. were admitted in evidence without objection and played for the jury. In her 2015 interview M.H. related the words she uses for various body parts. M.H. told Hanks that Uncle Trevor removed his clothes and made her suck his "winkie" and tickled her "area" and her "butt[.]" In his 2015 interview J.H. told Hanks that Uncle Trevor had his clothes on, pulled down M.H.'s pants, and put his finger in M.H.'s butt. J.H. told Hanks that he ran to his grandmother's house and demonstrated how quickly he ran. Although the third interview, recorded in 2018, concerned R.J.H., M.H. mentioned Trevor when the interviewer asked M.H. if anyone else ever did anything to her. The interviewer asked if anything happened since that time with anyone else, M.H. replied, "Only Daddy and Trevor."
Hanks testified that she felt children know truth and lies from a very young age. After an objection that the witness could not testify as to the truth or falsity of the matter, without further objection Hanks offered her expert opinion that M.H. was able to give quite a few details for her age and did not appear to have been coached. In her opinion, J.H. 's story was mostly consistent with M.H. 's but not so exact as to be suspicious for coaching. Hanks found it notable that in the 2018 interview, conducted three years after the charged offense, M.H. remembered that Johnson was someone who had touched her.
Angela Dillahunty, the coordinator for the forensic nursing program at St. Elizabeth Hospital, testified without objection regarding the SANE examination performed by a colleague on M.H. Dillahunty noted it is not uncommon not to have DNA evidence. In this case, the nurse examiner collected four oral swabs and prepared an oral smear, four labial swabs and prepared one smear, four anal swabs to make one smear, buccal swabs, and two swabs of M.H.' s fingernails.
Johnson called Newton County Chief Deputy Cynthia Hall as a witness. Hall testified that she collected a buccal swab from Johnson and sent it to the DPS crime lab in Houston for analysis. Hall testified that Johnson was not cooperative with her efforts.
Sufficiency of the Evidence
In issue one, Johnson challenges the legal sufficiency of the evidence to support the jury's finding of guilt. He argues the State failed to obtain scientific evidence that he sexually assaulted M.H. and instead relied on speculative testimony from someone who was convicted of abusing the same child. Johnson contends the children's statements lack sufficient cogency and detail. He argues that the circumstances, while suspicious, fail to establish that a sexual assault occurred and that he intentionally or knowingly caused the penetration of M.H.' s mouth with his sexual organ.
In evaluating the legal sufficiency of the evidence, we review all the evidence in the light most favorable to the verdict to determine whether any rational factfinder could have found the essential elements of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 902 n. 19 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). "[W]hen conducting a legal sufficiency review, this Court considers all evidence in the record of the trial, whether it was admissible or inadmissible."Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); see also Rodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim. App. 1991)(stating that testimony proffered and admitted as substantive evidence under a statutory exception to the hearsay rule, even though improperly admitted, must be considered as having probative value in determining the sufficiency of the evidence). The jury is the ultimate authority on the credibility of the witnesses and the weight to be given their testimony. Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. [Panel Op.] 1981). An appellate court may not sit as a thirteenth juror and substitute its judgment for that of the factfinder by reevaluating the weight and the credibility of the evidence. See Dewberry, 4 S.W.3d at 740; see also Brooks, 323 S.W.3d at 899. A reviewing court must give full deference to the jury's responsibility to fairly resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Hooper, 214 S.W.3d at 13. If the record contains conflicting inferences, we must presume the jury resolved such facts in favor of the verdict and defer to that resolution. See Brooks, 323 S.W.3d at 899 n. 13; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). In addition, we determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all evidence when viewed in the light most favorable to the verdict. Clayton, 235 S.W.3d at 778. We treat direct and circumstantial evidence equally. Id. While the State has the burden of proof, it need not introduce direct evidence to establish the defendant is guilty of a crime. See Hooper, 214 S.W.3d at 14. Instead, the evidence need only "point directly and independently to the defendant's guilt['] Id. at 13. On appeal, we will affirm the conviction when the "cumulative force of all the incriminating circumstances is sufficient to support the conviction. "Id.
The jury found Johnson guilty of intentionally and knowingly causing the penetration of the mouth of M.H., a child younger than 6 years of age, by his sexual organ. The jury watched the videos that were recorded at the child advocacy center three days after the incident. M.H. can be heard saying that Uncle Trevor made her suck his winkie, and the jury could reasonably find that M.H. was describing oral-genital penetration. Johnson argues the statement lacks cogency, but the weight to be given to the evidence is left to the jury, not to this Court in a Jackson v. Virginia review. R. J.H. claimed he could hear sounds he recognized as oral sex coming from the room where Johnson and the two children were, that Johnson was pulling up his pants when he came out of the room, and M.H. was naked. Johnson argues R.J.H's testimony is not credible because R. J.H. committed the same offense against M.H, but the jury heard about R.J.H.'s criminal behavior and only the jury could weigh his credibility. T.H. testified that J.H., who was in the room with Johnson and M.H., said "Uncle Trevor had made [M.H.] put his winkie in her mouth." The jury heard that T.H. had a possible motive to protect R. J.H., but in a legal sufficiency review we must accept that the jury could believe her testimony. Viewed in the light most favorable to the prosecution, the evidence supports the jury's finding that Johnson penetrated M.H. 's mouth with his sexual organ. We overrule issue one.
