COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-05-317-CR
RODNEY ALLEN MCGLOTHLIN APPELLANT
A/K/A RODNEY A. MCGLOTHLIN
V.
THE STATE OF TEXAS STATE
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FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY
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OPINION
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A jury convicted Appellant Rodney Allen McGlothlin of two counts of
sexual assault of a child (Counts One and Two) and one count of indecency
with a child (Count Three), all charged in a single indictment. The trial court
sentenced Appellant to fifteen years’ and ten years’ confinement respectively
on the sexual assault convictions and five years’ confinement for the indecency
with a child conviction, with the three sentences to be served consecutively.
In twelve points, Appellant challenges the legal and factual sufficiency of
the evidence, argues violations of his Sixth Amendment right to confrontation
and of Texas Rules of Evidence 107 and 612, raises double jeopardy questions,
and challenges the propriety of a portion of the juror questionnaire. Because
the evidence is legally insufficient to support the conviction for indecency with
a child, we reverse the judgment and enter an acquittal as to that count. We
affirm the judgment as to the two convictions of sexual assault of a child.
B ACKGROUND F ACTS
Appellant was an associate pastor at Grace Worship Center in Cleburne,
Texas, a church that he had started with his brother. He also had a business
painting apartments.
Appellant and his wife Samantha met the complainant, H.S., at another
church in August 2001, when she was fourteen. H.S. lived with her aunt at
the time. Her aunt accused H.S. of molesting one of her younger cousins; H.S.
was ultimately adjudicated delinquent for committing injury to a child and
placed on probation. In November 2001, H.S. began living with Appellant and
his wife. The McGlothlins homeschooled H.S. and became her legal guardians.
In January 2002, when H.S. was fifteen, she began painting apartments
with Appellant. Another man, Roosevelt Thomas, worked with them. H.S.
testified that from August or September until November 2002, Appellant had
2
sex with her on a number of occasions. The last incident occurred on
November 8, 2002. Appellant and Thomas took H.S. to a motel, where both
men had sex with her.
As part of her probation, H.S. had been ordered to attend weekly
counseling sessions. At her session on November 12, 2002, H.S. told
counselor Therese Fleming about the sexual activity with Appellant and showed
her a “hickey” on her left breast. Fleming and H.S. then told Samantha, and
Fleming reported the abuse to the police.
H.S. was placed at Buckner Children’s Assessment Center in Dallas and
was given a rape examination. The doctor found a condom with Thomas’s
DNA lodged inside H.S.’s vagina.
Appellant was tried on two counts of sexual assault of a child under
seventeen by contact and one count of indecency with a child by sexual
contact. At trial, Samantha testified that Appellant had admitted to her that
H.S.’s allegations were true, although initially Samantha told no one about his
admissions. In July 2003, after becoming afraid that Appellant would harm her
or others, she told the police.
S UFFICIENCY OF THE E VIDENCE R EGARDING C OUNT T HREE OF THE INDICTMENT
In his first two points, Appellant argues that the evidence is legally and
factually insufficient to support his conviction for indecency with a child as
3
alleged in Count Three of the indictment. The State candidly agrees. As both
the State and Appellant point out, the State elected to seek a conviction based
on Appellant’s conduct on November 8, 2002, at the Great Western Inn. The
State concedes that the evidence does not prove beyond a reasonable doubt
that Appellant touched H.S.’s breasts during the episode that occurred at the
Great Western Inn on that date. Accordingly, we sustain Appellant’s first two
points, reverse the judgment of conviction for indecency with a child as alleged
in Count Three of the indictment, and enter an acquittal on that count.
We shall address the next point with regard to the only live counts,
Counts One and Two. 1
D OUBLE J EOPARDY
In his tenth point, Appellant argues that the trial court’s judgments of
conviction for Counts One and Two, occurring within a single episode or event,
constitute double jeopardy. As both the State and Appellant agree, the State
elected to prosecute Appellant for the offense that occurred on November 8,
2002, at the Great W estern Inn Motel. On that date in that place, there is
evidence that Appellant had H.S. perform oral sex on him and that he had
vaginal intercourse with her.
