Tom Richard Doyle, Jr. v. State

NO. 07-03-0024-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

NOVEMBER 29, 2004
______________________________

TOM RICHARD DOYLE, JR.,

Appellant

v.

THE STATE OF TEXAS,

Appellee
_________________________________

FROM THE 359TH DISTRICT COURT OF MONTGOMERY COUNTY;

NO. 02-05-03090-CR; HON. JERRY A. SANDEL, PRESIDING
_______________________________

Before JOHNSON, C.J., and QUINN and REAVIS, JJ.

Through nine issues, Tom Richard Doyle, Jr. appeals his convictions on eight

counts of indecency with a child, one count of aggravated kidnapping, and one count of

aggravated sexual assault of a child.1 We affirm the convictions yet modify the judgment.

Issue One - Notice of Outcry Statement

Appellant initially complains about the prior notice given him of the State’s intent to

call an outcry witness. He contends that statute entitled him to 14 days prior notice but he

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Appellant has had two different appellate counsel each of whom filed a brief on his behalf. The first
three issues w ere p resente d by his first couns el while the last six we re prese nted by his seco nd.
received less. See TEX . CODE CRIM . PROC . ANN . art. 38.072 §2(2)(b)(1) (Vernon Supp.

2004-2005) (stating that one is entitled to notice of a party’s intent to call an outcry witness

at least 14 days before trial). To the extent that he may have been entitled to 14 days prior

notice, he filed a motion on September 4, 2002, asking for only seven, and the State

afforded him ten. Given that appellant agreed to only seven days notice, he invited the

wrong about which he now complains and, thus, waived it. Prystash v. State, 3 S.W.3d

522, 531 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1102, 120 S.Ct. 1840, 46 L.Ed.2d

782 (2000) (discussing the doctrine of invited error). Moreover, while authority holds that

the 14-day notice is mandatory, see e.g., Long v. State, 800 S.W.2d 545, 547 (Tex. Crim.

App. 1990), the period is nonetheless subject to waiver. See e.g. Skidmore v. State, 838

S.W.2d 748, 753 (Tex. App.–Texarkana 1992, pet. ref’d) (holding that an objection to the

want of timely notice can be waived if not urged at trial).

Issue Two - Expert Testimony

Appellant next contends that the trial court erred in admitting “expert testimony in

violation of the principals [sic] of Kelly Vs State regarding the child abuse syndrome which

commented on the outcry testimony.” The expert in question was FBI Special Agent

James Clemente. Furthermore, the prosecution called him to explain why child victims,

such as A.M., do not outcry for a considerable length of time or when first interviewed by

law enforcement officers. We overrule the issue.

While appellant describes at length in his brief what he considers to be the

applicable test by which the admissibility of Clemente’s testimony must be assessed, i.e.

the standard announced in Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992) as

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opposed to Nenno v. State, 970 S.W.2d 549 (Tex. Crim. App. 1998), he says next to

nothing about how the testimony fails to meet it. And, because we are left to guess at the

substance of appellant’s contention, the issue has been waived due to inadequate briefing.

See Peake v. State, 133 S.W.3d 332, 334 (Tex. App.–Amarillo 2004, no pet.) (involving

a claim of ineffective assistance of counsel and holding that it was waived because the

appellant failed to explain why the evidence to which counsel did not object was

inadmissible).

Yet, to the extent appellant may be suggesting that the testimony was inadmissible

under the case of Perez v. State, 25 S.W.3d 830 (Tex. App.–Houston [1st Dist.] 2000, no

pet.), we find the case inapposite. Unlike the expert in Perez, Clemente proposed to testify

about theories and concepts garnered from his own observations of children who were

sexually victimized, from his own interviews with adults who sexually victimized children,

from years of data and information developed by the department in which he had worked

for some five years, and from his participation in studies with other experts in the field. He

was not attempting to proffer expert opinion based merely upon what others may have

written about the subject, unlike the witness in Perez. See Hernandez v. State, 53 S.W.3d

742, 750-51 (Tex. App.–Houston [1st Dist.] 2001, pet. ref’d) (finding Perez inapplicable

because the witness in Hernandez spoke of her own theories based upon her own

observations).

Finally, because the theory to be discussed was one involving a “soft science,” the

standard enunciated in Nenno controlled the admission of the evidence, contrary to

appellant’s suggestion. State v. Medrano, 127 S.W.3d 781, 785-87 (Tex. Crim. App.

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2004). And, in applying that standard to the evidence of record, we have found sufficient

basis upon which the trial court could have held not only that the behavior of children who

were sexually victimized was a legitimate soft science, see Hernandez v. State, 53 S.W.3d

at 751 (recognizing that the behavior of sexually victimized children was a legitimate field

of expertise), but also that Clemente was qualified to testify about it given his professional

experience and observations.

