Opinion
No. 05-15-00084-CR No. 05-15-00085-CR
03-08-2016
TANYA DIANE WILLIAMS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 292nd Judicial District Court Dallas County, Texas
Trial Court Cause Nos. F-1361793-V, F13-72175-V
MEMORANDUM OPINION
Before Justices Lang, Brown, and Whitehill
Opinion by Justice Whitehill
This sexual assault of a child case concerns the admissibility of extraneous crimes and hearsay evidence. Appellant, a forty-two year old woman, was convicted on two charges of sexually assaulting JE, a fifteen year old male child. A jury found appellant guilty of both charges. Appellant pled true to an enhancement paragraph in the indictment and the jury sentenced her to twenty years imprisonment in each case.
In two issues, appellant asserts the trial court erred by admitting hearsay evidence and evidence of appellant's drug use. We conclude that the trial court did not err in admitting evidence of appellant's drug use because it was relevant to the context of the abusive relationship with the child, and it was not unduly prejudicial. We further conclude that any error in the admission of hearsay was not preserved for our review. We therefore affirm the trial court's judgment.
I. Background
Appellant was a close friend of Nicol Burbank, JE's mother. Appellant's son was "best friends" with JE. The two families were very close, and Burbank described her relationship with appellant as that of "sisters." Over the course of their friendship, appellant helped Burbank try to overcome her drug addiction and Burbank stayed with appellant a few times.
Appellant had known JE since 2008 when he was in seventh grade, and for many years, he viewed her as a mother figure.
In 2013, appellant and her daughter moved into a Garland apartment with Burbank, Burbank's daughter, and JE. Appellant and her daughter shared a room with JE.
Burbank noticed that JE and appellant became very close, and they started doing everything together. She asked JE's brother, and his father (who was in prison) if they thought the relationship was weird. Burbank thought something was going on, but she could not pinpoint it, and she did not want to question appellant because she thought they shared a bond. (Id.)
Although Burbank never saw appellant behave in a sexual way towards JE, she said that there were some "red flags." For example, appellant had pornographic pictures of herself on her phone, and JE "supposedly hacked her phone and saw them." Appellant also began wearing "skimpier" clothes. She and JE bought matching outfits, and appellant started hanging out with JE and his friends.
Burbank initially thought that appellant was having a "midlife crisis." But Burbank felt comfortable leaving the house because she thought she had appellant's support. Burbank later learned that JE and appellant were "sleeping together."
JE was sixteen years old at the time of trial, and was confined to a juvenile detention center because of an assault charge. He was addicted to methamphetamines ("meth") and marijuana.
JE testified that appellant first assaulted him in 2013. He was upset and crying in his bedroom, and appellant consoled him by rubbing his head, back, and penis. Appellant and JE then had intercourse, and she left the room. The relationship was sexual after that.
At first, JE and appellant had sex once a week, but it later became more frequent. The sex always occurred at JE's house. Appellant bought clothes and video games for JE and his friend Cameron, and JE and appellant acted like boyfriend and girlfriend when no one was around.
JE developed a meth addiction. He began selling it when his uncle got out of prison, and he started doing it with appellant. Sometimes, appellant would buy the drugs for him, and they would do the drugs together. "Most of the time [that they] did drugs, they were having sex too."
Appellant sent JE text messages with naked pictures of herself. These pictures were retrieved from appellant's phone and admitted into evidence. JE said that, in the beginning, appellant sent pictures frequently. But later, she wasn't sending them because they were always having sex. JE thought he loved appellant because he lost his virginity to her.
When appellant and JE lived with Burbank, Burbank was absent for days while she was using drugs. During that time, appellant took care of JE.
Burbank was arrested in June 2013. Appellant took care of Burbank's children for a few days. While Burbank was in jail, appellant moved out because the apartment was filled with people who were using drugs. Appellant kept trying to leave and this frightened JE because he depended on her for support.
Burbank arranged for JE to live with his big brother. But JE ran away to live with appellant, his uncle, and his uncle's wife in various hotel rooms across Dallas County. While living in the hotels, JE sold drugs, used drugs with appellant, and had sex with her.
In July 2013, in response to a report that appellant was being held against her will, the police were called to a hotel where JE and appellant were staying. Officer Ramona Worthington with the Irving Police Department responded to the call and prepared a report that was admitted into evidence. Appellant told officer Worthington that she was not being held against her will, but JE would not release her car keys. The officer asked JE for the keys and returned the keys to appellant. The officer asked appellant if she was having sex with JE, but appellant said no. Nonetheless, the officer's report indicates a possible inappropriate relationship between appellant and JE.
At some point, JE was taken to his grandmother's house, but he ran away. He stayed in various places until appellant called him on October 23, 2013 and invited him to stay with her at the Lamplighter Motel. JE stayed there for two days, taking drugs and having sex with appellant.
