COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-007-CR
JEWELL LYNN MADDEN APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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A jury convicted Appellant Jewell Lynn Madden of four counts of
aggravated sexual assault of a child and three counts of indecency with a child
by contact. The jury found the enhancement allegations to be true, and the trial
court imposed concurrent life sentences for the aggravated sexual assault
counts and sixty-year sentences for the indecency counts, to be served
1
… See Tex. R. App. P. 47.4.
consecutively to the sentences for the aggravated sexual assaults but
concurrently with each other. Appellant brings three points on appeal, arguing
that the trial court erred by denying his motion for mistrial, by admitting hearsay
testimony, and by violating his constitutional double jeopardy protections.
Because the trial court committed no reversible error, we affirm the trial court’s
judgment.
Hearsay Testimony
In his second point, Appellant contends that the trial court erred by
admitting out of court statements that the complainant made to her physical
education teacher, Pauletha Amos. Amos testified that the complainant had
told her that Appellant made her watch “adult movies with females doing nasty
things to males and males doing nasty things to females” and that he touched
her private area and made her touch him. The State offered the testimony not
as an outcry statement but as an excited utterance. Amos testified that other
students told her that the complainant was upset and that she had been crying.
Amos called the complainant over to the side and asked her what was going on
“because she was not normal.” Amos testified that the complainant was
“upset, crying, rubbing her eyes. And other kids were around her comforting
her.” Amos testified that the complainant told her that something bad had
happened to her, so Amos told her to go into Amos’s office. They went into
2
the office, and the complainant began telling Amos that her mother’s boyfriend
had done “nasty things to her.”
An excited utterance is an exception to the prohibition against hearsay
evidence and is “[a] statement relating to a startling event or condition made
while the declarant was under the stress of excitement caused by the event or
condition.” 2 For a statement to qualify as an excited utterance under rule of
evidence 803(2), it must be the product of a startling event, made while the
declarant was dominated by the emotion, excitement, fear, or pain of the event,
and the statement must have related to the circumstances of the startling
event.3 It is well established that
[t]he basis for the excited utterance exception is “a psychological
one, namely, the fact that when a man is in the instant grip of
violent emotion, excitement or pain, he ordinarily loses the capacity
for reflection necessary to the fabrication of a falsehood and the
‘truth will come out.’” In other words, the statement is
trustworthy because it represents an event speaking through the
person rather than the person speaking about the event.
In determining whether a hearsay statement is admissible as
an excited utterance, the court may consider the time elapsed and
whether the statement was in response to a question.4
2
… Tex. R. Evid. 803(2).
3
… McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992),
cert. denied, 508 U.S. 963 (1993).
4
… Zuliani v. State, 97 S.W.3d 589, 595–96 (Tex. Crim. App. 2003)
(citations omitted).
3
In Hughes v. State,5 our sister court in Tyler rejected the State’s
contentions that a complainant’s statements produced as a result of an
interview were excited utterances:
That some of a declarant’s statements were in response to
questions does not necessarily make them inadmissible under this
exception to the hearsay rule. But it is an important factor in
determining the spontaneity of the statement. [The Hughes court
explained that both] Deputy Wellborn and Ms. Baggerly asked
C.D.H. [the complainant in Hughes] questions calculated to elicit
information about past events and activities. “Responses to this
type of questioning are normally considered reflective narratives of
past events” and hence lacking the spontaneity required to be
admissible under this exception.
. . . [T]he rule requires a determination (1) whether C.D.H.’s
presence with Opal and Deputy Wellborn at Opal’s interview was
an occurrence startling enough to produce a state of nervous
excitement which would render her statements made during two
lengthy interrogations “spontaneous and unreflecting” and, if so,
(2) whether the startling event continued to dominate the reflective
powers of her mind during that period. Several circumstances
argue against it here.
C.D.H. was brought to the Grapeland Police Department to
lend moral support for her younger cousin Opal while she talked to
the investigators. Opal and C.D.H. had recently discussed their
shared history as victims of sexual abuse. C.D.H. had assured Opal
that if she had to turn her father in, she would not be left to suffer
alone. She knew why she was going to be with Opal, and she
knew what she was going to hear. It was undoubtedly stressful
but should not have been startling or surprising. The two
interviews were conducted in tandem. The length of the interviews
is itself a circumstance arguing against unreflecting spontaneity.