Issue Three - Incorrect Name in Jury Charge

Via his third issue, appellant complains about the addition of the suffix “Jr.” to his

name in counts five through ten of the guilt/innocence jury charge. Because the

abbreviation was omitted in counts five through ten of the indictment (the first four counts

contained it), it could not be included in the charge, he continues. In adding the suffix, a

variance purportedly arose. We overrule the issue.

Appellant concedes that the State produced evidence “against Tom Richard Doyle,

Jr., not Tom Richard Doyle.” Furthermore, the appellations “Jr.” and “Sr.” form no part of

a person’s legal name, and may be rejected as surplusage. Cherry v. State, 447 S.W.2d

154, 156 (Tex. Crim. App. 1969). Thus, because there was no need to include them in the

indictment, Smith v. State, 734 S.W.2d 694, 698-99 (Tex. App.–Houston [1st Dist.] 1987),

remanded on other grounds, Nos. 832-87 - 834-87 (Tex. Crim. App. November 16, 1988),

there arose no variance between the indictment, evidence, and jury charge.

Moreover, appellant nowhere claims that the circumstance misled him. That too is

fatal to his contention. Green v. State, 55 S.W.3d 633, 647 (Tex. App.–Tyler 2001, no

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pet.), cert. denied, 535 U.S. 958, 122 S.Ct. 1366, 152 L.Ed.2d 360 (2002) (holding that

absent a claim of prejudice, a variance in names is not fatal).

Issue Four - Cumulation of Sentence

In his fourth issue, appellant argues that the trial court erred in ordering that his

sentence for count 1 (indecency with a child) run consecutively to the other sentences

levied upon him. This is so because a sentence arising from an indecency conviction

cannot be stacked upon a sentence arising from a conviction for aggravated kidnapping

(count 4). The State concedes that punishment under count 1 cannot be stacked upon

punishment for count 4. Given this, we will reform the judgment and redact all reference

to the sentence for count 1 running consecutively to that of count 4. See Yvanez v. State,

991 S.W.2d 280, 282-83 (Tex. Crim. App. 1999) (because a sentence for intoxication

manslaughter could not be ordered to run consecutively to one for intoxication assault, the

court reformed the judgment to declare that it only run consecutively to the other

intoxication manslaughter convictions); LaPorte v. State, 840 S.W.2d 412, 415 (Tex. Crim.

App. 1992) (reforming the judgment to delete the cumulation order).

Issue Five - Missing Jury Note

Appellant next argues that he is entitled to a new trial because a jury note from the

guilt/innocence phase of trial is missing. We overrule the issue for several reasons.

First, we abated this appeal to have the trial court determine what, if any, notes were

issued by the jury and whether they were lost. The trial court subsequently convened a

hearing and received evidence on the matter. Thereafter, it issued its findings of fact.

Nowhere in the latter did the trial court find that the jury issued the note upon which the

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appellant’s contention is based. Instead, it found that “[i]f a third note or any other note

exists, as referenced in the affidavit and live testimony of Janice Baldwin [appellant’s trial

attorney], it can not [sic] be re-created.”2 Nor can we say that the evidence developed at

the hearing established that the jury sent a note during the guilt/innocence phase. And,

without proof that a note was actually sent, we cannot say that a new trial is required

because the note is missing. In other words, we cannot find fault in omitting from the

record something that may have never existed.

Second, assuming arguendo that a note existed and was lost, before that can result

in a new trial, the missing document must be necessary to the appeal’s resolution. TEX .

R. APP. P. 34.6(f)(3). Appellant’s trial counsel stated that if she had an objection, at the

time, to the missing note or the trial court’s response thereto, she would have read both

the note and response into the record. Yet, the record contains no evidence of an

objection to any note from the jury while it considered guilt or any judicial response to the

supposed note. Without the record illustrating that appellant had voiced any complaint

about either, we are unable to see how the note and response are necessary to the

appeal’s resolution. Cruz v. State, 742 S.W.2d 545, 548-49 (Tex. App.–Austin 1988, no

pet.) (stating that because the appellant voiced no objection to the note, he was not

harmed by its absence from the record); see Issac v. State, 989 S.W.2d 754, 757 (Tex.

Crim. App. 1999) (stating that obtaining a new trial under Rule 34.6(f) is conditioned upon

proof of harm and that one does not suffer harm unless the missing items are necessary

to the resolution of the appeal).

2
Ba ldw in’s tes tim ony at th e hearing was equivocal. T here she said that “if I remem ber that there was
anything at all, that there’s a strong pos sibility that there was som ething.”

