Opinion
No. 05-16-00490-CR
05-23-2017
DENNIS LEVECE MAYES, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 4 Dallas County, Texas
Trial Court Cause No. F-1253766-K
MEMORANDUM OPINION
Before Justices Lang, Myers, and Stoddart
Opinion by Justice Lang
Following a plea of not guilty, appellant Dennis Levece Mayes was convicted by a jury of aggravated sexual assault of a child. Punishment was assessed by the trial court at imprisonment for life.
In eight issues on appeal, appellant contends (1) he was denied his constitutional right to a speedy trial; (2) he was denied his right to a speedy trial under the Interstate Agreement on Detainers Act ("IADA"), see TEX. CODE CRIM. PROC. ANN. art. 51.14 (West 2006); (3) the trial court "designated the wrong outcry witness"; (4) the trial court "erred in overruling defense counsel's objections to the State's incorrect definition of 'intentionally' at voir dire"; (5) article 38.37 of the Texas Code of Criminal Procedure is unconstitutional under the United States Constitution, see TEX. CODE CRIM. PROC. ANN. art. 38.37 (West Supp. 2016); (6) article 38.37 is unconstitutional under the Texas Constitution; (7) the trial court abused its discretion by admitting certain character evidence offered by the State; and (8) appellant suffered egregious harm because the jury charge "failed to give a correct definition of aggravated sexual assault."
We decide appellant's eight issues against him. The trial court's judgment is affirmed. Because several of appellant's issues require evaluation of the entire record, we extensively recite the procedure and evidence.
I. FACTUAL AND PROCEDURAL CONTEXT
A. Pretrial
The indictment in this case stated that on approximately January 1, 2012, in Dallas County, Texas, appellant unlawfully, intentionally, and knowingly "cause[d] the contact . . . of the female sexual organ of [A.M.], a child, . . . by an object, to wit: the sexual organ, of said defendant, and, at the time of the offense, the child was younger than 14 years of age." On December 6, 2012, appellant had not yet been indicted for the offense in question and was incarcerated in Louisiana in connection with a separate offense in that state. A "teletype" communication respecting appellant on that date from a Louisiana correctional facility to Dallas County law enforcement authorities stated in part,
WE HAVE RECEIVED YOUR TELETYPE REGARDING YOUR CHARGES ON ABOVE LISTED SUBJECT & HAVE FORWARDED THEM TO OUR CORRECTIONAL CENTER FOR A HOLD TO BE PLACED ON HIM. HE IS BEING HELD ON OUR LOCAL CHARGES & WE WILL NOTIFY YOU WHEN HE IS READY TO BE RELEASED TO YOUR CUSTODY.(emphasis original). On December 7, 2012, appellant executed a "waiver of extradition" in which he agreed to "return to the State of Texas accompanied by a peace officer thereof, for the purpose of answering a criminal charge there pending."
The indictment in this case was filed on February 25, 2013, at which time appellant was still incarcerated in Louisiana. On December 30, 2014, appellant was transported from a Louisiana correctional facility to the Dallas County jail. Defense counsel was appointed to represent appellant in this case on January 4, 2015. Four days later, on January 8, 2015, the case was set for trial. Subsequently, over the next several months, counsel for appellant signed eight agreed requests for continuance, each of which reset trial for a later date. In the last of those agreed requests for continuance, trial was set for April 18, 2016.
Prior to trial, the State filed two "notice of outcry" statements that described statements by A.M. to her mother, April Washington. The first of those two outcry notices was filed on July 9, 2015, and summarized A.M.'s statements as follows: "[t]hat the defendant, as a continuous course of conduct, made [A.M.] pull her pants down and he touched her in her 'privates.'" The second of those two outcry notices was filed on October 30, 2015, and summarized A.M.'s statements as follows:
In a continuing course of conduct, the Defendant made contact and penetrated [A.M.'s] "middle part" (vagina) with Defendant's "middle part." (penis).Also, the State filed an October 30, 2015 notice of outcry that named Carmen Bray as the outcry witness, but was otherwise identical to October 30, 2015 outcry notice respecting Washington described above.
In a continuing course of conduct, the Defendant kissed [A.M.] in a way she was not comfortable with.
In a continuing course of conduct, the Defendant told [A.M.] not to tell anyone about the acts the defendant was committing against [A.M.].
Additionally, the State filed a July 9, 2015 "Notice of Extraneous Offenses" in which it described several "crimes, wrongs, or acts" of appellant that it intended to introduce during trial pursuant to articles 37.07 and 38.37 of the Texas Code of Criminal Procedure and Texas Rule of Evidence 404(b). See TEX. CODE CRIM. PROC. ANN. art. 37.07, 38.37; TEX. R. EVID. 404(b).
Appellant, although represented by counsel, filed two pro se motions prior to trial: (1) a July 10, 2015 "Motion to Dismiss for Violation of Rights to a Speedy Trial, Examining Trial, and an Attorney" and (2) a March 7, 2016 "Motion to Dismiss Indictments" based on alleged violation of article IV of the IADA. Also, on April 18, 2016, acting through counsel, appellant filed a "Motion to Dismiss for Violation of Right to a Speedy Trial" and a "Motion to Dismiss for Violation of Interstate Agreement on Detainers." In his April 18, 2016 motion to dismiss for violation of his right to a speedy trial, appellant asserted in part (1) "[t]he approximately two (2) year delay in this case from February 12, 2013 to January 8, 2015 constitutes a violation of the Defendant's right to a speedy trial under both the United States and Texas Constitutions"; (2) "[d]uring the period of delay in this case, the State knew that Defendant was incarcerated, and the court's record shows absolutely no efforts made on the part of the State of Texas to procure the Defendant's presence and bring him to trial"; (3) "[Defendant] was not appointed counsel until January of 2015, and [the State's] two year jump on the Defense amounts to an unfair advantage, especially when combined with the natural degradation in memory and physical capacity in all relevant witnesses"; (4) "[t]he State's complainant has retold her story, reshaping and reinforcing her memory"; and (5) "Defendant's mother, whose testimony is relevant because it is at her apartment that the child complainant alleges that she was assaulted, is now sick with late stage cancer, and will be unable to testify, whereas she would have been fully able, had Defense counsel been appointed and able to prepare during Defendant's stay in custody in Louisiana." In his April 18, 2016 motion to dismiss for violation of the IADA, appellant asserted in part, "Defendant is being given final trial on April 18, 2016, which is 417 days after his request for final disposition, a per se violation of the Interstate Agreement on Detainers CCP 51.14 Art. III(a)." See TEX. CODE CRIM. PROC. ANN. art. 51.14, art. III(a).
Further, appellant filed an April 18, 2016 "Objection to Admission of Character Evidence as Unconstitutional in Violation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution" and an April 18, 2016 motion for continuance. In his objection to the admission of character evidence, appellant asserted in part (1) section 2 of article 38.37 is unconstitutional on its face and as applied to appellant because it violates the United States Constitution, see TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2, and (2) "all extraneous acts are inadmissible" pursuant to Texas Rules of Evidence 403, 404, and 405, see TEX. R. EVID. 403, 404, 405. In his motion for continuance, appellant requested the trial be rescheduled until an unspecified date to obtain the assistance and testimony of a certain expert witness of whom counsel had "only recently become aware."
B. Trial
Trial commenced April 18, 2016. Prior to voir dire, the trial court addressed appellant's motion for continuance described above. Counsel for the State asserted, "I believe this is at least the third time that this case has been set for trial. On the last court setting the Defense asked for a motion for continuance. . . . So at this time, the State would oppose because we are announcing ready." The trial court denied appellant's April 18, 2016 motion for continuance.
Next, the trial court addressed appellant's motion to dismiss for violation of the right to a speedy trial. Counsel for appellant argued,
Judge, for this motion, our objection is based on the fact that Mr. Mayes was not appointed counsel during the two years that he was in Louisiana on unrelated charges. The State filed and indicted this charge, appointed counsel to the State, . . . but Mr. Mayes was denied the ability to prepare for trial during those two years when he could have been investigating evidence, looking into his defense, and what witnesses there may have been, and when he could have seen and taken evidence when memory was fresh.
Furthermore, Judge, Mr. Mayes has a character witness who is now sick with late stage terminal cancer. We are not able to put her on because of the delay, which is the State's fault. It's true that the Defense did make motions for continuance. At least one of those was because of my maternity leave. But had the State proceeded and appointed him counsel, when it knew that it wanted to proceed on a case, then we wouldn't have had that delay, and he would have been able to have a speedy trial. That speedy trial has been delayed by the actions of the State, and so dismissal is the only remedy.
Then, the following exchange occurred between the trial court and counsel for appellant:
THE COURT: And what was Mr. Mayes doing in Louisiana? How did he get there?
COUNSEL: The State knew exactly where he was.
THE COURT: Why did he go there? What was he doing over there?
COUNSEL: Judge, he went to Louisiana in order to fix his aunt's house.
THE COURT: So he was indicted for a case and here on bond and he went over there to fix a house?
COUNSEL: No, Judge, he was indicted while he was in Louisiana.
THE COURT: Okay. That's denied.