5
… 128 S.W.3d 247 (Tex. App.—Tyler 2003, pet. ref’d).
4
The record indicates that both girls remained in the room
throughout the interviews by both Deputy Wellborn and Ms.
Baggerly. The investigators, in their testimony, did not recount
unreflecting statements made by the complainant. Instead, they
summarized what they described as a very detailed narrative that
emerged over a protracted interrogation.
....
Responding to the investigator’s questions, C.D.H. narrated
a painful personal history. But narrations, especially of this length,
are inherently reflective, not spontaneous. As its name strongly
suggests, the exception for excited utterances or spontaneous
declarations was not developed to allow the introduction into
evidence of extended narratives by crime victims, and certainly not
summaries of those narratives as in the instant case. . . .
In this case, it is impossible to conclude that C.D.H.’s
statements were made without opportunity for reflection or
deliberation. We decline to further expand the excited utterance
exception to include a summary distilled from a protracted
interrogation.6
In the case before us, Amos took the complainant into her office
sometime after December 12, 2006, and began to question her. She asked her
what was going on. She asked her “what was nasty going on with her.” The
complainant recounted what she had seen in the movies. Then Amos asked her
if Jennifer Camp, the complainant’s classroom teacher, knew. The complainant
replied that she had already spoken to Camp. Then Amos asked the
complainant if she had spoken with the counselor, Wanda Campbell. The
6
… Id. at 253–54.
5
complainant replied that she had spoken with the counselor and that CPS was
involved.
The record shows that CPS had received a referral from the complainant’s
school, and the police received it on December 5, 2006. Also on December 5,
the complainant’s mother went to the police department to discuss the
accusation. The following day, CPS personnel told Appellant to move out of
the house, and he left that day. He never moved back in.
The complainant also explained to Amos that she had gone to the doctor
at Cook Children’s Hospital, that she had had to lie on a table, and that the
doctor had had to go between her legs. The examination took place on
December 12, 2006. Amos said, in response to the prosecutor’s question, that
when the complainant was discussing the movies, she told Amos that Appellant
had made her do those nasty things to him when her mom was not at home.
Amos said the complainant was upset because her brothers were upset and
because she could not tell anyone about what had happened—Appellant had
told her that he would hurt her and her family if she told.
The circumstances in which the complainant told her story, as provided
in the record, in no way indicate that she had lost "the capacity for reflection
6
necessary to the fabrication of a falsehood." 7 Indeed, Amos’s taking the
complainant into her office and asking her to explain what had occurred and
how she felt about it presupposes that the complainant would reflect on her
answers before speaking.
Additionally, the record shows that Amos did not begin her separate
interview with the complainant until after the complainant had discussed the
events with her teacher, her counselor, representatives of CPS, and medical
personnel at Cook Children’s Hospital; had been examined by a doctor; and had
participated in a taped CPS interview.
This was a statement made about an upsetting series of events, but the
statement was not an excited utterance as contemplated by the rule. The trial
court erred by overruling Appellant’s objection to the testimony.
The same evidence, however, was admitted elsewhere. Both the
complainant and the outcry witness, Camp, had testified in detail about the
same matters, rendering the error in improperly admitting the hearsay testimony
of Amos harmless.8 We overrule Appellant’s second point.
7
… McFarland, 845 S.W.2d at 846.
8
… See Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998);
Johnson v. State, 803 S.W.2d 272, 291 (Tex. Crim. App. 1990), cert. denied,
501 U.S. 1259 (1991), overruled on other grounds by Heitman v. State, 815
S.W.2d 681 (Tex. Crim. App. 1991); see also Brooks v. State, 990 S.W.2d
278, 287 (Tex. Crim. App.), cert. denied, 528 U.S. 956 (1999); Harris v. State,
7
Denial of Mistrial
In his first point, Appellant complains that the trial court erred by denying
his motion for mistrial, infringing on his rights to due process and the
presumption of innocence. After a police officer had already testified without
objection that Appellant had been arrested, the State asked the complainant’s
mother if she had visited Appellant in jail. Appellant objected that evidence of
incarceration was not relevant and injected facts that had no probative value
and that any probative value was substantially outweighed by the prejudicial
effect. He also raised a rule 404(b) objection.
