Opinion
No. 06-20-00033-CR
01-29-2021
JERRY DEAN SMITH, JR., Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 5th District Court Bowie County, Texas
Trial Court No. 18F1193-005 Before Morriss, C.J., Burgess and Stevens, JJ.
MEMORANDUM OPINION
A Bowie County jury convicted Jerry Dean Smith, Jr., of indecency with a child by exposure and assessed a sentence of seven years' imprisonment. On appeal, Smith argues that the jury's verdict of guilt was not supported by sufficient evidence, that the appellate record is incomplete because it omits pre-trial hearings, that a biased juror sat on the jury, that the State provided insufficient notice of its intent to use extraneous offenses at trial, that the trial court erred by preventing him from obtaining a copy of the child forensic interview, and that the trial court abused its discretion by denying a motion in limine to prevent the State from using extraneous-offense evidence during the guilt/innocence phase of trial.
Because (1) legally sufficient evidence supported the jury's verdict, (2) Smith's complaint about an incomplete record is moot, (3) Smith's claim regarding extraneous-offense evidence is inadequately briefed, and (4) Smith has failed to preserve his remaining points of error for our review, we affirm the trial court's judgment.
(1) Legally Sufficient Evidence Supported the Jury's Verdict
"In evaluating legal sufficiency, we review all the evidence in the light most favorable to the trial court's judgment to determine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt." Williamson v. State, 589 S.W.3d 292, 297 (Tex. App.—Texarkana 2019, pet. ref'd) (citing Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.); Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref'd). "We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury 'to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.'" Id. (quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318-19; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007))).
"Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge." Id. at 298 (quoting Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). "The 'hypothetically correct' jury charge is 'one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried.'" Id. (quoting Malik, 953 S.W.2d at 240). Here, the State alleged that Smith exposed his genitals to a child younger than seventeen with the intent to arouse or gratify his sexual desire. See TEX. PENAL CODE ANN. § 21.11(a)(2)(A).
Lindsey Skinner, the principal at New Boston Middle School, testified that Bobby Johnson, the child victim, came to her office and reported that he had been sexually abused. The child's allegations prompted Skinner to call the police.
We use a pseudonym to protect the identity of the child. See TEX. R. APP. P. 9.10.
Bobby, who was twelve at the time of trial, testified that he met Smith at a Christmas party and began corresponding with him by text message. According to Bobby, Smith "explained to [him] . . . about types of sex," including "oral sex and all this stuff," and then told the child to delete the conversation. Bobby testified that Smith also sent a photograph of a naked man and woman without faces, which he also deleted on Smith's instruction. Smith continued to engage the child through text messages.
Bobby testified that, on one occasion, he was dropped off at Smith's house while his wife was in the shower, went alone to a room occupied only by him and Smith, and followed Smith's instructions to sit beside him after Smith had closed the door. According to Bobby, Smith showed him child pornography on his computer. Bobby said that Smith pulled his pants and underwear down, exposing his erect penis, and was "playing with himself and just, like, doing all this nasty stuff, and then asked me if I wanted to touch it." Bobby said, "Maybe next time," and left. According to Bobby, Smith texted him thirty minutes after the incident to see if he liked what he saw and later sent him more nude photographs of him and his wife and "video of like infant babies, like, being raped by grown men." Smith gave Bobby an iPod and allegedly sent him more sexually explicit photographs and recordings.
Jessica Kelly, a forensic interviewer with the Children's Advocacy Center (CAC), testified that she conducted a CAC interview with Bobby, which provided consistent sensory details of the abuse. Todd Peck, who was incarcerated for continuous sexual abuse of a child and was housed with Smith, testified that Smith had asked Peck to ask his wife to retrieve a flash drive that contained images that were child pornography.
Cody Sartor, an investigator with the Cass County District Attorney's Office, testified that, while he found conversations between Bobby and Smith, he did not find any nude photographs or recordings on the electronic devices recovered from Bobby and Smith. The pastor of Bobby's church, his Sunday School teacher, and two other church members testified that Bobby did not have a good reputation for truthfulness, was "a person who makes up stories," and was a troublemaker. Smith testified on his own behalf and denied the allegations.
In his pro se brief, Smith argues that the evidence was insufficient to support the jury's verdict because Bobby's testimony was not corroborated. However, "[t]he testimony of a child victim alone is sufficient to support a conviction for . . . indecency with a child." Scott v. State, 202 S.W.3d 405, 408 (Tex. App.—Texarkana 2006, pet. ref'd). Smith also points to the evidence that Bobby had a poor reputation for truthfulness, but as the fact-finders, jurors could have rejected that evidence in favor of believing Bobby's testimony. Because Bobby's testimony established every element of the alleged offense, the jury's verdict was supported by legally sufficient evidence.
