NO. 07-04-0103-CR
NO. 07-04-0117-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
SEPTEMBER 22, 2005
______________________________
RICHARD ALLEN CLICK, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 47TH DISTRICT COURT OF ARMSTRONG COUNTY;
NOS. 1016 & 1017; HONORABLE HAL MINER, JUDGE
_______________________________
Before REAVIS and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
Following pleas of not guilty, appellant Richard Allen Click was convicted by a jury of sexual assault of a child in cause numbers 1016 and 1017. Punishment was assessed at cumulative sentences of 20 years confinement. Presenting two points of error, appellant questions whether (1) service of the indictment by a uniformed sheriff's deputy in the presence of the venire panel subverted his presumption of innocence, and (2) pursuant to article 38.072 of the Texas Code of Criminal Procedure, outcry statements of the alleged victims were proper. We affirm.
Only a brief recitation of the facts is necessary as there is no challenge to the sufficiency of the evidence to support appellant's conviction. Appellant is the biological father of victims A.C. and B.C. When B.C. was 14 years old, she confided incidents of sexual molestation committed by appellant against her to Jacqueline Huntington, a friend. At age 16, A.C. also told Jacqueline of acts of sexual abuse performed on her by appellant, including sexual intercourse.
By his first point, appellant maintains he was deprived of the right to a fair trial because the presumption of innocence was subverted when he was served with the indictment by an armed and uniformed deputy sheriff in the presence of the venire panel. We disagree.
By supplemental brief the State withdraws its assertion raised in its original brief that the record does not support service of the indictments in the presence of the venire panel and concedes appellant was served by a uniformed deputy sheriff in the presence of the venire panel. However, the State holds firm to its original contention that appellant's complaint is not preserved for review.
Appellant acknowledges he found no cases in support of his argument. However, relying on Randle v. State, 826 S.W.2d 943, 946 (Tex.Cr.App. 1992), and Scott v. State, 80 S.W.3d 306, 308-09 (Tex.App.-Fort Worth 2002, no pet.), he analogizes his complaint to cases where the presumption of innocence was impaired when a defendant appeared for trial in jail apparel. He argues that any indicia of guilt subverts the presumption of innocence. He further argues that impingement on his presumption of innocence is error of constitutional magnitude that requires review for harm under Rule 44.2(a) of the Texas Rules of Appellate Procedure.
As a prerequisite for appellate review, a defendant must make a timely request, objection, or motion stating the grounds with sufficient specificity to apprise the trial court of the complaint and obtain an adverse ruling. See Tex. R. App. P. 33.1(a). See also Martinez v. State, 91 S.W.3d 331, 337 (Tex.Cr.App. 2002) (discussing application of the "raise-it-or-waive-it" forfeiture rule). Additionally, the objection at trial must comport with the complaint on appeal. Trevino v. State, 991 S.W.2d 849 S.W.2d 854-55 (Tex.Cr.App. 1999); Goff v. State, 931 S.W.2d 537, 551 (Tex.Cr.App. 1996), cert. denied, 520 U.S. 1171, 117 S. Ct. 1438, 137 L. Ed. 2d 545 (1997).
The defendants in the cases relied on by appellant preserved their complaints for review. In Randle, counsel objected to his client being placed before the jury in jail clothes, and in Scott, a motion for continuance was presented requesting additional time to secure appropriate clothing. Both courts found the presumption of innocence had been subverted by requiring the defendants to proceed to trial in jail-issued garb.
In the instant case, the record reflects that after dispensing with pretrial motions and shortly before beginning voir dire, defense counsel announced to the trial court:
[t]he sheriff just served my client with a copy of the indictment, and there is a statutory period of presentation required, prior service of an indictment before you go to trial. And what I'm showing you, Judge, what I have just been served is a precept to serve copy of indictment . . . .
A brief discussion ensued on whether service of the indictment had been waived because it had not been raised during pretrial hearings. Counsel objected to any prior hearings on the ground he was not representing appellant at that time. No objection, however, was raised on impingement of appellant's presumption of innocence. We conclude appellant's complaint was not preserved for appellate review. (1) Point of error one is overruled.