The prosecutor immediately withdrew the question. The trial court
sustained Appellant’s objection and instructed the jury to disregard the
question. The trial court denied Appellant’s motion for a mistrial. On appeal,
Appellant argues that the prosecutor’s informing the jury that Appellant had
been incarcerated invades the presumption of innocence, relying on Randle v.
State.9 Appellant equates informing the jury of his incarceration with forcing
him to stand trial before the jury in jail clothes.
When the trial court sustains an objection and instructs the jury to
disregard but denies a defendant’s motion for a mistrial, the issue is whether
133 S.W.3d 760, 772–73 (Tex. App.—Texarkana 2004, pet. ref’d).
9
… 826 S.W.2d 943, 945 (Tex. Crim. App. 1992).
8
the trial court abused its discretion by denying the mistrial.10 Only in extreme
circumstances, when the prejudice caused by the improper argument is
incurable, that is, “so prejudicial that expenditure of further time and expense
would be wasteful and futile,” will a mistrial be required.11 In determining
whether the trial court abused its discretion in denying the mistrial, we balance
three factors: (1) the severity of the misconduct or prejudicial effect, (2)
curative measures, and (3) the certainty of conviction absent the misconduct.12
The prosecutor immediately withdrew the question. The trial court took quick
action and sustained the objection and instructed the jury to disregard. There
is no indication in the record that the trial court’s instruction to disregard was
ineffective. The question was not so prejudicial and inflammatory that the
instruction could not cure the harm. Additionally, as the State points out,
similar evidence was admitted elsewhere without objection. We therefore hold
that the trial court did not err by overruling Appellant’s motion for mistrial. We
overrule Appellant’s first point.
10
… Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004).
11
… Id.; see also Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim.
App. 2003), cert. denied, 542 U.S. 905 (2004).
12
… Hawkins, 135 S.W.3d at 77; Mosley v. State, 983 S.W.2d 249, 259
(Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999).
9
Double Jeopardy
In his third point, Appellant contends that his convictions for indecency
violate his right to be free from double jeopardy. Appellant points out that
although a person who commits more than one sexual assault against the same
complainant may be convicted and punished for each separate act, even if the
acts were committed in close temporal proximity, 13 the State may not engage
in “stop-action” prosecutions. 14
The question, then, is whether Appellant was prosecuted for seven
distinct offenses, or four offenses and three lesser included offenses of those
same offenses. Relying on Ochoa v. State, 15 in which the Texas Court of
Criminal Appeals held that indecency with a child can be a lesser included
offense of aggravated sexual assault, depending on the facts of the case,
Appellant argues that the convictions for aggravated sexual assault charged in
counts one through four and the convictions for indecency with a child by
contact charged in counts five, six, and seven were based on the same acts
and thus violated double jeopardy protections.
13
… Vick v. State, 991 S.W.2d 830, 833 (Tex. Crim. App. 1999).
14
… Patterson v. State, 152 S.W.3d 88, 92 (Tex. Crim. App. 2004).
15
… 982 S.W.2d 904, 908 (Tex. Crim. App. 1998).
10
To determine whether both offenses are the same, we must examine the
elements of the applicable statutes to determine whether each statute “requires
proof of an additional fact which the other does not.” 16 When resolving
whether two offenses are the same for double jeopardy purposes, we focus on
the elements alleged in the charging instrument.17
The indictment alleges that all the aggravated sexual assault counts
occurred on or about December 5, 2006, and that all the indecency counts
occurred on or about December 1, 2006. The complainant testified to repeated
sexual acts against her and explained that they happened almost every day that
her mom went to work. She also testified that Appellant placed his penis in her
mouth every time he “messed with” her. She had to hold his penis with her
hand or hands while it was in her mouth. The complainant testified that
Appellant penetrated her female sexual organ with his finger and touched her
genitals and anus with his penis. He continued to sexually assault her until the
day before CPS came to her house.
16
… Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180,
182 (1932); see United States v. Dixon, 509 U.S. 688, 696, 113 S. Ct. 2849,
2856 (1993); Parrish v. State, 869 S.W.2d 352, 353–55 (Tex. Crim. App.
1994).
17
… Bigon v. State, 252 S.W.3d 360, 370 (Tex. Crim. App. 2008).
