Opinion
Nos. 01-05-00395-CR, 01-05-00396-CR, 01-05-00397-CR, 01-05-00398-CR
Opinion issued November 9, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 177th District Court, Harris County, Texas, Trial Court Cause Nos. 971530, 971531, 971532, 971533.
Panel consists of Chief Justice RADACK and Justices TAFT and NUCHIA.
MEMORANDUM OPINION
A jury convicted appellant, Jamie John Moody, of four separate offenses of indecency with a child and assessed punishment at two years' confinement on one of the convictions and a fine of $10,000 and 10 years' confinement, suspended with community supervision, on the remaining three convictions. In five points of error, appellant contends that (1 2) the trial court erred by excluding character evidence of his "ethical treatment" of children and in denying his motion for new trial based on the same grounds, (3) the evidence is legally insufficient in cause number 971533, and (4 5) the evidence is factually insufficient in cause numbers 971532 and 971533. We reverse and remand.
In cause number 971530 (appellate number 01-05-00395-CR), the indictment charged that appellant engaged in sexual contact by touching the complainant's genitals on or about November 24, 2003. In cause number 971531 (appellate number 01-05-00396-CR), the indictment charged that appellant engaged in sexual contact by causing the complainant to touch his genitals on or about November 24, 2003. We refer to these two charges as the "Monday offenses." In cause number 971532 (appellate number 01-05-00397-CR), the indictment charged that appellant engaged in sexual contact by causing the complainant to touch his genitals on or about November 26, 2003. In cause number 971533 (appellate number 01-05-00398-CR), the indictment charged that appellant engaged in sexual contact by touching the complainant's genitals on or about November 26, 2003. We refer to these two charges as the "Wednesday offenses."
BACKGROUND
In November 2003, appellant worked at a used car lot owned by Chad Garland. Appellant and Garland were both amateur pool players and had been friends for several years before appellant began working for Garland. During Thanksgiving week of 2003, the complainant, Garland's seven-year-old daughter (hereinafter referred to as "K.G.") went to work with her father for several days. She spent much of her time in a motor home on the lot, playing and watching television. On Monday of that week, appellant gave Garland, his brother, and K.G. a ride to a nearby car dealership to pick up some cars. Garland needed to have one of the cars inspected, but K.G. did not want to go with him. So, appellant took K.G. and returned to Garland's place of business. When they arrived there, K.G. went to the motor home and appellant followed her. Appellant pulled up K.G.'s shirt and licked her stomach and chest in a "zigzag manner." Appellant placed K.G.'s hand on his penis and he reached inside her pants and touched her genitals. During her testimony about the Monday offenses, K.G. referred to appellant's penis as his "private" and to her genitals as her "private." She demonstrated what she meant by the term "private" by using anatomically correct dolls during her testimony. K.G. also testified that appellant did "the same thing" to her on Wednesday that he had done to her on Monday, even though she did not use the anatomicallycorrect dolls to demonstrate during her testimony about the Wednesday offenses. On Monday after Thanksgiving, Graciela Montemayor was babysitting K.G. when K.G. saw a couple kissing on television. K.G. told Montemayor that appellant had kissed her that way. Upon further questioning by Montemayor, K.G. told her that on two occasions during Thanksgiving week, appellant had put K.G.'s hand on his "private" and had put his hand on K.G.'s "private." Montemayor reported this information to Teresa Garland, K.G.'s mother, who called the Harris County Sheriff's Department the next day. Appellant was ultimately arrested and charged with four counts of indecency with a child — two charges arising out of the Monday offenses and two charges arising out of the Wednesday offenses.EXCLUSION OF "GOOD CHARACTER" EVIDENCE
In his first issue, appellant contends the trial court erred by not permitting him to elicit evidence about his good character for the "ethical treatment" of children, pursuant to Texas Rule of Evidence 404(a)(1). At trial, the following exchange took place during the questioning of defense witness, Lisa Haynes:[Defense Counsel]: How do you know Jamie Moody?
[Haynes]: Through Girl Scouting and volunteering, through his mother, and he helps out with events we do for the girls.
[Defense Counsel]: What has his role been as far as Girl Scouts are concerned?
[Prosecutor]: Your Honor, I object. This is improper character testimony.
[Court]: I'm sustaining it.
[Defense Counsel]: Have you had the opportunity to observe Jamie and his interactions with children?
[Haynes]: I have.
[Prosecutor]: Your Honor, I'm going to object. It's improper —
[Court]: Sustained.
[Prosecutor]: — character testimony.
[Defense Counsel]: Are you familiar with Jamie'sreputation in the community for the ethical treatmentof children?
[Haynes]: I am.
[Prosecutor]: I object to the form of that question. It's an improper — it's improper character testimony.
[Court]: Approach the bench, please.