At that point, the trial court stated, "So now we have left in front of us two more motions to dismiss for violations of interstate agreement on detainers." The State asserted (1) appellant "was booked into the Dallas County jail in December of 2014"; (2) this case was set for trial "approximately two months later in February of 2015"; and (3) "[t]he State has never announced not ready and has been ready for trial on each and every setting." Counsel for appellant argued (1) "the interstate agreement on detainer specifies that a person who is extradited from a neighboring state from any other state, should and must be given a speedy disposition of his case within 180 days of having demanded a speedy disposition of his case" and (2) "[w]e set this for trial in February of 2015, and we stand here over a year from that date." The trial court stated, "denied." Further, during later pretrial proceedings on that same date, counsel for appellant stated as follows:
Judge, can we revisit a motion from earlier? It's come to my attention that we misstated some law in our motion on the interstate agreement on transfers. I directed the Court to 51.14 Article 3 when, in fact, it should have been 51.14 Article 4. So, Judge, we object to the denial of speedy trial under this article, because the August 2nd trial date was more than 120 days from the setting of the trial date, which I believe was in February.The trial court stated, "Okay. I will include your changes in the record, and your motion is denied."
Additionally, the trial court addressed appellant's pretrial objection to admission of character evidence. Counsel for appellant cited and described section 2 of article 38.37, then argued in part (1) "[i]t's the Defense's position that this grant of any broad character evidence on this vague topic is completely unconstitutional"; (2) "what is deeply rooted in our fabric is not to try a man for general bad character, and that's what this statute permits"; and (3) "therefore on its face, it violates [appellant's] due process rights." The State argued in part that the statute in question has been held constitutional by appellate courts "across the state of Texas" and "tracks the federal statute, which has also been held to be constitutional." The trial court "denied" appellant's objection to the admission of character evidence and granted appellant "a running objection on the issue of 38.37 and 404(b)."
During voir dire, the following exchange occurred between counsel for the State and a venireperson:
COUNSEL: Another element is intentionally or knowingly. [Venireperson], what's an intentional act mean to you?At that point, counsel for appellant stated, "I'm going to have to object to the characterization of the mens rea term. These are the two highest mens rea terms, and they are statutorily defined. Saying something is not an accident, that doesn't mean it's intentional. We have negligence and we have reckless." The trial court stated, "Overruled. Proceed."
VENIREPERSON: Something that was done on purpose with intent.
COUNSEL: Does everybody understand that? Okay. It is not an accident. Is that fair? I mean, it's not a complicated process here. If something is not an accident, someone meant to do something, that's an intentional act, right?
Following voir dire, the trial court held an "outcry witness hearing" outside the presence of the jury. Washington testified A.M. was born in 2002 and appellant is A.M.'s father. Washington stated that sometime in February 2012, she called A.M. from work to check on her. Washington stated A.M. "told me that her father made her pull her pants down" and "didn't give me any more detail what he did after that point." Washington told A.M. she would talk to her about it when she got home from work. Washington testified that when she arrived home from work, she had a conversation with A.M. that she described as follows:
[A.M.] repeated what she told me on the phone. She did not want to go into detail because she was too upset about it, but I just took what she said. I told her that if she wanted to talk about it, that we could talk about it at a later time, but that was the only time that she talked to me about it.Further, Washington stated "[a]t that time, I didn't know who to speak with, so I told [A.M.] to talk to the school counselor." The first time Washington "heard more details" respecting what appellant was charged with doing to A.M. was when she and A.M. spoke with an investigator for the defense "last year."
On cross examination, Washington testified that when A.M. told her appellant "made her pull her pants down," Washington "understood" that A.M. "meant" that "[appellant] touched her" on her vagina. Additionally, on re-cross examination, Washington stated she later wrote in a statement at the Children's Advocacy Center that A.M. had told her that "while her grandmother is gone, her dad made her pull down her pants and he touched her." When Washington wrote that, she "understood that to mean [appellant] touched [A.M.] with his hand" on her vagina. Further, on redirect examination, Washington was asked, "[W]ere those your assumptions or what [A.M.] told you?" Washington responded, "Those were my assumptions."
Carmen Bray testified at the outcry witness hearing that in 2012, she was working as a school counselor at the elementary school attended by A.M. Bray stated that on March 13, 2012, A.M. came to her and told her she needed to talk to her about something. Bray testified A.M. told her that "her father was touching her in the wrong spots" and Bray asked A.M. 'what do you mean by that?" Bray stated A.M. "actually pointed to her private parts." Bray testified A.M. told her this happened when she visited her father, who lived with her grandmother, had happened about five times, and occurred "on the sofa" when A.M.'s grandmother "would go to the church." Further, Bray stated A.M. told her that her father "would pull down her pants and touch her with—he would have his penis, and he would touch her private parts with it," and "had rubbed his penis on the outside of [A.M.'s] vagina" while "her pants and underwear were down."
Following that testimony, appellant argued the outcry witness "has to be the first person over the age of 18 who describes the offense discernibly" and that person was Washington because "[w]hat she understood from what her daughter told her was sexual assault." The State argued that "based upon the testimony," Bray was the proper outcry witness. The trial court designated Bray as the outcry witness.
Upon conclusion of the outcry witness hearing, the jury returned to the courtroom and the presentation of evidence commenced. Gary O'Pry testified he is an investigator for the Dallas County District Attorney's office. O'Pry stated he compared appellant's fingerprints with those of an individual convicted in 2008 of "indecency with a child sexual contact" in Dallas County cause number F07-55223 and both sets of fingerprints were "created by the same person."
Bray testified that in approximately January 2012, A.M. was "having some discipline problems" at school and was referred to Bray by a teacher for stealing money from a parent and stealing food. Over appellant's objection to her being the outcry witness in this case, Bray stated A.M. came to her in March 2012 and made the outcry described above. Bray asked A.M. if she had told anyone and A.M. stated she "had said something to her mother." Bray "called CPS" and asked A.M. to write down what she had told Bray. Bray testified that after that outcry, A.M. "seemed happier" and did not have any more discipline problems. School records of A.M. were admitted into evidence without objection.
A.M. testified she is fourteen years old. At the time of the events in question, she lived in Denton with her mother and her siblings. She often stayed at her grandmother's apartment in Dallas on weekends to visit with her grandmother and Z.W., an older sister of A.M. who lived with her grandmother. Occasionally, appellant would be at that apartment. A.M. stated her grandmother and Z.W. would sometimes be absent from the apartment at the same time because her grandmother "had choir rehearsal on Saturdays" and Z.W. would go out with her friends. A.M. stated her father would call her into a room "and he would tell me to take off all my clothes and get in the bed with him." She testified her father (1) "did not have on clothes"; (2) "would like turn me over to my side, and he would put his penis on the outside of my vagina" and move "back and forth"; and (3) "told me not to tell anybody." She stated this happened more than one time and took place in a bedroom and on the living room sofa. She stated her father would also touch her stomach with his hands "[w]hen he was adjusting my position." According to A.M., younger siblings of hers were sometimes present in other rooms of the apartment watching television and playing games, but to her knowledge, they did not see what her father was doing. Also, she stated that her younger sister N.M. "would usually go to choir rehearsal" with their grandmother.
A.M. stated that on several occasions, she tried to avoid her father by locking herself in the bathroom until Z.W. returned home. She stated that on one of those occasions, "my dad got me out before somebody came" and committed the same acts described above. She testified that "around this time" she was getting in trouble at school for stealing. She stated (1) her mother told her father about the stealing; (2) on her last visit to her grandmother's home, her father was about to "whoop" her for stealing, (3) she "told him that if he whooped me that I would tell somebody"; and (4) her father said "I thought you enjoyed it as much as I did."
A.M. testified that after that visit, she "tried to tell" her mother because she was "fed up." She spoke with her mother on the phone while he mother was at work and told her mother she needed to talk when her mother got home. A.M. stated her mother arrived home late that evening and "she wakes me up out of my sleep, and I tell her everything that happened." A.M. testified "[s]he seemed like she was really angry, so I thought she was angry at me." Her mother told her she should "talk to somebody at school." A few weeks later, A.M. went to talk to Bray. A.M. stated Bray made a phone call and A.M. was then taken to a "hospital" where they "checked" her. A.M. stated that sometime after she spoke with Bray, her father called her on their home phone and said, "I thought you weren't going to tell anybody if I didn't whoop you."
Washington testified she has nine children, three of whom are appellant's. Those three are Z.W., A.M., and N.M. Washington stated she and her children moved to Denton in 2007. About every two or three weeks, the children visited appellant's mother, Gloria Mayes, at Mayes's apartment in Dallas. Washington stated appellant did not live at that apartment, but "dropped in every once in awhile."
