IN THE
TENTH COURT OF APPEALS
No. 10-97-229-CR
JOHN ROBERT DENK,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court # 97-17-C
MEMORANDUM OPINION
Appellant John Robert Denk pled guilty to the felony offense of driving while intoxicated without the benefit of a plea recommendation from the State. See Tex. Penal Code Ann. § 49.09(b) (Vernon 1994). Denk also pled true to a prior burglary conviction alleged to enhance his punishment to the level of a second degree felony. The court assessed Denk's punishment at fifteen years’ confinement. Denk has filed a motion to dismiss his appeal. In relevant portion, Rule 42.2 of the Texas Rules of Appellate Procedure states:
(a) At any time before the appellate court’s decision, the appellate court may dismiss the appeal if the appellant withdraws his or her notice of appeal. The appellant and his or her attorney must sign the written withdrawal and file it in duplicate with the appellate clerk, who must immediately send the duplicate copy to the trial court clerk.
Tex. R. App. P. 42.2(a).
We have not issued a decision in this appeal. The motion is signed by both Denk and his attorney. Thus, the motion meets the requirements of the rules and is granted.
Denk's appeal is dismissed.
PER CURIAM
Before Chief Justice Davis,
Justice Cummings, and
Justice Vance
Dismissed on appellant's motion
Opinion delivered and filed October 1, 1997
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the jury. Judge Wayne Bridewell, judge of the 249th District Court in Johnson County, met with the parties outside the presence of the jury. He informed the parties that Judge Cooke had become ill and had been taken to the hospital. Judge Bridewell then informed the jury of Judge Cooke's illness and recessed the jury for the day.
The following morning, Judge Bridewell met with the parties in chambers. He informed them that Judge Cooke had suffered chest pains and numbness in his left arm, that he had been taken to the hospital by ambulance, that he was in serious but stable condition, and that his doctor anticipated his being away from work at least a week. Judge Bridewell informed the parties that, due to Judge Cooke's unavailability, he intended to proceed with trial. He also informed the parties that, at his direction, the court reporter had transcribed the previous day's testimony. Judge Bridewell inserted into the record a copy of the local rules of Johnson County, which had been approved by the Texas Supreme Court, and a copy of an "Administrative Assignment" authorizing the judge of the 249th District Court (among others) to "hold hearings and dispose of cases when any Judge is unavailable for any reason as long as that Judge has jurisdiction by the Constitution or statute to hear same."
Braziel moved for a mistrial based on manifest necessity, due course of law under the Texas Constitution, and the due process provisions of the United States Constitution. He argued that, although Judge Bridewell had a transcript of the testimony, he was not "in a position to evaluate the credibility of the witnesses." Furthermore, Braziel believed he would be prejudiced by "the change of judges, and demeanors, and styles." Judge Bridewell denied the motion for mistrial.
In his first point, Braziel asserts that he was denied due process and effective assistance of counsel when Judge Bridewell denied his motion for mistrial. District judges may "hold courts for each other when they may deem it expedient . . . ." Tex. Const. art. V, § 11. "[T]he common-law rule requiring that the same judge preside throughout the trial of a felony case has been expressly abrogated by the Constitution and statutes of this State." Randel v. State, 153 Tex. Crim. 282, 219 S.W.2d 689, 698 (1949) (opinion denying rehearing) (defendant not denied right to jury trial by agreed substitution of judges). Likewise, the Court of Criminal Appeals did not find error when one judge presided in voir dire in a murder case and another presided during the hearing of the evidence and the receipt of the jury's verdict. Bellah v. State, 415 S.W.2d 418, 420 (Tex. Crim. App. 1967).
The First Court of Appeals has addressed a due-process, due-course-of-law challenge under similar facts. Ramirez v. State, 822 S.W.2d 240, 246 (Tex. App.—Houston [1st Dist.] 1991, pet. ref'd). Ramirez was charged with the felony offense of delivery of cocaine. After two days of testimony, the trial judge turned the bench over to another judge because of a family commitment. Id. Ramirez objected to the change because, among other things, a motion to suppress was being "carried" with the trial, a motion to determine entrapment as a matter of law was pending, and there was a question of whether the court would instruct a verdict of not guilty. Id. The second judge stated that, if called upon to rule on such matters, he would have the court reporter "read to the Court any pertinent portions of the testimony." Later, when Ramirez presented his entrapment claim and motion for instructed verdict, the second judge withheld his ruling until he reviewed the transcription of the court reporter's notes. Id. The First Court overruled Ramirez' complaint. Id.