11
Although Camp and Amos mentioned touching, they were indefinite about
what Appellant touched the complainant with and reported only that he had
touched her private area.
The indecency offenses and the aggravated sexual assaults occurred over
a long period of time on multiple days, but there is no evidence beyond
speculation that Appellant committed separate and distinct offenses of
indecency. The State has provided us a helpful chart, which we reproduce
below:
Count 1— C.G. testified that Appellant ordered her to open her legs and
Aggravated then put his penis in her private part. RR 4:26. This hurt C.G.
Sexual very badly. RR 4:27. C.G. testified that Appellant told her to
Assault check to see if she was bleeding . . . . RR 4:27. C.G. told
[Crystal Utley, the nurse practitioner who examined her at
Cook Children's Hospital] that Appellant’s penis contacted her
vagina. RR 5:78.
Count 2— Once Appellant determined that she was not bleeding,
Aggravated Appellant ordered C.G. to flip over and lay on her stomach
Sexual again. RR 4:27. Appellant stood up and placed his penis on
Assault her behind. RR 4:28. Appellant would place his penis on her
bottom and in her privates. RR 4:31. C.G. testified that this
made her private burn when she urinated. RR 4:31.
Count 3— C.G. told Amos that Appellant was making her watch
Aggravated pornographic movies and that Appellant made her do those
Sexual nasty things to [him] when her mom was not home. RR 4:87.
Assault Appellant would touch her in her private area and made C.G.
touch him on his privates. RR 4:88.
12
Count 4— C.G. testified that Appellant placed his penis in C.G.’s mouth
Aggravated and pushed her head back and forth. RR 4:25–26. C.G. also
Sexual testified that Appellant put his penis in her mouth and “peed”
Assault in her mouth. RR 4:30. C.G. swallowed it one time and her
stomach began to hurt. RR 4:30–31.
Count 5— Camp testified that C.G. told her that Appellant would touch
Indecency her down there—which Camp took to mean in a sexual
with a Child manner. RR 4:69–70. C.G. testified that in addition to
Appellant placing his penis in her privates, Appellant would
insert his finger in her privates. RR 4:38–39.
Count 6— C.G. testified that Appellant would touch her in her behind. RR
Indecency 4:37.
with a Child
Count 7— C.G. testified that she would hold Appellant’s penis. RR 4:38.
Indecency C.G. testified that “(w)henever he put it in (my) mouth, he told
with a Child me I have to hold it.” RR 4:38. C.G. said that she would hold
it with her hands. RR 4:38.
We hold that the evidence does not show that the four aggravated sexual
assault offenses alleged in the indictment are totally separate and apart from
the three indecency by contact charges alleged in the indictment. The question
arises, then, whether the State may plead the lesser included offenses when
the evidence shows repeated commission of the greater offenses. Although the
evidence shows only the greater offenses, occurring repeatedly, the greater
offenses were described by the complainant in detail that included the lesser
offenses of indecency. Based on our review of the record, we hold that the
record sufficiently describes more than seven separate and discrete events
during which Appellant sexually assaulted the complainant. We also recognize
13
that nothing in the statutes governing indictments prevents the State from
indicting a person for a lesser offense than one supported by the proof. 18
Finally, we hold that because the evidence reflects more than seven instances
of aggravated sexual assault that included the elements of the lesser offense
of indecency, there was no double jeopardy violation.19 We therefore overrule
Appellant’s third point.
Conclusion
Having overruled Appellant’s three points, we affirm the trial court’s
judgment.
LEE ANN DAUPHINOT
JUSTICE
PANEL: CAYCE, C.J.; LIVINGSTON and DAUPHINOT, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: September 3, 2009
18
… See Tex. Code Crim. Proc. Ann. art. 21.01–.31 (Vernon 2009).
19
… See Medcalf v. State, No. 02-07-00366-CR, 2008 WL 4926025, at
*2–3 (Tex. App.—Fort Worth Nov. 13, 2008, pet. ref’d) (mem. op., not
designated for publication); Bottenfield v. State, 77 S.W.3d 349, 358 (Tex.
App.—Fort Worth 2002, pet. ref’d), cert. denied, 539 U.S. 916 (2003);
Hutchins v. State, 992 S.W.2d 629, 633 (Tex. App.—Austin 1999, pet. ref’d,
untimely filed).
14