Washington stated that when A.M. was in fourth grade, she began stealing "minor things." Washington received a call from A.M.'s school about her stealing. Washington "didn't do anything about it" for "the first couple of times," but eventually she "spanked" A.M. and told her she was going to call appellant about it. She stated A.M. asked her not to call appellant. In February 2012, Washington called A.M. from work to check on her and that conversation prompted her to speak with A.M. immediately when she got home from work. Washington stated A.M. was "upset" and repeated what she had told Washington on the phone. Washington testified that because they lived in Denton and the events A.M. had told her about took place in Dallas, she "did not know who to speak with about the matter." She told A.M. to tell the school counselor because she thought the counselor "would probably guide us in the right way." She stated that approximately a week later, the school counselor called her and spoke with her "about who to talk to." Washington took A.M. to the Denton County Children's Advocacy Center for counseling. Washington testified she has not seen appellant since before A.M. reported the events in question, but she received a letter and several phone calls from him. She stated she gave the letter to the district attorney's office. Washington testified that during A.M.'s interview with an investigator for the defense, she learned "there was a lot more to what happened" than what A.M. had told her. After that interview, Washington stopped accepting calls from appellant. Copies of the letter sent to Washington by appellant and photographs of Mayes's apartment were admitted into evidence. In the letter, appellant asked Washington to tell "the authorities" she does not want A.M. to testify and she "would be willing to accept a two year plea bargain" respecting appellant with certain "stipulations" about his avoiding contact with A.M.
On cross-examination, Washington stated it is possible that A.M.'s incidents of stealing in fourth grade were not the first time A.M. had gotten in trouble for stealing at school. She stated that after being notified by the school of the stealing incidents in 2012, she called appellant, told him A.M. had been stealing, and asked him to speak to A.M. about that. About a month later, the phone conversation between Washington and A.M. described above occurred. Also, Washington stated that one of her other daughters had previously made an outcry of sexual assault to a school counselor, involving a person other than appellant. Washington stated that in that instance, she "didn't have to do anything" because "the school took care of everything." She testified she believed what A.M. told her and, in hindsight, "could have handled it better."
Rebecca Burchett testified that at the time of the events in question, she was a caseworker with Denton Child Protective Services. She was assigned A.M.'s case and conducted an investigation that included a forensic interview. Burchett stated that during the forensic interview, A.M. "became visibly distraught" and "just kind of shrunk into herself." A.M. was given the option of writing rather than talking and chose to write during part of the interview. Further, Burchett testified (1) she arranged for a forensic interview of N.M.; (2) there was no outcry of sexual abuse by N.M.; (3) it is "not uncommon" to "see a perpetrator choose one child and not another"; and (4) she has seen cases in which an adult delays reporting an outcry of sexual abuse because "they don't know what to do."
Additionally, Patrice Odle testified she is the family services supervisor at the Denton County Children's Advocacy Center. She stated she reviewed the forensic interview of A.M. and the interviewer followed the proper protocol respecting that interview.
Deborah Ridge testified she is a registered nurse and is the coordinator of Denton County's "Sexual Assault Nurse Examiner" program. She performed a physical examination of A.M. on May 3, 2012, at the Denton County Children's Advocacy Center. Ridge testified that based on what A.M. said to her during that examination, she wrote in her report as follows:
She said "Something happened. My dad had sexually abused me. When I went to my grandma's house, my dad would take me into my sister's room. He pulled off my pants and my underwear. He got on top of me. He started moving his middle part.["] She points to her genitalia. To my middle part, pointing to her genitalia. To the outside of it. After that, he told me not to tell anyone. And I asked her at that point, did it hurt, and she said, no.Ridge stated A.M. told her this happened "about five different times in January." Further, Ridge testified (1) the vagina is considered a female sexual organ and (2) a penis is considered a male sexual organ. A report made by Ridge respecting her examination of A.M. was admitted into evidence.
Kelly Slaven testified she is the director of clinical services at the Dallas Children's Advocacy Center. She stated it is common for a child who is sexually assaulted to "have a delayed outcry" because they might feel confused or ashamed. Also, she stated that in determining the truthfulness of an outcry, "we look not only at the words that are said, but the body's reaction and their behaviors," such as "acting out." On cross-examination, Slaven stated in part that there are cases in which children make a false outcry of sexual abuse. She stated she was not involved with A.M.'s case and did not see or treat A.M.
James Walaski testified he is an investigator with the child abuse unit of the district attorney's office. He stated appellant placed or received 449 phone calls while in the Dallas County jail. An audio recording of one those calls was admitted into evidence over appellant's objection and played in open court. In that audio recording, a person identified as appellant is heard telling a person named Jessica that he is "going to try to take the two years so he can get out and help them." At that point, the State rested its case.
Gloria Mayes testified she is appellant's mother. She stated she has attended the Rose Missionary Baptist Church since appellant was six months old and goes to church every Sunday. Also, she is a member of the church's adult choir and attends choir practices at the church on Tuesdays twice a month. She stated her choir practice has been on Tuesdays for at least the past five years and has never been on Saturdays. Mayes testified that at the time of the events in question, Z.W., Z.W.'s two young sons, and appellant lived with her. Her other grandchildren came for visits about twice a month. She stated her church has a youth choir that practices on the first and second Saturdays of each month and her grandchildren came for visits only on weekends when there was youth choir practice. Further, Mayes testified A.M. always attended those practices and was never at the apartment with appellant when Mayes was not also there.
On cross examination, Mayes testified that after Washington told her what A.M. had said, appellant told Mayes he was going to stay with his sister in Louisiana and help his aunt "fix her house up." Further, Mayes stated she was recently treated for breast cancer and is "in remission" and "[a]fter I had breast cancer, a lot of things I can't remember."
Z.W. testified she is nine years older than A.M. She stated that at the time of the events in question, she was living at Mayes's apartment with her two sons, appellant, and Mayes. She stated A.M. sometimes visited on weekends. Z.W. was involved with programs at the same church attended by her grandmother and assisted with the youth choir practice on Saturdays when she was not working. She testified (1) A.M. attended those practices; (2) adult choir practice was on Tuesdays and was never held on Saturday; (3) there was never a time when A.M. and appellant were at the apartment without her or Mayes also being there; (4) she lived in the same household as appellant for several years while growing up and did not experience "any sort of inappropriate interaction" respecting appellant; (5) she believes A.M. "must have made this up"; and (6) A.M. knew that others had accused appellant of sexual assaults in the past. Additionally, Z.W. stated (1) another one of her sisters, C.W., recently alleged appellant touched her inappropriately when she was younger, and (2) A.M. and C.W. "are pretty close" and "spend a lot of time together."
On cross-examination, Z.W. stated A.M. is "a liar" and "people have framed [appellant] for this before." Further, on redirect examination, Z.W. testified it is not possible that A.M.'s story is true.
Appellant testified he is a registered sex offender based on his 2008 conviction for indecency with a child by contact. Additionally, he stated he "received a ticket" for "assault by contact" in another incident and was arrested in Louisiana in 2012 for "simple rape" based on an incident he believed was "consensual sex." He stated he went to Louisiana in 2012 to try to fix his aunt's trailer and, while there, learned there was a "warrant" for him in Texas and decided to stay in Louisiana. He testified (1) Washington told him "that if I could take a plea and stay in Louisiana that that would be the best for everybody" and (2) "as a registered sex offender, I knew that if I came to trial and found [sic] guilty, I was eligible for an automatic life sentence" and "I did not want to go to trial and face an automatic life sentence."
Appellant stated that in 2011 he received a phone call from a teacher at A.M.'s school who told him A.M. "was having problems at school again." He stated the teacher asked him if there were any problems at home and he told her he did not know because A.M. did not live with him. He testified that sometime later, Washington called and told him about a stealing incident respecting A.M. According to appellant, Washington "said that she couldn't do anything with A.M." and "asked me to talk to her, whip her, discipline her, do something about it because it was beginning to escalate." Appellant testified (1) he "had a talk with A.M." and told her "hey, this is getting crazy and I don't like to whoop you, but I'm going to have to whoop you"; (2) as he took his belt off, A.M. "became hysterical, shaking, and crying," and "was telling me that if you whip me, I am going to tell my granny that you touched me"; (3) he became so angry that he was shaking and "was afraid that I would not whoop her according to the proper standings," so he told her "get away from me and don't come back near me." He stated (1) the allegation against him in this case is not true and (2) he never pulled down A.M.'s pants or underpants; never touched her vagina with his hand or penis, bare or clothed; and never touched her vagina or sexual organ with any object. Further, he stated "I sincerely believe or I think something may have happened to her," but "[i]t did not happen by me."
On cross-examination, appellant testified (1) he found out about A.M.'s allegations through his mother and told his mother he did not do those things; (2) when interviewed upon his arrest in Louisiana, he told the detective he did not turn himself in on the Louisiana case because he did not want to deal with this case; and (3) he did not touch C.W. as alleged by her. Also, counsel for the State questioned him about allegations that he inappropriately touched a thirteen-year-old girl at an apartment complex where he formerly worked and he denied those allegations. Following appellant's testimony, the defense rested its case.