Braziel asserts that Judge Bridewell was "not informed of the prior proceedings and was joining the trial in mid-witness without any previous involvement in the case." The docket sheet reflects that on February 9, Judge Bridewell heard and approved Braziel's motion to appoint a doctor to determine his competency and that Judge Bridewell heard "various motions" that day. The docket sheet also indicates that the stepmother took the stand just before 10 a.m., that the jury recessed for lunch from 11:30 a.m. until 1 p.m., and that Judge Cooke became ill at 2:15 p.m. Although Judge Bridewell did not personally observe the testimony of the outcry witness, he was present during part of the cross-examination and all of the redirect examination of the victim. Furthermore, the jury—the trier of facts on guilt and punishment—was present during the entire trial.
Braziel's only other complaint about Judge Bridewell's rulings regards the denial of his motion for a directed verdict. As discussed below, the court's ruling was not erroneous. Braziel has not shown that he was harmed by the substitution of judges in any meaningful way. See id.
As to Braziel's effective-assistance-of-counsel complaint, he cites no deficiencies of counsel which deprived him of a fair trial. See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Stafford v. State, 813 S.W.2d 503, 505-06 (Tex. Crim. App. 1991).
We overrule point one.
Braziel's second point complains that the court erred in overruling his motion for a directed verdict. After the State rested and Braziel had presented defense testimony from several witnesses, he moved for an instructed verdict of not guilty. Judge Bridewell denied the motion. In his third point, Braziel asserts that the evidence is "insufficient to support a finding of guilt on the indictment as written where there was no testimony that on ten separate occasions the appellant sexually assaulted the complainant."
A challenge to the court's ruling on a motion for an instructed verdict is, in actuality, a challenge to the sufficiency of the evidence to support the conviction. Madden v. State, 799 S.W.2d 683, 686 (Tex. Crim. App. 1990). In reviewing the sufficiency of the evidence, we consider all the evidence, both State and defense, in the light most favorable to the verdict. Id. If the evidence is sufficient to sustain the conviction, the court did not err in overruling Braziel's motion. Id. Stated another way: If any rational trier of fact could find the elements of the offense beyond a reasonable doubt, an instructed verdict is not proper. Id. Because we must conduct the same sufficiency review for points two and three, we will simultaneously address the points.
The indictment alleged ten counts of aggravated sexual assault of a child. Five counts alleged that on five dates Braziel "intentionally and knowingly cause[d] the male sexual organ of [the victim], a child younger than 14 years of age who was not the spouse of said defendant[,] to contact the mouth of said defendant." The offenses were alleged to have occurred on September 15, 1992, January 15 and July 15, 1993, and January 15 and May 1, 1994. Five counts alleged that, on the same five dates, Braziel "intentionally and knowingly cause[d] the penetration of the mouth of [the victim], a child younger than 14 years of age who was not the spouse of said defendant[,] with the male sexual organ of said defendant."
We will summarize the evidence in the light most favorable to the verdict. M.B. is the son of Vance Braziel and Kim Braziel. Vance and Kim had three children during their marriage—M.B., his older brother V.B., and his younger sister R.B. Vance and Kim divorced as a result of her relationship with David Braziel, Vance's brother. Kim and David eventually married. Vance entered into a common-law marriage with Mary Evans. M.B. is the nephew and stepson of the defendant.
Mary, the victim's stepmother, testified that M.B. and his siblings lived with Kim and David in Grandview until about June 1, 1994. Mary testified that M.B. attended the second and third grades in Grandview. At the end of the 1994 school year, Kim asked Vance and Mary to take the children for the summer of 1994. The children remained with Vance and Mary after the summer and enrolled in the Mansfield school district in the fall of 1994.
