Opinion
No. 05-04-00165-CR
Opinion Issued January 4, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 366th Judicial District Court, Collin County, Texas, Trial Court Cause No. 366-81840-01. Affirmed.
Before Justices MORRIS, WHITTINGTON, and O'NEILL.
OPINION
Billy Joe Kirk appeals his conviction for indecency with a child. After finding appellant guilty, the jury assessed punishment at fourteen years' confinement and a $7,800 fine. In four issues, appellant contends the evidence is legally insufficient to support his conviction and the trial judge erred in denying his motions for mistrial. In an additional issue, appellant claims the cumulative effect of these errors warrants reversal of his conviction. We affirm the trial court's judgment.
Legal Sufficiency of the Evidence
In his first issue, appellant contends the evidence is legally insufficient to support his conviction. Under this issue, appellant argues that, under the penal statute in effect at the time, touching through clothing was not defined as sexual contact. Appellant claims that because the State proved he only touched the victim through her clothing, the evidence is insufficient to support his conviction. We disagree. When reviewing challenges to the legal sufficiency of the evidence, we apply well-known standards. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Garcia v. State, 57 S.W.3d 436, 441 (Tex.Crim.App. 2001), cert. denied, 537 U.S. 1195 (2003). We view the evidence in the light most favorable to the verdict. Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App. 2004), petition for cert. filed, (U.S. Dec. 20, 2004) (No. 04-7807); Turner v. State, 805 S.W.2d 423, 427 (Tex.Crim.App. 1991). We determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 2004 WL 840121, at *5 (Tex.Crim.App. April 21, 2004); Simmons v. State, 109 S.W.3d 469, 472 (Tex.Crim.App. 2003); Santellan v. State, 939 S.W.2d 155, 160 (Tex.Crim.App. 1997). Under the law in effect at the time, a person committed the offense of indecency with a child younger than seventeen years of age and not his spouse if he engaged in sexual contact with the child. See Act of May 29, 1993, 73d Leg., R.S., ch. 900, § 1.01, sec. 21.11, 1993 Tex. Gen. Laws 3586, 3615, amended by Act of May 29, 1999, 76th Leg., R.S., ch. 1415, § 23, 1999 Tex. Gen. Laws 4831, 4841, amended by Act of May 23, 2001, 77th Leg., R.S., ch. 739, § 2, 2001 Tex. Gen. Laws 1463, 1463 (current version at Tex. Pen. Code Ann. § 21.11 (Vernon 2003)). Sexual contact meant "any touching of the . . . breast . . . of another person with intent to arouse or gratify the sexual desire of any person." See Act of May 29, 1993, 73d Leg., R.S., ch. 900, § 1.01, sec. 21.01, 1993 Tex. Gen. Laws 3586, 3616, amended by Act of May 23, 2001, 77th Leg., R.S., ch. 739, § 1, 2001 Tex. Gen. Laws 1463, 1463 (current version at Tex. Pen. Code Ann. § 21.01(2) (Vernon 2003)). The Texas Court of Criminal Appeals has interpreted this definition of sexual contact to include touching over clothing. Resnick v. State, 574 S.W.2d 558, 560 (Tex.Crim.App. [Panel Op.] 1978) (concluding mere interposition of layer of fabric between accused's hand and genitals of another did not prevent sexual contact because touching will still engender sense of feeling perceived by person touched); Miles v. State, 247 S.W.2d 898, 899, 157 Tex. Crim. 188, 190 (1952) ("[T]here is nothing in the statute suggesting that the crime there denounced could be committed only by the application of the bare hand of the accused to the bare or naked sexual part of the child."). The testimony of the sexual assault victim is alone sufficient to prove sexual contact, even if the victim is a child. See Karnes v. State, 873 S.W.2d 92, 96 (Tex.App.-Dallas 1994, no pet.). Although appellant contends the evidence is legally insufficient to support his conviction, we cannot agree. The complainant testified she visited appellant (her grandfather) and his wife (her grandmother) when she was ten years old. She took a nap one day in the bedroom where she stayed. She testified she had locked all the doors to the room because her grandmother was at work, leaving her alone with appellant. When she woke, she was surprised to see appellant standing by the bed. He kissed her on the mouth and touched her breast. The complainant testified she was wearing shorts and a shirt at the time. He tried to kiss her breast but she told him no. She told him to stop kissing and touching her but he continued to do so for "a long time." The complainant pushed him off, and he left the room. She testified that this was not the first time he had touched her chest or kissed her. According to the complainant, he kissed and touched her "a lot;" he also put his tongue in her mouth when he kissed her. Although appellant told her he would never do anything to hurt her, he put his finger in her private and made her bleed. Viewing this evidence in the light most favorable to the verdict, we conclude a rational trier of fact could have found beyond a reasonable doubt that appellant committed the offense of indecency with the complainant, a child younger than seventeen years of age and not his