Opinion
No. 14-06-00227-CR.
Affirmed and Memorandum Opinion filed March 8, 2007. DO NOT PUBLISH.
On Appeal from the 337th District Court Harris County, Texas. Trial Court Cause No. 1031750.
Panel consists of Justices YATES, ANDERSON, and HUDSON.
MEMORANDUM OPINION
Appellant, Charles Ray Walton, was charged by indictment with aggravated sexual assault of a child. A jury found appellant guilty of sexual assault, as charged in the indictment, and assessed his punishment at confinement in the state penitentiary for forty years. In two points of error, appellant contends he suffered egregious harm when the trial court failed to, sua sponte, include 1) a jury instruction on the lesser-included offense of indecency with a child by contact, and 2) a reasonable doubt jury instruction regarding an extraneous offense offered in the punishment hearing under Article 37.07(3)(a)(1) of the Texas Code of Criminal Procedure. We affirm. The complainant, J.M.E., told her kindergarten teacher that when she was four years old, appellant molested her. The teacher sent J.M.E. to the school nurse, who examined her and then contacted Child Protective Services (ACPS"). CPS removed J.M.E. from the home and placed her with her grandfather, pending the outcome of an investigation. The investigation included interviews of family members and the victim by the police and a forensic interviewer with the Children's Assessment Center, as well as a review of J.M.E.'s medical records. Based on the result of the investigation, aggravated sexual assault charges were brought against appellant, whom J.M.E. considered her Astepdaddy." In his first point of error, appellant contends he suffered egregious harm because the trial court failed to include, sua sponte, in the jury charge an instruction on the lesser-included offense of indecency with a child. The trial court has the duty and responsibility to instruct the jury on the Alaw applicable to the case." TEX. CODE CRIM. PROC. ANN. art. 36.14 (Vernon 2006). Thus, in discharging this duty, the trial court is authorized to sua sponte include a charge on a lesser-included offense if the charge meets the two-part test set forth in Rousseau v. State. Ford v. State, 38 S.W.3d 836, 840, 841-42 (Tex.App.CHouston [14th Dist.] 2001, pet. ref'd). Generally, however, it is the defendant who affirmatively requests or objects to a charge regarding a lesser-included offense as a matter of trial strategy. Here, appellant affirmatively agreed three separate times to an Aall or nothing" jury charge, on the sole instruction of aggravated sexual assault of a child. In the middle of the State's case, the trial court questioned the attorneys on the jury charge.
The Court: One other thing before B as I hear the testimony, and I know its early, it appears it's an all or nothing thing?
[State]: Yep.
[Defense]: Yes.
The Court: So, sit her down here tomorrow, tell her it's an all or nothing thing. I don't see any lessers coming in.
[Defense]: The only difference is what the child is allegedly telling the teachers at first. And then what she tells the interviewer, that's a little different. I believe the child says it happened when she came home from work or B and that it happened many times. But then when she actually does do the interview, it's a one-time, one-date event.
The Court: But regardless B
[Defense]: And that's what's alleged.
[State]: It's the same act.
The Court: Yeah. It's going to be B maybe it expanded further, but all we're interested in based on this piece of paper is on or about January 12th of 2005. And that's going to be the only thing they're authorized to act on and based on that time frame.
[Defense]: Uh-huh, that could fit in. It could fit in, yes.
The Court: Well, no. But I'm saying based on that time frame, based on what I have heard; and I know it's early, but there's not going to be any other lesser included offense. There's not going to be any other B or anything else to charge them on. They're going to be charged on either you find it beyond a reasonable doubt or the person is not guilty.
[Defense]: Yes, sir.After both sides had rested and closed, the trial court specifically questioned appellant's attorney about the final jury charge.
The Court: Mr. Brown [Defense], before you run off, I have not heard anything that changes my position. This is just a straight all or nothing. No special instructions?
[Defense]: Correct, Your Honor.The trial court then gave copies of the charge to both sides and requested any changes be made prior to nine a.m. the following day. The next day, before closing arguments, the trial court again asked about the jury charge.
The Court: So the record is clear, both sides have looked at the Court's proposed charge. Any objection?
[State]: None from the State.
