Opinion
Nos. 05-08-01199-CR, 05-08-01200-CR, 05-08-01201-CR
Opinion Issued August 28, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 336th Judicial District Court, Grayson County, Texas, Trial Court Cause Nos. 056213-336, 056594-336 056595-336.
Before Justices WRIGHT, BRIDGES, and FRANCIS.
OPINION
Douglas John Wise appeals his convictions for aggravated sexual assault, burglary, and aggravated kidnapping. In nine points of error, appellant claims the evidence is legally and factually insufficient to support the aggravated sexual assault and aggravated kidnapping convictions, his prosecutions were barred by double jeopardy, his Sixth Amendment right to confront certain witnesses was violated, and the trial court erred in admitting certain evidence, denying his request for a continuance, and allowing the State to call a witness when the State knew the witness would invoke his Fifth Amendment right not to testify. He also alleges the cumulative effect of these errors denied his right to due process. We affirm the trial court's judgments. Sometime after eleven o'clock on the evening of May 17, 2007, H.C. was awakened when Bryan Shipman, Jason Whitten, and appellant broke into her house. Whitten and appellant sexually assaulted H.C. after which her hands and feet were bound with electrical cords and tape. They then placed her in a closet. After appellant and Whitten left, Shipman pulled H.C. out of the closet and forced her to perform oral sex on him. Shipman forced her back in the closet when the other two men returned with a woman. The woman spoke to H.C. through the closet door and asked if the men had raped her. She then promised to help H.C. When Whitten, appellant, and the woman left, Shipman again removed H.C. from the closet and forced her to perform oral sex. Appellant and Whitten returned for the final time, and the three men put H.C. in the closet, barricaded the door with a chest of drawers, and left. Shortly thereafter, around eleven o'clock in the morning, H.C. was able to free herself. All three men were subsequently arrested, and each was charged with aggravated sexual assault, burglary, and aggravated kidnapping. In exchange for his testimony against his codefendants, Shipman pleaded guilty and received thirty-five years in prison for each offense. Whitten was convicted of all three offenses, receiving two life sentences for the aggravated felony offenses and twenty years in prison for the burglary offense. Appellant was likewise found guilty of all three offenses. The jury assessed punishment at life and a $10,000 fine for each aggravated offense and twenty years in prison and a $10,000 fine for the burglary offense. Appellant now challenges these convictions. In his first point of error, appellant claims the indictments and jury charges in these cases allowed for a double jeopardy "multiple punishments" violation. Specifically, appellant claims the allegations of aggravated kidnapping required proof that appellant committed burglary and aggravated sexual assault and, therefore, he was twice punished for those offenses when the jury found him guilty of all three offenses. We apply the "same elements" test first articulated by the United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 304 (1932), and adopted by the Texas Court of Criminal Appeals, to determine if two convictions constitute "multiple punishment" under the Double Jeopardy Clause. State v. Holguin, 861 S.W.2d 919, 920 (Tex. Crim. App. 1993). When the same act or transaction constitutes a violation of two distinct statutory provisions, the test we apply to determine whether there are two offenses or only one is whether each provision requires proof of a fact that the other does not. Blockburger, 284 U.S. at 304; Holguin, 861 S.W.2d at 920. When a defendant is convicted of both burglary and a separate felony committed during that burglary, a Blockburger multiple-punishment analysis depends on the type of burglary charged. Langs v. State, 183 S.W.3d 680, 686 (Tex. Crim. App. 2006). A defendant may not be punished for both the underlying felony and burglary if the burglary allegation is that the defendant entered a home without the consent of the owner and then committed the underlying felony within the home as defined by section 30.02(a)(3) of the penal code. Id. However, the commission of a felony and a second felony that alleges the intent to commit the first felony are two distinct criminal acts, and each offense requires the State prove an element that the other does not. Gonzales v. State, 270 S.W.3d 282, 287 (Tex. App.