Opinion
No. 09-07-580 CR
Submitted on September 11, 2008.
Opinion Delivered October 15, 2008. DO NOT PUBLISH.
On Appeal from the Criminal District Court Jefferson County, Texas, Trial, Cause No. 99009.
Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.
MEMORANDUM OPINION
A jury convicted appellant Darrell Wayne Parker of aggravated sexual assault of a child and assessed punishment at fifty years of confinement. Parker then filed this appeal, in which he raises sixteen issues for our consideration. We affirm.
Background
Parker was indicted for allegedly committing an aggravated sexual assault against M.S. by penetrating M.S.'s anus with his sexual organ. See Tex. Pen. Code Ann. § 22.021(a)(1)(B)(i) (Vernon Supp. 2008). M.S. testified that in December of 2005, he was under fourteen years old, and he lived with his aunt, J.H. M.S. testified that a few weeks after moving in with J.H., he met Parker, who lived in the apartment next door to J.H.'s apartment. According to M.S., Parker bought things for him, took him to the movies, gave him money, let M.S. work on his cars, and allowed M.S. to play his video game. M.S. testified that Parker also allowed him to view pornographic movies. M.S. explained that the first time he spent the night at Parker's residence, Parker asked M.S. to get off the couch and get in front of Parker, and after putting a cover over both of them, Parker then placed his penis on M.S.'s leg. According to M.S., approximately one week later, he again spent the night at Parker's house, and Parker awakened him, told him to get up, bent him over, and penetrated M.S.'s anus with his penis. M.S. testified that the next time he awakened, he discovered that Parker had tied him to the bottom of the couch with rope from a piece of exercise equipment. M.S. testified that he was eventually freed when Parker untied him after J.H. knocked on the door of the apartment. According to M.S., Parker offered to buy a video game system for M.S. if M.S. would perform oral sex on Parker, and M.S. declined. M.S. explained that he did not tell J.H. about what had happened because he did not want to worry her, and he was "kind of scared of Mr. Parker." M.S. did not tell J.H. what had occurred until she specifically asked him if Parker ever "did anything" to him. Dr. James Lukefahr testified that he examined M.S. at the University of Texas Medical Branch where he was previously the head of the child abuse medical team. Dr. Lukefahr testified that M.S. had made an outcry of sexual abuse, so he examined M.S. and tested him for sexually-transmitted diseases. A pediatric nurse practitioner, Tiffany Moffett, also interviewed M.S. According to Dr. Lukefahr, during the interview, M.S. described "penetration of his anus by the penis of an adult male[,]" and M.S. identified Parker as the actor. M.S. reported that "the last contact was about February the 20th of 2005. So, it had been approximately a year." Dr. Lukefahr testified that he did not find any specific indications of trauma, but that was not unusual because of the amount of time that had passed since the last incident, and the fact that the anal area heals quite rapidly. Lieutenant John Boles of the Beaumont Police Department testified that he investigated the offense involving M.S. after M.S. had made an outcry to J.H. Lieutenant Boles testified that J.H. also reported that Parker had physically and sexually assaulted her. Lieutenant Boles explained that charges were not brought against Parker after this initial outcry by M.S. because the outcry was vague. On December 20, 2005, Lieutenant Boles received notice that M.S. had made another outcry to a different relative with whom he was living. Lieutenant Boles testified that M.S.'s second outcry, which contained new allegations, eventually led to enough evidence to charge Parker with aggravated sexual assault. According to Lieutenant Boles, it is not unusual for children to initially make only a partial outcry. When asked whether it is sometimes difficult to ascertain from a child victim the specific date on which an offense occurred, Lieutenant Boles explained that "[i]t's usually very difficult with children simply due to the fact they, unlike adults, don't remember exact times; and depending on how the interview went, they may not have a reference point to affix that memory to." Lieutenant Boles testified that he selected as the date of the offense the date that Child Protective Services notified him of M.S.'s second outcry. Brandon Adams, Parker's half brother, testified that Parker stayed with him at his apartment until January or February of 2005. According to Adams, Parker had a dumbbell set, but did not have any other exercise equipment. Adams also testified that he never saw any videos that contained sexual activity at the apartment. Parker testified that while he was staying in his brother's apartment, he was "messing around with" J.H. Parker testified that M.S. spent the night at his apartment on one occasion after he had taken M.S. to a movie. Parker explained that he had taken M.S. to a movie because J.H. was abusive to M.S. and it "reminds me of what happened to me when I was a kid." Parker further testified that M.S.'s mother "didn't care neither." According to Parker, he treated M.S. "like a son, nothing more than that." Parker denied ever sexually abusing M.S. or tying M.S. up. Parker also testified that he had dumbbells in his brother's apartment, but he did not have a T-bar or weight bench there. Parker also denied having pornographic movies or magazines with the exception of some Girls Gone Wild videos, and he denied ever showing the Girls Gone Wild videos to M.S. Parker testified that he had previously been convicted of manslaughter and burglary of a building. In addition, Parker explained that he was no longer living in his brother's apartment in December of 2005. When defense counsel asked Parker whether he had any idea why M.S. would say Parker sexually assaulted him, Parker testified, "Me and [J.H.], we got into an argument and end[ed] up into a fight." Parker specifically denied laying his penis on M.S.'s leg, tying M.S. to exercise equipment, and penetrating M.S.'s anus with his penis. Parker testified that he believed J.H. and her boyfriend caused the case to be brought against him for revenge. On cross-examination, the prosecutor offered into evidence photographs of J.H. after the fight with Parker. Defense counsel objected, as follows: "I object, Your Honor. The purpose that — it's — under 403, it's more prejudicial than probative of any indication of a truthfulness or — or anything to do with this particular offense that he's charged with that we're in court on." The trial court overruled defense counsel's objection and admitted the photographs into evidence. Parker testified that the photographs depicted J.H. "beat up" and that he had assaulted her because she was "drunk and full of cocaine" and "I had been drinking."Issues One, Two, Three, and Four