(2) Smith's Complaint About an Incomplete Record is Moot
Smith also argues that the appellate record is incomplete because it omitted pretrial hearings. But, because the reporter's record was supplemented to include those pretrial hearings, this point of error is moot.
(3) Smith's Claim Regarding Extraneous-Offense Evidence Is Inadequately Briefed
Smith filed a motion in limine to allow reference to extraneous offenses only after specific pre-approval by the court, and the trial court granted the motion. Later, the State argued that Smith's extraneous offenses against Bobby were admissible under Article 38.37 and did not require a separate hearing outside the presence of the jury before their admission. Smith's counsel agreed that the extraneous-offense evidence would be admissible under Article 38.37 but asked the trial court to conduct a Rule 403 balancing test before admitting the evidence. The trial court told Smith's counsel to lodge a Rule 403 objection during trial should it become necessary. Yet, the extraneous-offense evidence was admitted through Bobby without objection by Smith.
In relevant part, Article 38.37 states,
Notwithstanding Rules 404 and 405, Texas Rules of Evidence, 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:
TEX. CODE CRIM. PROC. ANN. art. 38.37, § 1(b).(1) the state of mind of the defendant and the child; and
(2) the previous and subsequent relationship between the defendant and the child.
On appeal, Smith argues that the trial court erred in reversing course by not requiring the State to approach the bench before introducing extraneous-offense evidence during the guilt/innocence phase of trial. Smith cites no authority for his position and does not explain how he was harmed by any alleged error.
"To avoid forfeiting a legal argument for inadequate briefing, an appellant's brief must contain 'a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.'" Taylor v. State, 558 S.W.3d 215, 218 (Tex. App.—Texarkana 2018, no pet.) (quoting TEX. R. APP. P. 38.1(i)) (citing Lucio v. State, 351 S.W.3d 878, 896-97 (Tex. Crim. App. 2011); Busby v. State, 253 S.W.3d 661, 673 (Tex. Crim. App. 2008); Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000)). "Because the Texas Court of Criminal Appeals has emphasized that an appellate court has no obligation to construct and compose issues, facts, and arguments for an appellant, encompassed within Rule 38.1 is the party's task of explaining or discussing why an argument has substance." Id. (citing Wolfe v. State, 509 S.W.3d 325, 343 (Tex. Crim. App. 2017); Lucio, 351 S.W.3d at 896-97; Busby, 253 S.W.3d at 673).
"To avoid forfeiture, a party must provide substantive analysis by applying the law to the facts." Id. (citing Linney v. State, 413 S.W.3d 766, 767 (Tex. Crim. App. 2013) (Cochran, J., concurring in refusal to grant petition for discretionary review)). "A brief that fails to apply the law to the facts does not comply with Rule 38.1 and presents nothing for review." Id. (citing Swearingen v. State, 101 S.W.3d 89, 100 (Tex. Crim. App. 2003)).
An issue is inadequately briefed when an "appellant does not address the question of whether the alleged error . . . was harmless." Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000). Here, Smith has not explained how he was harmed by the trial court's decision that the State was not required to approach the bench before introducing Article 38.37 evidence, especially since it was admitted without objection at trial. As a result, we find this point of error unpreserved and overrule it.
(4) Smith Has Failed to Preserve His Remaining Points of Error for Our Review
The State argues that Smith has failed to preserve his remaining points of error for our review, and we agree. "As a prerequisite to presenting a complaint for appellate review, the record must show that" it "was made to the trial court by a timely request, objection, or motion that . . . stated the grounds for the ruling . . . with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context and" that either the trial court "ruled on the request, objection, or motion, either expressly or implicitly," or "refused to rule on the request, objection, or motion, and the complaining party objected to the refusal." TEX. R. APP. P. 33.1(a). "The purpose of requiring a specific objection in the trial court is twofold: (1) to inform the trial judge of the basis of the objection and give him the opportunity to rule on it; [and] (2) to give opposing counsel the opportunity to respond to the complaint." Resendez v. State, 306 S.W.3d 308, 312 (Tex. Crim. App. 2009). As explained in Resendez,
Although there are no technical considerations or forms of words required to preserve an error for appeal, a party must be specific enough . . . to "let the trial judge know what he wants, why he thinks himself entitled to it, and 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."Id. at 312-13 (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992)). We examine each such argument in turn.
a. Smith did not preserve his complaint about an allegedly biased juror.