Hearsay In issue two, Johnson argues the trial court abused its discretion by allowing T.H. to relate what J.H. told her when she answered the door. The trial court overruled Johnson's hearsay objection after the State offered it as an excited utterance. On appeal, he argues the State failed to establish the requisite foundation for the admissibility of the hearsay as an excited utterance. Hearsay may be admitted as an exception to the hearsay rule if it is "[a] statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused." Tex. R. Evid. 803(2). In this case, immediately after being exhorted to fetch T.H. and a gun, J.H. ran several hundred yards, banged on T.H. 's door, and franticly announced that Johnson had sexually assaulted M.H., R.J.H. and Johnson were fighting, and Johnson had threated to kill R.J.H. This evidence established an exciting and emotionally stimulating event, a short period of time between the event and the declaration, and the excited emotional state of the declarant. Considering the length of time between the occurrence and the statement and the circumstances, the demeanor of the declarant, whether the statement was made in response to a question, and whether the statement is self-serving, the trial court could have reasonably concluded that J.H. was still dominated by emotions of the event when he made the statement. See Apolinar v. State, 155 S.W.3d 184, 190 (Tex. Crim. App. 2005). The trial court's ruling that the statement was admissible as an excited utterance exception to the hearsay rule is within the zone of reasonable disagreement. See Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003).
In his appeal, Johnson also argues the admission of the statement denied Johnson his right of confrontation. To preserve error for appellate review, the complaining party must make a specific objection and obtain a ruling on the objection at the earliest possible opportunity and the issue on appeal must comport with the objection made at trial. Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). "An objection on hearsay does not preserve error on Confrontation Clause grounds."Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005). Johnson failed to preserve error regarding the denial of his right of confrontation. See Tex.R. App. P. 33.1(a). We overrule is sue two.
Opinion on Guilt
In issue three, Johnson argues reversible error occurred when the State elicited testimony from R.J.H. regarding his opinion on the guilt of the accused. Johnson did not object to this testimony but argues for the first time in his appeal that no objection was required because an instruction to disregard the statement could not have been effective.
To preserve error for appellate review, the complaining party must make a specific objection to inform the trial judge of the basis of the objection to afford him the opportunity to rule on the objection and for opposing counsel to remove the objection or supply other testimony. Young v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004); Wilson, 71 S.W.3d at 349. "When valid objections are timely made and sustained, the parties may have a lawful trial. They, and the judicial system, are not burdened by appeal and retrial. When a party is excused from the requirement of objecting, the results are the opposite. "Saldano v. State, 70 S.W.3d 873, 887 (Tex. Crim. App. 2002). Very few rights are absolute requirements or waivable only. Id. at 888. A witness's statement that the defendant is guilty is waived by the failure to make a timely objection in the trial. See Tex. R. App. P. 33.1 (a). We overrule issue three.
Improper Argument
In issues four and five, Johnson argues the prosecutor injected her personal opinion based upon facts outside the record when she argued, "He penetrated her mouth with his penis, and that is horrible. That makes me sick. Most of you have children. I have a three-year-old. That makes me sick. You should find him guilty, and it's time for him to answer for what he did." Johnson argues these facts were not in evidence, injected the prosecutor's personal opinion, and were so inflammatory and prejudicial that no objection was required. "[A] defendant's failure to object to a jury argument or a defendant's failure to pursue to an adverse ruling his objection to a jury argument forfeits his right to complain about the argument on appeal." Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). We overrule issues four and five.
Ineffective Assistance of Counsel
In issue six, Johnson claims he received ineffective assistance of counsel. He complains that his trial lawyer failed to preserve the complaints presented in issues three through five and failed to object to the admission of the videotaped interviews of the two children. He argues trial counsel could not have had a strategic basis for his inaction.
To establish that he received ineffective assistance of counsel, Johnson must demonstrate that (1) counsel's performance fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984). The party alleging ineffective assistance has the burden to develop facts and details necessary to support the claim. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). A party asserting an ineffective- assistance claim must overcome the "strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance." Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). An appellant's failure to make either of the required showings defeats the claim of ineffective assistance. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003).
The right to effective assistance of counsel ensures the right to reasonably effective assistance and does not require that counsel must be perfect. See Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984). Isolated failures to object ordinarily do not constitute ineffective assistance of counsel. See id. Ordinarily, on direct appeal, the record will not have been sufficiently developed to demonstrate in the appeal that trial counsel provided ineffective assistance under the Strickland standards. Menefield v. State, 363 S.W.3d 591, 592-93 (Tex. Crim. App. 2012). Before we denounce trial counsel's actions as ineffective, counsel should normally be given an opportunity to explain the challenged actions. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). When counsel has not been given an opportunity to explain the challenged actions, we will find deficient performance only when the conduct was '"so outrageous that no competent attorney would have engaged in it.'"Id. (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).
Johnson did not allege ineffective assistance of counsel in his motion for new trial. The record is silent as to trial counsel's tactical and strategic decision making, but his failures to object to the evidence could have been the products of strategic decisions reflected in trial counsel's argument to the jury that Johnson was trying to help R. J.H., who turned on Johnson to avoid having his pedophilia exposed in a CPS investigation. In his jury argument trial counsel also explored at length the discrepancies in the children's interviews and suggested J.H.'s eagerness to tell his story and M.H.'s recollection of Uncle Trevor in 2018 further demonstrated their unreliability and indicated that the children had been coached by R.J.H. and T.H. Trial counsel's ineffectiveness is not apparent from the record. We overrule issue six and affirm the trial court's judgment.
AFFIRMED.