No. 05-09-00413-CR
Opinion Filed July 27, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 366th District Court, Collin County, Texas, Trial Court Cause No. 366-81170-06.
Before Justices O'NEILL, FRANCIS, and MURPHY.
Opinion By Justice O'NEILL.
A jury convicted appellant Robert Bruce Read of aggravated sexual assault of a child and two counts of indecency with a child. He challenges the factual sufficiency of the evidence to support his conviction, and he alleges the trial court erred in denying him relief after disclosure of Brady material. We affirm the trial court's judgment.
Background
Complainant Abigail Read was the youngest of eight children and appellant's biological daughter. Appellant lived with the family until complainant was twelve years old, and at that time, he moved out because of a bitter divorce. Prior to moving out, appellant's children witnessed him drink heavily and act violently on several occasions. During these violent episodes, they saw him shake complainant and shove her into a refrigerator, break a glass table, put a hole in the kitchen wall, and throw a blender at Sandra Read, his wife and complainant's mother. In addition to physical abuse, complainant testified the sexual abuse started when she was about seven years old. Appellant began exposing himself to her and did so on several occasions. When she was eight, she remembered appellant, who was drunk, waking her up in the middle of the night with a stern voice and beating her. He then started touching her in the "lower area." He began touching over the pajama pants, but then removed them and her underwear and rubbed on the inside and outside of her "lower area" with his finger. She knew when his finger was inside because it was painful. On other occasions, he touched her breasts and masturbated himself until he ejaculated. Sometimes he made her touch him. In addition to the sexual abuse, he told her she was worthless and a mistake. He claimed they never wanted her but did not have the money to have an abortion. Further, the sexual abuse always included some type of violence. He threatened to kill her if she told anyone, and she believed him. She knew he had guns, and he sometimes pointed one in her direction. She remembered one time when she wanted to paint her room, and appellant told her "he'd paint the walls with me," meaning her blood. This abuse continued until she was about ten years old. Complainant wondered if appellant abused her other siblings, but she never talked to them about it. In fact, not until Child Protective Services came to her school and put on a presentation did she realize the situation was not normal. About this time, her parents started having marriage difficulties, and appellant slept on the couch. Complainant slept with her mother to avoid any late night visits from appellant. Her mother also noticed that complainant became more modest and would not allow her in the bathroom. By the time complainant was twelve, she was smoking marijuana and using speed a couple times a month. She also started cutting herself to ease her pain. After Mrs. Read filed for divorce in 2005, complainant told her mother appellant beat her. Mrs. Read had seen some prior shaking incidents, but thought they had stopped. Mrs. Read reported the physical abuse to Child Protective Services. On May 31, 2005, complainant, who was now thirteen years old, went for an interview at the Collin County Advocacy Center. During the interview, Molly Lane, the CPS investigator assigned to the case, had concerns about sexual abuse and asked complainant to return for a forensic interview. Complainant did not want to return for the interview; however, her mother and older brother convinced her she needed to go and tell the truth about whatever happened between her and appellant. On June 1, 2005, Michelle Schuback conducted the forensic interview. Schuback testified complainant was more forthcoming about the physical abuse and more hesitant to discuss the sexual abuse, but she provided specific instances of both. She said complainant admitted appellant touched her "on what she called her front butt," the term she used for her vagina. Appellant was charged with one count of aggravated sexual assault of a child and three counts of indecency with a child. A jury found appellant guilty of aggravated sexual assault of a child and two counts of indecency with a child and sentenced him to forty, twenty, and twenty years' confinement and a $10,000 fine. The court ordered the twenty-year sentences to run consecutively with the forty-year sentence. This appeal followed. Factual Sufficiency of the Evidence
