Opinion
No. 05-03-00987-CR
Opinion issued November 29, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause No. F02-48133-UL. Affirmed.
Before Justices WHITTINGTON, BRIDGES, and FRANCIS.
OPINION
A jury convicted Larry Leon Williams Jr. of aggravated sexual assault of a child under fourteen years of age and imposed an automatic life sentence. See Tex. Pen. Code Ann. § 12.42(c)(2) (Vernon Supp. 2004-05). In six issues, appellant complains about the factual sufficiency of the evidence, admission of various evidence, and the constitutionality of his automatic life sentence. We affirm. Appellant is the ex-boyfriend of E.S. On the night of February 14, 2002, he went to E.S.'s house. After E.S. put her two daughters to bed, she and appellant drank beer, smoked marijuana, and had sex. As he had many other times in the past, appellant told E.S. he wanted to have a "threesome." E.S. told appellant "maybe," if the person were female, but "never a man." In the past, appellant never brought in a third party and would instead "pretend we had someone." That night, after the two had sex, appellant said he was going to the store. E.S. fell asleep and was awakened when appellant came back into the bedroom. His belt was unbuckled and his pants were not fastened, and E.S. asked where he had been. Appellant told her he fell asleep downstairs. E.S., who was feeling the effects of the beer and marijuana, had no idea how much time had elapsed. E.S. and appellant began smoking and drinking again, and appellant again brought up the idea of a threesome. Appellant began kissing and touching E.S. and told her he "had someone." E.S., who had not seen anyone enter the room, believed appellant was merely role-playing and "agreed" that she was ready. She felt a tongue on her vagina and realized it was not appellant's. She raised up and found her seven-year-old daughter, C.W., between her legs. C.W. immediately left the room. E.S. was shocked and was not quite sure that she really saw her daughter. Appellant held her down by her wrists and told her, "It's what you thinking" and said he was "going to get [C.W.] back in her and eat her little pussy." He also told E.S. that she had better do as he said or he would hit her. Fearful that appellant would get her daughter, E.S. said she pretended to be interested in appellant and had sex with him to divert him from C.W. Once appellant fell asleep, E.S. went to her daughter's bedroom, where she found C.W.'s pajama pants on the floor and also noticed that C.W.'s panties were on backwards. She awakened C.W. and asked who had removed her pants, and C.W. said, "Larry." E.S. asked if C.W. had been in E.S.'s bedroom, and C.W. said she had. After making sure appellant was still asleep, E.S. went downstairs and called the police. When the police arrived, E.S. explained what happened. Officer Toni Jarvis talked to C.W., who told her that appellant "made me kiss my mama bootie." Jarvis asked what C.W. meant by "bootie," and C.W. pointed to her vagina. Police awakened appellant and arrested him. C.W. was taken to Dallas Children's Advocacy Center, where Detective Dan Lesher observed a worker interview her. According to Lesher, a sexual examination was not done on C.W. because the allegations involved oral sex. At trial, C.W. testified that appellant had previously touched her "private part" with his hand and an unlit cigarette. She said it felt "nasty" and "dirty," and said appellant threatened to kill her and her mother if she told anyone. Through drawings, she identified her "private part" as her vagina. On the night of the incident in question, C.W. said appellant pulled down her panties and licked her "private part." He then told her to "lick my mom private part." C.W. said she did, and appellant told her to go back to bed. C.W. said she was scared. Later, E.S. woke her up and C.W. talked to the police. C.W. testified she did not like appellant, explaining that he "stared" at her and had choked her mother in the past. She said she was afraid of appellant because he was "mean." She did not tell about the abuse because she thought appellant would kill her. The defense called three witnesses to attack E.S.'s credibility. Shayna Jackson, who has a child with appellant, testified E.S. called her within hours of the police leaving her house on the morning of this incident. According to Jackson, the two talked for two hours, and although E.S. told her about the allegations, E.S. expressed no concern for C.W. Jackson said E.S. was jealous of other women appellant had contact with. Pat Brown testified she had known appellant since childhood and also knew E.S. Brown testified she "vaguely" knew E.S.'s reputation in the community for truth and veracity and said it was "bad." Casey Patton, appellant's sister, testified she was familiar with appellant's relationship with E.S., and said E.S. was jealous of appellant's involvement with other women. In his first point of error, appellant contends the evidence is factually insufficient to support his conviction. He argues that the State failed to prove a sexual assault ever occurred and, even if it did, the State failed to prove appellant intentionally and knowingly "caused" the sex act. We disagree. In a factual sufficiency review, we view all of the evidence in a neutral light, and we will set the verdict aside 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. Ross v. State, 133 S.W.3d 618, 620 (Tex.Crim.App. 2004) (citing Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004)). Resolution of conflicts in the evidence and credibility of the witnesses lies within the fact finder's exclusive province. Obigbo v. State, 6 S.W.3d 299, 305 (Tex.App.