By his second point of error, appellant contends the use of hearsay statements of the child victims by outcry witness Jacqueline Huntington was improper under article 38.072 of the Texas Code of Criminal Procedure Annotated (Vernon 2005). Section 1 of article 38.072 provides for application of the article to a proceeding in the prosecution of an offense under certain provisions of the Penal Code if committed against a child 12 years of age or younger. Specifically, appellant asserts the victims were above age 12 at the time of the charged offenses making article 38.072 inapplicable. We agree the statute was not implicated, but for the following reasons, overrule appellant's contention.
A.C. testified that when she was 11 or 12 years old, appellant began molesting her by rubbing her private parts and digital penetration. At age 13, the abuse escalated to biweekly sexual intercourse until she was 16. Appellant was indicted in cause number 1016 for intentionally and knowingly causing penetration by his sexual organ of A.C.'s sexual organ. He was not, however, indicted for acts of indecency with her or penetration by his finger when she was 12 years of age or younger.
B.C.'s testimony reflects that when she was ten or 11 years old, appellant began touching her inappropriately and would frequently ask if he could see whether her breasts were developing and whether he could feel her vaginal area for pubic hair growth. She began to fear appellant and refused his advances. When she was 14 and refused to cooperate, appellant threw her down on her bed with enough force to break it, secured her hands over her head with one of his hands, and with his free hand pulled her shorts and underwear down and inserted his finger into her vagina. He was indicted in cause number 1017 for intentionally or knowingly causing penetration of B.C.'s sexual organ by means of his finger, but was not indicted for indecency with her for incidents that occurred when she was 12 years old or younger.
Both victims confided the acts of sexual abuse to Jacqueline Huntington and she was designated as an outcry witness under article 38.072. An outcry witness is the first adult to whom the child victim makes a statement about the offense. See Tex. Code Crim. Proc. Ann. art. 38.072, § 2(a)(2). An outcry statement is an exception to the hearsay rule of exclusion. Dorado v. State, 843 S.W.2d 37, 38 (Tex.Cr.App. 1992) (en banc).
Article 38.072 applies to prosecutions of certain offenses committed against a child 12 years old or younger. The victim's age when the offense is committed triggers whether the statute will apply, not the victim's age at the time the outcry statement is made. See Harvey v. State, 123 S.W.3d 623, 627-29 (Tex.App.-Texarkana 2003, pet. ref'd). The evidence is uncontradicted that the charged offenses in the underlying cases occurred when both victims were older than 12. Thus, we conclude article 38.072 does not apply and Jacqueline's testimony was not admissible as outcry evidence. (2)
The State contends appellant waived his complaint. When Jacqueline was testifying defense counsel lodged the following objection, "Your, Honor, I'm going to object at this point unless this witness has been identified as the outcry witness. This is a hearsay statement." Appellant's complaint on appeal is improper application of article 38.072 due to the victims' ages. We agree the complaints are not similar, but a general hearsay objection is sufficient to preserve a complaint that proffered outcry statements are inadmissible hearsay. See Lankston v. State, 827 S.W.2d 907, 910-11 (Tex.Cr.App. 1992); Mosley v. State, 960 S.W.2d 200, 203 (Tex.App.-Corpus Christi 1997, no pet.).
The State suggests by footnote that the victims' hearsay statements may have been admissible under Rule 803(24) of the Texas Rules of Evidence as statements against [social] interest. We acknowledge that a trial court's ruling on admissibility of evidence will be sustained if it is correct on any theory of law even if the wrong reason is given; Harvey, 123 S.W.3d at 630; however; a less burdensome analysis is to resolve appellant's complaint by conducting a harm analysis on improper admission of the statements.