1
… See T EX. R. A PP. P. 47.1.
4
Section 22.011 of the penal code provides that a person commits an
offense if he intentionally or knowingly:
(A) causes the penetration of the anus or sexual organ of a
child by any means;
(B) causes the penetration of the mouth of a child by the
sexual organ of the actor;
(C) causes the sexual organ of a child to contact or penetrate
the mouth, anus, or sexual organ of another person, including the
actor; [or]
...
(E) causes the mouth of a child to contact the anus or sexual
organ of another person, including the actor.2
Count One of the indictment provides that Appellant “did intentionally or
knowingly cause the sexual organ of [H.S.], a child younger than 17 years of
age who was not the spouse of [Appellant] to contact the sexual organ of
[Appellant].” Count Two provides that Appellant “did intentionally or knowingly
cause the mouth of [H.S.], a child younger than 17 years of age who was not
the spouse of [Appellant] to contact the sexual organ of [Appellant].” Appellant
argues that the convictions of sexual assault by causing H.S.’s sexual organ to
2
… T EX. P ENAL C ODE A NN. § 22.011(a)(2) (Vernon Supp. 2007). The
changes between the current statute and the statute in effect at the time of the
offense are not material to this appeal. Therefore, all citations will be to the
statute currently in force.
5
contact his sexual organ and sexual assault by causing H.S.’s mouth to contact
his sexual organ, both occurring within the same criminal episode, constitute
two convictions and two punishments for a single offense, sexual assault
occurring at the motel on November 8, 2002.
In Vick v. State, the Texas Court of Criminal Appeals held that double
jeopardy protections do not preclude prosecution for aggravated sexual assault
of a child by causing the child’s sexual organ to contact the defendant’s mouth
and, separately, prosecution for aggravated sexual assault of a child by
penetrating the child’s sexual organ with the defendant’s sexual organ during
the same criminal transaction.3 The Vick court explained that when a statute
prohibits disjunctively separate acts of sexually assaultive conduct, “this
specificity reflects the legislature’s intent to separately and distinctly criminalize
any act which constitutes the proscribed conduct. An offense is complete
when a person commits any one of the proscribed acts.” 4 Consequently, the
Vick court concluded that the legislature intended that each separately
described act “constituted a separate and distinct statutory offense.” 5 The Vick
3
… 991 S.W.2d 830, 833 (Tex. Crim. App. 1999).
4
… Id.
5
… Id.
6
court held that the Blockburger test does not apply.6 It is only necessary that
the State plead the separate manners of committing the offense in separate
counts rather than pleading alternative manners and means in separate
paragraphs. 7
Appellant relies on Patterson v. State for the proposition that the
legislature never intended to authorize “stop-action” prosecution; that is, the
legislature did not intend to prosecute for every action in furtherance of a
greater offense.8 Thus, Appellant contends, the legislature did not intend to
permit prosecution for exposure and sexual contact and penetration, all single
steps in the completed offense of sexual assault by penetration.9 The Patterson
court specifically stated,
Just as a conviction for a completed offense bars prosecution for
an attempt to commit the same offense, a conviction for an offense
set out in section 3.03 bars conviction for conduct that, on the
facts of the case, is demonstrably part of the commission of the
greater offense. For example, indecency by genital exposure of
oneself in the course of manual penetration of another are separate
offenses, while penile contact with mouth, genitals, or anus in the
6
… Id.
7
… Id. at 834.
8
… 152 S.W.3d 88, 92 (Tex. Crim. App. 2004).
9
… See id.
7
course of penile penetration will be subsumed.10
The emphasized language in Patterson seems to conflict directly with the
language in Vick.
H.S. testified that on the way to the hotel, they stopped at a convenience
store, and Thomas got out to buy condoms. She did not remember the brand,
but she did “know that they were flavored and assorted colors.” When they
got into the hotel, she began to undress herself. Appellant had sex with her
first, so he began to undress himself. H.S. testified that
they bought the condoms so that — and they’re assorted
flavors and colors, so that way I can give oral sex. So [Appellant]
put a condom on and I began to give him oral sex.
....
