Opinion
Nos. 05-07-01159-CR, 05-07-01160-CR
Opinion issued October 30, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 336th Judicial District Court, Grayson County, Texas, Trial Court Cause Nos. 055200-336 055201-336.
Before Justices MOSELEY, RICHTER, and FRANCIS.
MEMORANDUM OPINION
A jury convicted Richard Lee Shearer of aggravated sexual assault of a child and indecency with a child and assessed punishment at twenty years and ten years in prison, respectively. In two issues, appellant argues the trial court abused its discretion in excluding evidence and answering a note sent by the jury during its deliberations. We affirm. S.T. was seven years old at trial. She testified appellant, while living in her home, choked her by putting his "private" in her mouth and made her touch his "private." She said the abuse occurred during the day when no other adults were home. In his first issue, appellant argues the trial court improperly excluded evidence after determining it was inadmissible under Texas Rule of Evidence 412, generally known as the "Rape Shield Law." See Tex. R. Evid. 412(b) (excluding evidence of "specific instances of an alleged victim's past sexual behavior" unless certain factors met). Within this issue, appellant generally describes the excluded evidence as "reports of attacks on the victim" and asserts that if developed, it would have "shown a continuum of reports with a shifting of responsible characters, marked with an ambiguity at trial." He asserts that a part of his defense was that S.T.'s "mother had a role in the changing stories related by [S.T.], with the story involving [a]ppellant coming relatively late in the evolution of the stories. As such, evidence regarding the date and content of each instance of outcry, including the alleged perpetrator, was essential" to his defense and was "not subject to the strictures" of rule 412. While appellant has described the excluded evidence generally, he has not set out in his brief the specific evidence that he sought to admit, the substance of that evidence, who would have provided the evidence, and how it specifically fit within the facts of this case. Without these particulars, we have no context in which to make any informed analysis pertaining to rule 412 and, specifically, what facts or circumstances constitute "an alleged victim's past sexual behavior." Consequently, we conclude the issue is inadequately briefed. Tex. R. App. P. 38.1. Even if we could cobble together appellant's complaint from our own review of the record without assistance from appellant in explaining the significance of his various complaints below, and even if we assume rule 412 does not apply to the facts of this case, appellant nevertheless has not shown reversible error. To be admissible, evidence must be relevant. Relevant evidence means "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex. R. Evid. 401. It appears appellant believes he was entitled to present evidence regarding S.T.'s allegations that her stepfather sexually abused her, perhaps during the same time frame as the allegations against appellant. Presumably, appellant believes such evidence would somehow make the State's case against him "less probable," although he does not explain how. Certainly, there is nothing in the record to suggest that S.T. first identified her stepfather as her assailant and then recanted that allegation and named appellant. To the contrary, the record shows that S.T. made separate allegations against both men. To the extent appellant is suggesting S.T.'s "story had been manipulated" by her mother, he has not directed us to any evidence to that effect in the record. We reject his first issue. In his second issue, appellant contends the trial court erred in answering a note sent out by the jury during deliberations in violation of article 36.28 of the Texas Code of Criminal Procedure. He makes two arguments: (1) the note did not "adequately reflect a specific disagreement" and (2) even if it did, the answer "went far beyond" what was required to answer the inquiry. The jury's note sought certain testimony of Joangeli Kaspar, who had been providing counseling services to S.T. for about one year at the time of trial. The note requested the following:
[Kaspar] mentioned sexual assault and we are not sure whether she said that [S.T.] was definitely sexually assaulted or that she may have been sexually assaulted. Also, we would like to obtain testimony of each instance she testified to sexual assault or contact of sexual organs. We disagree on the emphasis during her testimony.In response, the trial court provided the following excerpts from the record:
DIRECT EXAMINATION OF [KASPAR]
[PROSECUTOR]: Is part of your treatment, I guess, or counseling, based on your understanding of the facts?
[KASPAR]: Yes.
[PROSECUTION]: So you kind of, I guess — do you tailor the treatment of counseling with — based on the age or type of offense, or what do you do for that?
[KASPAR]: Both. Both. Sexual abuse is a developmental situation in that it colors their entire life. They have developmental stages that they go through, they will be faced with another trauma that these must overcome. Starting with the fact that she — the person in question is eight years old. She's going through certain developmental stages right now that are going to be forever changed because she has been sexually abused. The feeling of being completely different from her peers. Well, that's normal, on a normal day. She feels that way at about age eight, but now, because of the sexual abuse, she feels twice that. It's like a wall between her and her peers. As she goes thoughout her life it will continue with out first — with her first date, with her first marriage, with her first child. All of these developmental stages will be affected by the fact that she is sexually abused.
[PROSECUTOR]: And so are you saying that she's demonstrated these —
[KASPAR]: Yes,
[PROSECUTOR]: — types of things?
[KASPAR]: Yes.
[PROSECUTOR]: That are consistent with abuse?
[KASPAR]: Yes.
[PROSECUTOR]: And that that's going to have?
[KASPAR]: Lasting effects.
[PROSECUTOR]: Lasting —
[KASPAR]: Yes.
REDIRECT EXAMINATION
[PROSECUTOR]: It's been indicated that you don't necessarily get into the facts?
[KASPAR]: No.
[PROSECUTOR]: As to whether they are true or not. What you do is you treat a child that comes in, this has been reported, is that correct? Is that right?
[KASPAR]: Yes.Article 36.28 provides that "if the jury disagree as to the statement of any witness they may, upon applying to the court, have read to them from the court reporter's notes that part of such witness testimony or the particular point in dispute, and no other. . . ." Tex. Code Crim. Proc. Ann. art. 36.28 (Vernon 2006). This statute seeks to balance our concern that the trial court not comment on the evidence with the need to provide the jury with the means to resolve any factual disputes it may have. Howell v. State, 175 S.W.3d 786, 790 (Tex.Crim.App. 2005). When the jury asks that certain testimony be re-read, the judge must first determine if the request is proper under article 36.28. Id. A simple request for testimony does not, by itself, reflect disagreement, implicit or express, and is not a proper request under article 36.28. Id. Instead, the request must reflect that the jurors disagree about a specified part of testimony. Id. The trial judge's conclusion as to whether there is a factual dispute between the jurors is reviewed for an abuse of discretion. Id. A trial judge abuses her discretion when her decision is so clearly wrong as to lie outside the zone within which reasonable persons might disagree. Id. Initially, we note that appellant's objection did not specifically complain that the jury failed to state a specific disagreement; rather, he complained that the jury did not ask a "specific question" that could be answered. Regardless, a reasonable reading of the note suggests the jury disagreed as to whether Kaspar had testified that the child had been sexually abused or may have been sexually abused. The trial court produced testimony by Kaspar in which she explained that she tailored her treatment to the child's needs based on the signs of abuse demonstrated by the child. In her explanation, she twice stated that S.T. had been sexually abused. On redirect, she clarified that she did not necessarily go into the truth of the facts, but merely treats a child who has reported sexual abuse. This testimony addressed the jurors' disagreement. We reject the second issue. We affirm the trial court's judgments.