[Defense]: None from the defense.Judicial scrutiny of counsel's performance must be highly deferential; trial strategy must be considered a valid rationale for a particular action, and counsel's decisions will not be second-guessed. Lynn v. State, 860 S.W.2d 599, 603 (Tex.App.CCorpus Christi 1993, pet. ref'd). It is not uncommon for counsel to employ an Aall or nothing" tactic. Wood v. State, 4 S.W.3d 85, 88 (Tex.App.CFort Worth 1999, pet. ref'd). Such a decision, although risky, is sometimes successful. Lynn, 860 S.W.2d at 603. It is clear from the record, appellant chose an Aall or nothing" strategy for his defense. The trial court gave appellant numerous opportunities to decide differently. Appellant chose to limit the jury's decision to finding him guilty of intentionally or knowingly causing the sexual organ of a child to touch his sexual organ, or to acquit him. Under the charge given to the jury, fondling or inappropriate touching with his hands alone would not be enough to convict. It would be inappropriate for the trial court to decide trial strategy for the defense. Thus, appellant's first point of error is overruled. In his second point of error, appellant argues he suffered egregious harm when the trial court failed, sua sponte, to include a reasonable doubt instruction regarding an extraneous offense for assault admitted as evidence during the punishment phase. Article 37.07 section 3(a) of the Texas Code of Criminal Procedure governs the admissibility of evidence at punishment in all non-capital cases. Huizar v. State, 12 S.W.3d 479, 483B84 (Tex.Crim.App. 2000). Section 3(a)'s requirement that the jury be satisfied of the defendant's culpability of the extraneous offense is Alaw applicable to the case" in the non-capital punishment context. Id. at 484. Thus, if evidence of an extraneous offense is before the jury, section 3(a) requires that the jurors be instructed not to consider the extraneous offense in assessing the defendant's punishment unless they find the defendant culpable for such offense under the statutorily prescribed reasonable-doubt standard. Id. Because no such instruction was given in this case, we find the trial court's punishment phase jury charge was erroneous. This type of error is derived from statutory violations of articles 36.14 and 37.07, and is Acharge error" under article 36.19. Id. Accordingly, we use the harm analysis set out in Almanza v. State to determine if the omission constitutes reversible error. Id. at 484B85. Because appellant did not object at trial to this error in the court's charge, under the Almanza harm analysis, we examine the entire record to determine whether the error was so egregious and created such harm that appellant did not receive a fair and impartial trial. Almanza, 686 S.W.2d at 171. Egregious harm is a difficult standard and must be proved on a case-by-case basis. Ellison v. State, 86 S.W.3d 226, 227 (Tex.Crim.App. 2002). The actual degree of harm must be determined in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel, and any other relevant information revealed by the record of the trial as a whole. Almanza, 686 S.W.2d at 171. Egregious harm is present whenever a reviewing court finds that the case for conviction or punishment was actually made clearly and significantly more persuasive by the error. Saunders v. State, 817 S.W.2d 688, 692 (Tex.Crim.App. 1991). Fundamental error must go to the very basis of the case, deprive the defendant of a valuable right, or vitally affect a defensive theory. Almanza, 686 S.W.2d at 172. Appellant specifically objects to the use of testimony concerning an extraneous offense of assault offered without extrinsic evidence, such as medical records, to Aprove" the offense. During the punishment phase of trial, the State called J.M.E.'s mother, Davette Wilson. Wilson testified about an incident where appellant had struck her in the face with his open hand, crushing her cheek. Wilson needed reconstructive surgery to place a metal plate in her cheek. Wilson testified she never pressed charges, and she forgave appellant. Wilson asked the jury to be lenient on appellant. The State also mentioned this extraneous offense without objection, during closing arguments. Appellant argues that without a jury instruction to consider this testimony only if believed beyond a reasonable doubt, the jury incorrectly assessed a longer sentence based on this offense. Defense counsel cross-examined Wilson, giving him ample opportunity to dispute Wilson's version of the events. However, defense counsel never called Wilson's story into question. Instead, defense counsel asked Wilson to Aexplain exactly what happened when you got hit in the face." Wilson then elaborated on her previous testimony, without any questions as to the veracity of her testimony. In fact, defense counsel used the opportunity to put forth evidence to show the problems between J.M.E.'s biological father, appellant, and Wilson. Appellant now argues the State brought forth no other witnesses to the assault to prove Wilson's story beyond a reasonable doubt. Later, when appellant testified, not only did he not dispute Wilson's story, he never mentioned the incident. Because Wilson's testimony was uncontested, there was nothing for the jury to decide. Appellant does not argue that the evidence