In a separate point of error, Smith argues that veniremember 23 showed bias when she said that she "would try to be as fair as [she] could" but then expressed her discomfort because she worked at a school and had to "deal with this stuff on a daily basis." The Texas Court of Criminal Appeals has clarified,
Error is preserved for review . . . only if appellant (1) used all of his peremptory strikes, (2) asked for and was refused additional peremptory strikes, and (3) was then forced to take an identified objectionable juror whom appellant would not otherwise have accepted had the trial court granted his challenge for cause (or granted him additional peremptory strikes so that he might strike the juror).Price v. State, 594 S.W.3d 674, 677-78 (Tex. App.—Texarkana 2019, no pet.) (quoting Buntion v. State, 482 S.W.3d 58, 83 (Tex. Crim. App. 2016)).
The record shows that veniremember 23 was not challenged for cause or preemptively struck and that Smith lodged no objection to the panel before it was seated and sworn. As a result, Smith failed to preserve his complaint about veniremember 23. See TEX. R. APP. P. 33.1. We overrule this point of error.
b. Smith's complaint of insufficient notice of extraneous-offense evidence is unpreserved.
Smith's trial began on November 12, 2019. Under Article 38.37, the State was required to provide Smith with thirty days' notice of any extraneous crimes, wrongs, or acts committed against Bobby. See TEX. CODE CRIM. PROC. ANN. art. 38.37, § 3. On October 11, 2019, the State provided its timely notice of intent to use extraneous-offense evidence. However, it supplemented its notice to include additional extraneous-offense evidence on October 31, 2019, which Smith argues was too close to trial and unfairly surprised him.
Where the record does not show that the defendant objected to the State's failure to provide notice of extraneous-offense testimony, the issue is not preserved for our review. Blackmon v. State, 80 S.W.3d 103, 107 (Tex. App.—Texarkana 2002, pet. ref'd); McCoin v. State, 56 S.W.3d 609, 614-15 (Tex. App.—Texarkana 2001, no pet.). Here, Smith did not raise any issues of improper notice or unfair surprise at trial. As a result, this issue is unpreserved, and we overrule it. See TEX. R. APP. P. 33.1.
c. Smith preserved no complaint related to obtaining a copy of the CAC interview.
Smith filed a written request asking the State to produce and permit the inspection and copying of recorded statements of the child victim. See TEX. CODE CRIM. PROC. ANN. art. 39.14(a). While Bobby's CAC interview was subject to discovery, it was required to "remain in the care, custody, or control of the court or the state," and the court was to "deny any request . . . to copy, photograph, duplicate, or otherwise reproduce [it] . . . provided that the state ma[de] the property or material reasonably available to [Smith]." TEX. CODE CRIM. PROC. ANN. art. 39.15(a)(3), (b), (c); see TEX. CODE CRIM. PROC. ANN. art. 38.071, §§ 2, 5. As a result, "Article 39.15 of the Texas Code of Criminal Procedure provides that a court should make a child victim's forensic interviews reasonably available for inspection, but should not allow the defendant's team to copy them." Gonzalez v. State, 522 S.W.3d 48, 58 (Tex. App.—Houston [1st Dist.] 2017, no pet.); see also TEX. FAM. CODE ANN. § 264.408(d), (d-1).
"[M]aterial is considered to be reasonably available to the defendant if, at a facility under the control of the state, the state provides ample opportunity for the inspection, viewing, and examination of the property or material by the defendant, the defendant's attorney, and any individual the defendant seeks to qualify to provide expert testimony at trial." TEX. CODE CRIM. PROC. ANN. art. 39.15(d).
Yet, for the first time on appeal, Smith argues that the trial court erred in denying him a copy of the CAC interview. Our record shows that no such request was made to the trial court. In fact, during a pretrial hearing, Smith's counsel made clear that he was not seeking a copy of the child victim's forensic interview but "just wanted a chance to review it." The State responded that it had no objection to that request. Because Smith did not ask the trial court for a copy of the CAC interview, and the trial court did not deny any such request, we find that Smith failed to preserve this issue.,
Smith also alleged that a denial of a copy of the CAC interview resulted in a violation of his right to confront the witnesses against him. Yet, nothing shows that the State failed to make the interview available to Smith, and Smith did not raise any Confrontation Clause issue with the trial court. See Gonzalez, 522 S.W.3d at 64.
Smith also asks this Court to consider the cumulative harm of the errors. Because we have overruled all of Smith's points of error, we also overrule his cumulative harm complaint. --------
We affirm the trial court's judgment.
Josh R. Morriss, III
Chief Justice Date Submitted: January 28, 2021
Date Decided: January 29, 2021 Do Not Publish