Mary testified that on October 30, 1994, she and the two boys began talking about physical abuse. They then began discussing sexual abuse and Mary told them, "if anybody ever touched them where they didn't feel comfortable, tell me." According to Mary, M.B. became quiet and asked to talk to her in private. Mary and M.B. went to his room and he related his story to her:
[MARY]: . . . . And he told me his stepfather, David Braziel, well, he used the word "dick," had sucked his dick. And David had made him suck David's dick. And he told me that David peed in his mouth. And I said, what do you mean? He said, well, white stuff came out and it made him sick, made him throw up. And he told me that this happened several times, usually at nighttime. And he told me that David would get him to get a hot dog to practice on. He said to get the hang of it, to get used to it, that it was part of life. That's what [M.B.] told me.
[STATE]: Did he tell you that this happened more than once?
[MARY]: Yes.
[STATE]: And did he tell you over what period of time this happened?
[MARY]: Well, he said it had happened for a couple of years.
Mary testified that, although M.B. had not told her a specific number of times these assaults had occurred, he told her that "it had happened a lot."
M.B. was an eleven-year-old fourth grader at the time of trial. He testified that, while he was in the second and third grades, he had lived in Grandview with his mother, Kim, stepfather, David, and his brother and sister. M.B. said that on one occasion, while his brother was away spending the night with their step-grandmother, he was "sexually abused by [his] stepdad"—David Braziel. M.B. testified that Braziel came into his bedroom during the night dressed in underwear and, when M.B. woke up, "David Braziel was sucking on me. He made me suck on him." M.B. further testified that Braziel was "sucking" on M.B.'s penis and that Braziel made M.B. "suck on [his penis]." He said that Braziel "put sperm in my mouth." M.B. testified that he "got sick and threw up."
The State then questioned M.B. about other details of the assaults and about the number of times such incidents had occurred:
[STATE]: Did it happen more than one time?
[M.B.]: Yes.
[STATE: Let me ask you, [M.B.], I want you to think about this. Did he put his penis, his penis, David Braziel's penis, in your mouth as many as five times during the time that you were living in Grandview in the second and third grades?
[M.B.]: Yes.
[STATE]: Did he put your penis in his mouth, the mouth of David Braziel, as many as five times during the time you were living in Grandview, that is during the second and third grade?
[M.B.]: Yes.
[STATE]: Now, did he also ask you to do something with a hot dog?
[M.B.]: Yes.
[STATE]: What is that?
[M.B.]: He told me to suck on it. . . . Because every time he put his penis in my mouth I gagged.
[STATE]: And so why did he want you to do something with a hot dog?
[M.B.]: So I would get the hang of it, sucking on his, so I would get the hang of it.
M.B. testified that the last incident happened at the end of third grade, just before he moved out of Harold's Mobile Home Park in May 1994. The State questioned him further on the number of incidents:
[STATE]: It happened at least five times to where he put his penis in your mouth; it that right?
[M.B.]: Yes.
[STATE]: And it happened at least five times to where he put your penis in his mouth; is that right?
[M.B.]: Yes.
An indictment must allege "some date anterior to the presentment of the indictment, and not so remote that the prosecution of the offense is barred by limitation." Tex. Code Crim. Proc. Ann. art. 21.02(6) (Vernon 1989). Proof of the date is sufficient if the State proves the offense occurred on a date anterior to the presentment of the indictment but within the statutory limitations period. Ex parte Alexander, 685 S.W.2d 57, 59 n.1 (Tex. Crim. App. 1985). The dates alleged are within the applicable ten-year statute of limitations. Tex. Code Crim. Proc. Ann. arts. 12.01(2)(D), 12.03(d) (Vernon Supp. 1996).
The State established that M.B. was in the second and third grades in Grandview during the dates alleged in the indictment. M.B. testified that during this time, Braziel put his penis in M.B.'s mouth at least five times and that Braziel put M.B.'s penis in Braziel's mouth at least five times. Braziel asserts that the evidence is unclear whether M.B. was referring to ten separate occurrences on ten different occasions or whether the contact was more than once during the same instance. We disagree.
We believe that, viewed in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the assaults alleged beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991) (following standard of Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979)). We overrule points two and three.
We affirm the judgment.
BILL VANCE
Justice
Before Chief Justice Thomas,
Justice Cummings, and
Justice Vance
Affirmed
Opinion delivered and filed January 31, 1996
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