In his first issue, appellant claims the evidence is factually insufficient to support his conviction because several witnesses testified to complainant's dishonesty, complainant admitted she had delusions, and physical evidence did not corroborate the abuse. The State responds the record is replete with evidence to support his conviction. In a factual sufficiency review, the evidence is reviewed in a neutral light rather than in the light most favorable to the verdict. Williams v. State, 301 S.W.3d 675, 684-85 (Tex. Crim. App. 2009), cert. denied, 09-9635, 2010 WL 978827 (U.S. June 14, 2010); Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007). Evidence can be factually insufficient in one of two ways: (1) when the evidence supporting the verdict is so weak the verdict seems clearly wrong and manifestly unjust, and (2) when the supporting evidence is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. Williams, 301 S.W.3d at 685. Although an appellate court's factual sufficiency review of the evidence allows the court to second-guess the jury to a limited degree, the review should still be deferential to the jury's verdict. Id. In fact, appellate courts should afford almost complete deference to a jury's decision when that decision is based upon an evaluation of credibility. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). The jury is in the best position to judge the credibility of a witness because it is present to hear the testimony, as opposed to an appellate court who relies on a cold record. Id. Appellant argues complainant never admitted the penetration during the forensic interview and the investigating detective never received any physical evidence of penetration; therefore, the evidence is insufficient. First, complainant testified in detail about how appellant penetrated her with his fingers, which alone is sufficient to support his conviction. Tex. Code Crim. Proc. Ann. art. 38.07(a) (Vernon 2005); Tear v. State, 74 S.W.3d 555, 560 (Tex. App.-Dallas 2002, pet. ref'd). The jury heard it is common for abuse victims to report only part of what happened and delay telling all the details. Further, the abuse stopped three years before complainant outcried so the jury could easily assume there would be no physical evidence to support the abuse. Appellant also relies on witness testimony from complainant's therapist, mother, and brother that she is extremely dishonest. We must afford almost complete deference to a jury's decision when that decision is based upon an evaluation of credibility. Lancon, 253 S.W.3d at 705. The jury heard testimony from Mrs. Read that complainant had a history of extreme dishonesty, but it was "a more recent history." Her brother testified that although complainant was not completely truthful, she "wouldn't lie about the big things." He also testified that he encouraged her to tell the truth in her forensic interview, and he was unaware of anyone putting her up to tell a story. Michelle Schuback testified complainant promised to tell the truth during the forensic interview. Thus, the jury heard the contradictory testimony regarding complainant's honesty and evidence of her prolonged drug use, which required several stays in rehabilitation facilities. However, the jury was in the best position to determine credibility and who to believe; therefore, we cannot say the evidence is factually insufficient based on these arguments. Appellant further claims the evidence is insufficient because the true reason for the initial CPS investigation was because Mrs. Read neglected seeking medical care for complainant when she was cutting herself. Regardless of what circumstances prompted the initial interview with CPS, the evidence shows complainant admitted appellant sexually abused her. There was no evidence presented to the jury to indicate appellant was coached into making false accusations against appellant by Mrs. Read. Detective Rich testified that after interviewing Mrs. Read, he did not sense she was in any way vindictive toward appellant or had coached complainant. Further, complainant's reluctance to return for the forensic interview stemmed from the fact she did not want to get appellant in trouble. Thus, the jury reasonably concluded complainant's claims of abuse were credible and not the product of a suggestive mother and vindictive ex-wife. Finally, appellant asserts complainant's accusations were not corroborated. Although corroboration is not required by law, in this case several siblings testified to appellant's violent nature. They also testified complainant was appellant's favorite child. Schuback told the jury offenders often groom their victims by paying special attention to them and buying them things to loosen the boundaries. Further, Mrs. Read testified she noticed complainant became more modest, refused to let her in the bathroom, and did not want to sleep in her room during the time of the abuse. Complainant's older sister testified complainant became depressed, "very dark," and withdrew from her family around the age of eleven, which was during the abuse. Thus, the jury could reasonably infer that her change in behavior was a result of the abuse. After reviewing the record, we cannot say the evidence supporting the verdict is so weak that the verdict seems clearly wrong and manifestly unjust or that the supporting evidence is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. Williams, 301 S.W.3d at 685. We overrule appellant's first issue challenging the factual sufficiency of his conviction. Brady Material