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 Issue Six - Punishment Hearing

In his sixth issue, appellant claims that he is entitled to a new punishment hearing

due to the trial court’s responses to several jury notes sent during the punishment stage

of the trial, the inaccuracy of one response, the failure of appellant to be present when the

responses were read, and the failure of the trial court to read its responses in open court.

We overrule the issue.

As to the last two contentions, both concern application of art. 36.27 of the Texas

Code of Criminal Procedure.3 And, assuming arguendo that appellant was not present

when the trial court read its responses to the jury questions, his attorney was.

Furthermore, nothing of record illustrates that she objected to his absence from the

courtroom at the time. Nor does it illustrate that she objected to the purported failure of the

judge to read its responses to the jury in open court. Without a timely objection to either

purported error, neither were preserved for review. Hawkins v. State, 660 S.W.2d 65, 81

(Tex. Crim. App. 1983) (holding that contentions involving noncompliance with art. 36.27

cannot be reviewed on appeal in the absence of a timely objection); see McGowan v.

State, 664 S.W.2d 355, 358 (Tex. Crim. App. 1984) (involving a trial court’s responses to

jury questions and holding that the failure to specify the grounds for objection waived

error).

As to the propriety of the judge’s responses to the inquiries, appellant asserts that

they constituted a misstatement of the law. Yet, that ground was not mentioned below.

Appellant having failed to raise this objection below, the complaint was waived. Green v.

3
Article 36.27 of the code describes the procedure for handling communications between the jury and
the trial court. T EX . C ODE C RIM . P R O C . A N N . art. 36.27 (Vernon 198 1).

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State, 912 S.W.2d 189, 192-93 (Tex. Crim. App. 1995), cert. denied, 518 U.S. 1021, 116

S.Ct. 2556, 135 L.Ed.2d 1074 (1996) (involving a trial court’s response to a jury question

and stating that Almanza was “inapplicable” in reviewing the error).

Issue Seven - Lesser-Included Offense

Appellant next argues that he should have received an instruction on the lesser-

included offense of enticing a child. We overrule the issue.

To be entitled to an instruction on a lesser-included offense, it must be shown,

among other things, that the elements of the lesser offense are included within the proof

necessary to establish the greater offense. Campbell v. State, No. 081-03, 2004 LEXIS

1802 at *8 (Tex. Crim. App. Oct. 27, 2004). Thus, the elements of the two crimes must be

compared. Id. at 9. And, since the two crimes involved, according to appellant, are

aggravated kidnapping and enticing a child, those are the two which we now compare.

One commits the offense of aggravated kidnapping if he intentionally or knowingly

abducts another person with the intent to violate or abuse him sexually. TEX . PEN . CODE

ANN . §20.04(a)(4) (Vernon 2003). “Abduct” means to restrain a person with intent to

prevent his liberation by secreting or holding him in a place where he is not likely to be

found or using or threatening to use deadly force. Id. §20.01(2) (Vernon Supp. 2004-

2005). “Restrain” means to restrict a person’s movements without consent so as to

substantially interfere with the person’s liberty by moving the person from one place to

another or by confining him by 1) force, intimidation, or deception, or 2) any means,

including acquiescence of the victim if the victim is less than 14 years of age and the

parent has not acquiesced in the movement or confinement. Id. §20.01(1).

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 Next, the offense of enticing a child occurs if, with the intent to interfere with the

lawful custody of a child younger than 18, one knowingly entices, persuades, or takes the

child from the custody of the parent. TEX . PEN . CODE ANN . §25.04(a) (Vernon 2003). As

can be seen, this crime requires proof of an intent to interfere with the lawful custody of the

child. Briggs v. State, 807 S.W.2d 648, 652 (Tex. App.–Houston [1st Dist.] 1991, pet. ref’d).

Such is not required to establish aggravated kidnapping, however. Given that the elements

of the supposedly lesser offense are not included within the proof necessary to secure a

conviction for the greater, the crime of enticing a child is not a lesser-included offense of

aggravated kidnapping. And, the trial court did not err in refusing to hold otherwise.

Issue Eight - Admission of Arrest Warrant

In his eighth issue, appellant argues the trial court erred in admitting into evidence

two federal arrest warrants and then excluding evidence as to the dismissal of any federal

kidnapping charge. We overrule the point.

As to the admission of the warrant (there was actually only one), testimony

regarding its procurement and execution was solicited and admitted before the prosecutor

attempted to physically tender the document into evidence. More importantly, appellant

uttered no objections to those questions and answers. Because of that, admission of the

warrant itself was and is not reversible error. Leday v. State, 983 S.W.2d 713, 718 (Tex.

Crim. App. 1998) (stating that the improper admission of evidence does not constitute

reversible error if the same facts were shown by other evidence which went unchallenged).