[Court]: I'll allow you to ask reputation for law-abiding and peacefulness, her opinion of those — about those two things, but I think the rest of it is improper character testimony.
[Defense Counsel]: My understanding, that is a proper question, are you familiar with his reputation in the community for the ethical treatment of children.
[Court]: Do you have a case on that?
[Defense Counsel]: No, I don't.
[Prosecutor]: I thought that was going to be his reputation for being a peaceful and law-abiding citizen.
[Trial Court]: I'll allow that, unless you bring me a case.
[Defense Counsel]: May I proceed, Your Honor?
[Court]: Yes.
[Defense Counsel]: Have you been able to formulate an opinion as to Jamie's reputation as to being a law-abiding citizen?
[Haynes]: Yes, I have.
[Defense Counsel]: And what is that opinion?
[Haynes]: My opinion is the highest that I can have of Jamie. He is always been —
[Prosecutor]: I object, Your Honor. That's nonresponsive.
[Court]: Sustained.
[Defense Counsel]: Is that opinion good or bad?
[Haynes]: Good.Preservation of Error We first address the State's contention that appellant did not preserve error on this point because he did not make an offer of proof. To preserve a complaint for appellate review, a party must present a timely request, objection, or motion to the trial court stating the specific grounds for the desired ruling if the specific grounds were not apparent from the context. Tex.R.App.P. 33.1(a); Blue v. State, 41 S.W.3d 129, 130 (Tex.Crim.App. 2000); Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim.App. 1992) ("[A]ll a party has to do to avoid the forfeiture of a complaint on appeal is to let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it."). Thus, preservation of error with regard to the exclusion of evidence involves a two-step process: (1) informing the trial court of the substance of the evidence sought to be admitted; and (2) informing the trial court of the legal grounds for the admission of the evidence. See Willover v. State, 70 S.W.3d 841, 845 n. 4 (Tex.Crim.App. 2002). If the trial court excludes evidence, rule 103(a)(2) of the Texas Rules of Evidence requires an offer of proof of the proposed evidence to the trial court unless the substance of the evidence is apparent from the context. Guidry v. State, 9 S.W.3d 133, 153 (Tex.Crim.App. 1999); Howard v. State, 962 S.W.2d 119, 122 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd). Although appellant did not tender a formal offer of proof, with questions and answers, such an offer is not required to preserve error when the counsel seeking admission of the evidence describes the evidence to the trial court or when the content of the evidence is apparent from the context. Fairow v. State, 943 S.W.2d 895, 897 n. 2 (Tex.Crim.App. 1997). In this case, appellant's counsel told the trial court that he wanted to elicit evidence of appellant's reputation for the ethical treatment of children. Accordingly, we conclude that the nature of the disputed evidence was apparent to all. Because the record demonstrates that the trial court knew what it was excluding when it excluded appellant's character evidence, appellant adequately preserved error and satisfied rule 103(a)(2). Tex. R. Evid. 103(a)(2). Therefore, we move to the merits of appellant's contentions. Evidence of Defendant's Reputation for the Ethical Treatmentof Children Appellant argues that he should have been allowed to elicit evidence that he had a reputation in the community for the ethical treatment of children. Generally, character evidence is not admissible to show that a person acted in conformity with a character trait on a particular occasion. Tex. R. Evid. 404(a). However, an accused in a criminal case is permitted to introduce evidence of a specific good-character trait to show that it is improbable that he committed the charged offense, when that character trait is relevant to the offense. Id.; Valdez v. State, 2 S.W.3d 518, 519 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd); Thomas v. State, 669 S.W.2d 420, 423 (Tex.App.-Houston [1st Dist.] 1984, pet. ref'd). If evidence of a person's character or character trait is admissible, proof may be made through reputation or opinion testimony. See Tex. R. Evid. 405(a). A defendant charged with sexual assault of a child is entitled to proffer evidence of his good character for "moral and safe relations with small children or young girls" under rule 404(a)(1)(A). Wheeler v. State, 67 S.W.3d 879, 882 (Tex.Crim.App. 2002). In Thomas v. State, the defendant, who was charged with aggravated sexual assault of a child, called five character witnesses to testify at the guilt-innocence phase of the trial. 669 S.W.2d at 423. The trial court permitted the witnesses to testify that the defendant had a good reputation in the community for being peaceful and law-abiding, but did not permit them to testify that appellant had a good reputation in the community for being a moral person and for the safe and proper treatment of young children. Id. This Court held that the trial court erred by excluding the proffered evidence because it was relevant to show the improbability that appellant raped his step-daughter. Id. at 423-24. In the case of In re G.M.P., 909 S.W.2d 198, 201 (Tex.App.