In issue one, Parker argues the trial court abused its discretion by admitting photographs "of a scantily-clad [J.H.] purportedly displaying the results of a fight she had with appellant, where they were irrelevant as evidence, thus necessitating reversal." In issue two, Parker asserts that the photographs constituted extraneous misconduct evidence, and that the probative value of the same photographs was substantially outweighed by the danger of unfair prejudice under Rule 403 of the Texas Rules of Evidence. In issue three, Parker contends that his counsel did not receive proper notice of the photographs "in accordance with Rule 404(b) or Rule 609(f)" of the Texas Rules of Evidence. In issue four, Parker maintains that the trial court abused its discretion by admitting the photographs "without stating its rationale for doing so. . . ." We address these issues together. With respect to issue one, Parker's trial counsel only lodged an objection to the photographs of J.H. under Rule 403 of the Texas Rules of Evidence. Rule 403 of the Texas Rules of Evidence provides as follows: " Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. . . ." Tex. R. Evid. 403 (emphasis added). By only objecting under Rule 403, counsel conceded that the photographs were relevant. See id. Furthermore, an issue on appeal must comport with a proper trial objection. Bell v. State, 938 S.W.2d 35, 54 (Tex.Crim.App. 1996); Elliot v. State, 56 S.W.3d 780, 781 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd); see also Tex. R. App. P. 33.1(a)(1)(A). In this case, counsel's trial objection does not comport with the relevancy argument he asserts in issue one. See Bell, 938 S.W.2d at 54; Elliot, 56 S.W.3d at 781; see also Tex. R. App. P. 33.1(a)(1)(A). Accordingly, we overrule issue one. We now turn to issues two and four, in which Parker contends the probative value of the photographs was outweighed by the danger of unfair prejudice, and the photographs were not otherwise admissible, and that the trial court failed to state its rationale for admitting the photographs. We review a trial court's admission of extraneous offense evidence under an abuse of discretion standard. Moses v. State, 105 S.W.3d 622, 627 (Tex.Crim.App. 2003); Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991) (op. on reh'g). We must uphold the trial court's ruling if it is within the zone of reasonable disagreement. Wheeler v. State, 67 S.W.3d 879, 888 (Tex.Crim.App. 2002) (en banc). "Rule 403 favors admissibility of relevant evidence, and the presumption is that relevant evidence will be more probative than prejudicial." Montgomery, 810 S.W.2d at 389. A Rule 403 analysis regarding unfair prejudice requires the trial court to balance the following factors:(1) the inherent probative force of the proferred item of evidence along with (2) the proponent's need for that evidence against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted.Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex.Crim.App. 2006); see also Erazo v. State, 144 S.W.3d 487, 489 (Tex.Crim.App. 2004). With respect to Parker's contention that the trial court failed to state on the record its basis for admitting the photographs, the trial court heard counsel's Rule 403 objection and overruled it. The record does not reflect that the trial court failed to conduct the proper balancing test. Parker did not ask the trial court to conduct a balancing test on the record, and he cannot exclude the possibility that the trial court conducted the balancing test in the court's mind. See Hernandez v. State, 203 S.W.3d 477, 480-81 (Tex.App.-Waco 2006, pet. ref'd) (citing Wilson v. State, 7 S.W.3d 136, 144 (Tex.Crim.App. 1999)). As for the trial court's balancing of the factors required by Rule 403, the probative value of the evidence was strong, and since J.H. did not appear as a witness at trial, the State had no other available means of demonstrating the violence of Parker's alleged attack on her. In addition, Lieutenant Boles had already testified, without objection, that J.H. had accused Parker of physically and sexually assaulting her and that she had reported such assault. It is unlikely the photographs confused or distracted the jury from the main issues, and it does not appear from the record that undue weight was given them by the jury. In addition, the presentation of the photographs constituted a very brief portion of the trial. Based upon a review of the relevant factors, we cannot conclude that the trial court's ruling regarding the photographs was outside the zone of reasonable disagreement. See Montgomery, 810 S.W.2d at 391; see also Wheeler, 67 S.W.3d at 888. In his brief, Parker argues the photographs constituted extraneous offense evidence and were inadmissible under Rule 404(b) of the Texas Rules of Evidence. See Tex. R. Evid. 404(b). However, the objection to the photographs that counsel lodged at trial does not comport with his argument on appeal. See Bell, 938 S.W.2d at 54; Elliot, 56 S.W.3d at 781; see also Tex. R. App. P. 33.1(a)(1)(A). Therefore, Parker failed to preserve this issue. Accordingly, we overrule issues two and four. We now turn to Parker's contention in issue three that his attorney did not receive proper notice of the State's intention to offer the photographs of J.H. into evidence. The record reflects that although counsel stated on the record that he had not previously seen the photographs, he did not lodge an objection to lack of notice. Therefore, we overrule issue three. See Tex. R. App. P. 33.1(a).