As to the evidence regarding the dismissal of any federal kidnapping prosecution,

appellant argues that it was admissible under the theory of optional completeness. Yet,

that basis for admitting the evidence went unsaid below. So, the latter does not comport

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with the objection or ground now being urged, and because it does not, appellant failed to

preserve it for review. See Gutierrez v. State, 85 S.W.3d 446, 454 (Tex. App.–Austin

2000, pet. ref’d) (holding that error was waived when the defendant urged on appeal an

objection to an evidentiary ruling different from that mentioned at trial).

Issue Nine - Legal and Factual Sufficiency

In his last issue, appellant contends that the evidence is legally and factually

insufficient to support his conviction for aggravated kidnapping. This is purportedly so

because the evidence illustrated that he voluntarily released his child victim in a safe place.

We overrule the issue.

The offense of aggravated kidnapping is a first degree felony. Yet, if in the

punishment stage of the trial the defendant illustrates, by a preponderance of the evidence,

that he voluntarily released the victim in a safe place, the gravity of the offense is reduced

to that of a felony of the second degree. TEX . PEN . CODE ANN . §20.04(d) (Vernon 2003).

In assessing whether the accused released his victim in a safe place, indicia such as 1) the

remoteness of the location, 2) the proximity of authorities or persons who could help, 3) the

time of day, 4) climatic conditions, 5) the condition of the victim, 6) the character of the

location or surrounding neighborhood, and 7) the victim’s familiarity with the location or

surrounding neighborhood merit consideration. Nolan v. State, 102 S.W.3d 231, 238 (Tex.

App.–Houston [14th Dist.] 2003, pet. ref’d).

Moreover, because §20.04(d) of the Penal Code saddles the defendant with the

burden of proof at trial, he may prevail on his claim of legal insufficiency only by

establishing, as a matter of law, that his victim was released in a safe place. Id. Whether

this was done requires us to first examine the record for evidence supporting the jury’s

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verdict and ignoring that which may contradict it. Id. If no such evidence appears, then

and only then do we search for evidence purporting to establish that the victim was

voluntarily released in a safe place. Id. However, in assessing appellant’s claim of factual

sufficiency, we peruse the entire record and then decide whether the verdict was so

against the great weight and preponderance of the evidence as to be manifestly unjust.

Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003); Nolan v. State, 102 S.W.3d

at 238-39.

The record contains evidence illustrating that A.M. was 11 years old at the time.

And, though appellant released him, he did so at 2 a.m. on a December morning down the

street from the house wherein the victim’s friend lived. The child walked alone to his

friend’s house, though appellant testified that he watched the boy approach and knock on

the door. However, it is undisputed that appellant did not wait to see who, if anyone,

answered the door or if the child actually entered the house. Instead, he left the scene.

Furthermore, he opted not to personally deliver the boy to the door and wait for someone

to appear because he “didn’t really plan on waking them [i.e. those at the house] up and

having them yell at me and say, ‘We told you not to be seeing [the child].’” That appellant

was hesitant to wake the residents up implies not only that they were asleep but also that

they did not expect the child’s arrival at that time.

Whether the neighborhood was safe was a topic that went undeveloped. That it

may have been “very nice” and an “expensive place to live” does not necessarily assure

its security. Absent evidence that crime occurs only in poor neighborhoods or that the

criminal or dangerous element of our society eschews “nice neighborhoods” (two

propositions which we are not prepared to accept), one would be hard pressed to

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reasonably infer from appellant’s comments that the neighborhood in which the child found

himself alone at 2 a.m. was safe. And, while the youth may have stayed the night at his

friend’s house on other occasions does not necessarily mean that he was familiar with the

neighborhood or those who may be traversing it at 2 a.m.

Given the child’s age, time of night, the unexpected nature of his arrival at his

friend’s house, appellant’s failure to either walk him to the door or await his entry into the

abode, and the dearth of evidence regarding the safety of A.M. and his familiarity with the

neighborhood, we cannot say that appellant established, as a matter of law, that the child

was released in a safe place. Thus, his claim of legal insufficiency lacks foundation. Nor,

after reviewing the entire record, do we find the jury’s refusal to hold that appellant

released the child in a safe place to be so against the great weight and preponderance of

the evidence as to be manifestly unjust. Thus, the claim of factual insufficiency lacks merit

as well.

Accordingly, we modify the trial court’s judgment and order that the sentences levied

against appellant upon counts two through ten run concurrently with each other and that

the sentence for count one run consecutively with those for counts three, five, six, seven,

eight, nine, and ten. As modified, the judgment is affirmed.

Brian Quinn
Justice

Do not publish.

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