On October 25, the Dallas police were dispatched to the hotel to locate a runaway (JE). They found JE with appellant, and JE was arrested.
Dallas Police Detective Michael McMurray interviewed JE after he was arrested. JE had "passion marks or hickeys" on his neck, and nude photographs of appellant on his phone. JE told the detective he had sex with appellant twice, but later admitted "it was way more than that."
Appellant also spoke with the detective, admitted that she had sex with JE, and said that JE did not force her to do so. But appellant relayed a different version of events when she testified at trial.
At trial, appellant claimed that she loved JE like her own child and did not have a sexual relationship with him when he lived with her. She said that JE was obsessed with her and became weird and controlling and that this obsession escalated after she took JE to live with her when Burbank was arrested.
Appellant also said that JE was holding her against her will when the police came to her hotel room in July. She said JE beat her and had sex with her, but it was not voluntary. She could not call the police because he took her phone and "Ipod." But she was finally able to get her "Ipod" and sent a message to a friend, and the police showed up after that. Appellant told the officer that she wanted to leave the room, but did not say that JE had sexually assaulted her.
Appellant further said that she never knowingly or intentionally had sex with JE. She claimed that, despite her statement to the detective that JE had not forced her to have sex, JE raped her at the hotel in July. She did admit, however, that in addition to the nude pictures, videos of her masturbating also somehow ended up on JE's phone.
Furthermore, appellant claimed she had only done meth one time, the day in July at the hotel when JE beat her. But the state introduced a CPS report showing appellant had tested positive for methamphetamine in April 2013. Despite this evidence, appellant maintained that she had been clean for seven years.
II. Analysis
A. Was it error to admit evidence that appellant used drugs with JE and provided drugs to him for the purpose of showing the nature of their relationship?
Appellant argues that the evidence that she used and provided drugs to JE was inadmissible under rules of evidence 403 and 404(b) because it "tended to prove that she was a criminal generally and caused her irreparable harm." Appellant, however, does not explain the basis for this alleged harm.
The State responds that the evidence was admissible under TEX. CODE CRIM. PROC. ANN. art. 38.37(2). We conclude that the evidence was admissible under Rule 404(b), and the trial court did not err in admitting the evidence. We therefore need not consider whether the evidence was also admissible under article 38.37.
1. Standard of Review and Applicable Law.
We review the trial court's decision to admit evidence for an abuse of discretion. Bradshaw v. State, 65 S.W.3d 232, 236 (Tex. App.—Waco 2001, no pet.). There is no abuse of discretion if the trial court's ruling is within the "zone of reasonable disagreement." See Salazar v. State, 38 S.W.3d 141,153 (Tex. Crim. App. 2001).
Evidence is relevant if it has "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.
The general rule is that an accused may not be tried for being a criminal generally. Couret v. State, 792 S.W.2d 106, 107 (Tex. Crim. App. 1990). Thus, evidence of other crimes, wrongs, or acts is not admissible if it does nothing more than establish an accused's bad character to show action conforming to that character. See TEX. R. EVID. 404(b). Nonetheless, extraneous evidence may be relevant apart from its tendency to show character conformity, such as for purposes to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Id. When a defendant claims that her act was free from criminal intent, extraneous acts are relevant to prove guilty intent. See Plante v. State, 692 S.W.2d 487, 491-92 (Tex. Crim. App. 1985).
Rule 403, however, provides that relevant evidence may be excluded if the danger of unfair prejudice substantially outweighs its probative value. See TEX. R. EVID. 403. But "prejudice is not solely a function of whether the jury would likely convict appellant for being a criminal generally." See Hankton v. State, 23 S.W.3d 540, 547 (Tex. App.—Houston [1st Dist.] 2000, pet. ref'd). Instead, "unfair prejudice" exists if a jury would be more likely to draw an impermissible character conformity inference than it would the inference for which the evidence is relevant. Id.
Here, the trial court had a hearing outside the jury's presence. Appellant's counsel objected that evidence of appellant's drug use with JE was "overly prejudicial" and that there had not been "any testimony so far, at least, that anybody had firsthand knowledge." The State argued that the evidence was relevant to "grooming" and the context of the relationship between appellant and JE. The trial judge ruled:
I have considered the objection, and I'm going to allow the testimony because I do find it is relevant to show the relationship between the defendant and the complaining witness in this case. Given the type of charge and given what may be considered probative in aiding the jury in understanding the relationship between these parties and giving context to that relationship, I'm going to allow it.
[Trial counsel], are you going to ask the Court for a limiting instruction? . . . I'll give you a running objection . . . and if you ask me for a limiting instruction, I will certainly give it.
