No. 04-04-00234-CR
Delivered and Filed: June 29, 2005. DO NOT PUBLISH.
Appeal from the 175th Judicial District Court, Bexar County, Texas, Trial Court No. 2003-CR-8067B, Honorable Pat Priest, Judge Presiding. Affirmed.
Sitting: Catherine STONE, Justice, Sarah B. DUNCAN, Justice, Rebecca SIMMONS, Justice.
Opinion by: REBECCA SIMMONS, Justice.
James Bennett Walker was convicted by a jury of two counts of aggravated sexual assault and one count of aggravated kidnapping and was sentenced by the jury to sixty years imprisonment as a habitual offender. On appeal, Walker asserts that the trial court erred in admitting certain evidence and that the evidence was legally and factually insufficient to support his conviction. Because the issues in this appeal involve the application of well-settled principles of law, we affirm the trial court's judgment in this memorandum opinion.
Sufficiency of the Evidence
In reviewing a legal sufficiency challenge, we 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). In conducting a factual sufficiency review, we view all the evidence in a neutral light and will set aside the verdict only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App. 2004) (citing Zuniga v. State, 144 S.W.3d 477, 481 (Tex.Crim.App. 2004)). The jury evaluates the credibility and demeanor of witnesses and determines the weight afforded contradicting testimony. Cain v. State, 958 S.W.2d 404, 408-09 (Tex.Crim.App. 1997). The complainant testified that when she went to the home of her cousin's neighbor, Walker and his daughter, Michelle Richards, were present. Later, in the evening, the complainant drove Walker and Richards to the store. Walker and Richards had been drinking, and the complainant, Walker and Richards were smoking marijuana in the car. Sometime later, Walker decided to drive. Walker drove to a park where Walker and Richards began arguing. The complainant left the car, and Walker and Richards followed. Both Walker and Richards starting hitting the complainant, and Walker put his hand on the complainant's mouth and started choking her. Walker and Richards dragged the complainant into the woods. Walker pulled off the complainant's clothes and attempted to penetrate her while Richards held the complainant down. Walker forced the complainant to perform oral sex on him and Richards. Walker also performed oral sex on the complainant. After Richards thought she heard someone, everyone returned to the car where Walker began apologizing to the complainant for his actions. After driving for some time, Walker allowed Richards and the complainant to exit the car, but then Walker made a u-turn back in their direction. Richards and the complainant started running. The complainant ran to a house and knocked on the door for help. Theron Wright came to the door, and the complainant told him that someone tried to rape her. Wright called the police. While waiting for the police to arrive, the complainant saw Walker hit Richards. At the hospital, the complainant told the nurses that she did not believe Walker had penetrated her. The complainant stated that she told the nurse that she had oral sex with Walker and Richards. Officer Brandon Guillen was dispatched in response to an assault in progress. Officer Guillen stated that the complainant had a lump on her head with swelling around her forehead and scratches all over her arms. The complainant was crying and appeared shaken up and scared. In his report, Officer Guillen checked that the complainant reported unnatural sex acts, but he did not check rape as being reported. Officer Guillen also checked that the complainant reported that she was forced to disrobe and lie down. Officer Boyle testified that a marijuana cigarette was recovered from Walker's car after he was arrested. Theron Wright testified that he awoke when the complainant began pounding on his door, and the complainant told him that someone was trying to kill her. After calling the police, Wright observed a man hitting another woman several times in front of Wright's house. From photographs, Wright identified the man as Walker and the female as Richards. Gail McBride, a nurse, examined the complainant. McBride described the numerous injuries she documented on the complainant, and pictures were introduced depicting those injuries. No vaginal exam was done because the complainant denied any penetration. McBride stated that the complainant did not tell her that Walker attempted to penetrate her. The complainant told McBride that she had oral sex with the female assailant. Erin Reat, a forensic scientist, conducted DNA testing on the clothing and oral swabs from the complainant, Richards, and Walker. Walker was not excluded as the source of DNA on the complainant's boxers and shorts, but Richards was excluded. Richards was not excluded as a source of DNA on Walker's boxers, shorts, and shirt. Walker was excluded as a source of DNA on Richards's vaginal swab. No DNA matches were confirmed with regard to the oral swabs. The trial court granted a directed verdict in Walker's favor on the charge that Walker penetrated the complainant's vagina with his sex organ. The jury was charged with regard to the following offenses alleged to have been committed by Walker: (1) penetration of the complainant's mouth with Walker's sex organ or penetration of the complainant's mouth with Walker's sex organ while acting in concert with Richards who committed the offense of sexual assault of the complainant during the course of the same criminal episode; (2) penetration of the complainant's sex organ with Walker's mouth or penetration of the complainant's sex organ with Walker's mouth while acting in concert with Richards who committed the offense of sexual assault of the complainant during the course of the same criminal episode; (3) kidnapping of the complainant with the intent to facilitate the commission of a felony, to wit: sexual assault or with the intent to inflict bodily injury on the complainant. The jury found Walker guilty of all three of the charged offenses. The complainant's testimony was sufficient evidence to support the jury's finding as to each of the offenses. Although defense counsel sought to discredit the complainant's testimony through cross-examination, the jury evaluates the credibility and demeanor of witnesses and determines the weight afforded contradicting testimony. Cain v. State, 958 S.W.2d at 408-09. Wright's testimony supported the complainant's testimony regarding certain events as did the observations of Officer Guillen and Nurse McBride regarding the complainant's physical appearance. The complainant's testimony was generally consistent with the history she reported during her physical examination and with the complaints described in Officer Guillen's police report. Finally, the discovery of Walker's DNA on the complainant's boxers provided additional support for the complainant's testimony. Although no DNA matches were confirmed with regard to the oral swabs, the jury determined the weight to be given that evidence, and the absence of DNA matches does not make the evidence that was introduced legally or factually insufficient to support the jury's verdict. Having reviewed all of the evidence, we conclude that the evidence is legally and factually sufficient to support the jury's verdict. Admissibility of Evidence