I gave [Appellant] oral sex, and soon after, he began to have
sex with me. He inserted his penis into my vagina at that point.
....
[Appellant] finished having sex with me from behind after he
inserted his penis into my vagina and then Roosevelt got behind me
and inserted his penis into my vagina.
The facts before us show contact between H.S.’s mouth and Appellant’s sexual
organ, alleged in Count Two of the indictment, and actual penetration of H.S.’s
sexual organ with Appellant’s sexual organ. Yet the State chose to plead the
10
… Id. at 92 (emphasis added).
8
penetration as contact between H.S.’s sexual organ and that of Appellant in
Count One.
Under the reasoning of Patterson, had the State pled penetration of H.S.’s
sexual organ by Appellant’s sexual organ, and contact between her sexual
organ and his genitals, the case would fall squarely within the parameters of
Patterson, and the genital contact would have been subsumed in the genital
penetration. But that is not what happened here. In this case, the State pled
genital contact and oral-genital contact. The Texas Court of Criminal Appeals
has specifically addressed the issue now before this court, explaining,
In defining sexual contact, the Legislature placed limitations on the
prohibited conduct by criminalizing only three specific types of
acts. A person can engage in sexual contact by touching the anus,
by touching the breast, or by touching the genitals with the
requisite intent. Each one of these acts represents a different
offense. Any alternative mode of commission relates to how the
touching was effectuated, not where the touching occurred.
This determination comports with our decision in Vick v.
State, in which we held that aggravated sexual assault, as defined
in Section 22.021(a)(1)(B), Penal Code, is a conduct-oriented
offense that proscribes separate and distinct acts of commission.
There, we were confronted with the issue of whether the
prohibition against double jeopardy precludes multiple prosecutions
under Penal Code Section 22.021(a)(1)(B) where the proscribed
conduct occurred during the same transaction. Looking at the
statutory text of subsections (i)-(iv) in Section 22.021(a)(1)(B), we
recognized that (i) and (ii) "concern penetration of the child, one
focusing on the genital area, and the other on the mouth[,]" while
(iii) and (iv) concern "penetration and contact of another in a sexual
fashion, by the sexual organ or anus of the child." We also
9
observed that subsections (i)-(iv) are separated by "the conjunctive
'or' to distinguish and separate different conduct[.]" We then
concluded:
The statute criminalizes many types of sexually
assaultive conduct with a child. Yet, each section
usually entails different and separate acts to commit
the various, prohibited conduct. This specificity
reflects the legislature's intent to separately and
distinctly criminalize any act which constitutes the
proscribed conduct. An offense is complete when a
person commits any one of the proscribed acts.
Based on this determination, we held that "the Legislature,
through the language of the statute, has rejected grouping
aggravated sexual assaults by 'transaction.' " We therefore
concluded that the State's subsequent prosecution of the appellee,
Vick, for causing the female sexual organ of the victim to contact
appellee's mouth under subsection (a)(1)(B)(iii) following an
acquittal for the offense of causing the penetration of the female
sexual organ of the victim with appellee's sexual organ under
subsection (a)(1)(B)(i) was not barred for double jeopardy purposes
when the offenses occurred during the same transaction.11
Based on the Texas Court of Criminal Appeals’s explanation in Pizzo, we hold
that Appellant’s convictions based on genital contact and oral-genital contact
do not violate double jeopardy protections. We overrule Appellant’s tenth point.
11
… Pizzo v. State, 235 S.W.3d 711, 717–18 (Tex. Crim. App. 2007)
(citations omitted).
10
C ROSS-E XAMINATION OF H.S.
In his fourth point, Appellant argues that the trial court violated rule 107
of the Texas Rules of Evidence, 12 the rule of optional completeness, by limiting
his cross-examination of H.S. concerning an accusation that she had
perpetrated sexual offenses against her younger cousins. H.S. testified that she
went to live with Appellant and his family because certain allegations had been
made against her by the aunt with whom she had been living. Appellant argues
that he should have been able to present to the jury testimony concerning the
type of allegations the aunt had made against H.S. He argues that because the
trial court did not allow the explanation, he was unable to put the information
in proper context, leaving a false impression with the jury that H.S. was not the
kind of person who would willingly be involved in sexual activities.