On rebuttal, the State called C.W. to testify. C.W. stated she is twenty-four years old. Her father is a cousin of appellant and her mother is Washington. She stated that when she was in fifth grade, appellant was living with her mother and several incidents involving appellant occurred. In the first incident, C.W. was lying in bed in her room and felt someone rubbing her leg and "vaginal area." She "jumped up" and saw appellant, who told her "shh" and ran to another room. C.W. testified the "second time" occurred when she was in her bed asleep and appellant came and "nudged" her and whispered her name. She stated,
I opened my eyes, and he was standing over me, and he sat down on my bed. I had on—this time, I didn't have on a gown. I had on a T-shirt and some pajama pants. He began to pull my pants down, and he went inside my panties. He tried to pull my panties down as well. He, you know, started rubbing my clitoris, just rubbing it. Then he tried to take my shirt off. And when he took my shirt off, he kept saying, like, how does that feel, as he was rubbing me. He tried to take my shirt off, and I was like, no. And he said, be quiet, like, don't tell anyone. And I said, no, I'm telling my mama. . . . When I called out for my mom, he ran out of the room again.Additionally, C.W. stated a third incident occurred on a Saturday morning when her mother was at work. C.W. testified appellant asked her to lie in bed with him, then started "rubbing me again just like the second time" and said, "I'll give you $20 if you let me lick it." C.W. stated she asked to see the $20 first, then took the money and ran out of the house. She testified she told her father and he came over to the apartment and "talked to [appellant]" and the incidents stopped. She stated that after she heard about A.M.'s allegations, she told A.M. she had been sexually abused, but "never disclosed details to [A.M.]."
At that point, the trial court read the charge of the court to the jury. Then, both sides presented closing argument. The defense argued in part,
The charge of the court stated in part (1) "[a] person acts intentionally, or with intent, with respect to the nature of his conduct or with respect to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result" and (2) "[y]ou are instructed that any statements of counsel made during the course of the trial or during argument, not supported by the evidence, or statements of law made by counsel not in harmony with the law as stated to you by the court in these instructions are to be wholly disregarded."
Further, under the heading "LAW REGARDING SPECIFIC TESTIMONY," the charge stated,
You are instructed that if there is any testimony before you in this case regarding the defendant having committed offenses or acts other than the offense alleged against him in the indictment in this case, you cannot consider such testimony for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other offenses or acts, if any were committed, and even then you may only consider the same for the following purposes:
1. To determine the motive, intent, scheme, or design, if any, of the defendant,
2. To determine the state of mind of the defendant and the child, and,
3. For its bearing on the previous and subsequent relationship between the defendant and the child.
You are instructed that if there is any testimony before you in this case regarding the defendant having committed offenses, if any, other than the offense described in this indictment, you cannot consider said testimony for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other offenses, if any were committed. Then you may only consider the same for any bearing it has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant.
Additionally, the charge (1) stated under the heading "OFFENSE" that "[a] person commits the offense of Sexual Assault of a Child if the person intentionally or knowingly causes the contact of the female sexual organ of a child by any means" and "[t]he offense becomes Aggravated Sexual Assault if the child is younger than 14 years of age," and (2) stated under the heading "APPLICATION OF LAW TO THE EVIDENCE PRESENTED" as follows:
Now, if you find and believe from the evidence beyond a reasonable doubt that the defendant, DENNIS LEVECE MAYES on or about the 1st day of January, A.D., 2012, in the County of Dallas and State of Texas, did unlawfully then and there intentionally or knowingly cause the contact of the female sexual organ of [A.M], a child, who was not then the spouse of defendant, by an object, to-wit: the sexual organ of the defendant, and at the time of the offense, the child was younger than 14 years of age, then you will find the defendant guilty of the offense of Aggravated Sexual Assault of a Child under 14 years of age, as charged in the indictment.
You've got this young lady, who at ten years old is like ten-year-olds, and she is being secretive, and sneaky, and stealing, and she's about to get in trouble. And she has an agenda. You know that this young lady knew her father's reputation. She told you that she knew it. And you knew that she was about to get whooped by her dad. And so she makes an allegation that is impossible to have happened.
Following the jury's verdict and the assessment of punishment described above, appellant filed a motion for new trial, which was overruled by the trial court. This appeal timely followed.
II. VIOLATION OF CONSTITUTIONAL RIGHT TO SPEEDY TRIAL
A. Standard of Review
In reviewing the trial court's ruling on an appellant's constitutional speedy trial claim, we apply a bifurcated standard of review: an abuse of discretion standard for the factual components, and a de novo standard for the legal components. Cantu v. State, 253 S.W.3d 273, 282 (Tex. Crim. App. 2008) (citing Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002)). "Under the abuse of discretion standard, appellate courts defer not only to a trial judge's resolution of disputed facts, but also to his right to draw reasonable inferences from those facts." Id. If the appellant lost in the trial court on his speedy-trial claim, "we presume that the trial judge resolved any disputed fact issues in the State's favor, and we defer to the implied findings of fact that the record supports." Id.
B. Applicable Law
Both the Sixth Amendment to the United States Constitution and article 1, section 10 of the Texas Constitution guarantee a speedy trial. See U.S. CONST. amend. VI & XIV; TEX. CONST. art. 1, § 10; see also TEX. CODE CRIM. PROC. ANN. art. 1.05 (West 2005). "The right attaches once a person becomes an 'accused'—that is, once he is arrested or charged." Cantu, 253 S.W.3d at 280. If an accused's speedy trial right is violated, the proper remedy is to dismiss the prosecution with prejudice. See Shaw v. State, 117 S.W.3d 883, 888 (Tex. Crim. App. 2003).
While the Texas Constitution provides an independent speedy trial guarantee, the Texas Court of Criminal Appeals has traditionally analyzed speedy trial claims under the same framework established by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 530-33 (1972). See Zamorano, 84 S.W.3d at 647-48. That framework requires us to consider four factors: (1) the length of the delay, (2) the reasons for the delay, (3) the assertion of the right, and (4) the prejudice to the defendant. Barker, 407 U.S. at 530. No single factor is sufficient or necessary to establish a violation of the right to a speedy trial. Id. at 533. However, the length of the delay is, to some extent, a "triggering mechanism" for analysis of the other factors. Id. at 530. "Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance." Id. Although no "set time element" triggers a Barker analysis, a delay of about one year is generally presumptively prejudicial for purposes of the length-of-delay factor. See Cantu, 253 S.W.3d at 281; Shaw, 117 S.W.3d at 889. If the delay is "presumptively prejudicial," the State bears the burden of justifying the delay and the defendant has the burden to prove that he asserted the right and that he suffered prejudice because of the delay. Cantu, 253 S.W.3d at 280. "The defendant's burden of proof varies inversely with the State's degree of culpability for the delay." Id.; see also Rojas v. State, No. 05-15-01370-CR, 2017 WL 410275, at *3 (Tex. App.—Dallas Jan. 20, 2017, no pet.) (mem. op., not designated for publication) ("the less culpability the State has for the trial delay, the more a defendant must show actual prejudice or prove diligence in asserting his speedy-trial right"). In evaluating a speedy trial claim, we balance the defendant's conduct against the State's conduct and consider the four factors together, along with any other relevant circumstances. Barker, 407 U.S. at 530, 533. Review of the individual Barker factors necessarily involves fact determinations and legal conclusions, but "[t]he balancing test as a whole . . . is a purely legal question." Cantu, 253 S.W.3d at 282.
C. Application of Law to Facts
In his first issue, appellant asserts he was denied his right to a speedy trial under the United States and Texas constitutions because of "the delay in this prosecution." Therefore, appellant argues, the trial court improperly denied his motion to dismiss the indictment. The State argues in part that appellant "does not deserve a new trial for not having a speedy one because the period of delay about which he complains is almost entirely due to his conduct."
As to the first Barker factor, i.e., the length of the delay, appellant asserts this factor "weighs heavily in favor of finding a violation of [his] right to a speedy trial" because "[i]nitially, there was a delay of approximately two (2) years from the date of indictment (February 25, 2013) to the first trial setting (January 8, 2015)," and "[t]he further delay of over three years from the date of the indictment to the date of the trial (April 18, 2016) constitutes an even stronger presumption of prejudice." The State asserts the delay in this case "weighs in favor of examination of the case under the other factors" to determine whether appellant's right to a speedy trial was violated.
The record shows that in the trial court, appellant complained specifically of a delay of approximately two years. We conclude that delay is presumptively prejudicial and weighs heavily against the State. See State v. Soto, No. 03-02-00340-CR, 2003 WL 1087092, at *2 (Tex. App.—Austin Mar. 13, 2003, no pet.) (mem. op., not designated for publication) (length of seventeen-month delay "weighs heavily" against State).
Second, we consider the reason for the delay. Barker, 407 U.S. at 530. Appellant argues this factor weighs in his favor because (1) "the State knew where Appellant was at all times after indictment"; (2) "[t]he record shows absolutely no efforts made on the part of the State of Texas to procure Appellant's presence and bring him to trial during that two year period"; and (3) "any reason advanced by the State at this point in time would be nothing but conjecture and purely hypothetical." The State asserts in part that the delay attributable to appellant's incarceration in Louisiana should not be held against the State because "Louisiana refused to extradite Appellant to Texas to stand trial in the instant case until he served his sentence for the Louisiana offense."