spouse, when he engaged in sexual contact, i.e., when he touched her breast. Thus, we conclude the evidence is sufficient to support appellant's conviction for indecency with a child. In reaching this conclusion, we reject appellant's argument that the Texas Court of Criminal Appeals' interpretation of the statute to include touching over clothing as sexual contact was erroneous. Appellant argues that the court's interpretation cannot be correct given that the Texas Legislature later included language in the indecency with children statute to specifically include touching over clothing as forbidden sexual contact. Appellant ignores the fact that the drafters of the amended version considered the clarification language as a "nonsubstantive" change. See Sen. Comm. on Crim. Justice, Bill Analysis, Tex. S.B. 932, 77th Leg., R.S. (2001). Furthermore, even assuming appellant were correct and the court of criminal appeals interpretation were wrong, we would overrule appellant's issue because this Court is bound by the decisions of our state's highest criminal court. Swilley v. McCain, 374 S.W.2d 871, 875 (Tex. 1964) ("After a principle, rule or proposition of law has been squarely decided by the Supreme Court, or the highest court of the State having jurisdiction of the particular case, the decision is accepted as a binding precedent by the same court or other courts of lower rank when the very point is again presented in a subsequent suit between different parties."); see Purchase v. State, 84 S.W.3d 696, 701 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd) ("As an intermediate court of appeals we are bound by the decisions of our state's highest criminal court."); Rodriguez v. State, 47 S.W.3d 86, 94-95 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd) ("This court, as an intermediate appellate court, is bound to follow the law as declared by the state's highest courts. The Court of Criminal Appeals is the highest court on matters of criminal law, and when it has deliberately and unequivocally interpreted the law in a criminal matter, we must adhere to its interpretation.") (internal citation omitted). Therefore, we overrule appellant's first issue.Motions for Mistrial
In his second, third, and fourth issues, appellant claims the trial judge erred in overruling his motions for mistrial and should have declared a mistrial in three separate instances during trial. Appellant claims the prosecutor's inappropriate comments require we now reverse his conviction. We disagree. We review a trial judge's denial of a mistrial under an abuse of discretion standard. See Simpson v. State, 119 S.W.3d 262, 272 (Tex.Crim.App. 2003), cert. denied, 124 S.Ct 2837 (2004); Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999); Dooley v. State, 65 S.W.3d 840, 841 (Tex.App.-Dallas 2002, pet. ref'd). Mistrial is appropriate only for "highly prejudicial and incurable errors." Simpson, 119 S.W.3d at 272 (citing Wood v. State, 18 S.W.3d 642, 648 (Tex.Crim.App. 2000)). Granting a mistrial is appropriate when the error is "so prejudicial that expenditure of further time and expense would be wasteful and futile." Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App. 2004) (citing Ladd, 3 S.W.3d at 567); see Simpson, 119 S.W.3d at 272. To determine whether an error should have necessitated a mistrial, we examine the particular facts of the case. See Dooley, 65 S.W.3d at 842. When a trial judge instructs the jury to disregard an improper comment or question, we presume the jury will follow the judge's instruction unless the remark or comment was so prejudicial or extreme that the instruction was incapable of removing the harm. Gardner v. State, 730 S.W.2d 675, 696 (Tex.Crim.App. 1987). Similarly, when arguments that "strike over the shoulders of defense counsel are not particularly egregious, an instruction to disregard will generally cure the error." Wilson v. State, 7 S.W.3d 136, 148 (Tex.Crim.App. 1999). "Only in extreme circumstances, where prejudice is incurable, will a mistrial be required." Hawkins, 135 S.W.3d at 77 (citing Simpson, 119 S.W.3d at 272). In his fourth issue, appellant claims the trial judge should have declared a mistrial when the prosecutor's statement attacked appellant over counsel's shoulders. The judge sustained appellant's objection and instructed the jury to disregard the statement. Appellant, however, failed to move for a mistrial. To preserve jury argument error for appellate review, a party must (i) contemporaneously object to the statement, (ii) if the objection is sustained, request an instruction that the jury disregard the statement, and (iii) if the instruction is granted, move for a mistrial. Cooks v. State, 844 S.W.2d 697, 727-28 (Tex.Crim.App. 1992); Dominguez v. State, 125 S.W.3d 755, 763 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd). Because appellant did not move for a mistrial, he did not preserve this issue for our review. We overrule issue four. In his second issue, appellant claims the prosecutor misstated the law when she argued to the jury that he was not eligible for probation. Appellant objected to the statement, and the judge sustained the