Issues Five, Six, Eleven, Twelve, and Fifteen
In issue five, Parker argues the evidence was legally insufficient to prove beyond a reasonable doubt that the offense occurred within the statute of limitations. In issue six, Parker asserts that "[b]y using `then and there' after the `on or about' date alleged in the indictment and jury charge to describe the time of the offense being alleged, the State committed itself to proving an ascertainable date of offense in near proximity to said `on or about' date, which it has not done, necessitating reversal because of factually and legally insufficient evidence of same." In issue eleven, Parker contends the State's "failure to specifically prove any one approximate date of the alleged offense left the evidence legally insufficient to support full jury consensus or agreement . . ., but rather resulted in an ambiguous jury verdict inadequate to support conviction as a matter of law." In issue twelve, Parker asserts that the "State's failure to specify by its proof an approximate date of the alleged offense left the evidence factually and legally insufficient to support full jury consensus or agreement on which alleged offense jurors sought to convict upon. . . ." In issue fifteen, Parker argues the trial court "abused its discretion because there was not factually sufficient proof of an ascertainable approximate date of the offense alleged by the indictment with the degree of specificity required by law." We address these issues together. As previously discussed, the indictment charged Parker with the aggravated sexual assault of M.S., a child under the age of fourteen, by inserting his sexual organ into M.S.'s anus. See Tex. Pen. Code Ann. § 22.021(a)(1)(B)(i). Although neither Parker's brief nor the State's brief discusses the statute of limitations for aggravated sexual assault, aggravated sexual assault under section 22.021(a)(1)(B) of the Penal Code is, in fact, an offense for which there is no limitation by statute. See Tex. Code Crim. Proc. Ann. art. 12.01(1)(B) (Vernon Supp. 2008); see also Tex. Pen. Code Ann. § 22.021(a)(1)(B)(i). Accordingly, we overrule issue five. With respect to issue six, a legal sufficiency review requires us to view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Ross v. State, 133 S.W.3d 618, 620 (Tex.Crim.App. 2004). In reviewing the evidence for factual sufficiency, we ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000); see also Watson v. State, 204 S.W.3d 404, 414-15, 417 (Tex.Crim.App. 2006). The indictment alleged that "on or about the 20th day of December, Two Thousand and Five, and anterior to the presentment of this indictment, in the County of Jefferson and State of Texas, did then and there sexually assault [M.S.]. . . ." "On or about" language permits the State to prove that the offense occurred on any date that is prior to the presentment of the indictment and is within any applicable statutory limitations period. Garcia v. State, 981 S.W.2d 683, 685-86 (Tex.Crim.App. 1998) (en banc). Although M.S. was somewhat unclear regarding the precise date on which Parker committed the offense, we presume the jury, when faced with conflicting evidence, resolved any conflicts in favor of the prevailing party. Furthermore, unless the date is a material element of an offense, an indictment need not specify the precise date on which the charged offense occurred. Id. The primary purpose of specifying a date in the indictment is not to notify the accused of the date of the offense; rather, the purpose of specifying a date is to show that the prosecution is not barred by the statute of limitations. Id. As previously discussed, there is no statute of limitations for aggravated sexual assault. See Tex. Code Crim. Proc. Ann. art. 12.01(1)(B); see also Tex. Pen. Code Ann. § 22.021(a)(1)(B)(i). Parker has not demonstrated that the date was a material element of the offense. See generally Garcia, 981 S.W.2d at 685-86. However, assuming arguendo that the State was required to produce legally and factually sufficient evidence regarding the date of the offense, we find that a rational jury could have found the date of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 318-19. Furthermore, a neutral review of the evidence does not demonstrate that the State's proof of the date of the offense is so obviously weak as to undermine confidence in the jury's determination, or that the proof, although adequate if taken alone, is greatly outweighed by contrary proof. See Johnson, 23 S.W.3d at 11. Accordingly, we overrule issues six, eleven, twelve, and fifteen.Issues Seven, Eight, Nine, Ten, Thirteen, and Fourteen