As described above, the record shows (1) subsequent to the date of the offense in question, appellant chose to go to Louisiana and was incarcerated for an offense committed there and (2) in a December 2012 "teletype" communication from a Louisiana correctional facility, Dallas County law enforcement authorities were told appellant was being held on local charges and Dallas County authorities would be notified as to when he would be released into their custody. Therefore, any delay while appellant was being held in Louisiana should not count against the State. See Braxton v. Dunn, 803 S.W.2d 318, 320 (Tex. Crim. App. 1991) (orig. proceeding) (Louisiana authorities' refusal to release prisoner was "valid reason" for delay for purposes of speedy trial analysis); Hunt v. State, 237 S.W.3d 434, 436 (Tex. App.—Waco 2007, pet. ref'd) (Mississippi's refusal to release defendant to Texas custody until he had served his two-year sentence for Mississippi offense should not be held against State in Barker analysis); see also Cantu, 253 S.W.3d at 282 (appellate court must defer to trial court's right to draw reasonable inferences from facts). Further, to the extent appellant complains of the time period from his arrival in Texas on December 30, 2014, to his April 18, 2016 trial, the record shows numerous resets of his trial date during that time. Although the reason for those resets is not clear from the record, appellant acquiesced to the resets. On this record, we conclude this factor weighs against the State only slightly, if at all. See Braxton, 803 S.W.2d at 320; Hunt, 237 S.W.3d at 436-37.
Third, we consider appellant's assertion of his right to a speedy trial. Barker, 407 U.S. at 530. Appellant contends (1) he "was denied the ability to assert his rights prior to the date on which he was appointed counsel"; (2) he asserted his right to a speedy trial prior to trial in his July 10, 2015 "Motion to Dismiss for Violation of Rights to a Speedy Trial, Examining Trial, and an Attorney" and his April 18, 2016 "Motion to Dismiss for Violation of Right to a Speedy Trial"; and (3) although appellant acquiesced to numerous resets and filed a motion for continuance on the date of trial, appellant "should not be faulted for agreeing to these delays" because "[a]t that point in time, more than two years had already expired since the date of the indictment and the damage to Appellant's case has already been done." The State responds in part that neither of appellant's motions described above requested that he be brought promptly to trial, "but, instead sought only dismissal."
The record shows that in appellant's motions described above, he requested that the charges against him be dismissed rather than requesting that a trial be held promptly. See Phillips v. State, 650 S.W.2d 396, 401 (Tex. Crim. App. 1983) ("Although a motion to dismiss notifies the State and the court of a speedy trial claim, a defendant's motivation in asking for dismissal rather than a prompt trial is clearly relevant, and may sometimes attenuate the strength of his claim."); McCarty v. State, 498 S.W.2d 212, 215-16 (Tex. Crim. App. 1973) (holding that a defendant's speedy trial claim is weakened where his prime object is not to gain a speedy trial but to have the charges against him dismissed). Further, to the extent appellant complains of the time period from December 30, 2014, to April 18, 2016, "[a]greed resets are 'inconsistent with the assertion of a speedy trial right.'" Celestine v. State, 356 S.W.3d 502, 507 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (quoting State v. Kuri, 846 S.W.2d 459, 463 (Tex. App.— Houston [14th Dist.] 1993, pet. ref'd)). On this record, we conclude this factor weighs slightly against appellant. See id.; Phillips, 650 S.W.2d at 401; McCarty, 498 S.W.2d at 215-16.
Fourth, we consider prejudice to the defendant resulting from the delay. Barker, 407 U.S. at 530. Appellant argues in part (1) "for almost two years, the State of Texas was able to prepare its case while Appellant could not"; (2) "A.M. was, no doubt, made a stronger witness by the delay than she would have had she been younger at the time of trial"; and (3) "Appellant's mother, whose testimony is relevant because it is at her apartment that A.M. alleged that she was assaulted, was sick with late stage cancer by trial" and "[h]er testimony was no doubt less powerful that [sic] it would have been had the trial occurred earlier." The State asserts in part "Appellant's acquiescence to the delay in trial after his return to Texas, and his late assertion of his speedy trial right, which is further weakened by seeking to continue the case on the day of trial, weighs heavily against any claim that Appellant was prejudiced by the lack of a speedy trial."
We assess this Barker factor in light of the interests the speedy trial right was designed to protect: (1) to prevent oppressive pretrial incarceration; (2) to minimize the accused's anxiety and concern; and (3) to limit the possibility that the accused's defense will be impaired. Id. at 532. The most serious form of prejudice is the last because "the inability of a defendant adequately to prepare his case skews the fairness of the entire system." Id. However, this presumption of prejudice to the defendant's ability to defend himself is "extenuated . . . by the defendant's acquiescence" in the delay. Shaw, 117 S.W.3d at 890. While a defendant has the burden to make some showing of prejudice, a showing of actual prejudice is not required. See State v. Munoz, 991 S.W.2d 818, 826 (Tex. Crim. App. 1999).
The record shows appellant (1) did not address his mother's health or A.M.'s maturity in his July 10, 2015 "Motion to Dismiss for Violation of Rights to a Speedy Trial, Examining Trial, and an Attorney," which motion was filed after he had already acquiesced to numerous resets of his trial; (2) continued to acquiesce to resets of trial after filing that motion; and (3) moved for a continuance on the date of trial. Further, as to his mother's health, appellant did not "explain why he could not have preserved any evidence he may have needed to defend himself." See Hudson v. State, No. 05-15-00083-CR, 2016 WL 4120710, at *3 (Tex. App.—Dallas Jul. 29, 2016, pet. ref'd) (mem. op., not designated for publication). Because the prejudice claimed by appellant "can only be minimally attributed to any unjustified delay," we conclude this factor weighs against appellant. See id.; see also Shaw, 117 S.W.3d at 890.
Having addressed the four Barker factors, we must now balance them. See Balderas v. State, No. AP-77,036, 2016 WL 6496715, at *10 (Tex. Crim. App. Nov. 2, 2016). "[C]ourts must apply the Barker balancing test with common sense and sensitivity to ensure that charges are dismissed only when the evidence shows that a defendant's actual and asserted interest in a speedy trial has been infringed." Id. (citing Cantu, 253 S.W.3d at 281). "The constitutional right is that of a speedy trial, not dismissal of the charges." Cantu, 253 S.W.3d at 281. In the case before us, the length of the delay weighs in appellant's favor. However, the record also shows (1) Dallas County law enforcement authorities were told appellant was being held in Louisiana on local charges and Dallas County authorities would be notified as to when he would be released into their custody and (2) appellant acquiesced in numerous trial continuances, requested dismissals rather than a prompt trial, and claimed prejudice that was only minimally attributable to any unjustified delay. On this record, balancing appellant's conduct against the State's conduct and considering the four Barker factors together, we conclude the trial court did not err by denying appellant's motion to dismiss his indictment based on violation of his rights to a speedy trial under the United States and Texas constitutions. See Barker, 407 U.S. at 530-32; see also Rojas, 2017 WL 410275, at *3 ("the less culpability the State has for the trial delay, the more a defendant must show actual prejudice or prove diligence in asserting his speedy-trial right").
We decide against appellant on his first issue.
III. VIOLATION OF RIGHTS UNDER IADA
In his second issue, appellant contends he was denied his right to a speedy trial under the IADA. See TEX. CODE CRIM. PROC. ANN. 51.14. Specifically, appellant contends that pursuant to article III of the IADA, he was entitled to trial of his case within 180 days of making a request for final disposition. See id. art. III. Appellant contends his trial was not held within that 180-day time period and the trial court was therefore required to dismiss his indictment with prejudice.
The State responds (1) the IADA is inapplicable in this case because the Act is contractual in nature and has not been adopted by Louisiana; (2) appellant's argument on appeal is waived because it does not comport with his trial objection; and (3) even if the IADA is applicable to actions by Texas in bringing appellant to trial, appellant's conduct estops him from claiming its benefits.
A point of error on appeal must comport with the complaint or objection during trial. Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). In the case before us, the record shows (1) appellant's pro se IADA motion was brought pursuant to article IV of the Act, which provides for a 120-day deadline for trial in certain circumstances; (2) appellant's April 18, 2016 IADA motion was brought pursuant to article III of the Act; (3) during the hearing on those motions, counsel for appellant argued article III had been violated; (4) subsequently, counsel for appellant stated, "I directed the Court to 51.14 Article 3 when, in fact, it should have been 51.14 Article 4. So, Judge, we object to the denial of speedy trial under this article, because the August 2nd trial date was more than 120 days from the setting of the trial date"; and (5) "[t]he trial court stated, "Okay. I will include your changes in the record, and your motion is denied." On appeal, appellant asserts violation of article III, which not does comport with his article IV argument asserted in the trial court. Consequently, we conclude appellant's argument respecting the IADA presents nothing for this Court's review. See id.