objection. Appellant requested an instruction, and the judge told the jurors "the statement made by [the prosecutor] is not in harmony with the law." The judge then denied appellant's request for a mistrial. Although we agree the prosecutor's comment was improper, we nevertheless conclude the trial judge's instruction to disregard the prosecutor's comment cured any prejudicial effect the comment would have had. We base this conclusion after considering (i) the severity of the misconduct (prejudicial effect of the statement), (ii) curative measures, and (iii) the certainty of punishment assessed absent the misconduct (the likelihood of the same punishment being assessed without the misconduct). See Hawkins, 135 S.W.3d at 77. Under the circumstances of this case, we conclude the trial judge was reasonable in believing the instruction to disregard was effective. Therefore, we cannot conclude the trial judge abused his discretion in denying appellant's motion for mistrial. We overrule issue two. In his third issue, appellant claims the trial judge abused his discretion in denying his motion for mistrial because the prosecutor improperly "commented on his right not to testify." Appellant claims we must reverse his conviction and remand for new trial. We disagree. A prosecutor may not comment on the failure of an accused to testify. Bustamante v. State, 48 S.W.3d 761, 764 (Tex.Crim.App. 2001); Montoya v. State, 744 S.W.2d 15, 34 (Tex.Crim.App. 1987) (op. on reh'g), overruled on other grounds by Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996). Any such comment violates the state and federal constitutions and Texas statutory law. See U.S. Const. amend. V; Tex. Const. art. I, § 10; Tex. Code Crim. Proc. Ann. art. 38.08 (Vernon 1979); Montoya, 744 S.W.2d at 34. To determine whether a remark constitutes an allusion to or a comment on an accused's failure to testify, we examine the language from the jury's standpoint. Bustamante, 48 S.W.3d at 765; Goff v. State, 931 S.W.2d 537, 548 (Tex.Crim.App. 1996). We consider whether the language was "manifestly intended or [was] of such a character that the jury would necessarily and naturally take it as a comment on the accused's failure to testify." Montoya, 744 S.W.2d at 35. That the language might be construed as an implied or indirect allusion to a defendant's failure to testify is not sufficient. Swallow v. State, 829 S.W.2d 223, 225 (Tex.Crim.App. 1992). "Where the statement does not refer to evidence which can only come from the defendant, then it is not a direct comment on a defendant's failure to testify." Goff, 931 S.W.2d at 548. During questioning of appellant's daughter, Sherri Coldwell, the following occurred:DEFENSE: Why was [appellant] depressed?
[COLDWELL]: He had redirected his life to the Lord.
STATE: Your Honor, I would object. This is hearsay. This is him not having to testify because she can say it all for him.
COURT: Sustain the objection.
DEFENSE: Your Honor, I'm going to object that the prosecutor just made a comment on the Defendant's right not to testify, and I move for a mistrial because the law requires it.Initially, we note that appellant objected to the comment and moved for a mistrial but did not ask for an instruction to disregard. Generally, the failure to request that the jury be instructed to disregard the comment waives any error. See McGinn v. State, 961 S.W.2d 161, 165 (Tex.Crim.App. 1998). In this case, however, the judge sustained the objection, instructed the jury to disregard, and denied the motion for mistrial. Thus, we will address the merits of appellant's complaint. After reviewing the record, we agree that the prosecutor's comment was an improper comment on appellant's failure to testify. Although the objection by the prosecutor was intended to prevent hearsay testimony by the witness, it was also to prevent the witness from "serving as a conduit through which appellant could testify without taking the stand." See Moore v. State, 999 S.W.2d 385, 406 (Tex.Crim.App. 1999). While made in front of the jury, the comment was directed to the trial judge. The prosecutor immediately apologized for the comment, stating that she was sure the "instruction will take care of it." The judge immediately instructed the jury to disregard the comment and not consider whether appellant testified. Therefore, although the comment was improper, we do not conclude it was so blatant that it rendered the instruction to disregard ineffective. See Moore, 999 S.W.2d at 406 (prosecutor's objection, "The answers the defendant gave, which the defendant can testify to," when witness read defendant's answers to psychological test not so blatant that it rendered instruction to disregard ineffective); see also Hogan v. State, 943 S.W.2d 80, 81 (Tex.App.-San Antonio 1997, pet. ref'd) (prosecutor's objection, "It's hearsay. It calls for hearsay and if the Defendant wants to testify, he can waive his right and testify to the" — was not comment on defendant's failure to testify but objection to hearsay). Accordingly, we cannot conclude the trial judge abused his discretion in denying appellant's motion for mistrial. We overrule appellant's third issue.