The State points out that the trial court specifically found that the
potential prejudicial impact highly outweighed the limited probative value “to
make that one point, particularly in lieu of the whole record.” As the State also
points out, rule 412 of the Texas Rules of Evidence, known as the rape shield
law, governs the admissibility of a complainant’s prior sexual conduct in a
12
… T EX. R. E VID. 107.
11
sexual assault prosecution.13 Rule 412 precludes evidence of specific instances
of the complainant’s past sexual behavior except under certain limited
circumstances.14 Because H.S. was younger than seventeen years of age,
consent is not an issue or defense in this case.15 Nor is promiscuity a defense
under current law. 16
The jury was allowed to hear evidence that in the past, H.S. had falsely
claimed to have been kidnapped at gunpoint and gang raped when in reality she
and her roommate had hitched a ride with some men in their twenties, used
cocaine, and had sex with multiple partners in a room at an automotive shop.
Additionally, several witnesses testified that H.S. was not truthful. Her aunt
testified that H.S. had falsely accused her sons of molesting her and had
admitted two weeks later that she had lied. A.H., who attended school with
H.S. for a few months, testified that H.S. had told friends that she had slept
13
… T EX. R. E VID. 412; Hale v. State, 140 S.W.3d 381, 396 (Tex.
App.—Fort Worth 2004, pet. ref’d).
14
… See T EX R. E VID. 412(b).
15
… See T EX. P ENAL C ODE A NN. § 22.011(a)(1), (b); T EX. R. E VID.
412(b)(2)(B).
16
… See T EX. P ENAL C ODE A NN. § 22.011; see also Graves v. State, 994
S.W.2d 238, 245 n.6 (Tex. App.—Corpus Christi 1999, pet. ref’d, untimely
filed); Riley v. State, 953 S.W.2d 354, 357 n.1 (Tex. App.—Austin 1997, pet.
ref’d).
12
with A.H.’s boyfriend and also testified that it was a lie.
H.S. admitted that she had had trouble telling the truth when she was
younger and that she had lied when living with Appellant and his family to avoid
getting in trouble, but she claimed that she was telling the truth about the
accusations against Appellant.
Because any possible probative value of the testimony concerning H.S.’s
sexually abusing her cousins was overwhelmingly outweighed by the prejudicial
and inflammatory nature of the testimony, the trial court did not abuse its
discretion by refusing to allow the evidence before the jury.17 We overrule
Appellant’s fourth point.
In his third point, Appellant contends that the trial court violated his Sixth
Amendment right to confrontation by limiting his cross-examination of H.S.
regarding the abovementioned evidence. In Lopez v. State, 18 the Texas Court
of Criminal Appeals explained,
Each Confrontation Clause issue must be weighed on a
case-by-case basis, carefully taking into account the defendant's
right to cross-examine and the risk factors associated with
admission of the evidence. In weighing whether evidence must be
admitted under the Confrontation Clause, the trial court should
balance the probative value of the evidence sought to be
17
… See T EX. R. E VID. 412(b)(3).
18
… 18 S.W.3d 220 (Tex. Crim. App. 2000).
13
introduced against the risk its admission may entail. The trial court
maintains broad discretion to impose reasonable limits on
cross-examination to avoid harassment, prejudice, confusion of the
issues, endangering the witness, and the injection of cumulative or
collateral evidence.
We have previously indicated that the Confrontation Clause
will prevail if there is a conflict between it and the Rules of
Evidence. Indeed, Rule 101(c) of the Rules of Evidence dictates
that the Constitution should control if there is a conflict. But that
Rule also admonishes us that, "where possible, inconsistency is to
be removed by reasonable construction." 19
Given our holding above that any possible probative value of the testimony
concerning H.S.’s sexually abusing her cousins was overwhelmingly outweighed
by its prejudicial and inflammatory nature and given also the negative evidence
about H.S. that the jury was allowed to hear, we cannot say that in this case
the trial court abused its discretion in limiting the cross-examination. We
overrule Appellant’s third point.