-Amarillo 2008, pet. ref'd) (citing Langs, 183 S.W.3d at 686). Appellant first alleges the burglary and aggravated kidnapping charges overlap. He claims we must focus "on the unlawful entry. Since both offenses required this proof, appellant is being punished for burglary twice." The burglary charge, which tracked the indictment, instructed the jury to convict appellant if the jury found from the evidence beyond a reasonable doubt that appellant entered H.C.'s house without her consent and then attempted to commit or committed either assault or theft. The aggravated kidnapping charge, which also tracked the indictment, instructed the jury to convict appellant of aggravated kidnapping if the jury found from the evidence beyond a reasonable doubt that appellant did, with the intent to facilitate the commission of or flight from a felony, namely burglary of a habitation, intentionally or knowingly abduct H.C. Under this charge, the State was not required to prove appellant unlawfully entered H.C.'s house, only that he intended to facilitate the commission of burglary, and in the course of doing so committed the kidnapping. Because the State was not required under the charge given, to prove unlawful entry to obtain a conviction for aggravated kidnapping, appellant's first argument fails. Appellant's second argument is much like the first in that he contends he was twice punished for aggravated sexual assault because the aggravated sexual assault and aggravated kidnapping charges overlap. However, to convict appellant of aggravated kidnapping, the jury was not required to find appellant committed kidnapping and aggravated sexual assault; rather, the jury was required to find only that, with intent to facilitate the commission of aggravated sexual assault, he committed the kidnapping. See Gonzales, 270 S.W.3d at 287 (aggravated kidnapping charge that alleged defendant committed kidnapping by abducting complainant with intent to commit sexual assault is distinct criminal offense from actual commission of aggravated sexual assault). We overrule appellant's first point of error. In his fifth point of error, appellant contends the trial court erred in allowing the State to call Whitten to testify before the jury when the State knew Whitten would invoke his Fifth Amendment right not to testify. If a witness has a valid Fifth Amendment privilege, it is generally error for the State to call the witness when it knows that the witness will assert his Fifth Amendment privilege. Vargas v. State, 442 S.W.2d 686, 687 (Tex. Crim. App. 1969). However, if a witness is granted immunity, the State may call the witness to the stand even if the State knows that the witness will assert his Fifth Amendment privilege. Coffey v. State, 796 S.W.2d 175, 177 (Tex Crim. App. 1990). The rationale is that when a witness is granted immunity for his testimony, the witness does not have a valid basis for refusing to testify. Id. at 179. In a hearing outside the jury's presence, the State called Whitten to testify about the facts of the case and Whitten stated he intended to "take the Fifth not to testify." Prosecutor Joe Brown offered Whitten testimonial, or use, immunity. He then introduced a letter written by Whitten to Brown, stating
I will testify for you at [appellant's] trial. It is only right. I want to help the girl in any way possible. So, if you want or need me to testify, I'm willing to do that.Brown told the court he had met with Whitten prior to trial and "debriefed him extensively on the facts of the case, and he has represented what I believe to be truthful testimony to me and indicated to me that he would testify." Whitten's counsel objected and argued the State could not offer Whitten immunity once he had been convicted of the same offenses for which appellant was on trial. Whitten's counsel acknowledged the pending motions for new trial and pending appeals in his client's cases. The trial court overruled his objection and granted Whitten testimonial immunity, instructing Whitten that while he could be prosecuted for perjury should he lie during his testimony, "anything that you testify about today, none of the information you give today will be able to be used against you in any form or fashion." The court then instructed Whitten he would be required to testify truthfully and if he chose not to, he would be held in contempt of court. Nevertheless, Whitten continued to state he would not testify. The jury was brought in; the State called Whitten to testify and, initially, he answered certain questions, such as admitting knowing appellant and identifying him in open court. When Brown asked Whitten about the events that occurred the night before H.C. was assaulted, Whitten refused to answer. Brown asked Whitten if he had written and sent a letter to Brown, indicating he was willing to testify, and whether he met personally with Brown and said he would testify. Whitten responded he did but explained he did so only because he wanted to "come down there and get a soda pop." Brown then asked Whitten if he would answer some questions about "that night." Whitten said he would and testified he walked to H.C.'s house the night of May 17, 2008 with some "other people" and they gained access to the house when a window was broken out. He admitted seeing other people in H.C.'s house but when asked if he saw anyone having sex with H.C., he refused to answer. Brown reiterated his offer of testimonial immunity. The trial court again approved it and instructed Whitten to answer the questions asked him. Although Whitten responded, "Yes, ma'am," he thereafter refused to answer any questions. Brown asked that Whitten be held in contempt and the trial court did so. Brown then indicated he was through questioning the witness. Defense counsel cross-examined Whitten who agreed to answer his questions. The following occurred:
DEFENSE:
Did you sexually assault [H.C.]?