Improper admission of hearsay evidence is non-constitutional error reviewed for harm under Rule 44.2(b) of the Texas Rules of Appellate Procedure. Johnson v. State, 967 S.W.2d 410, 417 (Tex.Cr.App. 1998). See also Dunn v. State, 125 S.W.3d 610, 614-15 (Tex.App.-Texarkana 2003, no pet.). We disregard the error as harmless if it does not affect appellant's substantial rights. See Tex. R. Evid. 103(a). Error in admission of improper outcry statements is harmless when other properly admitted evidence establishes the same facts. Brooks v. State, 990 S.W.2d 278, 287 (Tex.Cr.App. 1999), cert. denied, 528 U.S. 956, 120 S. Ct. 384, 145 L. Ed. 2d 300 (1999); Thomas v. State, 1 S.W.3d 138, 142 (Tex.App.-Texarkana 1999, pet. ref'd).
Jacqueline's testimony concerning the victims' statements was vague regarding the specific acts of sexual abuse. It established how the abuse surfaced when A.C. realized appellant might be committing acts against her younger sister, B.C. A.C. recounted the abuse she suffered to B.C., which caused her to become extremely upset. B.C. went to the diner where Jacqueline worked and confided that appellant had touched her private parts inappropriately. Jacqueline telephoned A.C. to come to the diner and discuss the matter. After more details were disclosed, Jacqueline called the victims' mother and the sheriff.
More explicit facts were testified to by A.C. and B.C. than those offered by Jacqueline. A.C. testified that appellant began molesting her by rubbing her arms, stomach, and private parts both over and under her clothes. He also penetrated her with his finger. When she was 13 he began rubbing her and then said he wanted to try something else that would not hurt her. He pulled her pants and underwear down and laid on top of her and had sexual intercourse with her. She testified she was scared and that appellant required her to have sex with him as a condition of being allowed to see her boyfriend.
B.C. testified she began to fear appellant when she was in the fourth grade. He would repeatedly ask to see her breasts and check for pubic hair growth. He heeded her refusals until she was 14 when he threw her down on her bed and forcibly penetrated her with his finger. Given the testimony of A.C. and B.C., Jacqueline's testimony is rendered harmless. Point of error two is overruled.
Accordingly, the judgments of the trial court are affirmed.
Don H. Reavis
Justice
Do not publish.
1. Service of an indictment is not evidence of guilt. 2. Our conclusion pretermits a discussion of appellant's complaint that he was denied
a reliability hearing under section 2(b)(2) of the statute. Moreover, appellant did not object
to the trial court's failure to conduct a reliability hearing, which is a prerequisite for appellate
review. Diaz v. State, 125 S.W.3d 739, 743 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd).
5"/>
NO. 07-10-00132-CR; 07-10-00133-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
OCTOBER 25, 2010
CEDRICK WOODS, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 272ND DISTRICT COURT OF BRAZOS COUNTY;
NO. 09-00301-CRF-272, 09-00302-CRF-272;
HONORABLE TRAVIS B. BRYAN III, JUDGE
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
Appellant, Cedrick Woods, entered an open plea of guilty[1] to two counts of burglary of a habitation[2] and one count of evading arrest.[3] The punishment range for the burglary of a habitation offenses was enhanced by the allegation of conviction of a prior felony offense.[4] Appellant entered a plea of true to the enhancement allegation contained in the burglary indictment. The issue of punishment was decided by the trial court and, after hearing the testimony, the trial court assessed punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice (ID-TDCJ) for a period of 30 years for one count of burglary and 10 years for evading arrest.[5] Appellant appeals through three issues contending, in issues one and two, that the trial courts failure to properly admonish appellant should require this Court to reverse the convictions, and, in issue three, that the evidence was legally insufficient to support the trial courts order for restitution. We will reverse the trial courts judgments and remand the cases for a new trial.
Factual and Procedural Background
On January 22, 2009, appellant was indicted in trial court cause number 09-00301-CRF on two counts of burglary of a habitation. The indictment contained an enhancement paragraph alleging appellant had previously been convicted of a felony offense. On that same day, appellant was also indicted in trial court cause number 09-00302-CRF for the offense of evading arrest using a motor vehicle. The indictment further alleged that appellant had previously been convicted of the offense of evading arrest.