IV. DETERMINATION OF OUTCRY WITNESS
A. Standard of Review and Applicable Law
Generally, hearsay is not admissible except as provided by the rules of evidence or by statute. See TEX. R. EVID. 802. However, article 38.072 of the Texas Code of Criminal Procedure allows admission of certain hearsay testimony in the prosecution of offenses committed against children younger than fourteen years of age. See TEX. CODE CRIM. PROC. ANN. art. 38.072 (West Supp. 2016). That statute applies only to statements made (1) by the child against whom the charged offense was allegedly committed and (2) to the first person, eighteen years of age or older, to whom the child made a statement about the offense. Id. § 2(a). "To be a proper outcry statement, the child's statement to the witness must describe the alleged offense in some discernible manner and must be more than a general allusion to sexual abuse." Sims v. State, 12 S.W.3d 499, 500 (Tex. App.—Dallas 1999, pet. ref'd) (citing Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990)); see also TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2(a)(1). "Simply put, the outcry witness is the first adult to whom the child tells 'how, when, and where' of the assault." Reyes v. State, 274 S.W.3d 724, 727 (Tex. App.—San Antonio 2008, pet. ref'd). The trial court has broad discretion in determining the proper outcry witness, and its determination will not be disturbed absent an abuse of discretion. Sims, 12 S.W.3d at 500.
B. Application of Law to Facts
In his third issue, appellant contends "[t]he trial court designated the wrong outcry witness, thereby affecting Appellant's substantial rights." Specifically, appellant argues "[t]he record reflects that the proper outcry witness in this case should have been April Washington, A.M.'s mother, who was the first adult to whom A.M. made the outcry," and not Bray, the outcry witness designated by the trial court over appellant's objection. In support of his argument, appellant cites Nino v. State, 223 S.W.3d 749 (Tex. App.—Houston [14th Dist.] 2007, pet. ref'd).
The State responds in part that the trial court did not abuse its discretion in the determination of the outcry witness because A.M.'s statement to her mother "was that her father touched her when her pants were down" and "[t]his statement is insufficient to describe the charged offense." Further, the State asserts that any error in the trial court's determination of the outcry witness was harmless.
In Nino, a mother was standing outside an open bathroom door while her two young sons were showering and overheard her son John say to his brother George, "[Appellant] made me suck it." Id. at 751. The mother then heard George respond, "Suck what?" Id. Upon entering the bathroom, the mother saw John holding his penis in response to his brother's inquiry. Id. The mother asked John what he had just said, and John refused to respond. Id. The mother told the boys to finish showering and get dressed so that they could talk. Id. After the boys dressed themselves, they met with the mother in the living room. Id. The mother told John she needed to know what the appellant had done. Id. After further questioning, John told the mother what had happened at the appellant's house. Id. The mother reported the offense to the police, and the following week she took John to the Children's Assessment Center. Id. There, a forensic interviewer questioned John during a recorded interview. Id. On appeal, the appellant contended in part that the trial court should have designated the mother rather than the forensic interviewer as the outcry witness because "based on John's statements in the shower and later in the living room, [the mother] was the first adult to whom John made a statement that in some discernible manner described the alleged offense." Id. at 752-53. The court of appeals agreed with the appellant. Id. at 753. Specifically, the court of appeals stated in part, (1) "[u]nder the undisputed evidence before the trial court, John's account of the event, as relayed to his mother, was more than a general allusion that something in the area of child abuse was going on," and (2) "[t]hough the child's statements were not lengthy or detailed, they contained sufficient information about the nature of the act and the perpetrator to fall under article 38.072." Id.
In the case before us, appellant argues that "[a]s in Nino, A.M. revealed a discernible offense to April in two conversations" and "April then memorialized the conversation, writing down the 'who, what, where, how' of the offense." However, we disagree with appellant's position that Nino is persuasive. Washington testified A.M. called her at work and "told me that her father made her pull her pants down, and later that evening at home, A.M. "repeated what she told me on the phone" and "did not want to go into detail." Unlike in Nino, the second conversation in this case did not result in the complainant providing information that differed from the information provided in the first conversation. Further, although Washington later wrote in a statement at the Children's Advocacy Center that A.M. had told her that "while her grandmother is gone, her dad made her pull down her pants and he touched her," that statement does not describe the offense alleged in this case. See TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2(a)(1). Additionally, Washington testified that her understanding that A.M. "meant" that appellant touched A.M. on her vagina was based on "assumptions" by Washington.
On this record, we conclude the trial court could have reasonably determined that A.M.'s statement to Washington was nothing more than a general allusion to sexual abuse. See Sims, 12 S.W.3d at 500 (concluding trial court could have reasonably determined that complainant's statement to her mother that appellant "had touched her private parts" was nothing more than a general allusion that something in the area of sexual abuse was occurring); see also Cardinas v. State, No. 05-15-01328-CR, 2017 WL 677823, at *2 (Tex. App.—Dallas Feb. 21, 2017, no pet.) (mem. op., not designated for publication) (concluding "[b]ecause complainant did not disclose any specific details to Grandmother about appellant's sexual organ contacting or penetrating complaint's sexual organ—the charged offense—complainant's statements to her were nothing more than a general allusion to that something in the area of sexual abuse was occurring and not a clear description of the offense charged as required by article 38.072").
We decide appellant's third issue against him.
V. MISSTATEMENT OF LAW DURING VOIR DIRE
A. Standard of Review and Applicable Law
"A trial court has wide discretion to control voir dire." Stewart v. State, 162 S.W.3d 269, 277 (Tex. App.—San Antonio 2005, pet. ref'd). "The trial court's discretion is not limitless, however, and is reviewable for an abuse of discretion." Id . Voir dire questions or hypotheticals that misstate the law are improper. See, e.g., Thompson v. State, 95 S.W.3d 537, 541 (Tex. App.—Houston [1st Dist.] 2002, no pet.).
A misstatement of law during voir dire requires reversal only if the appellant was harmed by the misstatement. Stewart, 162 S.W.3d at 278. We analyze any harm arising from the prosecutor's voir dire statements under Texas Rule of Appellate Procedure 44.2(b). Id.; see TEX. R. APP. P. 44.2(b). We will disregard the error unless the appellant's substantial rights were affected, which occurs when the error had a "substantial and injurious effect or influence in determining the jury's verdict." TEX. R. APP. P. 44.2(b); see Easley v. State, 424 S.W.3d 535, 539 (Tex. Crim. App. 2014); Stewart, 162 S.W.3d at 277.
"A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result." TEX. PENAL CODE ANN. § 6.03(a) (West 2011).
B. Application of Law to Facts
In his fourth issue, appellant contends the trial court erred by "overruling defense counsel's objections to the State's incorrect definition of 'intentionally' at voir dire." Specifically, according to appellant, (1) "the prosecutor misstated the law by defining 'intentionally' as simply 'not an accident'"; (2) "[t]he prosecutor compounded the error by asking the panel if everyone understood that something which was not an accident was intentional act"; (3) "the trial court compounded the prosecutor's error by overruling defense counsel's objection and telling the prosecutor to proceed"; (4) "[w]hile the jury was later given the full definition of 'intent' in the jury instructions, the damage had been done as the jury selected was pre-disposed to accept a different, non-statutory definition"; and (5) "[b]ecause the definition of aggravated sexual assault was also incorrect in the jury charge (see Point of Error 7), the error at voir dire was further compounded and resulted in harm."
The State responds in part that the trial court did not abuse its discretion by overruling defense counsel's objections to the State's comment in question because "[t]he prosecutor did not misstate the law by agreeing with the prospective juror that an intentional act is not an accidental one." Additionally, the State argues (1) "the defense forfeited the opportunity to mitigate any damage from the State's comment" and (2) in the charge of the court, the jury was provided with the proper statutory definition of "intentionally" and was instructed to disregard any "statements of law made by counsel not in harmony with the law as stated to you by the court in these instructions."
In support of his arguments on this issue, appellant relies primarily on two cases: Dues v. State, 634 S.W.2d 304 (Tex. Crim. App. 1982), and Roberson v. State, No. 05-15-00550-CR, 2016 WL 3517937 (Tex. App.—Dallas June 20, 2016, no pet.) (mem. op., not designated for publication). However, (1) in Dues, the error complained of during voir dire was compounded by an error respecting the same term in the jury charge, see Dues, 634 S.W.2d at 306; and (2) in Roberson, this Court concluded the jury was not misled by a charge that completely omitted a definition of an essential mens rea term, where that term was correctly defined by the prosecutor during voir dire, see Roberson, 2016 WL 3517937, at *4. Therefore, we do not find those cases instructive.
The record shows the prosecutor stated in part, "If something is not an accident, someone meant to do something, that's an intentional act, right?" Even assuming without deciding that the prosecutor's statement can be construed as "defining 'intentionally' as simply 'not an accident'" and is therefore inconsistent with the statutory definition, we disagree with appellant's position that his substantial rights were affected. See TEX. R. APP. P. 44.2(b). The record does not show defense counsel addressed the meaning of the term "intentional" when examining the venire. See Penry v. State, 903 S.W.2d 715, 741 (Tex. Crim. App. 1995) (considering defense counsel's opportunity to examine venire members in assessing harm from misstatement of law during voir dire). Further, the trial court properly defined "intentionally" in the charge of the court and specifically instructed the jury to disregard any "statements of law made by counsel not in harmony with the law as stated to you by the court in these instructions." See id.; see also Crenshaw v. State, 378 S.W.3d 460, 467 (Tex. Crim. App. 2012) (jury is presumed to have understood and followed the court's charge, absent evidence to the contrary).