WHITTEN:
Yes, sir.
DEFENSE:
Were you taking — were you high on methamphetamine at the time?
WHITTEN:
Yes, sir.
DEFENSE:
Did you see anyone else sexually assault [H.C.]?
WHITTEN:
I ain't going to answer that.
DEFENSE:
What?
WHITTEN:
I'm not going to answer that question.
DEFENSE:
Did you see Bryan Shipman sexually assault [H.C.]?
WHITTEN:
No, sir.Whitten continued to answer defense counsel's questions until he was asked with whom he had entered into an agreement to burglarize H.C.'s house. At that point, Whitten refused to answer, and defense counsel, stating he did not believe the witness was going to answer any more questions, passed the witness. After a brief redirect and recross, Whitten was allowed to step down. Because Whitten had been granted testimonial immunity, he did not have a valid basis for refusing to testify. See Coffey, 796 S.W.2d at 179. Thus, the trial court did not err in allowing the State to call Whitten. Appellant also argues the prosecutor's questioning "caused the jury to assume [Whitten's] testimony if given would incriminate Appellant." We note, however, it was defense counsel's questions that elicited Whitten's testimony that Whitten sexually assaulted H.C., would not answer whether or not he saw anyone else sexually assaulting H.C., and did not see Shipman sexually assault H.C. Given H.C.'s testimony that three men broke into her house, two of whom vaginally penetrated her and the third forced her to perform oral sex, we conclude it is likely that, if the jury assumed Whitten's testimony would incriminate appellant, it was due to the questions proffered by appellant that were answered by Whitten. Ultimately, Whitten answered most of the questions asked by the defense with the State objecting three times to Whitten's answering defense questions but not the State's questions; the objections were overruled. We overrule appellant's fifth point of error. In his sixth point of error, appellant argues the trial court erred in allowing the prosecutor to question Whitten about a letter that appellant asserts he was not allowed to see or to use to confront and cross-examine other witnesses. The letter, which was not admitted into evidence and was not shown to the jury, purports to be Whitten's recollection of the events of that night. Whitten denied writing the letter, identified as DJW 138, but stated it might be in the handwriting of Courtney Perkins, who had been in the county jail with Whitten and had "written Whitten's discovery." At the prosecutor's request, Whitten read the letter to himself and, when asked whether the information in the letter was true, Whitten responded "It goes by the discovery." Asked to clarify whether "the things that are written in here" are true, Whitten again stated "Yeah, if you was looking at the discovery." Although the prosecutor asked if he saw appellant "behind the girl" or whether he yelled appellant's name through the broken window, Whitten declined to testify further about the letter. When questioned by appellant, Whitten said that although it depended on what the defense asked, he would probably not answer his questions either. Both the prosecutor and defense counsel stated they had no further questions. When defense counsel asked to see the letter, the trial court stated, "Sure. There's no prohibition from you seeing it. It's just not . . . before the jury." Initially, we note that when appellant cross-examined Whitten, he did not ask Whitten any specific questions about the letter. Thus, appellant failed to preserve this issue. Furthermore, the trial court did not refuse to allow appellant to cross-examine Whitten; rather, appellant chose not to ask Whitten any questions about the letter. The record also shows the trial court did not refuse to allow defense counsel to see the letter. Finally, the jury did not view the letter and was not informed of its contents. Under these circumstances, we cannot conclude appellant's argument has merit. We overrule point of error six. Under his seventh point of error, appellant claims the trial court erred in admitting Whitten's hearsay statements without giving appellant a meaningful opportunity to confront and cross-examine him. Specifically, appellant claims several witnesses testified Whitten told them appellant raped H.C. and appellant was not given a "meaningful opportunity to confront and cross-examine" Whitten regarding these statements. As noted previously, Whitten took the stand and initially invoked his Fifth Amendment right to not testify. However, when defense counsel