On September 18, 2009, appellant executed a written waiver of the right to trial by jury. On January 27, 2010, appellant appeared before the trial judge and entered pleas of guilty to both counts of burglary of a habitation and to one count of evading arrest using a motor vehicle, and entered pleas of true to the enhancement paragraph in each indictment.[6] After hearing all of the evidence, including the testimony of appellant, the trial court assessed punishment at confinement in ID-TDCJ for 30 years on one of the counts of burglary and 10 years for evading arrest.
Appellant appeals contending that the failure of the trial court to admonish regarding the consequences of his pleas of guilty should result in reversal of the judgments for two reasons. First, appellant contends that the failure to admonish pursuant to article 26.13 of the Code of Criminal Procedure has resulted in harm and, therefore, requires reversal. See Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon Supp. 2010).[7] Second, appellant contends that the trial courts failure to admonish him regarding the consequences of his pleas of guilty violated his due process rights under the United States Constitution and, accordingly, require reversal of the judgments of guilt entered against him. By a third issue, appellant contends that there was insufficient evidence to assess restitution against him. We will reverse the judgment of conviction and remand the causes to the trial court for a new trial.
Failure to Admonish
Each of appellants first two contentions deal with the failure of the trial court to properly admonish him regarding his various constitutional and statutory rights prior to the trial court receiving his pleas of guilty.
Article 26.13 admonishments
Appellant contends that, because the trial court did not admonish him pursuant to article 26.13 prior to the entry of his pleas of guilty, the trial court erred. Further, appellant contends that such error harmed him. Accordingly, appellant contends that as a result of the harm, this Court should reverse and remand the causes back to the trial court for another trial.
Standard of Review
Admonishments pursuant to article 26.13 are designed to provide assurance that when a defendant waives certain of his constitutional rights, he does so voluntarily and with knowledge of the consequences of the act. See VanNortrick v. State, 227 S.W.3d 706, 708 (Tex.Crim.App. 2007). However, the admonitions contained in article 26.13 are not constitutionally required. See id. Therefore, any error found in the trial courts failure to properly give the admonitions required by the statute is reviewed as a non-constitutional error. See id. When we review the record for compliance with the statutory requirement, we look for substantial compliance. Id. However, when the trial court wholly fails to admonish the appellant, there is not substantial compliance, and to assert such is nothing more than a legal fiction. See Cain v. State, 947 S.W.2d 262, 264 (Tex.Crim.App. 1997). Here, the trial court in no way complied with the requirements of article 26.13. See art. 26.13(a). We, therefore, review the record before us for harm pursuant to Texas Rule of Appellate Procedure 44.2(b). See Tex. R. App. P. 44.2(b).[8] Rule 44.2(b) directs us to disregard any error reflected in the appellate record, other than constitutional error, that does not affect the substantial rights of the appellant. See id.; Bessey v. State, 239 S.W.3d 809, 813 (Tex.Crim.App. 2007). In applying rule 44.2(b) in a failure to admonish case, the question becomes, after considering the record as a whole, do we have fair assurance that the appellants decision to plead guilty would not have changed had the trial court admonished him. See Anderson v. State, 182 S.W.3d 914, 919 (Tex.Crim.App. 2006).
Analysis
The record reflects, and both parties agree, that the only article 26.13(a) admonition that is at issue is the range of punishment. Appellant was indicted for two counts of burglary of a habitation in trial court cause number 09-00301-CRF. See Tex. Penal Code Ann. 30.02(a)(1).[9] As indicted, the primary charge is a second-degree felony. § 30.02(c)(2). A second-degree felony is punishable by confinement for a period of not more than 20 years and not less than two years in the ID-TDCJ. See § 12.33 (Vernon Supp. 2010). However, the indictment for the burglary charges also carried an enhancement paragraph that alleged appellant had previously been convicted of the felony offense of burglary of a habitation. This results in appellants punishment range being elevated to a first-degree offense. See § 12.42(b). A first-degree felony has a possible punishment range of confinement in the ID-TDCJ for life or for any term of not more than 99 years or less than five years. See § 12.32.