Additionally, as described above, appellant asserts "[b]ecause the definition of aggravated sexual assault was also incorrect in the jury charge (see Point of Error 7), the error at voir dire was further compounded and resulted in harm." Appellant cites no authority to support that assertion, nor does he provide additional argument in the sections of his appellate brief pertaining to this issue or his seventh issue. To the extent appellant complains of cumulative error, that complaint presents nothing for this Court's review. See TEX. R. APP. P. 38.1(i). On this record, we conclude any error respecting the definition of "intentionally" at voir dire did not affect appellant's substantial rights. See TEX. R. APP. P. 44.2(b); Penry, 903 S.W.2d at 741.
Also, to the extent appellant intended to refer to his eighth issue, which complains of an incorrect definition of aggravated sexual assault in the jury charge, he does not address that assertion in the argument pertaining to his eighth issue.
We decide against appellant on his fourth issue.
VI. ADMISSIBILITY OF EXTRANEOUS OFFENSE EVIDENCE
A. Standard of Review
We review a trial court's admission or exclusion of evidence for an abuse of discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A trial court does not abuse its discretion if the decision to admit evidence is within the zone of reasonable disagreement. See Oprean v. State, 201 S.W.3d 724, 726 (Tex. Crim. App. 2006); Manning v. State, 114 S.W.3d 922, 926 (Tex. Crim. App. 2003).
In reviewing the constitutionality of a statute, we must presume that the statute is valid and that the legislature did not act unreasonably or arbitrarily in enacting it. See, e.g., Ex parte Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App. 1978). Appellant bears the burden of demonstrating the statute is unconstitutional. Id.
B. Applicable Law
Texas Rule of Evidence 404 provides in part (1) "[e]vidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait" and (2) "[e]vidence of a crime, wrong or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." TEX. R. EVID. 404. Further, under rule of evidence 405, (1) when evidence of a person's character or character trait is admissible, it may be proved by testimony about the person's reputation or by testimony in the form of an opinion; (2) on cross-examination of the character witness, inquiry may be made into relevant specific instances of the person's conduct; and (3) when a person's character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person's conduct.
However, for certain crimes relating to sexual misconduct involving a child, including the crime alleged in this case, article 38.37 expressly abrogates the application of rules of evidence 404 and 405. TEX. CODE CRIM. PROC. ANN. art. 38.37. Section 1(b) of article 38.37 provides that in such cases, "notwithstanding Rules 404 and 405," evidence of other crimes, wrongs, or acts committed by the defendant against the child who is the victim of the alleged offense shall be admitted for its bearing on relevant matters, including: (1) the state of mind of the defendant and the child; and (2) the previous and subsequent relationship between the defendant and the child." Id. § 1(b). Further, in 2013, article 38.37 was amended to add section 2, which allows, again notwithstanding rules 404 and 405, evidence of certain extraneous offenses by the defendant against a third person. Id. § 2(b). Section 2 allows such evidence "for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant." Id. Before that evidence can be admitted, the trial court must hold a hearing and make a finding that "the evidence likely to be admitted at trial will be adequate to support a finding by the jury that the defendant committed the separate offense beyond a reasonable doubt." Id. § 2-a.
Pursuant to Texas Rule of Evidence 403, "[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence. TEX. R. EVID. 403. Evidence of extraneous acts admissible under section 2 of article 38.37 is subject to exclusion under rule 403's balancing test. Bezerra v. State, 485 S.W.3d 133, 140 (Tex. App.—Amarillo 2016, pet. ref'd). An analysis under rule 403 includes, but is not limited to, the following factors: (1) the probative value of the evidence, (2) the potential to impress the jury in some irrational yet indelible way, (3) the time needed to develop the evidence, and (4) the proponent's need for the evidence. Hernandez v. State, 390 S.W.3d 310, 324 (Tex. Crim. App. 2012).
C. Application of Law to Facts
In his fifth, sixth, and seventh issues, respectively, appellant contends (1) article 38.37 is unconstitutional under the Fifth, Sixth, and Fourteenth amendments to the United States Constitution, see U.S. CONST. amend. V, VI, & XIV; (2) article 38.37 is unconstitutional under sections 10 and 19 of article 1 of the Texas Constitution, see TEX. CONST. art. 1, §§ 10 & 19; and (3) the trial court abused its discretion by admitting character evidence in the form of "prior bad acts/extraneous offenses" by appellant in the State's case-in-chief under rules of evidence 404 and 405, see TEX. R. EVID. 404, 405. We address these three issues together.
The Fifth Amendment states in part, No person shall be . . . deprived of life, liberty, or property, without due process of law." U.S. CONST. amend. V. The Sixth Amendment states, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence." U.S. CONST. amend. VI. Further, section 1 of the Fourteenth Amendment states in part, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." U.S. CONST. amend. XIV.
The State asserts in part (1) "[t]he only claim preserved for appellate review is whether Article 38.37 violates due process of law under the U.S. Constitution"; (2) appellant "has failed to show that Article 38.37 is unconstitutional"; and (3) even if appellant's complaint respecting violation of the rules of evidence is preserved for review, the trial court did not abuse its discretion by admitting the extraneous offense evidence in question.
The record shows appellant's challenge to article 38.37 based on the Texas Constitution was not asserted in the trial court. Therefore, appellant's sixth issue presents nothing for this Court's review. See TEX. R. APP. P. 33.1; see also Ieppart v. State, 908 S.W.2d 217, 219 (Tex. Crim. App. 1995) ("legal rights, even those assured by due process, are usually forfeitable by inaction"). Further, the record shows appellant's constitutional complaint in the trial court pertained specifically to section 2 of article 38.37. Therefore, to the extent appellant complains on appeal as to section 1 of article 38.37, that portion of his appellate complaint presents nothing for this Court's review. See TEX. R. APP. P. 33.1; see also Ieppart, 908 S.W.2d at 219.
Appellant's remaining constitutional challenge asserts section 2 of article 38.37 violates the Fifth, Sixth, and Fourteenth amendments to the United States Constitution. Specifically, appellant argued in the trial court that section 2's "grant of any broad character evidence on this vague topic" is "completely unconstitutional" and permits the State to "try a man for general bad character." On appeal, appellant contends (1) "[a]rticle 38.37 is unconstitutional, both on its face and as applied to Appellant, because it violates his right to due process and to due course of law"; (2) "[d]ue process rights are at stake when extraneous acts are permitted to show general character"; and (3) the introduction of the evidence in question in this case "prevented Appellant from having a fair trial because it placed his character on trial." In support of his position, appellant cites authority that addresses due process generally, all of which substantially pre-dates the enactment of section 2.
The constitutionality of section 2 of article 38.37 was specifically addressed by this Court in Fronek v. State, No. 05-14-01118-CR, 2016 WL 3144243 (Tex. App.—Dallas June 6, 2016, pet. ref'd). That case involved a constitutional challenge similar, if not identical, to the challenge in the case before us, based on violations of the United States Constitution's due process guarantees and the Sixth Amendment. Id. at *2. Specifically, the appellant in Fronek urged on appeal that section 2 "reverses the historic practice of excluding character propensity evidence which is so fundamental as to be guaranteed by due process" and "has the functional effect of reducing the state's burden of proof on the charged offense and degrades the presumption of innocence." Id. This Court concluded in part the appellant had "not shown that [section 2's] treatment of propensity evidence in child-sex-offense trials is either aberrant or unreasonably prone to yielding an arbitrary or erroneous verdict, as he must to establish a due process violation or to distinguish his case from prior authority." Id . at *4 (citing Honda Motor Co. v. Oberg, 512 U.S. 415, 431 (1994)). Specifically, this Court stated "[w]hile it may be of relatively recent vintage, article 38.37, section 2 cannot be aberrant when it substantively tracks Federal Rule of Evidence 414, which has withstood constitutional challenge, and is similar to evidentiary rules in a majority of states." Id . Further, this Court stated,
Appellant's apparent attempt to show section 2 of article 38.37 is unreasonably prone to result in an arbitrary or erroneous verdict is limited to arguing the generalized risk associated with propensity evidence—that jurors might vote to convict based on the prior similar conduct alone. However, he does not explain how that unquantified risk would amount to a federal due process violation in any case especially in light of Dowling in which the Supreme Court turned aside a due process challenge to the introduction of evidence of a prior bad act for which the Defendant had been already tried and acquitted.Id. (citing Dowling v. United States, 493 U.S. 342, 352 n.4 (1990)).
As in Fronek, appellant in the case before us has "not shown that [section 2's] treatment of propensity evidence in child-sex-offense trials is either aberrant or unreasonably prone to yielding an arbitrary or erroneous verdict, as he must to establish a due process violation or to distinguish his case from prior authority." Id. at *4 (citing Oberg, 512 U.S. at 431). On this record, we conclude appellant has not satisfied his burden to demonstrate section 2 of article 38.37 is unconstitutional. Id.; see Bezerra, 485 S.W.3d at 140 (declining to hold section 2 of article 38.37 unconstitutional); Robisheaux v. State, 483 S.W.3d 205, 213 (Tex. App.—Austin 2016, pet. ref'd) (same); Gates v. State, No. 10-15-00078-CR, 2016 WL 936719, at *4 (Tex, App.—Waco Mar. 10, 2016, pet. ref'd) (mem. op. not designated for publication) (same). Further, in light of that conclusion, we conclude the admission of the evidence in question was not precluded by rule of evidence 404 or 405. See TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2(b) (providing for admission of certain evidence "[n]otwithstanding Rules 404 and 405, Texas Rules of Evidence").