The State then elicited JE's testimony that appellant would sometimes buy drugs for him and they would do drugs together. The trial court then gave a limiting instruction, telling the jury that they could consider that evidence to understand the relationship between JE and appellant:
Ladies and gentlemen, you are hereby instructed that if certain evidence is offered before you of conduct that is extraneous to the charged offense, if any conduct was committed, that you are to consider that for the relationship between the parties and for no other purpose.(Id.)
Later, the State asked JE if his uncle was the only person supplying meth to him, and JE responded that appellant also did so. Then, JE testified as follows:
Q. Now, [JE], when you were asked about being dependent on [appellant], what did [appellant] provide for you?
A. Somewhere to go.
Q. What else?
A. Clothes and money.
Q. What else?
A. And drugs.
Q. What else?
A. And sex.
Q. So that's what you were dependent on her for?
A. Yes, sir -- I mean ma'am. I'm sorry.
The evidence showed that while appellant initially acted like a mother figure to JE, she used drugs and sex to change the relationship into a sexual one. This evidence was probative and relevant to show appellant's state of mind and the context of the relationship between JE and appellant.
We initially presume that the probative value of relevant evidence substantially outweighs the danger of unfair prejudice from admission of that evidence. Martinez v. State, 468 S.W.3d 711, 718 (Tex. App.—Houston [14th Dist.] 2015, no pet.) and it is the opponent's burden to demonstrate that the danger of unfair prejudice substantially outweighs the evidence's probative value. Kappel v. State, 402 S.W.3d 490, 494 (Tex. App.—Houston [14th Dist.] 2013, no pet.).
Here, appellant does not articulate, nor does the record show unfair prejudice. The trial court instructed the jury that the evidence could be considered only as to the nature of appellant's and JE's relationship. We generally presume the jury follows the court's instructions. See Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998). Under these circumstances, we cannot conclude that the evidence was erroneously admitted. We thus resolve appellant's first issue against her.
B. Was it error to admit hearsay statements from the detective's interview with JE's grandmother and CPS investigators regarding whether JE and appellant had been having sex?
Appellant asserts that she objected to Officer McMurray's testimony when "he told the jury that other persons expressed their opinion about the guilt of appellant." The record however, reflects that appellant made a hearsay objection in response to a question to the officer about what appellant told him. After that objection was overruled, appellant made no further hearsay objections during the officer's subsequent testimony. The officer described JE's grandmother's suspicions about a sexual relationship between JE and appellant, as well as similar suspicions by CPS workers, other relatives, and the Irving police officer who responded to the July call to the motel.
We review the trial court's admission of evidence under an abuse of discretion standard. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011). To preserve error in admitting evidence, a party must make a timely and proper objection and obtain a ruling. TEX. R. EVID. 103(a)(1); TEX. R. APP. P. 33.1(a). A party must thus object each time the inadmissible evidence is offered or obtain a running objection. Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004); Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003).
Moreover, "erroneously admitting evidence 'will not result in reversal when other such evidence was received without objection, either before or after the complained-of ruling.'" Coble v. State, 330 S.W.3d 253, 282 (Tex. Crim. App. 2010) (quoting Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App .1998)); see also Estrada v. State, 313 S.W.3d 274, 302 n.29 (Tex. Crim. App. 2010) (noting any error was harmless in light of "very similar" evidence admitted without objection). Thus, error in admitting of evidence may be rendered harmless when "substantially the same evidence" is admitted elsewhere without objection. Mayes v. State, 816 S.W.2d 79, 88 (Tex. Crim. App. 1991), superseded by statute on other grounds, TEX. CODE CRIM. PROC. ANN. art. 38.37 (West Supp. 2015).
Here, there was no objection to the complained-of testimony. And, even if we generously construe appellant's initial hearsay objection to include the officer's testimony about "other persons," that same testimony was also admitted without objection from other sources. For example, Officer Reynolds testified that JE's grandmother "believed something was going on" between appellant and JE. Officer Worthington developed a suspicion that JE and appellant had a sexual relationship, so she notified the child abuse department and made a note of her suspicion in her report.
We therefore conclude that because appellant did not timely object and the evidence was also admitted from other sources without objection, any error in admitting the statements was not preserved and was harmless. We overrule appellant's second issue.
Having resolved all of appellant's issues against her, we affirm the trial court's judgment.
/Bill Whitehill/
BILL WHITEHILL
JUSTICE Do Not Publish
TEX. R. APP. P. 47
150084F.U05
JUDGMENT
On Appeal from the 292nd Judicial District Court, Dallas County, Texas
Trial Court Cause No. F-1361793-V.
Opinion delivered by Justice Whitehill. Justices Lang and Brown participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered March 8, 2016.
JUDGMENT
On Appeal from the 292nd Judicial District Court, Dallas County, Texas
Trial Court Cause No. F-1372175-V.
Opinion delivered by Justice Whitehill. Justices Lang and Brown participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered March 8, 2016.