The record also reflects that in trial court cause number 09-00302-CRF, appellant was indicted for the offense of evading arrest using a motor vehicle. See § 38.04(b)(1). Evading arrest using a motor vehicle is a state-jail felony and is punishable by confinement in a state-jail facility for any period of not more than two years or less than 180 days. § 12.35(a). The indictment contained what is labeled Enhancement paragraph that alleges appellant had previously been convicted of evading arrest. If such allegation is proven, the punishment range for appellant is elevated to third-degree felony status. See § 38.04(b)(2)(A).[10] As a third-degree felony, the punishment range applicable to appellant is confinement in the ID-TDCJ for any term of not more than 10 years or less than two years. See § 12.34.
In trial court cause number 09-00301-CRF appellant was sentenced to 30 years confinement in the ID-TDCJ. This was within the punishment range for a first-degree felony. In trial court cause number 09-00302-CRF appellant was sentenced to 10 years confinement in the ID-TDCJ. This sentence was within the range of punishment for a third-degree felony.
As we review the entire record, it is very apparent that the State had a significant amount of evidence of appellants guilt for the offenses charged. This is a factor we may consider in determining whether any of appellants substantial rights may have been affected by the failure to admonish. See Bessey, 239 S.W.3d at 813. Additionally, however, we must bear in mind that neither party has the burden to demonstrate harm when we are conducting a rule 44.2(b) analysis in a failure to admonish situation. See Burnett v. State, 88 S.W.3d 633, 638 (Tex.Crim.App. 2002). In Burnett, the Texas Court of Criminal Appeals pointed out that to warrant a reversal in a failure to admonish case, the record must support an inference that appellant did not know the consequences of his plea. See id. The court then went on to say that a silent record would support such an inference. Id. That is exactly what we find in the record before us: silence as to the applicable range of punishment. Therefore, as a reviewing court, we cannot be assured that appellants decision to plead guilty would not have changed had the trial court admonished him properly. See VanNortrick, 227 S.W.3d at 709 (citing Anderson, 182 S.W.3d at 919). Accordingly, we sustain appellants issue regarding the failure to admonish pursuant to article 26.13 and find that such failure did affect the substantial rights of appellant.
Due Process Violation
Having determined that the failure to admonish appellant regarding the range of punishment did affect appellants substantial rights, we need not consider appellants remaining issue regarding the contention that such failure to admonish was also a violation of his due process rights. See Ward v. State, 188 S.W.3d 874, 875 n.1 (Tex.AppAmarillo 2006, pet. refd); see also Jimenez v. State, 32 S.W.3d 233, 239 n. 23 (Tex.Crim.App. 2000) (recognizing that constitutional issues should not be addressed if the case can be resolved on nonconstitutional grounds).
Sufficiency of the Evidence Regarding Restitution
Appellants last issue deals with the sufficiency of the evidence to order restitution. Because we have held that the judgments should be reversed, we do not reach the issue of evidentiary support for the restitution ordered by the trial courts judgments. See Rule 47.1.
Conclusion
Having sustained appellants issue regarding failure to admonish on the range of punishment, we reverse the judgments of the trial court and remand both cases for new trial.
Mackey K. Hancock
Justice
Do not publish.
[1] An open plea is one entered without any agreement with the State as to punishment.
[2] See Tex. Penal Code Ann. § 30.02(a)(1) (Vernon 2003).
[3] See id. § 38.04(a), (b)(2)(A) (Vernon Supp. 2010).
[4] See id. § 12.42(b) (Vernon Supp. 2010).
[5] The other count of burglary of a habitation is not referred to in the judgment or otherwise referred to after the plea of guilty was received.
[6] The enhancement paragraph contained in the evading arrest indictment is actually an element of the offense and not a true enhancement of punishment.
[7] Further reference to the Code of Criminal Procedure will be by reference to art. or article.
[8] Further reference to the Texas Rules of Appellate Procedure will be by reference to rule ___ or Rule ____.
[9] Further reference to the Texas Penal Code shall be by reference to § ____ or section ____.
[10] Although the State characterized the prior evading offense as an enhancement, it is actually an element of § 38.04(b)(2)(A). See Calton v. State, 176 S.W.3d 231, 234 (Tex.Crim.App. 2005).