-Houston [14th Dist.] 1995, no pet.), the defendant, a juvenile, was charged with aggravated sexual assault. At trial, the defendant attempted to present testimony from a character witness that he had a reputation in the community for the "safe and moral treatment of children." Id. at 207. The Fourteenth Court of Appeals held that (1) the character trait at issue — the safe and moral treatment of children — was pertinent to the charged offense and (2) the crime was one of moral turpitude. Id. at 207-08. As such, the court held that the trial court erred by excluding the evidence proffered by the defendant's reputation witness. Id. at 208. The State argues that G.M.P. and Thomas are distinguishable because, in those cases, the defendant sought to introduce evidence relating to his reputation for the "moral" treatment of children, while in this case, appellant sought to introduce evidence relating to his reputation for the "ethical" treatment of children. We believe this to be a distinction without a difference. Black's Law Dictionary defines "ethical" as "[o]f or relating to moral obligations that one person owes to another. . . ." Black's Law Dictionary 573 (7th ed. 1999) (emphasis added). Thus, the moral treatment of children and the ethical treatment of children are synonymous and G.M.P. and Thomas are not distinguishable. Accordingly, we hold that the trial court erred by refusing to permit appellant to elicit character evidence of his reputation for the ethical treatment of children. Harmless Error Analysis Having found error, we next conduct a harm analysis to determine whether the error requires reversal of the trial court's judgment. Generally, the erroneous admission or exclusion of evidence is non-constitutional error governed by Texas Rule of Appellate Procedure 44.2(b) if the trial court's ruling merely offends the rules of evidence. See Solomon v. State, 49 S.W.3d 356, 365 (Tex.Crim.App. 2001). When evaluating harm from non-constitutional error flowing from the exclusion of relevant evidence, we "need only determine whether or not the error affected a substantial right of the defendant." Morales v. State, 32 S.W.3d 862, 867 (Tex.Crim.App. 2000). To make such a determination, we must decide whether the error had a substantial or injurious effect on the jury verdict. Id. The State argues that the error was harmless because appellant's character witness was allowed to testify that, in her opinion, appellant's reputation for being peaceful and law-abiding was good, and that such testimony is substantially equivalent to the testimony that appellant wished to introduce. We disagree. In Thomas, as in this case, the character witnesses were permitted to testify that the defendant had a reputation for being peaceful and law-abiding. Nevertheless, this Court reversed the defendant's conviction. 669 S.W.2d 423-24. We recognize that Thomas was decided before the enactment of rule 44.2(b), which created a distinction for constitutional versus non-constitutional error, and that in 1984, when Thomas was decided, all error was analyzed under what is today the constitutiona-error-standard. See Tex.R.App.P. 44.2(a). However, we believe that even under the non-constitutional error standard applicable to this case, appellant has shown that the exclusion of evidence in this case was harmful. For a case applying a similar harmless-error standard to that applicable in this case, we look to In re G.M.P., 909 S.W.2d at 210-11, a juvenile case applying the civil harmless-error standard under former rule of appellate procedure 81(b)(1) ("An appellate court shall not reverse a judgment on appeal unless the court finds that the error complained of amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment. In other words, we are to determine if the trial court's errors denied appellant a fair trial."). In G.M.P., the defendant was prevented from putting on evidence of his good reputation for the safe and moral treatment of children. Id. at 211. The State argued that this error was harmless because the witness testified before the jury that she was comfortable allowing her 15-year-old son to be alone with the appellant. Id. The court noted that the purpose of allowing reputation evidence is to establish that it is improbable that the accused committed the crime. Id. The court concluded that, under the civil standard for harmless error, which is similar to that for non-constitutional error in a criminal case, the defendant had been harmed by the exclusion of reputation evidence because the evidence that was permitted was "not the same caliber of evidence as reputation evidence." Id. While evidence that appellant has a reputation of being peaceful and law-abiding might be relevant to a case involving violence, it does not address the character issue raised by this case, i.e., whether appellant is likely to commit indecent acts with a child. Evidence of appellant's reputation for peacefulness is not even an issue in this case, and evidence of appellant's reputation as being law-abiding is far too generic to address the specific character trait of pedophilia. Indeed, evidence of a defendant's reputation as law-abiding would be relevant to any criminal offense. Even though the witness, Haynes, was permitted to testify that she knew appellant from his work with Girl Scouts and that he had a good reputation for being a law-abiding citizen, such testimony was "not the same caliber evidence as [the] reputation evidence" appellant sought to admit. There were only two witnesses to the alleged indecent acts — appellant and K.G. There was no physical evidence. There was no alibi evidence. The excluded evidence went to the heart of appellant's sole defense — that, given his reputation in the community for treating children ethically, it was unlikely that he committed the charged offenses. We cannot say with fair assurance that the jury would not have been influenced had it been allowed to hear evidence that appellant had a reputation in his community for treating children ethically or morally. Accordingly, we sustain issue one.