C ROSS-E XAMINATION OF THE E XAMINING D OCTOR
Appellant argues in his fifth, sixth, and seventh points that the trial court
violated his Sixth Amendment right to confrontation and rules 107 and 612 of
the Texas Rules of Evidence in limiting the cross-examination of the doctor who
performed the rape examination by refusing to allow the jury to hear information
she had gathered indicating that H.S. had committed sexual offenses against
19
… Id. at 222–23.
14
her cousins.
Doctor Jayme Coffman testified at the rule 412 hearing that as part of
her diagnosis and treatment of H.S., she took a history from a CPS worker.
The history indicated that H.S. had sexually abused her same-age cousins and
that she was on probation for the sexual offense. Doctor Coffman testified that
the information had no impact on H.S.’s care and treatment for the alleged
sexual assault by Appellant and Thomas but that “[i]t had to do with her
overall, what all has gone on with her, what do I need to worry about, what
kind of counseling, what issues, emotional and physical, do I need to deal
with.” On cross-examination, Dr. Coffman stated that the information was in
the report because it could be relevant to H.S.’s treatment later on. Dr.
Coffman also testified that she had reviewed the report containing that
information in preparation for her testimony at trial.
Appellant urged the proposed cross-examination of Dr. Coffman about the
allegations that H.S. committed sexual abuse of her cousins on two theories:
(1) the evidence was admissible under the Sixth Amendment right to cross-
examination as part of the information Dr. Coffman relied on in reaching her
diagnosis, and (2) it was admissible under rule 612 of the Texas Rules of
Evidence because it was information contained in a written report that Dr.
Coffman used to refresh her memory before testifying.
15
When Appellant sought to admit the evidence before the jury, the trial
court refused to admit it. Normally, evidence provided by a physician for
purposes of treatment and diagnosis is admissible into evidence. 20 But rule 412
protects complainants in sexual offense cases.21 Had consent been an issue,
Appellant would have a stronger argument for admissibility of the evidence. 22
Similarly, had the sexual activity with the cousins provided an explanation for
the doctor’s findings other than Appellant’s guilt, the evidence would have had
more probative value, and admissibility would be a closer issue. 23
In the case now before this court, Doctor Coffman testified that she had
found a healed transection of H.S.’s hymen which was not likely caused by
Appellant and also a condom lodged in H.S.’s vagina. The condom contained
hairs and semen that were connected through DNA to Thomas. Evidence that
H.S. had been accused of molesting her female cousins did not challenge these
findings; there is no suggestion that the sexual abuse included having the
cousins penetrate H.S.’s female sexual organ. Additionally, because of H.S.’s
20
… T EX. R. E VID. 803(4).
21
… T EX. R. E VID. 412.
22
… See T EX. R. E VID. 412(b)(2)(A).
23
… See T EX. R. E VID. 412(b)(2)(A), (3).
16
age, consent was not an issue.24
Although the evidence Appellant sought to present before the jury could
have affected the doctor’s recommendation for H.S.’s overall treatment, the
evidence had nothing to do with the diagnosis, and the diagnosis is the only
evidence that went to the elements or proof of the offenses alleged against
Appellant. Consequently, any probative value of the excluded evidence was
either nonexistent or slight. And, as we have already held, the evidence was
highly inflammatory and likely to arouse prejudice in the jury. Thus, for these
reasons and those articulated above in the discussion of the limitation of the
cross-examination of H.S., we hold that the trial court did not abuse its
discretion by excluding the evidence and limiting the cross-examination and
therefore that it did not violate rule 107, rule 612, or the Sixth Amendment.
We overrule Appellant’s fifth, sixth, and seventh points.
C ROSS-E XAMINATION OF THE C OUNSELOR
In his eighth point, Appellant argues that he should have been able to
offer evidence to show the circumstances under which H.S. was required to
attend counseling. H.S. made her outcry regarding the sexual activity with
Appellant and Thomas during a counseling session with Therese Fleming, a
24
… See T EX. P ENAL C ODE A NN. § 22.011(a)(1), (b); T EX. R. E VID.
412(b)(2)(B).
17
licensed professional counselor. Again, Appellant wanted to present to the jury
the fact that H.S. was on probation in juvenile court for a sexual offense.