In his first point of error, Walker contends that the trial court abused its discretion in allowing extraneous offense evidence to be introduced in violation of Rules 403 and 404(b) of the Texas Rules of Evidence. We review rulings on the admissibility of evidence under an abuse of discretion standard. See Allridge v. State, 850 S.W.2d 471, 492 (Tex.Crim.App. 1991). An erroneous admission of evidence at trial must be preserved with a timely and specific objection to the evidence. See Moore v. State, 935 S.W.2d 124, 130 (Tex.Crim.App. 1996); Tex.R.App.P. 33.1(a). Walker complains about the admission of three extraneous offenses: (1) Walker's assault of Richards; (2) possession of marijuana; and (3) sexual activity between Walker and Richards. Although Walker was granted a pre-trial running objection with regard to the marijuana possession and sexual activity, no objection was made either before or during trial with regard to the evidence that Walker assaulted Richards. Accordingly, error, if any, in admitting evidence of the assault has not been preserved for our review. Same transaction contextual evidence is admissible as an exception under Rule 404(b) where such evidence is necessary to the jury's understanding of the instant offense. Rogers v. State, 853 S.W.2d 29, 33 (Tex.Crim.App. 1993). Same transaction contextual evidence is deemed admissible where several crimes are intermixed or so blended with one another that they form an indivisible criminal transaction and proof of any one of them cannot be given without showing the others. Id. "The reason for its admissibility is simply because in narrating the one it is impracticable to avoid describing the other, and not because the other has any evidential purpose." Id. Because an offense is not tried in a vacuum, same transaction contextual evidence is admitted to enable the jury to hear what occurred immediately prior to and subsequent to the commission of that act so that it may realistically evaluate the evidence. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Crim.App. 2000). Even where evidence is determined to be admissible as same transaction contextual evidence, the evidence still may be excluded under Rule 403 if the trial court determines that its probative value is substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403. In conducing a balancing test under Rule 403, the trial court considers the following factors: (1) how compellingly the extraneous offense evidence serves to make a fact of consequence more or less probable; (2) the potential the other offense evidence has to impress the jury in some irrational but nevertheless indelible way; (3) the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense; and (4) the force of the proponent's need for this evidence to prove a fact of consequence, i.e., does the proponent have other probative evidence available to him to help establish this fact, and is this fact related to an issue in dispute. Wyatt v. State, 23 S.W.3d 18, 26 (Tex.Crim.App. 2000). A. Marijuana Use In this case, the complainant testified that she, Walker and Richards were smoking marijuana prior to the kidnapping and assault. Officer Boyle also testified that he recovered a marijuana cigarette from Walker's car. The State asserts that the marijuana use helped explain Walker's state of mind and his demeanor. Even if we agree with the State that the marijuana use had some relevance to the issues in the case, the marijuana use was not so intermixed with the charged offenses that describing the marijuana use was necessary to the narration of the charged offenses. See Rogers v. State, 853 S.W.2d at 33. Accordingly, evidence of the marijuana use was not "necessary" to the jury's understanding of the charged offenses, and the trial court erred in admitting the evidence as same transaction contextual evidence. The erroneous admission of evidence is nonconstitutional error. See King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). Nonconstitutional error "that does not affect substantial rights must be disregarded." Tex.R.App.P. 44.2(b). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. King, 953 S.W.2d at 271. A criminal conviction should not be overturned for nonconstitutional error if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect. Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998). In this case, the testimony regarding the marijuana use and recovery of the marijuana cigarette was detached from the testimony regarding the charged offenses. Furthermore, the complainant stated that she also was smoking marijuana so the jury could equally have considered the evidence as a reason to discredit the complainant's testimony. Having examined the record as a whole, we have a fair assurance that the jury's findings regarding the charged offenses were not influenced by the evidence of Walker's marijuana use. Accordingly, the admission of the evidence was harmless. B. Sexual Activity Walker complains that the trial court erroneously admitted evidence that Richards was not excluded as a source of the DNA on Walker's clothing, including his boxer shorts. Walker contends that the evidence should have been excluded because it proved an extraneous offense involving sexual activity between Walker and Richards. The State counters that the evidence helped to establish that Walker and Richards were acting in concert as alleged in the indictment. Initially, we note that the jury was not required to infer that Walker and Richards had engaged in sexual activity to explain the presence of Richards' DNA on Walker's clothing given the events described by the complainant. Therefore, we are not convinced that the DNA evidence was necessarily evidence of an extraneous offense. However, even if we assume that it was extraneous offense evidence, the evidence regarding the presence of Richards' DNA on Walker's clothing was interwoven with the details of the charged offenses. If the DNA was evidence of sexual activity between Walker and Richards, that activity was intermixed or blended with the actions involving the complainant. Because the evidence was highly probative of Richards acting in concert with Walker, the time taken to develop the evidence was minimal, and there was little chance that the evidence would influence the jury in an irrational and indelible way, the probative value of the evidence was not outweighed by the danger of undue prejudice. Finally, even if the trial court erred in admitting the evidence, its admission was harmless. The DNA evidence was mentioned in conjunction with all of Reat's other findings excluding or not excluding the complainant, Richards and Walker as possible sources of DNA on various articles of clothing. Having reviewed the record as a whole, we have a fair assurance that the evidence did not have a substantial and injurious effect or influence in determining the jury's verdict; therefore, if the evidence was erroneously admitted, the error was harmless. Conclusion
The judgment of the trial court is affirmed.