is insufficient to prove beyond a reasonable doubt that he committed the extraneous offense, but only that the instruction was not given. See Arnold v. State, 7 S.W.3d 832, 835 (Tex.App.CEastland 1999, pet. ref'd) (holding that appellant was not egregiously harmed by court's failure to instruct because, among other factors, appellant did not contend the evidence was insufficient to prove beyond a reasonable doubt that he had committed the extraneous offenses, but only that the instruction was not given). The jury charge in the guilt/innocence phase of trial, delivered on the same day as the punishment charge, instructed the jury on the State's burden and the reasonable doubt standard. Although neither charge specifically addressed extraneous offenses, the punishment phase jury charge stated: AThe burden of proof in all criminal cases rests upon the State throughout the trial and never shifts to the defendant." There is no reason to believe the jury did not remember the reasonable doubt and burden of proof definitions and apply them to the uncontested extraneous charge as well. Moreover, appellant stipulated to seven prior convictionsCfour misdemeanors and three felonies. Appellant does not point to any evidence that the court's failure to include a reasonable doubt instruction in the punishment charge as to the extraneous offense of assault affected the jury's deliberations regarding the punishment assessed. Almanza requires a showing of actual, not just theoretical, harm. Almanza, 686 S.W.2d at 174. The punishment range presented to the jury was not less than five years to no more than ninety-nine years or life in prison, and up to a $10,000 fine. The jury's assessment of 40 years' confinement, with no fine, is well within the mid-range of punishment for aggravated sexual assault of a child and, therefore, does not demonstrate egregious harm to appellant. See Allen v. State, 47 S.W.3d 47, 53 (Tex.App.CFort Worth 2001, pet. ref'd ). (finding jury's sentence was within the range of punishment for attempted murder and, therefore, did not demonstrate Aegregious harm" to appellant). Given the totality of the evidence and the record as a whole, we find the case for the punishment assessed was not made clearly and significantly more persuasive by the error. Accordingly, we overrule appellant's second point of error. Having overruled appellant's two points of error, we affirm the judgment of the trial court.
TEX. CODE CRIM. PROC. ANN. art. 37.07(3)(a)(1) (Vernon 2006).
855 S.W.2d 666 (Tex.Crim.App. 1993).
Section 22.021 of the Texas Penal Code provides with respect to the offense of Aggravated Sexual Assault:
(a) A person commits an offense:
(1) if the person:
. . . .
(B) intentionally or knowingly:
(i) causes the penetration of the anus or sexual organ of a child by any means;
(ii) causes the penetration of the mouth of a child by the sexual organ of the actor;
(iii) causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor;
(iv) causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor; or
(v) causes the mouth of a child to contact the anus or sexual organ of another person, including the actor; and
(2) if:
. . . .
(B) the victim is younger than 14 years of age;
. . . .
TEX. PENAL CODE ANN. ' 22.021(a) (Vernon Supp. 2006).
Section 3 of Article 37.07(3)(a)(1) of the Texas Code of Criminal Procedure provides with respect to the admission of evidence of prior criminal record in all criminal cases after a finding of guilty:
(a)(1) Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.
TEX. CODE CRIM. PROC. ANN. art. 37.07(3)(a)(1).
686 S.W.2d 157 (Tex.Crim.App. 1984).
Wilson testified in the guilt-innocence phase for appellant, insisting her daughter was lying.
Appellant argues in his brief, that 40 years' confinement was Avery heavy, considering that the 42 year-old appellant's most serious punishment for any of his prior offenses had been 180 days in state jail." (Appellant served twice in state jail and once in Harris County jail.) Appellant also contends a one-time molestation charge Awould seem to call for less severe punishment than if appellant had habitually molested" J.M.E.
In Gholson v. State, this court reasoned appellant did not show egregious harm because the State proved the extraneous offenses with uncontroverted evidence, and appellant did not contend on appeal that if a proper instruction had been given, the evidence was insufficient to prove beyond a reasonable doubt he had committed the extraneous offense. 5 S.W.3d 266, 271 (Tex.App.CHouston [14th Dist.] 1999, pet. ref'd). The court determined the fact appellant did not submit evidence that if he had requested the reasonable doubt instruction the jury would have disregarded the extraneous offense evidence also goes to lack of egregious harm. Id. The court also considered the fact that the jury had a proper instruction on reasonable doubt regarding unadjudicated acts at the guilt stage and the punishment charge was given to the jury on the same day as the guilt charge to be a factor showing lack of egregious harm. Id.
The misdemeanor convictions included assault on a family member, criminal mischief, fictitious inspection certificate, and driving with license suspended. The three felony offenses included one offense for forgery and two separate offenses for possession of cocaine.