Additionally, although appellant's seventh issue specifically mentions only rules 404 and 405, his argument pertaining to that issue also addresses rule 403. TEX. R. EVID. 403. We construe his argument to assert that the probative value of the evidence in question was substantially outweighed by a danger of unfair prejudice and confusing the issues. See id. Specifically, appellant complains of the evidence pertaining to (1) the indecency with a child by contact conviction in cause number F07-55223, (2) the conviction for "simple rape" in Louisiana, and (3) the allegations of C.W. In support of his position, appellant cites Pittman v. State, 321 S.W.3d 565, 575 (Tex. App.—Houston [14th Dist.] 2010, no pet.).
Pittman involved an appellant charged with and convicted of a single count of aggravated sexual assault of child. Id. at 566. The trial court admitted extraneous offense evidence of the appellant's extensive involvement with a child sex ring, "continuing course of sexual abuse," and drug use. Id. at 568, 572. The court of appeals concluded the trial court abused its discretion in admitting that evidence because it took up a "vast amount" of time and was repeated by many witnesses and "the State focused extensively on the extraneous offense evidence throughout appellant's trial, from opening statement, through the direct examination of witnesses, to closing argument." Id . at 575. Further, in a subsequent case, the same court of appeals distinguished Pittman, stating in part "the offense for which the defendant [in Pittman] was convicted differed significantly from the extraneous offense evidence." See Distefano v. State, No. 14-14-00375-CR, 2016 WL 514232, at *5 n.5 (Tex. App.—Houston [14th Dist.] Feb. 9, 2016, pet. ref'd).
In the case before us, appellant does not assert, and the record does not show, that the offense for which appellant was convicted differed significantly from the extraneous offense evidence in question. See id. Nor does the record show that the extraneous offense evidence took up a vast amount of time at trial. See id. Therefore, Pittman is distinguishable.
Further, "an extraneous offense may be admissible to rebut the defense in a child sexual assault case that the defendant is the innocent victim of a 'frame-up' by the complainant or others." Wheeler v. State, 67 S.W.3d 879, 887-88 n.22 (Tex. Crim. App. 2002). In Wheeler, a defendant accused of aggravated sexual assault of a child suggested (1) he was the victim of a frame-up and the complainant had fabricated the allegations against him and (2) it was impossible for the offense to have occurred because other family members were present on the occasions in question. Id. at 887. The court of criminal appeals concluded the admission of evidence that the defendant had previously sexually assaulted his niece in similar circumstances was proper because the potential prejudice of that evidence was outweighed by its relevance and necessity in contradicting the defendant's theories respecting impossibility and a frame-up. Id . at 889.
In the case before us, appellant's main defensive theory was that A.M. fabricated the allegations against him because he threatened to "whoop" her for stealing. Further, two relatives of A.M. testified the alleged assaults could not have occurred. On this record, we conclude the trial court's decision to admit the extraneous offense evidence in question fell within the zone of reasonable disagreement and thus was not an abuse of discretion. See id.
We decide against appellant on his fifth, sixth, and seventh issues.
VII. DEFINITION OF AGGRAVATED SEXUAL ASSAULT IN JURY CHARGE
A. Standard of Review
We review alleged jury charge error in two steps. See, e.g., Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim. App. 2015). We first determine whether error exists in the charge. Id. Second, if there is error, we review the record to determine whether the error caused sufficient harm to warrant reversal. Id.; Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005). In assessing the degree of harm, we look at "the entire jury charge, the state of the evidence (including the contested issues and the weight of probative evidence), the arguments of counsel, and any other relevant information revealed by the record of the trial as a whole." Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim. App. 2013); accord Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g).
"If the error was preserved by objection, any error that is not harmless will constitute reversible error." Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015); see also Almanza, 686 S.W.2d at 171. "If the error was not preserved by objection, the error will not result in reversal of the conviction without a showing of egregious harm." Price, 457 S.W.3d at 440; accord Ngo, 175 S.W.3d at 743-44. "Egregious harm" is a difficult standard to meet and requires a showing that the defendant was deprived of a fair and impartial trial. Nava, 415 S.W.3d at 298. The record must disclose "actual rather than theoretical harm," and the error must have affected the very basis of the case, deprived the defendant of a valuable right, or vitally affected a defensive theory. Id.
B. Applicable Law
Under article 36.14 of the code of criminal procedure, the trial court shall deliver to the jury "a written charge distinctly setting forth the law applicable to the case[.]" TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007); Taylor v. State, 332 S.W.3d 483, 486 (Tex. Crim. App. 2011). "Because the charge is the instrument by which the jury convicts, [it] must contain an accurate statement of the law and must set out all the essential elements of the offense." Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012).
"It is the application paragraph of the charge, not the abstract portion, that authorizes a conviction." Crenshaw, 378 S.W.3d at 466. The abstract paragraphs serve as a glossary to help the jury understand the meaning of concepts and terms used in the application paragraphs of the charge. Id.; Plata v. State, 926 S.W.2d 300, 302 (Tex. Crim. App. 1996), overruled on other grounds by Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997). An abstract charge on a theory of law that is not applied to the facts does not authorize the jury to convict upon that theory. See Crenshaw, 378 S.W.3d at 466. Generally, reversible error occurs in the giving of an abstract instruction only when the instruction is an incorrect or misleading statement of a law that the jury must understand in order to implement the commands of the application paragraph. Id.; Plata, 926 S.W.2d at 302. Absent evidence to the contrary, the jury is presumed to have understood and followed the court's charge. Crenshaw, 378 S.W.3d at 467.
Section 22.021 of the Texas Penal Code provides in part that a person commits the offense of aggravated sexual assault if the person intentionally or knowingly causes the sexual organ of a child to contact the mouth, anus, or sexual organ of another person, including the actor, and the victim is younger than 14 years of age. TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(iii) (West Supp. 2016).
C. Application of Law to Facts
In his eighth issue, appellant contends he suffered egregious harm because the jury charge failed to give a correct definition of aggravated sexual assault. According to appellant, (1) "the jury charge defined only one 'offense': A person commits the offense of a sexual assault of a child if the person intentionally or knowingly causes the contact of the female sexual organ of a child by any means"; (2) this was error because "[t]his is not the definition of aggravated sexual assault of a child" and "does not define an offense under the Texas Penal Code at all"; and (3) "[t]he error in the trial court's jury charge effectively lowered the State's burden of proof and denied Appellant a fair trial."
Appellant states in his brief in this Court that he did not object to the jury charge on the basis of the alleged error in question.
The State responds that appellant "is correct in stating that the act of intentionally or knowingly causing the contact of the female sexual organ of a child by any means does not appear in the Penal Code definition of aggravated sexual assault of a child." However, the State asserts appellant "is wrong in arguing that this may have resulted in a conviction under the lower burden of proof required to convict of the indecency offense than that required in the aggravated sexual assault of a child." Specifically, the State argues (1) the findings required by the application paragraph of the charge met the penal code definition of aggravated sexual assault of a child and (2) "[t]here is no reason in this case to assume that the jury was misled by an abstract definition appearing in the jury charge as to the requirements for a conviction on the charged offense."
We conclude the trial court erred by including in the jury charge an abstract definition that did not properly define the offense charged in this case. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(iii). However, the application portion of the charge stated as follows:
Now, if you find and believe from the evidence beyond a reasonable doubt that the defendant, DENNIS LEVECE MAYES on or about the 1st day of January, A.D., 2012, in the County of Dallas and State of Texas, did unlawfully then and there intentionally or knowingly cause the contact of the female sexual organ of [A.M], a child, who was not then the spouse of defendant, by an object, to-wit: the sexual organ of the defendant, and at the time of the offense, the child was younger than 14 years of age, then you will find the defendant guilty of the offense of Aggravated Sexual Assault of a Child under 14 years of age, as charged in the indictment.The application portion of the charge required the jury to find each of the elements of the charged offense beyond a reasonable doubt. See id. "Where the application paragraph correctly instructs the jury, an error in the abstract instruction is not egregious." Medina v. State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999); see also Crenshaw, 378 S.W.3d at 467 (jury is presumed to have understood and followed the court's charge, absent evidence to the contrary). On this record, we conclude appellant was not egregiously harmed by the error in question. See Crenshaw, 378 S.W.3d at 466-67; Medina, 7 S.W.3d at 640.
We decide against appellant on his eighth issue.
VIII. CONCLUSION
We decide appellant's eight issues against him. The trial court's judgment is affirmed.
/Douglas S. Lang/
DOUGLAS S. LANG
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2
160490F.U05
JUDGMENT
On Appeal from the Criminal District Court No. 4, Dallas County, Texas
Trial Court Cause No. F-1253766-K.
Opinion delivered by Justice Lang, Justices Myers and Stoddart participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 23rd day of May, 2017.