asked Whitten if he was going to answer any questions, Whitten answered, "It depends." Thereafter, counsel asked and Whitten answered several questions. Counsel did not ask Whitten about any of the statements he now complains of on appeal. Because appellant had the opportunity to question Whitten about these statements and chose not to, we cannot conclude the trial court erred in admitting the statements nor can we conclude appellant's Sixth Amendment right to confront and cross-examine was limited. We overrule appellant's seventh point of error. Appellant's eighth point of error states the trial court erred in admitting the testimony of Patrick Reasoner, Whitten's cellmate in the county jail, in violation of appellant's right to due process and his right to confront and cross-examine. Except for a general statement that every person charged with a criminal offense is entitled to due process of law, appellant's eighth point contains no discussion of the right to confront witnesses nor does it contain any citation to the record or legal authority in support of his complaints. Rule 38.1(i) of the Texas Rules of Appellate Procedure requires an appellant's brief to contain "a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Tex. R. App. P. 38.1(i). Failure to provide the appellate court with citation to the record and substantive analysis of questions raised waives review. See Salazar v. State, 38 S.W.3d 141, 147 (Tex. Crim. App. 2001). Because appellant failed to provide a clear and concise argument as well as legal authority in support of his contentions, we conclude this argument is inadequately briefed and presents nothing for this Court to review. We overrule the eighth point of error. In his fourth point of error, appellant claims the evidence is legally and factually insufficient to support his convictions. Specifically, appellant argues his conviction for aggravated sexual assault cannot stand because there is no evidence or insufficient evidence that appellant caused or placed H.C. in fear of death or serious bodily injury. On a legal sufficiency challenge, this Court reviews the evidence in the light most favorable to the jury's verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hooper v. State, 214 S.W.3d 9, 14 (Tex. Crim. App. 2007). The reviewing court must give deference to "the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Hooper, 214 S.W.3d at 14 (citing Jackson, 443 U.S. at 318-19). The jury is the sole judge of the witnesses' credibility and the weight to be given their testimony and, therefore, is free to accept or reject any or all evidence presented by either side. See Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008). On a factual sufficiency challenge, we view all the evidence from a neutral perspective. Watson v. State, 204 S.W.3d 404, 415 (Tex. 2006). The evidence, though legally sufficient, is factually insufficient if it is so weak that the jury's verdict seems clearly wrong and manifestly unjust, or if, considering conflicting evidence, the jury's verdict, though legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Berry v. State, 233 S.W.3d 847, 854 (Tex. Crim. App. 2007). A clearly wrong and unjust verdict occurs where the jury's finding is manifestly unjust, shocks the conscience, or clearly demonstrates bias. Id. The difference between the two standards is that the former requires the reviewing court to defer to the jury's credibility and weight determinations while the latter permits the reviewing court to substitute its judgment for the jury on these questions but only "to a very limited degree." Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006), cert. denied, 128 S. Ct. 87 (2007). A factual sufficiency review is "barely distinguishable" from a Jackson legal sufficiency review. Id. A person commits aggravated sexual assault if he commits sexual assault and by acts or words places the victim in fear that death or serious bodily injury will be imminently inflicted on any person or by acts or words occurring in the presence of the victim threatens to cause the death or serious bodily injury of any person. Tex. Penal Code Ann. § 22.021(a)(2)(A)(ii), (iii) (Vernon Supp. 2008). The jury, as fact finder, may consider a defendant's objective conduct, his acts, words, or deeds and infer from the totality of the circumstances whether his overall conduct placed the complainant in fear of serious bodily injury. Grunsfeld v. State, 813 S.W.2d 158, 162 (Tex. App.