-Dallas 1999, no pet.). The jury was authorized to convict appellant if it found appellant intentionally or knowingly caused Cynthia's mouth to contact the sexual organ of her mother. With respect to his complaint that the State failed to prove that an offense was committed, appellant argues the State relied on the inconsistent and contradictory testimony of C.W. and her mother. In his briefing, he argues certain evidence is contradictory and specifically points to evidence as to (1) whether the light was on or off when C.W. first entered the bedroom, (2) whether C.W. believed her mother saw her enter the room, and (3) whether C.W. saw appellant before going to bed that night. He also complains that E.S. was not credible about what happened because she was under the effects of alcohol and drugs. He also complains the police did not collect vaginal swabs or saliva specimens to test. The jury resolves inconsistencies in the evidence. Further, these inconsistencies (assuming they are) are not of any level that would compel this Court to conclude that the State's evidence was so weak that the verdict was clearly wrong and manifestly unjust. Likewise, E.S.'s credibility was a matter for the jury, and we note that her testimony about the sexual assault was confirmed by C.W.'s testimony. With respect to the lack of medical evidence, the police explained that the hospital generally would not perform a sexual assault exam on a child alleging oral sex because of the emotional trauma involved and it is less likely there would be evidence of physical trauma in the vagina area. Reviewing all the evidence, we conclude there was factually sufficient evidence to establish that a sexual assault occurred. Appellant next argues that the State failed to prove that he intentionally or knowingly caused the sexual act. He argues, in part, that there was no evidence that he forced or threatened C.W. to commit the sex act. Again, we disagree. The evidence showed that appellant awakened C.W., took off her pajama pants, pulled down her panties, and licked her vagina to show her what he wanted her to do to her mother. He then led her to her mother's bedroom and told her to lick her mother's vagina. C.W. did as she was told. Given appellant's threat to C.W. on a previous occasion that he would kill her if she told about the abuse, we conclude a rational jury could conclude, beyond a reasonable doubt, that C.W. would be frightened enough to do as she was told, regardless of whether appellant made any specific threat or imposed any physical force at that particular time. The evidence was not so weak that the verdict was clearly wrong and manifestly unjust nor was contrary evidence so strong that the standard of proof beyond a reasonable doubt could not be met. We overrule the first point of error. In his second point of error, appellant asserts the trial court erred in admitting evidence from C.W. that, before the charged sexual assault, appellant touched her on her "private part" twice with his hand and once with a cigarette. When C.W. testified that appellant touched her private part with his hand and a cigarette, appellant did not object until six questions later, asserting the testimony was "not germane to anything for the jury's consideration." The trial court sustained the objection as to "time and place" but overruled the objection as to subject matter. The court directed the prosecutor to "narrow" the incidents to time and place, and C.W. then testified to details of the incidents. Given appellant's untimely objection to C.W.'s basic testimony of previous abuse, we question whether this issue is preserved. Assuming it is, we conclude the evidence was admissible. We review the trial court's decision to admit evidence under an abuse of discretion standard. See Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996). We will uphold the trial court's ruling as long as it was within the "zone of reasonable disagreement." Id. at 102. Article 38.37 specifically provides that evidence of additional improper sexual acts by a defendant against a child victim shall be admitted for its bearing on relevant matters, including (1) the state of mind of the defendant and the child and (2) the previous and subsequent relationship between the defendant and the child. See Tex. Code Crim. Proc. Ann. art. 38.37, § 2 (Vernon Supp. 2004-05). Appellant recognizes the existence of article 38.37, but argues the complained-of evidence was not relevant to either appellant's statement of mind or the relationship between C.W. and appellant. We disagree. Appellant was charged with intentionally and knowingly causing C.W.'s mouth to contact her mother's sexual organ. The previous instances of abuse are similar to the charged offense in that they involve appellant initiating sexual contact with C.W. The evidence tends to show the relationship between C.W. and appellant and C.W.'s fear of appellant. It also helps to explain why C.W. would follow appellant's instruction to engage in the sex act. Under these circumstances, we conclude the evidence was admissible. We overrule the second point of error. In his third point of error, appellant complains the trial court erred in admitting Detective Lesher's opinion testimony that coaching or parental influence was not a factor in this case. During the cross-examination of Lesher, defense counsel asked: "But you've seen several situations where children have been influenced by other parents; is that correct?" Lesher responded, "Yes, I have." Defense counsel passed the witness, and the following occurred:
[PROSECUTOR]: Is this one of those cases, Detective?