Appellant argues that by allowing the State to present Fleming’s testimony
without allowing the proffered cross-examination, the trial court effectively
allowed the jury to take Fleming’s testimony out of context, that there is a
significant difference between a patient’s making an allegation of sexual abuse
against another when the patient is herself a sexual abuser as opposed to when
she is not, and that rule 107 mandates that the evidence be presented before
the jury.
The jury was allowed to hear that H.S. had been ordered to counseling
with Fleming by Johnson County Juvenile Services. The jurors, therefore, were
informed that H.S. had violated the law; they were simply not informed of the
exact nature of the violation. For the reasons discussed above, the trial court
did not abuse its discretion by excluding evidence of the specific nature of the
conduct that resulted in H.S.’s juvenile probation. We overrule Appellant’s
eighth point.
C ROSS-E XAMINATION R EGARDING A LARM ON H.S.’S B EDROOM D OOR
In his ninth point, Appellant argues that the trial court erred by refusing
to allow him to cross-examine his former wife Samantha regarding the
circumstances under which an alarm had been placed on H.S.’s bedroom door.
18
Outside the presence of the jury, Samantha testified that H.S. had an alarm on
her bedroom door to ensure that she did not abuse the McGlothins’ children.
The alarm had been CPS’s idea. The trial court allowed cross-examination
about the alarm but not about the allegations that H.S. had sexually molested
her cousins. Appellant was allowed to cross-examine Samantha to establish
that CPS had suggested that the alarm be put on H.S.’s door to protect the
McGlothlins’ children and to protect Appellant from potential accusations.
Appellant argues that the State, in its case-in-chief, elicited a large
amount of testimony from Samantha demonstrating that Appellant was very
controlling and imposed very strict rules on H.S. The State used the evidence
to argue that Appellant was isolating and grooming her so that he could molest
her. Appellant argues that in light of this testimony, he should have been
allowed to produce evidence showing a different motivation for the alarm. But
Samantha testified that the alarm had been neither her idea nor Appellant’s.
Therefore the excluded evidence was not needed to correct a false impression
that Appellant was responsible for the alarm.
For these reasons and those presented in the above discussions of the
limited cross-examinations of H.S., Coffman, and Fleming, and also because the
evidence Appellant sought to admit regarding the specific acts of sexual
misconduct was very prejudicial but of limited or no probative value, we hold
19
that the trial court did not abuse its discretion by excluding the proffered
testimony. We overrule Appellant’s ninth point.
J URY Q UESTIONNAIRE
In his eleventh and twelfth points, Appellant argues that the trial court
erred by including in the jury questionnaire the following question, “Could you
as a juror convict a person based on the testimony of the child, assuming you
believed the child?” Appellant did not object to the question’s being submitted
to the jury panel, however, until after it had been submitted and answered. To
preserve a complaint for our review, a party must have presented to the trial
court a timely request, objection, or motion that states the specific grounds for
the desired ruling if they are not apparent from the context of the request,
objection, or motion.25 Further, the trial court must have ruled on the request,
objection, or motion, either expressly or implicitly, or the complaining party
must have objected to the trial court’s refusal to rule.26 Because his objection
was not timely, Appellant has not preserved the points concerning the jury
questionnaire for review. We overrule Appellant’s eleventh and twelfth points.
25
… T EX. R. A PP. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265
(Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999).
26
… T EX. R. A PP. P. 33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341
(Tex. Crim. App. 2004).
20
C ONCLUSION
We affirm the trial court’s judgment in part and reverse it and render
judgment in part. Because we hold that the evidence is legally insufficient to
support the conviction for indecency with a child, we reverse the trial court’s
judgment as to Count Three and enter an acquittal on that count. We affirm
the trial court’s judgment as to Counts One and Two, sexual assault of a child.
LEE ANN DAUPHINOT
JUSTICE
PANEL A: CAYCE, C.J.; DAUPHINOT and GARDNER, JJ.
PUBLISH
DELIVERED: May 29, 2008
21
Rodney Allen McGlothlin A/K/A Rodney A. McGlothlin v. State
Combined Opinion