In his second issue, appellant argues the trial court erred by denying his request for a mistrial after he learned of a police report the State had not disclosed during discovery. The report indicated complainant was the victim of another sexual assault in 2006, which Mrs. Read delayed reporting to authorities because she was unsure what happened. Appellant claims had he known such information prior to trial, it would have affected his trial strategy, case investigation, and presentation of witnesses. The State responds it did not have a duty to disclose the information because it was inadmissible at trial, and the information was known to appellant and fully accessible to him. When the prosecution withholds evidence favorable to the defendant, due process is violated when the evidence is material to either guilt or punishment, irrespective of the good faith or bad faith of the prosecution. Brady v. Maryland, 373 U.S. 83, 87 (1963); Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim. App. 2000). To invoke Brady, the accused must present evidence that (1) the prosecution suppressed or withheld evidence, (2) this evidence was favorable to the accused, and (3) this evidence would have been material to the accused's defense. Ex Parte Kimes, 872 S.W.2d 700, 702-03 (Tex. Crim. App. 1993). Favorable evidence is material if there is a reasonable probability that had the evidence been disclosed to the defense, the outcome of the proceeding would have been different. Id. at 703. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. at 702. The mere possibility that undisclosed evidence may have helped the defense or affected the trial's outcome does not establish "materiality" in the constitutional sense. Hampton v. State, 86 S.W.3d 603, 612 (Tex. Crim. App. 2002). Whether the evidence is material is viewed in the context of the overall strength of the State's case. Id. at 613. Further, if Brady material is discovered during trial, the inquiry is whether the defendant is prejudiced by the late disclosure. Olivarez v. State, 171 S.W.3d 283, 290 (Tex. App.-Houston [14th Dist.] 2005, no pet.). If the defendant receives the material in time to put it to effective use at trial, his conviction should not be reversed simply because it was not disclosed as early as it might or should have been. Id.; see also United States v. McKinney, 758 F.2d 1036, 1050 (5th Cir. 1985). Here, appellant learned of the existence of the incident report during cross examination of Michelle Schuback. The court held a hearing outside the presence of the jury regarding the alleged Brady material. The court took the issue under advisement. The following day, appellant reurged his motion for mistrial, and the court denied it. Appellant has failed to show that any tardy disclosure of the information caused him any prejudice. See Wilson v. State, 7 S.W.3d 136, 146 (Tex. Crim. App. 1999) (defendant bears burden of showing prejudice from tardy disclosure). He did not request a continuance, and his failure to request one signals he was not prejudiced by the delay. Fury, v. State, 186 S.W.3d 67, 73-74 (Tex. App.-Houston [1st Dist.] 2005, pet. ref'd); Taylor v. State, 93 S.W.3d 487, 502 (Tex. App.-Texarkana 2002, pet. ref'd) (noting failure to request a continuance waives any Brady violation); Gutierrez v. State, 85 S.W.3d 446, 452 (Tex. App.-Austin 2002, pet. ref'd) (holding appellant waived Brady violation when he moved for a mistrial rather than request a continuance). Further, appellant claims he could have used the evidence to impeach Mrs. Read's credibility and to show complainant had previously made a sexual assault accusation against another person. However, there is no evidence the previous incident report was false. Without proof that the prior accusation was false, the incident report fails to have any probative value in impeaching Mrs. Read's or complainant's credibility in this case. See Lopez v. State, 18 S.W.3d 220, 226 (Tex. Crim. App. 2000); see also Tex. R. Evid. 412(b) (evidence of specific instances of an alleged victim's past sexual behavior is inadmissible unless certain requirements are satisfied). Thus, because the incident report was not admissible, the State did not have a duty to disclose the information. See Lagrone v. State, 942 S.W.2d 602, 615 (Tex. Crim. App. 1997) (prosecution has no duty to turn over evidence that would be inadmissible at trial). Because the State did not have a duty to disclose the incident report, the evidence was not material, and appellant cannot show the outcome of the trial would have been different if he had received the evidence. See Expart Kims, 872 S.W.2d at 703. We overrule appellant's second issue. Conclusion
Having overruled appellant's two issues, we affirm the trial court's judgment.