[DEFENSE COUNSEL]: Your Honor, objection. Calls for speculation on his part.
[TRIAL COURT]: Overruled.
[PROSECUTOR]: Based on your investigation, is that what you determined: that [E.S.] told [C.W.] to make this up or say it?
[DEFENSE COUNSEL]: Your Honor, again, I'll object. Invades the province of the jury.
[TRIAL COURT]: Rephrase your question.
[PROSECUTOR]: Did you feel that this is one of those cases, where coaching or influencing by a parent played a role?
[WITNESS]: No.Appellant's complaint is not preserved for two reasons. First, appellant did not object to the question that elicited the complained-of response. Second, on appeal, appellant argues that Lesher's testimony was inadmissible as an opinion on guilt or innocence, citing Texas Rule of Evidence 701. However, the only objection for which appellant obtained an adverse ruling was to "speculation," which is directed at the lack of personal knowledge under rule 602. See Tex. R. Evid. 602 (witness may not testify unless sufficient evidence to support finding of personal knowledge of matter). Because the objection on appeal does not comport with the only adverse ruling at trial, the complaint is not preserved. See Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App. 2002). Even if we considered the complaint preserved, there is no error. When conducting a rule 701 evaluation, the trial court must decide (1) whether the opinion is rationally based on perceptions of the witness and (2) whether it is helpful to a clear understanding of the witness's testimony or to determination of a fact in issue. Fairow v. State, 943 S.W.2d 895, 898 (Tex.Crim.App. 1997). Lesher had extensive training and experience in investigating child abuse offenses. He testified he drove E.S. and C.W. to the Child Advocacy Center, where he observed the interview with C.W. and investigated the offense as it related to E.S.'s possible involvement. On cross-examination, defense counsel asked a series of confusing questions, which culminated with the question regarding whether Lesher had seen instances where children were influenced by their parents. The State's follow-up question — whether this was a case in which coaching or influencing was a factor — sought to dispel any confusion or misunderstanding by the jury that Lesher believed C.W. was influenced by her mother to lie in this case. We conclude Lesher's opinion was (1) rationally based on his perceptions of the events and (2) helpful to the jury to understand his testimony. The trial court did not abuse its discretion in allowing the testimony. We overrule the third point of error. In his fourth and fifth points of error, appellant complains the trial court abused its discretion in ruling two prior sexual assault convictions, both more than ten years old, were admissible to impeach him if he testified. Because of the ruling, appellant did not take the stand. On appeal, he argues the convictions were too remote and more prejudicial than probative. Texas Rule of Evidence 609(a) provides that a conviction less than ten years old is admissible if the probative value of the conviction outweighs its prejudicial effect. Tex. R. Evid. 609(a). Rule 609(b) provides that evidence of a previous conviction that is more than ten years old is not admissible unless the court determines the probative value of the conviction substantially outweighs its prejudicial effect. Tex. R. Evid. 609(b). Even when a prior conviction is more than ten years old, subsequent convictions for felonies or misdemeanors of moral turpitude remove the taint of remoteness from the prior convictions. See Jackson v. State, 11 S.W.3d 336, 339 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd). In this case, both sexual assault convictions were more than ten years old. At trial, the State argued the convictions were resurrected by appellant's two 1999 misdemeanor convictions for assault on females. In Hardeman v. State, 868 S.W.2d 404, 407 (Tex.App.-Austin 1993), pet. dism'd, 891 S.W.2d 960 (Tex.Crim.App. 1995), the Austin court engaged in a lengthy analysis of prior cases before concluding that an assault by a man on a female "is generally regarded by the members of our society as more morally culpable than some other types of assaultive crimes." We agree with the Austin court's analysis and likewise conclude that an assault by a male on a female is a crime of moral turpitude. As such, it was sufficient to remove the taint of remoteness from the two sexual assault convictions. To the extent appellant asserts any "male/female" distinction violates the Equal Protection Clause, he has not adequately briefed this issue. See Tex.R.App.P. 38.1. Having concluded the sexual assault convictions were not remote, we review the trial court's ruling on prejudicial effect under the standard set out in rule 609(a). See Jackson, 11 S.W.3d at 339. In determining whether the probative value of the convictions outweighs their prejudicial effect, the trial court considers a variety of factors, including (1) the prior convictions' impeachment value, (2) their temporal proximity to the crime on trial, (3) the similarity between the prior offenses and the present offense, (4) the importance of the defendant's testimony, and (5) the importance of the credibility issue. See Theus v. State, 845 S.W.2d 874, 880 (Tex.Crim.App. 1992). In reviewing the trial court's balancing of these factors, we accord the trial court "wide discretion" and reverse only when the court's decision lies outside the zone of reasonableness. Id. at 881. The first factor — impeachment value — weighs against admissibility because assault is not a crime of deception. See id. (explaining impeachment value of crimes that involve deception is higher). The second factor — temporal proximity — favors admission of the prior convictions if (1) the past crime is recent and (2) the witness has demonstrated propensity for running afoul of the law. Id. Even though the complained-of offenses are more than ten years old, the State showed the convictions were not remote. Further, appellant has shown a propensity for running afoul of the law. In addition to the sexual assault convictions, appellant's criminal history included misdemeanor convictions for theft in 1993, evading arrest in 1998, possession of marijuana in 1998, and unlawful restraint in 1998 and 1999. The third factor — similarity between the past crimes and current offense — weighs slightly in favor of admission. Although the past and current crimes involve sexual offenses, the two prior offenses involved females much closer to appellant's age at the time and involved penile penetration. Conversely, this case involved the seven-year-old daughter of his ex-girlfriend. Under these circumstances, we conclude the factual differences in the offenses would have created little danger that the jury would misuse the information to convict appellant based on a past pattern of behavior rather than the facts of the charged offense. The fourth and fifth factors — the importance of the defendant's testimony and his credibility — also favor admissibility. These two factors are related. Id. at 881. When the case involves the testimony of only the defendant and the State's witnesses, the importance of the defendant's credibility escalates. Id. As the importance of the defendant's credibility escalates, so will the need to allow the State an opportunity to impeach the defendant's credibility. Id. Appellant's defense was that C.W. had been coached into making false allegations and, had he testified, he presumably would have denied committing the offense. Under these circumstances, appellant's credibility was a crucial factor in the case, and the State's need to impeach his testimony would have been great. Of the five factors, only one weighs against admissibility. Having reviewed the record in this cause and considered the Theus factors, we cannot conclude the trial court's ruling that the prior convictions were admissible was outside the zone of reasonable disagreement so as to be a clear abuse of discretion. We overrule the fourth and fifth points of error. In his sixth point of error, appellant contends that section 12.42(c)(2) of the Texas Penal Code, which provided for an automatic life sentence in this case, violates the ex post facto clauses of the United States and Texas constitutions. Section 12.42(c)(2) provides for a life sentence if a defendant is convicted of aggravated sexual assault and was previously convicted of sexual assault. See Tex. Pen. Code Ann. § 12.42(c)(2) (Vernon Supp. 2004-05). A ex post facto law violates the state or federal constitution when it (1) punishes as a crime an act previously committed, which was innocent when done; (2) changes punishment and inflicts greater punishment than was allowed by law at the time the act was committed; or (3) deprives one charged with a crime of any defenses that were available when the act was committed. Collins v. Youngblood, 497 U.S. 37, 42-43 (1990); Lopez v. State, 928 S.W.2d 528, 534 (Tex.Crim.App. 1996). When a court engages in ex post facto analysis, it should be concerned solely with whether the statute assigns more disadvantageous criminal or penal consequences to the act than did the law in place when the act occurred. Moore v. State, 54 S.W.3d 529, 545 (Tex.App.-Fort Worth 2001, pet. ref'd). In this case, appellant asserts that section 12.42(c)(2) increased his punishment based on conduct that the legislature has since decriminalized. In particular, he argues that at the time he was convicted of the 1989 sexual assault used to enhance punishment, the law provided an affirmative defense if the accused was not more than two years older than the victim. The statute was amended in 1994 to increase the age difference to not more than three years. See Tex. Pen. Code Ann. § 22.011(e) (Vernon Supp. 2004-05). Appellant asserts that he was less than three years older than the victim in the 1989 sexual assault, meaning that he would be entitled to the affirmative defense if the same conduct were committed today. He argues he was punished a second time for that crime when the prior conviction was used to enhance punishment in this case. We disagree. The focus of our inquiry is not the 1989 sexual assault conviction; the proper focus is the sexual assault of C.W. Appellant is not being punished for a crime that was innocent when done nor is he being deprived of any defense in the case at bar. He was not given a greater punishment than was allowed by law when he committed the sexual assault of C.W. Rather, a prior conviction was used to enhance punishment and subject him to an automatic life sentence. Applying section 12.42(c)(2) in this case was not a violation of the ex post fact clauses of our constitutions. We overrule the sixth point of error. We affirm the trial court's judgment.