In issue seven, Parker contends the trial court erred "because the jury charge's definition and application of the indictment's date of offense language does not provide appellant with sufficient notice of the alleged events he must prepare to meet with controverting evidence and defend against, as required under the Due Process clause. . . ." In issue eight, Parker asserts "the jury charge's definition and application of the indictment's date of offense language does not provide appellant with sufficient notice to assure a meaningful opportunity to be heard inherent in fundamental fairness under the sixth and fourteenth amendments of the U.S. Constitution." In issue nine, Parker argues the "on or about" definition in the jury charge violated his right to fair notice of the charges against him. Parker asserts in issue ten that the trial court abused its discretion by failing to instruct the jury regarding the necessity that any extraneous offenses must be proven beyond a reasonable doubt. In issues thirteen and fourteen, Parker complains that the trial court abused its discretion by giving the jury a definition of "on or about" which allowed it to convict on any of several dates or occasions adduced in evidence by the State, in violation of the requirement of jury unanimity and article V, section 13 of the Texas Constitution. We address these issues together. The record of the charge conference reveals that Parker did not lodge with the trial court any of the complaints he now asserts regarding the charge. When a party does not object to alleged charge error in the trial court, an appellate court will reverse only if the error caused egregious harm. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985) (op. on reh'g). With respect to the trial court's failure to provide a reasonable doubt instruction concerning extraneous offenses, the harm we must consider "is the impact of the omission in the jury charge of a reasonable-doubt instruction." Ellison v. State, 86 S.W.3d 226, 228 (Tex.Crim.App. 2002). Errors that result in egregious harm are those which affect "the very basis of the case," deprive the defendant of a "valuable right," or "vitally affect a defensive theory." Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App. 1996) (quoting Almanza, 686 S.W.2d at 172). In assessing the degree of harm, an appellate court must examine the entire jury charge, the state of the evidence, the arguments of counsel, and any other relevant information from the record. Id.; Almanza, 686 S.W.2d at 171. "Egregious harm is a difficult standard to prove and such a determination must be done on a case-by-case basis." Hutch, 922 S.W.2d at 171. Considering the state of the evidence, the arguments of counsel, and the nature of the asserted charge errors, we conclude that the definitions and instructions complained of, as well as the omission of a reasonable doubt instruction regarding extraneous offenses, did not deprive Parker of a fair and impartial trial. See id. We overrule issues seven, eight, nine, ten, thirteen, and fourteen.Issue Sixteen
In his final issue, Parker argues that when the prosecutor left "unadmitted evidence" lying in plain view of the jury in Parker's attorney's absence, Parker's counsel's absence forced Parker to act as his own stand-by counsel, thereby resulting in grounds for mistrial or, alternatively, violated his right to representation at all critical stages of the trial. The incident to which Parker apparently refers occurred after the jury had rendered its verdict on guilt/innocence, but before the punishment phase began. The record indicates as follows:THE COURT: Ladies and gentlemen, what we're going to do is break until 11:00 o'clock. That will give us an opportunity to prepare the jury instructions for the punishment phase and also . . . allow the parties an opportunity to prepare for the closing arguments and any additional presentation that they may wish to make. . . .
. . . .
(JURY EXITS)
(RECESS; PROCEEDINGS RESUME:)
(COURT SEATED ON THE BENCH)
(DEFENDANT ESCORTED INTO COURTROOM)
THE DEFENDANT: Excuse me, Your Honor. Did the jury see those pictures right there (indicating)?
THE COURT: You have — I can't talk to you. I'm not allowed to talk to you, but you can ask your lawyer, okay; and he will ask me any questions. But you have to go through your lawyer. Okay? That's very important that you go through your lawyer when you talk to the Court. You can't address me directly. You have to go through your lawyer. But talk to him when he gets here. Okay? He'll be here in a minute.
(PAUSE IN PROCEEDINGS; [DEFENSE COUNSEL] ENTERS)The record does not reflect what photographs Parker was referring to when he spoke to the trial judge, nor does the record support Parker's contention on appeal that the photographs had not been admitted into evidence. In addition, the record does not reflect that Parker did not have the opportunity to mention the issue to his counsel when counsel returned to the courtroom. Finally, Parker cites no authorities supporting his contention that the incident at issue occurred during a critical stage of the trial. See Tex. R. App. P. 38.1(h). We overrule issue sixteen and affirm the trial court's judgment. AFFIRMED.