-Dallas 1991), aff'd, 843 S.W.2d 521 (Tex. Crim. App. 1992). The indictment and charge in the aggravated sexual assault case provided appellant intentionally or knowingly caused the penetration of H.C.'s sexual organ by appellant's sexual organ, without H.C.'s consent, and that appellant "did then and there by acts or words threaten to cause or place [H.C.] in fear that death or serious bodily injury would be imminently inflicted on [H.C.], and said acts or words occurred in the presence of" H.C. The evidence at trial established appellant, Shipman, and Whitten broke into H.C.'s house sometime after eleven o'clock on the night of May 17, 2007. Although she had two roommates, H.C. was alone that night. Before going to bed, H.C. made sure the doors were locked. She awoke when her bedroom door banged open. H.C. jumped out of bed and, realizing it was a man in her doorway and not one of her roommates, turned to get her phone. The man, later identified as appellant, came around behind her. He put his arm around her neck and forced her onto her bed. When she struggled, saying, "No, no, stop," he told her to be quiet and not to try anything. With his arm around her neck, he dragged her backwards, down the hall toward the bathroom. He was choking her as he dragged her and told her again, "Don't try anything." Outside the bathroom, he spun her around and forced her to her hands and knees. He would not let her look around. According to H.C., he was rough and forceful. He removed her shorts and underwear and, after putting on a condom, penetrated her vagina with his penis. After a while, he penetrated her anus with his penis. About a minute later, he penetrated her vagina a second time. H.C. testified she was scared and did not know if she would "make it out alive." Because it was the middle of the night, she thought if she screamed no one would hear her. At that point, she knew other people were in her house, but appellant told her not to look at them, not to move, and not to try anything. H.C. testified the men threatened her. When she moved, they yelled at her and said, "What are you doing?" They told her if she looked at them, she would be sorry. She believed they had weapons and was in fear that death or serious bodily injury would be inflicted on her that night. In light of this evidence, the jury could reasonably infer appellant's overall conduct placed H.C. in fear of serious bodily injury or death. See Grunsfeld, 813 S.W.2d at 162. Therefore, we conclude the evidence was legally sufficient to establish beyond a reasonable doubt that appellant intentionally or knowingly caused the penetration of H.C.'s sexual organ by his sexual organ, without her consent, and that by acts or words threatened to cause or place H.C. in fear that death or serious bodily injury would be imminently inflicted on her and such acts or words occurred in H.C.'s presence. From a factual sufficiency viewpoint, the State's evidence was not so obviously weak that the convictions were clearly wrong and unjust, nor was the evidence, when considering conflicting evidence, against the great weight and preponderance of the evidence. Thus, the evidence was legally and factually sufficient to support appellant's conviction for aggravated sexual assault. Appellant also challenges the sufficiency of the evidence to support his conviction for aggravated kidnapping. Under this argument, he claims only that in light of his double jeopardy argument and his arguments about the admissibility of certain evidence, his conviction for aggravated kidnapping cannot stand. We have previously concluded the indictments and jury charges in these cases did not allow for a double jeopardy "multiple punishments" violation and that appellant's complaints regarding the admissibility of evidence lacked merit; therefore, we overrule his sufficiency challenges for his aggravated kidnapping conviction. We overrule the fourth point of error. In his second point of error, appellant claims the trial court erred in admitting the photographic line-up and the testimony of H.C. and Officer Jeremy Cox regarding the line-up. Appellant contends the line-up was impermissibly suggestive as a matter of law because H.C. was told one of her attackers might be in the line-up. An in-court identification is inadmissible when it has been tainted by an impermissibly suggestive pretrial photographic identification. Ibarra v. State, 11 S.W.3d 189, 195 (Tex. Crim. App. 1999). The test is whether, considering the totality of the circumstances, "the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Id. Suggestiveness may be created "by the content of the line-up or photo array itself if the suspect is the only individual closely resembling the pre-procedure description." Barley v. State, 906 S.W.2d 27, 33 (Tex. Crim. App. 1995). The manner in which the pre-trial identification procedure is conducted may be suggestive, "for example by police pointing out the suspect or suggesting that a suspect is included in the line-up or photo array." Id. H.C. testified Officer Cox gave her six photographs and told her that her attackers may or may not be in the line-up. According to Officer Cox, he did not prepare the photographic line-up but was the officer who showed the photographs to H.C. He told H.C. the people in the photographs "may or may not be the ones who did whatever offense, this particular incident to her." Thus, the record shows the officer did not tell H.C. her attackers were or even might have been in the line-up; rather, he told H.C. the people in the pictures may or may not be the ones who committed the offenses. This, without more, does not render a photographic line-up impermissible. See Abney v. State, 1 S.W.3d 271, 275 (Tex. App.-Houston [14th Dist.] 1999, pet. ref'd) (pretrial identification procedure not impermissibly suggestive merely because witness may have believed one of individuals in photo array or lineup was suspect). We overrule appellant's second point of error. In his third point of error, appellant contends the trial court abused its discretion in refusing to grant a continuance. During trial, Whitten's attorney disclosed the existence of a letter written by Shipman to his client. The letter indicated Shipman had lied about the existence of a gun on the night of the offenses when he testified during Whitten's trial. When asked whether he wrote the letter, Shipman denied it. Appellant asked for, and obtained, a handwriting sample for the purpose of having an expert determine whether Shipman wrote the letter. On the day the expert was to testify, appellant informed the court he had been told the expert witness was "not willing to come forward because he does not believe that he will be approved as an expert." Appellant then asked for a continuance to "retain and get an analysis of an expert witness on the handwriting." The trial court denied appellant's oral motion for continuance. We question whether appellant has preserved this issue for review. To preserve error, a motion for continuance must be sworn and in writing. Dewberry v. State, 4 S.W.3d 735, 755 (Tex. Crim. App. 1999). Appellant's motion was neither written nor sworn and, under the court of criminal appeal's holding in Dewberry, fails to preserve his complaint. See id. at 756. Appellant argues, however, he may bring an oral motion for continuance in this situation, citing this Court's holding in O'Rarden v. State, 777 S.W.2d 455 (Tex. App.-Dallas 1989, pet. ref'd). In O'Rarden, this Court addressed an oral motion for continuance based on the discovery, after trial commenced, of evidence favorable to the accused that the prosecution had suppressed. Id. at 460. We concluded the prosecution's suppression of evidence favorable to a defendant violates due process when such evidence is material either to guilt or to punishment and the failure of the trial court to allow the defense the opportunity to adequately determine the nature of the favorable evidence is tantamount to the denial of a fair trial. Id. at 458. In this case, however, the prosecution did not suppress or fail to disclose the evidence; rather, it was Whitten, one of appellant's co-defendants, who had the evidence and disclosed it to appellant after trial commenced. Because the facts in the O'Rarden case involve wrong doing on the part of the prosecution, an issue not present in this case, the O'Rarden holding does not apply to appellant's case. We conclude that, by failing to file a written, sworn motion for continuance, appellant has failed to preserve his complaint for our review. We overrule appellant's third point. In his ninth and final point of error, appellant complains the cumulative effect of the trial court's errors substantially affected appellant's right to a fair and impartial jury. Although it "is conceivable that a number of errors may be found harmful in their cumulative effect . . ., we are aware of no authority holding that non-errors may in their cumulative effect cause error." Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999). Having found no error, we overrule appellant's ninth point of error. We affirm the trial court's judgments.